Ronald Turner v. Tracie Rivera

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 2, 2021
• Docket: 19-16497
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RONALD TURNER, Nos. 19-16497, 19-16571

Plaintiff-Appellee/Cross- D.C. No. 3:17-cv-02265-WHO Appellant,

v. MEMORANDUM*

TRACIE B. RIVERA,

Defendant-Appellant/Cross- Appellee,

and

UNITED STATES OF AMERICA; et al.,

Defendants.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Argued and Submitted January 11, 2021 San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and WHALEY,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. Following a civil jury trial, psychiatrist Dr. Tracie Rivera was found liable to

patient Ronald Turner for professional negligence in the wrongful disclosure of

Turner’s supposed threat to kill his supervisor. Rivera appeals, and Turner cross-

appeals. Finding no error, we affirm the judgment of the district court.

The parties are familiar with the facts, so we do not recite them here.

1. We review de novo a ruling on the appropriate statute of limitations.

Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir. 2011). Here, Turner

alleged that he diligently pursued his claims against Rivera and that he acted

reasonably and in good faith. See Addison v. State, 21 Cal. 3d 313, 319 (1978)

(setting forth elements of California’s equitable tolling doctrine). Rivera does not

contend that she was prejudiced by Turner’s delay in filing the action. Under these

circumstances, the district court properly concluded that Turner’s allegations were

sufficient to survive a motion to dismiss. See Cervantes v. City of San Diego, 5

F.3d 1273, 1276–77 (9th Cir. 1993) (a dismissal under the statute of limitations is

generally disfavored where the complaint adequately alleges facts showing that

equitable tolling may apply); see also Daviton v. Columbia/HCA Healthcare

Corp., 241 F.3d 1131, 1140 (9th Cir. 2001).

2. Whether a psychotherapist actually believed or predicted a patient posed a

serious risk of inflicting grave bodily harm on a reasonably identifiable victim is a

question of fact for the finder of fact. Ewing v. Northridge Hosp. Med. Ctr., 16 Cal.

2 Rptr. 3d 591, 600 (Ct. App. 2004) (citing Cal. Civ. Code §§ 43.92(a), (b)). The

jury’s finding that Rivera did not actually believe Turner posed a serious threat is

supported by substantial evidence in the record. See Harper v. City of Los Angeles,

533 F.3d 1010, 1021 (9th Cir. 2008) (“A jury’s verdict must be upheld if it is

supported by substantial evidence . . . .”) (citation and internal quotation marks

omitted)). Rivera was not entitled to immunity under California Civil Code Section

43.92(b) which provides immunity for psychotherapists who properly discharge

their duty to warn because they believe the patient poses “a serious risk of

inflicting grave bodily injury upon a reasonably identifiable victim.” Ewing, 16

Cal. Rptr. 3d at 600 (citing Cal. Civ. Code §§ 43.92(a), (b)). Because the jury

found that Rivera held no such belief, she is not immune from her medical

negligence arising from the disclosure.

3. The district court did not abuse its discretion when it denied Turner’s

pretrial request to amend the complaint and add claims under the Confidentiality

Medical Information Act, for public disclosure of private facts, and for false light

invasion of privacy (hereinafter “privacy claims”). See AE ex rel. Hernandez v.

Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (a denial of leave to amend is

reviewed for abuse of discretion). Turner cites to no authority that obligated the

district court to allow amendment at the eleventh hour on the eve of trial.

4. Because the lawsuit was premised on a theory of professional negligence,

3 the district court properly applied the California Medical Injury Compensation

Reform Act (“MICRA”) limit on noneconomic damages. Cal. Civ. Code § 3333.2.

Turner urges this court to reinstate the jury’s award in excess of $1 million without

remanding for a new trial on his purported privacy claims. We reject Turner’s

invitation to decide claims on which the jury was not instructed. The district court

did not err by limiting the amount of damages under MICRA.

5. Although proof of the standard of care is not required to demonstrate a

duty to warn under California Civil Code Section 43.92(a) or to prove the

affirmative defense under Section 43.92(b), see Ewing, 16 Cal. Rptr. 3d at 601–02,

the district court did not abuse its discretion by permitting Turner’s expert

testimony on the standard of care. See Kumho Tire Co., Ltd. v. Carmichael, 526

U.S. 137, 152 (1999) (trial court’s decision to admit or exclude expert testimony is

reviewed for abuse of discretion). Rivera invited this error by first urging the

district court to require Turner to prove she violated the applicable standard of care

before addressing her affirmative defense under California Civil Code Section

43.92. See Cnty. of Los Angeles v. S. Cal. Edison Co., 5 Cal. Rptr. 3d 575, 583 (Ct.

App. 2003).

6. The district court’s adverse inference instruction was not an abuse of

discretion. See Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806,

824 (9th Cir. 2002). When Rivera testified at trial, she referred to handwritten

4 notes that she never searched for or produced during discovery. The district court

noted that the handwritten notes were the “centerpiece” of Rivera’s testimony. The

jury instruction permitted, but did not require, the jury to consider the undisclosed

handwritten notes in a favorable manner to Turner if it found that she intentionally

concealed them. The jury is presumed to have followed the court’s instructions, see

Deck v. Jenkins, 814 F.3d 954, 979 (9th Cir. 2016), and Rivera has not shown that

the jury gave undue weight to this particular instruction.

AFFIRMED.