                             NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        AUG 17 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 JAMES LIEBSACK, as guardian for                   No.   15-35300
 Madlyn Liebsack and JON LIEBSACK, co-
 personal representatives of the Estate of         D.C. No. 3:07-cv-00071-RRB
 Madlyn Liebsack,

                   Plaintiffs-Appellants,          MEMORANDUM*

   v.

 UNITED STATES OF AMERICA,

                   Defendant-Appellee.

                     Appeal from the United States District Court
                              for the District of Alaska
                     Ralph R. Beistline, District Judge, Presiding

                        Argued and Submitted August 3, 2016
                                Anchorage, Alaska

Before: FISHER, PAEZ, and HURWITZ, Circuit Judges.


        In a prior appeal, this court reversed the district court’s judgment allocating

liability in this medical negligence action between three defendants—the United

States and two Alaska healthcare providers. Liebsack v. United States, 731 F.3d 850


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(9th Cir. 2013). In a concurrently filed memorandum disposition, this court affirmed

the district court’s damages award in part and vacated it in part. Liebsack v. United

States, 540 F. App’x 640 (9th Cir. 2013) (“Mem. Disp.”). On remand, the district

court held a new trial, recalculated damages, and reallocated fault between the three

defendants. The plaintiff, the Estate of Madlyn Liebsack, now appeals the judgment

on remand. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

       1. The district court did not exceed the scope of the mandate by conducting a

new trial on remand. “According to the rule of mandate, although lower courts are

obliged to execute the terms of a mandate, they are free as to ‘anything not foreclosed

by the mandate.’” United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000)

(quoting Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)). Our

prior opinion and memorandum disposition plainly contemplated a new trial on

remand. See Liebsack, 731 F.3d at 858 (“[W]e must remand for a new trial.”); see

also Mem. Disp., 540 F. App’x at 641 n.1 (“[I]t is within the district court’s

discretion to . . . retry the entire action . . . .”).

       2. The district court did not abuse its discretion by permitting the government

to add expert witnesses on remand. Had the district court refused to allow experts

qualified under Alaska Statutes § 09.20.185, the United States would have been

subjected to liability far in excess of its actual share of fault. A district court does

not violate the discretionary law of the case doctrine by departing from a prior ruling


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if “a manifest injustice would otherwise result.” United States v. Alexander, 106

F.3d 874, 876 (9th Cir. 1997).

      3. The district court did not err by recalculating future damages following the

second trial. This court’s memorandum disposition vacated the original award of

future damages and instructed the court to reevaluate them in light of Ms. Liebsack’s

intervening death. See 540 F. App’x at 642-43.

      AFFIRMED.




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