                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                             JAN 21 2010

                                                                          MOLLY C. DWYER, CLERK
DONNA HOFFMAN,                                  No. 08-16166               U.S. COURT OF APPEALS



              Plaintiff - Appellant,            D.C. No. CV-04-05714-AWI-DLB

  v.
                                                MEMORANDUM *
KENT TONNEMACHER, M.D.; et al.,

              Defendants,

  and

MEMORIAL MEDICAL CENTER,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                      Argued and Submitted December 8, 2009
                             San Francisco, California

Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.

        Plaintiff Donna Hoffman appeals from the summary judgment entered in

favor of Defendant Memorial Medical Center on her suit under the Emergency


         *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd(a). We affirm in

part and reverse in part.1

        1. Plaintiff first asserts that the district court erred in granting summary

judgment against her. We review de novo. Corales v. Bennett, 567 F.3d 554, 562

(9th Cir. 2009). The district court erred because Dr. Goldman’s testimony created

a genuine issue of material fact as to causation. Dr. Goldman testified that it was

more likely than not that a complete blood count would have returned an abnormal

result, which would have led to immediate hospitalization and prompt

administration of antibiotics. She also testified that antibiotics, if given to Plaintiff

at the time of her first visit to the emergency room, more likely than not would

have been able to reverse Plaintiff’s systemic inflammatory response syndrome.

Because we conclude that the causation issue precluded summary judgment, we

need not and do not decide whether "early goal-directed therapy" may constitute

screening for purposes of the Emergency Medical Treatment and Active Labor

Act.

        2. Plaintiff also argues that the district court erred by modifying the pretrial

order first to allow Defendant to add an expert witness and again to allow



        1
            We address one issue in Plaintiff’s appeal in a published opinion filed this
date.

                                              2
Defendant to substitute a different witness. We review for abuse of discretion.

Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 719 (9th Cir. 2004). The

district court considered the four factors pertinent to its decision to allow

Defendant to add an infectious disease expert. See Amarel v. Connell, 102 F.3d

1494, 1515-16 (9th Cir. 1996) (listing factors). The new witness did not prejudice

Plaintiff, because the district court ordered Defendant to bear Plaintiff’s additional

costs. Nor did the new witness disrupt the trial schedule. Defendant’s conduct was

neither in bad faith nor willful; Defendant’s earlier attempt to subpoena a different

witness was not an effort to violate the Federal Rules of Civil Procedure.

Likewise, the district court considered the same factors before allowing Defendant

to substitute another expert. The substitution did not prejudice Plaintiff or disrupt

the trial schedule. Defendant’s conduct in failing to ensure that the first expert

witness would meet the requirements of Federal Rule of Civil Procedure

26(a)(2)(B)(v) did not show willfulness or bad faith. Plaintiff was not entitled to

discovery of material relating to the substitution. The district court did not abuse

its discretion with either modification.

      3. Finally, Plaintiff argues that two evidentiary rulings at trial were

improper. We address these issues because, at a retrial, the district court would be

bound by its prior rulings if identical evidentiary issues arose again. United States


                                           3
v. Henley, 984 F.2d 1040, 1045 (9th Cir. 1993); United States v. Tham, 960 F.2d

1391, 1397 (9th Cir. 1991). We review for abuse of discretion a district court’s

evidentiary rulings. Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175,

1178 (9th Cir. 2008).

      (a) The district court did not abuse its discretion by allowing Barbara

Osburn to testify solely for impeachment purposes, even though Defendant had

failed to disclose information about her to Plaintiff before trial. Gribben v. UPS,

528 F.3d 1166, 1171-72 (9th Cir. 2008).

      (b) The district court abused its discretion by allowing Penny Hastie to

testify regarding the hospital logs after Defendant had invoked privilege to avoid

producing the information in the logs during discovery. Defendant could not use

the evidentiary privilege "both as a sword and a shield." Chevron Corp. v.

Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992).

      AFFIRMED in part; REVERSED in part; REMANDED for further

proceedings. The parties shall bear their own costs on appeal.




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