Liebsack v. United States

In a medical malpractice claim brought under the Federal Tort Claims Act, a state rule regarding an expert witness’ competency will apply if the state rule is intertwined with substantive state law.

In 2002, Madlyn Liesback was taken from the Lakeview assisted living facility (“Lakeview”) to the Anchorage Community Mental Health Center (“ACMHC”). The staff at Lakeview became concerned after observing Liesback’s jerky body movements. A nurse saw Liesback at the ACMHC and ordered several blood tests, including a test to determine Liesback’s lithium medication levels. Liesback later met with a doctor at the Anchorage Neighborhood Healthcare Center, a federally-funded healthcare facility, which did not run the lithium test. Less than one month later Liesback had a heart attack which her left in a permanent vegetative state that was caused by elevated lithium levels. Liesback’s brother, Edward Liesback, brought a negligence suit against the assisted living facility, the ACMHC, and the United States. The United States removed the claim to federal court. The district court determined that the government healthcare center was at fault for 15% of Liesback’s injuries. On appeal Liesback argued that the court’s finding was erroneous because the government failed to present a qualified expert witness on professional negligence under Alaskan law. The Ninth Circuit reasoned that while federal law governs the procedural aspects of a case brought under the Federal Tort Claims Act, the Alaskan statute on point is “intertwined with the state’s professional negligence law because it limits what kind of a professional can testify to the standard of care.” The panel held that Alaskan statute was a rule of witness competency and applied to this civil action under the Fed. R. Evid. 601 and as a matter of substantive state law. The panel also held that the erroneously admitted testimony could not have been harmless and required a new trial. REVERSED and REMANDED.