                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 30 2013

                                                                        MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ROBERT H. WOLCOFF; HEATHER                       No. 12-35891
WOLCOFF,
                                                 D.C. No. 3:08-cv-00032-SLG
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

UNITED STATES OF AMERICA,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Sharon L. Gleason, District Judge, Presiding

                      Argued and Submitted August 15, 2013
                               Anchorage, Alaska

Before:       KOZINSKI, Chief Judge, BERZON and IKUTA, Circuit Judges.

       1. We’ve held that non-delegable duty is a theory of vicarious liability

under Alaska law. M.J. v. United States, No. 11-35625, 2013 WL 3285288, at *1

(9th Cir. July 1, 2013) (relying on Ward v. Lutheran Hosps. & Homes Soc’y of

          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                  page 2
Am., Inc., 963 P.2d 1031, 1034–35 n.5 (Alaska 1998)). Because the United States

hasn’t waived immunity for torts by a contractor or its employees under the

Federal Torts Claim Act, the United States can’t be “vicariously liable for the

negligence . . . of an independent contractor.” Yanez v. United States, 63 F.3d

870, 872 (9th Cir. 1995). Accordingly, the Wolcoffs can’t hold the United States

vicariously liable for the alleged negligence of Dr. Yost. Therefore, it’s irrelevant

whether the rule enunciated in Fletcher v. S. Peninsula Hosp., 71 P.3d 833 (Alaska

2003), extends to operating rooms, and the district court did not abuse its discretion

in declining to certify this question to the Alaska Supreme Court.


      2. The district court didn’t abuse its discretion by denying the Wolcoffs

leave to amend their complaint to add claims against Dr. Yost and the United

States for failure to obtain informed consent. Amendment would have been futile,

because neither Alaska’s informed consent statute, Alaska Stat. § 09.55.556, nor

Alaska case law required disclosure of information concerning Dr. Yost.


      3. The district court didn’t abuse its discretion by denying the Wolcoffs’

motion to bring negligent supervision and negligent assistance claims against the

United States at trial, given that these theories were not presented until the

Wolcoffs’ trial brief. For the same reason, the district court didn’t abuse its
                                                                              page 3
discretion when it excluded the Wolcoffs’ expert evidence supporting these claims.

See Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005);

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.

2001).


      AFFIRMED.
