Donna Hoffman v. Kent Tonnemacher, M.d.;

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA HOFFMAN,
Plaintiff - Appellant,
v.
KENT TONNEMACHER, M.D.; et al.,
Defendants,
and
MEMORIAL MEDICAL CENTER,
Defendant - Appellee.
No. 08-16166
D.C. No. CV-04-05714-AWI-DLB
MEMORANDUM *
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
FILED
JAN 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 We address one issue in Plaintiff’s appeal in a published opinion filed this
date.
2
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

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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

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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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