                                                                               FILED
                           NOT FOR PUBLICATION                                 MAY 24 2010

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



                            FOR THE NINTH CIRCUIT


SANDRA SANDOVAL,                                 No. 08-56067

              Plaintiff - Appellant,             D.C. No. 2:06-cv-03769-WDK-
                                                 VBK
  v.

ST JOHNS REGIONAL MEDICAL                        MEMORANDUM*
CENTER, Erroneously Sued As Catholic
Healthcare West doing business as St
Johns Regional Medical Center; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   William D. Keller, District Judge, Presiding

                        Argued and Submitted May 5, 2010
                              Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, District Judge.**

       Sandra Sandoval appeals the amount of the district court’s award of

economic damages in her medical malpractice suit. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
      On October 13, 2004, Sandra Sandoval, then 18 years old, delivered a baby

girl at St. John’s Regional Medical Center. Although Sandoval attempted to

deliver her baby vaginally, the labor did not progress as expected. As a result, Dr.

Afshan Ghiai delivered Sandoval’s baby by Cesarean section. Although the baby

was delivered successfully by C-section, Sandoval’s condition deteriorated. Dr.

Ghiai performed a second operation and discovered a uterine laceration/tear. This

second surgery, however, did not solve the problem and several days later

Sandoval underwent a third surgery to perform a hysterectomy (removal of

Sandoval’s uterus). The surgeon also removed one of Sandoval’s ovaries.

      Sandoval filed a medical malpractice suit in California state court, which

defendants removed to federal court as provided by 42 U.S.C. § 233. The district

court found Dr. Ghiai liable and awarded $250,000 in non-economic damages for

pain and suffering, the maximum amount allowed under California law, along with

$10,738.07 to satisfy a medical bill, and $736.50 for all other economic damages.

The district court denied Sandoval’s claim for $300,000 in economic damages,

which she sought to cover the cost of future fertility treatments to produce eggs for

three additional biological children and to pay surrogate mothers to carry the

babies.




                                    Page 2 of 4
      We have jurisdiction under 28 U.S.C. § 1291 and we review the district

court’s calculation of damages under state law for clear error. Felder v. United

States, 543 F.2d 657, 664 (1976); Lentini v. Cal. Ctr. for the Arts, Escondido, 370

F.3d 837, 843 (9th Cir. 2004). We conclude the district court did not err in

denying as speculative Sandoval’s claim for economic damages for future fertility

treatment and surrogate-mother expenses.

      “It is well-established under California law that while the fact of damages

must be clearly shown, the amount need not be proved with the same degree of

certainty, so long as the court makes a reasonable approximation.” Robi v. Five

Platters, Inc., 918 F.2d 1439, 1443 (9th Cir. 1990); 23 Cal. Jur. 3d Damages § 63

(“[D]amages may be awarded for future medical care and treatment if such care

and treatment is reasonably certain to be required and provided that the damages

awarded are not speculative.”). The evidence concerning the fact of damages

consisted of Sandoval’s testimony that she would like to have three additional

children and her testimony that she and her boyfriend both came from large

families. To prove the amount of damages, Sandoval introduced reports from

fertility treatment centers about the cost of the fertility treatments and the cost of

securing a surrogate mother to carry Sandoval’s future children. While we are

sympathetic to Sandoval, the evidence in the record is too speculative to establish


                                      Page 3 of 4
with reasonable certainty that Sandoval would incur such expenses. Sandoval did

not testify that she intended to undergo such treatments or arrange for a surrogate

mother. Thus, we affirm the district court’s denial of economic damages for future

fertility treatment and surrogate-mother expenses. Sandoval argues that to deny

her damages would violate her constitutional right to bear children. Tragic as

Sandoval’s plight is, we find no constitutional violation.

      AFFIRMED.




                                    Page 4 of 4
