                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         DEC 27 2016

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




CHRISTINE MYERS, as Guardian Ad               No. 14-56895
Litem for L. MYERS, a minor,
individually,                                 D.C. No. 3:02-cv-01349-BEN-MDD

              Plaintiff - Appellant,          MEMORANDUM*

 v.

UNITED STATES OF AMERICA,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Southern District of California
                 Roger T. Benitez, District Court Judge, Presiding

                        Argued and Submitted June 6, 2016
                              Pasadena, California

Before: KOZINSKI, and RAWLINSON, Circuit Judges, and BENNETT, Senior
District Judge.**

      Plaintiff Christine Myers seeks damages from the United States for injuries

to her child, L. Myers, allegedly caused by exposure to toxic heavy metal thallium.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The Honorable Mark W. Bennett, Senior District Judge for the U.S.
District Court for the Northern District of Iowa, sitting by designation.
The thallium allegedly came from soil dumped by a Navy contractor into a landfill

adjacent to L. Myers’s residence and school during a soil remediation project at

Camp Pendleton in 1999 and 2000. In 2009, three years after phase one of the

bench trial was submitted, the district judge ruled the United States did not breach

any duty in conducting the soil remediation project and the “discretionary

function” exception to tort liability of the United States deprived the court of

subject matter jurisdiction. On Myers’s first appeal, we reversed and remanded for

trial phases two (“actual and proximate causation”) and three (“damages”), but we

declined Myers’s request to reassign the case to a different judge. Myers v. United

States, 652 F.3d 1021, 1037-38 (9th Cir. 2011) (Myers I). After a second bench

trial in early 2013, the district judge entered a lengthy and thorough decision. He

found the breaches of duty we had identified were not the cause of any injuries

and, based on several alternative holdings, directed entry of judgment for the

United States. Myers v. United States, No. 02cv1349-BEN, 2014 WL 6611398

(S.D. Cal. Nov. 20, 2014). This second appeal followed. We affirm.

      1.     Myers contends the district judge erroneously failed to recuse himself

on remand, pursuant to 28 U.S.C. § 455(a), because of his bias and lack of

impartiality. Myers did not file a formal motion for recusal before the district

court. “Failure to move for recusal at the trial level . . . does not preclude raising


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on appeal the issue of recusal under [28 U.S.C.] § 455,” Noli v. Comm’r, 860 F.2d

1521, 1527 (9th Cir. 1988), but it ordinarily means that review is for plain error,

United States v. Holland, 519 F.3d 909, 911 n.1 (9th Cir. 2008). At a hearing on

the record almost five months after our decision in Myers I, the district judge

expressed his unhappiness with the remand, this panel’s decision, and even

members of this panel. Myers’s counsel then stated that he “underst[oo]d the

court’s feeling about [a panel member] and the finding that he made,” but that

counsel “d[id]n’t want [L.] Myers to get caught in that cross fire.” Tr. of Hr’g

12/05/11, 20:10-14. The district judge responded, “I think you asked for me to be

removed and some other judge to be—that is not going to happen.” Id. at 20:15-17

(referring to Myers’s request in Myers I briefing that, if a remand was ordered, it

should be assigned to a new judge). Myers’s counsel clearly stated grounds for the

judge’s recusal; her failure to make a formal motion for the judge’s recusal was

excusable, as doing so would have been futile, in light of the judge’s response; we

construe her counsel’s comments as a motion for recusal; and we review the

judge’s refusal to recuse himself for abuse of discretion. Glick v. Edwards, 803

F.3d 505, 508 (9th Cir. 2015).

      A substantial part of Myers’s opening brief in this appeal is devoted to the

district judge’s statements about members of this panel and this panel’s remand


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decision as indicative of, or as the basis for, his bias and lack of impartiality.

Myers argues such expressions warranted recusal under 28 U.S.C. § 455(a) and

suggests they violated the Code of Conduct for United States Judges. Inexplicably,

the United States did not deign to respond to that argument in its answering brief,

even though it was Myers’s lead argument.

      When questioned at oral argument, counsel for the government attempted to

explain this omission on the ground that he did not believe that the issue of the

district judge’s unhappiness with the panel and its decision was relevant or that it

was a strong argument for recusal. We disagree. We are troubled by the cavalier

attitude expressed by counsel for the government in the brief and at oral argument.

His view of the issue does not justify a complete failure to address it; indeed,

failure to address an issue in an answering brief may waive any argument on the

issue. See, e.g., United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en

banc) (stating, “Generally, an appellee waives any argument it fails to raise in its

answering brief,” but noting exceptions); see also United States v. Johnson, 812

F.3d 757, 762 n.1 (9th Cir. 2016) (identifying additional circumstances as

exceptions to waiver). Here, counsel’s failure to address the issue is all the more

deficient, where the district judge made numerous disparaging comments about




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this panel’s decision and its members that could erode public confidence in the

judiciary.

      “Section 455(a) of Title 28 of the United States Code requires a federal

judge to ‘disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.’” Liteky v. United States, 510 U.S. 540, 541 (1994)

(quoting § 455(a)). “[P]redispositions developed during the course of a trial will

sometimes (albeit rarely) suffice” to cause a judge’s impartiality to be reasonably

questioned, id. at 554, while “judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion,” id. at 555. The question is whether the

judge’s opinions formed on the basis of facts introduced or events occurring in the

course of the proceedings “display[ed] a deep-seated favoritism or antagonism that

would make fair judgment impossible.” Id.

      There is no question the district judge was unhappy about the remand and

with members of this panel at a hearing almost five months after our opinion was

filed. Nor is there a question that he was still unhappy, more than three years later,

at a hearing well over a year after the trial on remand from Myers I ended and only

a few months before he issued his decision on the second phase of the bench trial.

The district judge’s comments about this panel are a cause for serious concern.

Indeed, the more professional approach would have been for the district judge to


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focus solely on the legal issues rather than injecting personal comments that could

be easily interpreted as inappropriately attacking members of the panel.

Nevertheless, given the very high standard in Liteky, we find his comments

insufficient to warrant reversal. Similarly, the district judge’s alleged

predispositions against the plaintiff, her counsel, and her witnesses were developed

during the course of trial. Id. at 554. Also, his rulings and opinions on issues in

the case are reasoned and supported by the record. Id. at 555. Thus, we cannot

conclude that the district judge “display[ed] a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Id. Myers is not entitled

to remand or other relief on the ground that the district judge’s failure to recuse

himself pursuant to § 455(a) was an abuse of discretion.

      2.     Next, Myers contends the district judge failed to follow the rule of the

mandate by regularly making findings contrary to our findings on the prior appeal.

Under the rule of the mandate, “[t]he district court may . . . ‘decide anything not

foreclosed by the mandate’. . . . But . . . commits ‘jurisdictional error’ if it takes

actions that contradict the mandate.” Stacy v. Colvin, 825 F.3d 563, 568 (9th Cir.

2016) (quoting Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012)).

The mandate after the first appeal was that the United States breached its

mandatory duties to review the health and safety plan (HASP) and to ensure


                                            6
adherence to the safety plan in conducting the remediation project, Myers I, 652

F.3d at 1036-37, and the district judge was to conduct the “actual and proximate

causation” phase and the “damages” phase of the bench trial, see id. at 1037. The

district judge did not violate the mandate on remand by attempting to vary from or

revisit our decision on breaches of duty, but proceeded to the “causation” phase of

the trial, as directed, taking those breaches of duty as decided. Stacy, 825 F.3d at

568. Myers’s claims of “contrary findings” by the district judge do not withstand

careful scrutiny. Rather, she reads our findings or the district judge’s findings

more narrowly or broadly than the language used will bear or simply reads them

out of context. No remand or other relief is required on this second ground, either.

      3.     Myers argues the district judge erred by disregarding the opinions of

her experts because the district judge erroneously found her counsel improperly

“poisoned the well” and “manipulated” their opinions. She contends the experts

were all treating physicians who had formed and expressed their opinions based on

treatment, before her counsel provided them with publicly available information on

thallium, reports of others, or lab tests. “The mere fact that an expert witness has

talked with a party’s lawyer and then altered his or her opinion language, though it

might be considered relevant, does not require a factfinder to find that expert

witness is other than credible.” Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642,


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650 (9th Cir. 2010) (emphasis added). On the other hand, where a treating

physician or expert is exposed to information that was not obtained from

examination or treatment, but from a party’s counsel, the factfinder may

reasonably believe the information influenced or colored the treating physician’s or

expert’s subsequent testimony. Cf. id. Indeed, while there may be good reasons

for providing treating physicians or experts with materials outside of their own

examination and treatment records prior to depositions or trial testimony, Myers

provided none. Ultimately, it is clear that “[f]acts casting doubt on the credibility

of an expert witness . . . are questions reserved for the fact finder.” City of Pomona

v. SQM N. Am. Corp., 750 F.3d 1036, 1053 (9th Cir. 2014). No remand or other

relief is required on this ground.

      4.     Myers’s last contention is that the district judge erred by denying her

motion to shift the burden to the United States to prove its negligence was not the

proximate cause of L. Myers’s injuries. Under California law, a “shift of the

burden of proof . . . may be said to rest on a policy judgment that [1] when there is

a substantial probability that a defendant’s negligence was a cause of an accident,

and [2] when the defendant’s negligence makes it impossible, as a practical matter,

for plaintiff to prove ‘proximate causation’ conclusively, it is more appropriate to

hold the defendant liable than to deny an innocent plaintiff recovery, unless the


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defendant can prove that his negligence was not a cause of the injury.” Haft v.

Lone Palm Hotel, 3 Cal. 3d 756, 774 n.19 (1970) (emphasis in the original). This

is a “narrow exception to the usual allocation of proof.” Thomas v. Lusk, 27 Cal.

App. 4th 1709, 1717 (1994).

      Here, the district judge refused to invoke the exception, because he found

uncertainty (i.e., no substantial probability) as to either L. Myers’s injuries or

whether any such injuries were caused by thallium dust escaping from the landfill,

citing Jones v. Ortho Pharmaceutical Corp., 163 Cal. App. 3d 396, 406 (1985),

which in turn cites Haft. Myers argues there is “no doubt” L. Myers suffered

injury and the cause of her inability to prove causation with certainty is the

negligence of the United States. We disagree.

      First, the district judge did not erroneously conclude the evidence of injury

from thallium exposure was uncertain. The district judge reasonably concluded the

claim of elevated thallium in L. Myers’s system was based on only one urine test

“reported out” by the tester, but that test was not reliable. The district judge also

identified evidence casting doubt on whether any of L. Myers’s alleged symptoms

or injuries were the result of thallium exposure or were actually injuries at all.

That evidence included, but was not limited to, evidence that L. Myers’s younger

sister, for whom thallium exposure was never alleged, also suffered from alopecia


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(hair loss) a few years after L. Myers did, suggesting that the cause of both girls’

hair loss was genetic, rather than thallium exposure. Lone Palm Hotel, 3 Cal. 3d at

774 n.19 (first requirement). Similarly, extensive sampling of L. Myers’s yard,

house (inside and outside), other family members, pets, and school showed no

elevated thallium levels, suggesting that no thallium dust had escaped from the

landfill. Id. Such extensive testing also demonstrates that the defendant’s breaches

of duty in dust monitoring did not “make[] it impossible, as a practical matter, for

plaintiff to prove ‘proximate causation’ conclusively,” if there was evidence of

causation to be found. Id. (second requirement).

        No remand or other relief is required on this last ground.

      AFFIRMED.




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