                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            AUG 21 2017
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BARRY KELLY; MOLLY KELLY,                        No.   15-16457

              Plaintiffs,                        D.C. No. 3:11-cv-03240-VC

 and
                                                 MEMORANDUM*
GILBERT L. PURCELL, Counsel for
Plaintiffs,

              Appellant,

 v.

CRANE CO.,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                     Vince Chhabria, District Judge, Presiding

                            Submitted August 16, 2017**
                              San Francisco, California



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and WATTERS,***
District Judge.

         Attorney Gilbert Purcell appeals the district court’s order imposing sanctions

against him for conduct demonstrating bad faith. Because the facts are known to

the parties, we repeat them only as necessary to explain our decision.

         The district court correctly observed that: (1) the question whether

chemotherapy exacerbated Barry Kelly’s pre-existing kidney condition was

contested at trial; (2) Purcell explicitly told the court that Dr. Horn would not

testify that Kelly’s “kidney problems were caused or exacerbated by the chemo”

and conceded that such issue “wasn’t evaluat[ed] in [Horn’s] Rule 26 report”; and

(3) Purcell then intentionally attempted to have Dr. Horn testify on this issue at

trial.

         The district court did not clearly err in determining that such conduct

demonstrated that Purcell acted in bad faith by attempting to “sneak” in Dr. Horn’s

testimony. See, e.g., Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006)

(district court finding that attorney acted in bad faith reviewed for clear error); Pac.

Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1117 (9th Cir.




         ***
             The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.
                                             2
2000) (same); see also Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001) (“[B]ad

faith . . . includes a broad range of willful improper conduct.”).

      AFFIRMED.




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