Eric Mueller v. City of Boise

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC MUELLER; CORISSA D. 

MUELLER, husband and wife,

individually and on behalf of

Taige L. Mueller, a minor, and on

behalf of themselves and those

similarly situated,

Plaintiffs-Appellants, No. 11-35351

v. D.C. No.

APRIL K. AUKER; BARBARA 1:04-cv-00399-BLW

HARMON; JANET A. FLETCHER;

KIMBERLY A. OSADCHUK; LINDA  ORDER

AMENDING

RODENBAUGH; KARL B. KURTZ; KEN OPINION AND

DIEBERT, AMENDED

Defendants, OPINION

and

CITY OF BOISE; DALE ROGERS; TED

SNYDER; TIM GREEN; RICHARD K.

MACDONALD; SAINT LUKE’S

REGIONAL MEDICAL CENTER, LTD.,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

July 24, 2012—Boise, Idaho

Filed September 10, 2012

Amended October 25, 2012

12907

12908 MUELLER v. CITY OF BOISE

Before: J. Clifford Wallace, Stephen S. Trott, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Trott

12910 MUELLER v. CITY OF BOISE

COUNSEL

Michael E. Rosman, Center for Individual Rights, Washing-

ton, D.C., for the plaintiffs-appellants.

Kirtlan G. Naylor, Naylor & Hales, P.C., Boise, Idaho; Keely

Elizabeth Duke and Richard E. Hall, Duke Scanlan Hall

PLLC, Boise, Idaho; and W. Christopher Pooser, Stoel Rives

LLP, Boise, Idaho, for the defendants-appellees.

MUELLER v. CITY OF BOISE 12911

James K. Dickinson, Ada County Prosecutor’s Office, Boise,

Idaho, for amicus curiae Ada County Prosecutor’s Office.

ORDER

The Opinion filed September 10, 2012, is amended as fol-

lows: on slip opinion page 10863, line 6, replace the first full

paragraph (Part IV B, Battery) beginning “We conclude that

the district court . . . .” with the following text:

The district court dismissed the Muellers’ battery

claim against Dr. Macdonald pursuant to Federal

Rule of Civil Procedure 50(a). The record conclu-

sively establishes that he did not treat Taige until he

was given consent to do so by April Auker on behalf

of the Idaho Department of Welfare. Mueller v.

Auker, 576 F.3d at 984-86. At the time, the State had

taken legal custody of the Muellers’ daughter. Id.

Neal v. Neal, 125 Idaho 617, 622; 873 P.2d 871,

876 (1994), states that “[c]ivil battery consists of an

intentional, unpermitted contact upon the person of

another which is either unlawful, harmful or offen-

sive.” Id. The Supreme Court of Idaho also held that

“lack of consent is . . . an essential element of bat-

tery,” and that “[c]onsent obtained by fraud or mis-

representation vitiates the consent and can render the

offending party liable for a battery.” Id.

Auker’s consent to treatment was valid unless

obtained by fraud or misrepresentation. Although we

ordinarily view the evidence on this issue in the light

most favorable to the non-moving party, Torres v.

City of Los Angeles, 548 F.3d 1197, 1205-06 (9th

Cir. 2008), the issue of possible fraud or misrepre-

sentation on the part of Dr. Macdonald leading to

12912 MUELLER v. CITY OF BOISE

April Auker’s consent has now been resolved by dis-

positive events. As previously discussed in Part IV.A

of this opinion, the issue of whether or not Dr. Mac-

donald knowingly made a false report to Detective

Rogers of imminent danger to Taige in order to

deprive the Muellers of their parental rights was liti-

gated and did go to the jury. In a special verdict, the

jury rejected the Muellers’ theory. This finding of

fact is fully supported by the record and conclusively

determines between these parties in favor of Dr.

Macdonald the factual issue of the validity of the

State’s consent to treat Taige upon which he relied.

The jury’s verdict is entitled to preclusive effect pur-

suant to the doctrine of collateral estoppel. There-

fore, this issue is moot because it has become merely

academic and thus no longer justiciable.

The panel has voted to deny the petition for panel rehear-

ing. Judge Smith has voted to deny the petition for rehearing

en banc and Judges Wallace and Trott so recommend.

The full court has been advised of the suggestion for

rehearing en banc and no judge of the court has requested a

vote on it. Fed. R. App. P. 35(b).

With this amendment, the petition for rehearing, and the

petition for rehearing en banc are otherwise DENIED. No fur-

ther petitions for rehearing will be accepted.

OPINION

TROTT, Circuit Judge:

Because the district court and the parties to this protracted

lawsuit—as well as the judges of this panel hearing the issues

for the second time—are well aware of its history, the trial

MUELLER v. CITY OF BOISE 12913

record, and the proceedings in district court, we refer to them

only as necessary to explain our decision. We have previously

published an opinion on a related issue in Mueller v. Auker,

576 F.3d 979 (9th Cir. 2009). That opinion exhaustively

unfurls the facts giving rise to this case.

We have jurisdiction over this timely appeal pursuant to 28

U.S.C. §§ 1291 and 1294(1), and we affirm. We address each

new issue in turn.

I

A

Qualified Immunity

[1] We begin our discussion of whether Detective Dale

Rogers and Officers Ted Snyder and Tim Green are entitled

to qualified immunity for their actions involving the interrup-

tion of Corissa Mueller’s parental rights with a review of that

important principle as reiterated by the Supreme Court in

recent cases.

“The doctrine of qualified immunity protects gov-

ernment officials ‘from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.’ ” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (quoting Har-

low v. Fitzgerald, 457 U.S. 800, 818 (1982)). Quali-

fied immunity “gives government officials breathing

room to make reasonable but mistaken judgments,”

and “protects ‘all but the plainly incompetent or

those who knowingly violate the law.’ ” Ashcroft v.

al-Kidd, 563 U.S. ___, ___ (2011) (slip op., at 12)

(quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). “[W]hether an official protected by quali-

fied immunity may be held personally liable for an

12914 MUELLER v. CITY OF BOISE

allegedly unlawful official action generally turns on

the ‘objective legal reasonableness’ of the action,

assessed in light of the legal rules that were ‘clearly

established’ at the time it was taken.” Anderson v.

Creighton, 483 U.S. 635, 639 (1987) (citation omit-

ted).

Messerschmidt v. Millender, 565 U.S. ___, 132 S. Ct. 1235,

1244-45 (2012). The inquiry called for by this doctrine “must

be undertaken in the light of the specific context of the case,

not as a broad general proposition.” Brosseau v. Haugen, 543

U.S. 194, 198 (2004) (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001) (internal quotation marks omitted)). Accordingly,

“the result [of this inquiry] depends very much on the facts of

each case.” Id. at 201. Finally, “[t]he contours of the right

must be sufficiently clear [in a particularized sense] that a rea-

sonable official would understand that what he is doing vio-

lates that right.” Id. at 199 (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987) (internal quotation marks omitted)).

In order to apply this doctrine correctly, which makes

allowance for some constitutional mistakes, it is useful to

revisit its purpose:

Nor is it always fair, or sound policy, to demand

official compliance with statute and regulation on

pain of money damages. Such officials as police

officers or prison wardens, to say nothing of higher

level executives . . . who enjoy only qualified immu-

nity, routinely make close decisions in the exercise

of the broad authority that necessarily is delegated to

them. These officials are subject to a plethora of

rules, “often so voluminous, ambiguous, and contra-

dictory, and in such flux that officials can only com-

ply with or enforce them selectively.” See P. Schuck,

Suing Government 66 (1983). In these circum-

stances, officials should not err always on the side of

caution. “[O]fficials with a broad range of duties and

MUELLER v. CITY OF BOISE 12915

authority must often act swiftly and firmly at the risk

that action deferred will be futile or constitute virtual

abdication of office.” Scheuer v. Rhodes, [416 U.S.

232, 246 (1974))].

Davis v. Scherer, 468 U.S. 183, 196 (1984) (second alteration

in original). We review the district court’s grant of summary

judgment de novo. Burke v. Cnty. of Alameda, 586 F.3d 725,

730 (9th Cir. 2009). “Viewing the evidence in the light most

favorable to the nonmoving party, we must determine whether

there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.”

Id. (internal quotation marks omitted).

With this framework in mind, we must decide whether, at

the time of Detective Rogers’s and Officers Snyder’s and

Green’s actions, it was “clearly established” that they were

violating (1) the Mueller’s Fourteenth Amendment’s liberty

interest in the care, custody, and control of their infant daugh-

ter Taige, and (2) Corissa Mueller’s Fourth Amendment right

against unreasonable search and seizure. In other words,

viewing the facts in the light most favorable to the Muellers,

did the officers have an objectively reasonable basis for fear-

ing that Taige was in imminent danger and for causing her

parents to lose custody without a judicial hearing, and that “a

reasonable officer could have come to such a conclusion.”

Ryburn v. Huff, 565 U.S. ___, 132 S. Ct. 987, 992 (2012) (per

curiam).

B

The Constitutional Rights at Issue

There is no doubt that the Muellers have a liberty interest

in the “care, custody, and control of their child[ ].” Troxel v.

Granville, 530 U.S. 57, 65 (2000); Lehr v. Robertson, 463

U.S. 248, 256-57 (1983). It is also the case, however, that like

all constitutional rights, these rights are not absolute. Under

12916 MUELLER v. CITY OF BOISE

certain circumstances, these rights must bow to other counter-

vailing interests and rights, such as the basic independent life

and liberty rights of the child and of the State acting as parens

patriae; and on occasion, this accommodation may occur

without a pre-deprivation hearing. As the Supreme Court has

said, a state “has an urgent interest in the welfare of the child

. . . .” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981);

see also J.B. v. Washington Cnty., 127 F.3d 919, 925, 927

(10th Cir. 1997) (parents’ liberty interest in the custody and

care of their children is balanced against the state’s “tradi-

tional and transcendent” interest in “acting as parens patriae”

to protect children); Thomason v. SCAN Volunteer Servs.,

Inc., 85 F.3d 1365, 1371 (8th Cir. 1996) (“[T]he liberty inter-

est in familial relations is limited by the compelling govern-

ment interest in the protection of minor children, particularly

in circumstances where the protection is considered necessary

as against the parents themselves.” (quoting Myers v. Morris,

810 F.2d 1437, 1462 (8th Cir. 1987) (internal quotation marks

omitted)).

When do the constitutional rights of parents step aside? “In

an emergency situation . . . when the children are subject to

immediate or apparent danger or harm.” Caldwell v. LeFaver,

928 F.2d 331, 333 (9th Cir. 1991). As we explained in Ram

v. Rubin, parents have a “constitutionally protected right to

the care and custody of [their] children” and cannot be “sum-

marily deprived of that custody without notice and a hearing,”

except where “the children [are] in imminent danger.” 118

F.3d 1306, 1310 (9th Cir. 1997) (citing Caldwell, 928 F.2d at

333); Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983)

(“When a child’s safety is threatened, that is justification

enough for action first and hearing afterward.”).

[2] With this context in mind, the issue before us, as cor-

rectly articulated by the district court, is whether on August

12, 2002, the law was clearly established that Detective Rog-

ers (1) had to secure a judicial hearing for the Muellers before

seizing Taige for medical treatment, (2) should not have

MUELLER v. CITY OF BOISE 12917

declared that Taige was in imminent danger and caused her

custody to be transferred to the Department of Health and

Welfare, and (3) should not have temporarily confined

Corissa after seizing her daughter.

C

Analysis

[3] In declaring the infant Taige to be in “imminent dan-

ger” of serious bodily injury pursuant to the Idaho Child Pro-

tective Act, Detective Rogers relied on the opinions of

qualified medical professionals: the board-certified emer-

gency room doctor treating the infant, Dr. Richard Macdon-

ald; and a board-certified pediatrician, Dr. Noreen Womack,

with whom the treating physician had conferred. Dr. Womack

recommended contacting a social worker should Corissa con-

tinue to refuse treatment for her daughter. In taking her

daughter to the emergency room, Corissa’s goal was the same

as her husband’s, her personal physician’s, Detective Rog-

ers’s, Dr. Macdonald’s, and Dr. Womack’s: to rule out, inter

alia, meningitis, a serious medical condition capable of caus-

ing an infant’s death or permanent brain injury. As Eric Muel-

ler explained in his deposition, going to the emergency room

“would be the safe thing to do.” In his deposition, Eric attri-

buted a similar state of mind to Detective Rogers: concern

about Taige’s health. The medical standard of care Corissa’s

naturopathic physician told Corissa she would encounter in

the emergency room was the administration of antibiotics and

a lumbar spinal tap, a standard also designed to protect the

patient. On the facts of this case, we conclude that Detective

Rogers’s declaration of “imminent danger” was objectively

reasonable.

The district court summarized its analysis of this issue as

follows:

This lack of clearly established law is most appar-

ent in Detective Rogers’ imminent danger analysis.

12918 MUELLER v. CITY OF BOISE

He was confronted with a physician insisting (1) that

the treatments be done, (2) that they be done quickly,

(3) that they constituted the standard of care, (4) that

the risk of foregoing treatments outweighed the risks

of treatment, (5) that the treatments would com-

pletely eliminate any danger to Taige, and (6) that if

Corissa left with Taige untreated, Taige’s condition

could deteriorate so quickly that she could suffer

serious injury or die before Corissa could return to

the hospital.

In this situation, no clearly established law existed

to guide Detective Rogers. The phrase “imminent

danger” has not been given any detailed definition,

either by Wallis [v. Spencer, 202 F.3d 1126 (9th Cir.

2000)] or any other case, that could have guided

Detective Rogers.

Reviewing this analysis de novo, see Burke, 586 F.3d at 730,

we conclude that it is amply supported by the record.

[4] In arriving at this conclusion, the district court stated

that “[t]he Court’s research, and the parties’ briefing do not

reveal any cases which have laid out the constitutional guide-

lines for resolving parental [non-religious] objections to medi-

cal treatment . . . .” Five years later, the Muellers still have

not provided us with any cases specific enough to the emer-

gency room facts and circumstances of this case to advance

their cause. We have not uncovered a decision identifying a

Fourteenth Amendment violation “on facts even roughly com-

parable to those present in this case.” Ryburn, 565 U.S. at

___, 132 S. Ct. at 990. Nowhere can we find any clearly

established law which would have required a judicial hearing

before Detective Rogers or the Department of Health and

Welfare took the actions that they did when facing these dan-

gers.

When examined at the level of specificity mandated by

Brosseau, Wallis, as we discussed at length in our previous

MUELLER v. CITY OF BOISE 12919

opinion, is “manifestly distinguishable.” Mueller, 576 F.3d at

995-96. To repeat: “This inquiry ‘must be undertaken in [the]

light of the specific context of the case, not as a broad general

proposition.’ ” Id. at 994 (quoting Saucier v. Katz, 533 U.S.

at 201). In effect, the Muellers ask us to repeat the analytical

mistake we made in Brosseau, where we approached this

issue based upon general tests and abstract constitutional

propositions instead of focusing on the precise factual sce-

nario confronted by the officers. 543 U.S. at 199-200. In fact,

Wallis, the Muellers’ principal case, stands for the unremark-

able proposition that parents and children can be separated

“without due process of law . . . in an emergency.” Wallis,

202 F.3d at 1136.

Idaho law permits a police officer to place a child in shelter

care without a court order when necessary to prevent serious

physical injury. I.C. § 16-1612 (since renumbered as I.C.

§ 16-1608). The Muellers’ late assertion in their reply brief

that this law is “obviously unconstitutional” is of no help to

them on this issue, because at the time the disputed decisions

were made, no clearly established law existed to that effect.

Moreover, the existence of a state statute authorizing an offi-

cial’s disputed conduct weighs in that official’s favor, so long

as the statute itself does not offend the Constitution, and I.C.

§ 16-1612 does not. Caldwell, 928 F.2d at 334.

Detective Rogers was in no position to second guess Dr.

Macdonald. Even were we to assume with hindsight that the

doctor’s assessment was wrong, to attribute such a profes-

sional error in judgment to Detective Rogers would be mani-

festly inappropriate. The Muellers admit it was objectively

reasonable for Detective Rogers to accept the doctor’s opinion

over Corissa’s. The Supreme Court has instructed that “rea-

sonableness ‘must be judged from the perspective of a reason-

able officer on the scene, rather than with the 20/20 vision of

hindsight’ and that ‘[t]he calculus of reasonableness must

embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that

12920 MUELLER v. CITY OF BOISE

are tense, uncertain, and rapidly evolving.’ ” Ryburn, 565

U.S. at ___, 132 S. Ct. at 992 (alteration in original) (quoting

Graham v. Connor, 490 U.S. 386, 396-97 (1989)). When

Taige’s temperature spiked at 1:40 a.m., time became of the

essence, and it was at that point that Detective Rogers made

his decision. Mueller, 576 F.3d at 985. The district court cor-

rectly observed that the term “imminent danger” has not been

given any detailed definition . . . that could have guided

Detective Rogers. Contrary to the Muellers’ arguments, Wal-

lis does not require that to justify a declaration of imminent

danger, the imminent danger must be likely to occur. See 202

F.3d at 1138. Even if our later case Rogers v. County of San

Joaquin, 487 F.3d 1288 (9th Cir. 2007) imposes such a

requirement, Rogers could not have made any potential

unlawfulness “apparent in light of preexisting law” in 2002.

See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996).

[5] The Muellers also argue that although “Rogers was

entitled to consider [Dr.] MacDonald’s medical opinion,” he

was not entitled to rely on the doctor’s “legal opinion.” How-

ever, Detective Rogers made his own decision as to imminent

danger. That decision had legal consequences, but it was

rationally based on the objective facts of the situation.

[6] In summary, Detective Rogers, along with Officers

Snyder and Green (who made no decisions at all), are entitled

to qualified immunity from this lawsuit. Ironically, it has

taken ten years of litigation to arrive at this conclusion.

D

The Fourth Amendment

[7] The Fourth Amendment usually requires an officer to

have a warrant issued upon probable cause before seizing

someone, but “neither probable cause nor a warrant is

required when ‘special needs, beyond the normal need for law

enforcement, make the warrant and probable-cause require-

MUELLER v. CITY OF BOISE 12921

ment impracticable.’ ” Yin v. California, 95 F.3d 864, 869

(9th Cir. 1996) (quoting Veronica Sch. Dist. v. Acton, 515

U.S. 646, 653 (1995)). In these “special needs” cases, we

“dispense[ ] with the probable cause and warrant requirements

and simply appl[y] a balancing test to determine if a search

or seizure is reasonable and thus constitutional.” Yin, 95 F.3d

at 869.

[8] Under the circumstances of this case, the officers’ sep-

aration of Corissa Mueller from her daughter while medical

procedures were being performed in an emergency room was

demonstrably reasonable. As the district court correctly ruled,

this separation was necessary to maintain order in the hospital

and to ensure that Taige’s treatment was not interrupted, a

distinct possibility caused by Mrs. Mueller’s opposition to the

procedures and her admittedly agitated state of mind. Eric

Mueller describes his wife at this moment as “hysterically

crying.” This separation occurred not in a public place, but in

a high-pressure location involving seriously ill and injured

patients and delicate medical procedures. Persons who go to

an emergency room are entitled by federal law to privacy,

Health Insurance Portability and Accountability Act of 1996

(HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996), and

not to be bothered or endangered by others while they are

there. We find unpersuasive the Muellers’ argument that

Corissa should not have been taken temporarily to the privacy

of a small room while doctors performed their duties. No

clearly established law prohibited such action. See Trevino, 99

F.3d at 916-17. The district court’s ruling was correct. Thus,

we conclude that the officers are entitled to qualified immu-

nity with regard to Corissa’s Fourth Amendment claim.

II

Dr. Rosen’s Testimony

[9] The Muellers take issue with the district court’s deci-

sion pursuant to Federal Rule of Evidence 702 to admit the

12922 MUELLER v. CITY OF BOISE

testimony of Dr. Peter Rosen on behalf of Dr. Macdonald.

Federal Rule of Evidence 702 requires that expert testimony

be “the product of reliable principles and methods.” Fed. R.

Civ. P. 702(c). The Muellers argue that Dr. Rosen’s opinion

was based solely on “clinical instinct,” which they argue is

not a reliable basis for expert testimony under Rule 702. We

review the district court’s admission of expert testimony for

abuse of discretion. United States v. Cordoba, 104 F.3d 225,

229 (9th Cir. 1997).

The Muellers concede that Dr. Rosen is well-credentialed

in this field of medicine, and that he has had a distinguished

career and extensive experience. About this, there can be no

dispute. Dr. Rosen is a board-certified emergency room physi-

cian with over forty years of practice. In addition to being a

prolific author, he was then a professor of emergency medi-

cine at Harvard Medical School and the University of Arizona

School of Medicine.

The essence of Dr. Rosen’s opinion was as follows:

What was, was the presentation of the child who

looked ill, acted ill, and had a history of not behav-

ing normally. She was lethargic. She was not feeding

properly, and she did not have a normal initial physi-

cal examination. It was that constellation of presen-

tation, history, and findings as to what convinced me

that she was a patient who needed a mandatory fever

workup and that the risk of a serious bacterial infec-

tion that Dr. Macdonald cited was very accurate.

Dr. Rosen also believed on the basis of the medical records

that Taige probably did arrive at the hospital with a serious

infection and that Dr. Macdonald’s prompt administration of

fluids and antibiotics “prevented her from developing a seri-

ous sepsis syndrome [including meningitis] from which she

could not have recovered, causing her to die or leaving her

permanently damaged.” He credited Dr. Macdonald with act-

MUELLER v. CITY OF BOISE 12923

ing appropriately under the circumstances, and offered his

opinion that Dr. Macdonald’s risk assessment regarding Taige

was valid. Here, he explained the role and value of an experi-

enced doctor’s “clinical instinct,” upon which an emergency

medicine “must often rely.”

In medicine, when we see a patient and when

we’re trying to figure out what’s wrong with them,

we sort of make a list in our head of what could be

wrong, what could be causing the problem, what do

I have to evaluate for and what do I have to treat.

Emergency physicians take a little bit different

approach than other physicians, because other physi-

cians have time to sort of sit back and think about

things and look things up and compare things. We

have to make decisions very quickly, and we have to

make lots of decisions all at once, all at the same

time with very little information.

So we make a differential diagnosis or a list of

possibilities in our head. And we put—at the top of

that list we put the worst thing it could be. What is

the thing that could kill the person? What is the thing

that could damage the person? What do I have to

treat now and not miss? And then sort of work down

the list to more likely things, but less concerning

things.

[10] Contrary to the presentation of the Appellants’ coun-

sel at oral argument, clinical instinct is a well-recognized and

accepted aspect of current medical practice. The precept

encompasses what experience adds to scientific knowledge

and training. Clinical instinct as a diagnostic and treatment

tool is not new.

The district court made its decision to admit Dr. Rosen’s

testimony and opinions after careful, painstaking, and

12924 MUELLER v. CITY OF BOISE

thoughtful consideration. This decision was legally sound and

an appropriate exercise of discretion. As the court correctly

summarized the situation, Dr. Macdonald’s diagnosis that

Taige had a serious bacterial infection was “a judgment call

based on clinical instinct and made under time pressure.”

The district court reconsidered the admissibility of Dr.

Rosen’s testimony in the Muellers’ post-trial motion for a

new trial. As part of that thorough process, Dr. Rosen was

recalled as a witness by video, and his trial testimony was

again examined in the light of the Muellers’ specific objection

to it. As a result of this process, the court was again satisfied

that Dr. Rosen’s expert witness testimony was directly rele-

vant to the central disputed issue of whether Dr. Macdonald

“falsely exaggerated the risk to Taige Mueller in order to

deprive the Muellers of their parental rights.”

In the end, the court relied on our opinion in Primiano v.

Cook, 598 F.3d 558 (9th Cir. 2010), in deciding that Dr.

Rosen’s testimony was relevant and admissible under Rule

702. In that case, we said:

“Despite the importance of evidence based medicine,

much of medical decision-making relies on judgment

—a process that is difficult to quantify or even to

assess qualitatively. Especially when a relevant

experience base is unavailable, physicians must use

their knowledge and experience as a basis for weigh-

ing known factors along with the inevitable

uncertainties” to “mak[e] a sound judgment.”

Id. at 565 (alteration in original) (quoting Harrison’s Princi-

ples of Internal Medicine 3 (Dennis L. Kasperet et al. eds.,

16th ed. 2005)).

[11] In summary, the district court did not err or abuse its

discretion in admitting the proffered testimony of Dr. Peter

Rosen pursuant to Federal Rule of Evidence 702 or in denying

MUELLER v. CITY OF BOISE 12925

the Muellers’ motion on this issue for a new trial. Dr. Rosen’s

testimony plainly assisted the jury in understanding the evi-

dence and in determining the validity of Dr. Macdonald’s risk

assessment. Also, Dr. Rosen’s opinion testimony was relevant

with respect not only to the substantive issues before the jury,

but also as direct rebuttal to the Muellers’ expert, Dr. Eugene

Shapiro. Once admissible, the weight to be given to Dr.

Rosen’s testimony was for the jury to determine. Primiano,

598 F.3d at 565.

III

The Dismissal of the Case Against St. Luke’s

The district court did not err in dismissing the Muellers’

§ 1983 claims against St. Luke’s without leave to amend,

because it was clear that amendment would be futile. “Dis-

missal without leave to amend is improper unless it is clear,

upon de novo review, that the complaint could not be saved

by any amendment.” Manzarek v. St. Paul Fire & Marine Ins.

Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (internal quotation

marks omitted).

[12] On de novo review, we conclude that the district court

correctly granted St. Luke’s Federal Rule of Civil Procedure

12(b)(6) motion to dismiss without leave to amend. See id. St.

Luke’s did not become a state actor simply because it com-

plied with state law requiring its personnel to report possible

child neglect to Child Protective Services. State law does not

amount to an actionable hospital policy. See Sutton v. Provi-

dence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir.

1999); see also Brown v. Newberger, 291 F.3d 89, 93 (1st Cir.

2002) (concluding that a doctor did not become a state actor

by filing a report of suspected child abuse as required by state

law). Moreover, St. Luke’s medical standard of care under

these circumstances isn’t a policy either. Neither did social

worker Bob Condon’s testimony establish any actionable pol-

icy on the part of St. Luke’s. In fact, the record conclusively

12926 MUELLER v. CITY OF BOISE

demonstrates that no appropriate amendment to the complaint

could overcome these obvious problems. See Manzarek, 519

F.3d at 1034. The hospital’s conduct in question was not

fairly attributable to the State.

IV

A

Section 1983 Conspiracy

[13] All viable claims against Dr. Macdonald went for

determination to the jury, including the Muellers’ claim that

he was liable to them pursuant to 42 U.S.C. § 1983. Contrary

to the Muellers’ assertions, the substantive claims against Dr.

Macdonald were not dismissed by way of summary judgment.

As the district court correctly observed, the Muellers’ case

depended in large part upon proving as a major premise that

“Dr. Macdonald falsely exaggerated the risk to Taige Mueller

in an effort to use Detective Rogers’ [sic] statutory authority

to deprive the Muellers of their parental rights.” The jury

rejected this theory in its answer to a question put to it in a

special verdict. To the question, “Did Dr. Macdonald make a

false report of child neglect regarding Taige Mueller knowing

that said report was false?”, the jury answered “No.” Instruc-

tion 15, about which the Muellers now complain, was not

plain error. See Hunter v. Cnty. of Sacramento, 652 F.3d

1225, 1230 (9th Cir. 2011).

B

Battery

The district court dismissed the Muellers’ battery claim

against Dr. Macdonald pursuant to Federal Rule of Civil Pro-

cedure 50(a). The record conclusively establishes that he did

not treat Taige until he was given consent to do so by April

Auker on behalf of the Idaho Department of Welfare. Mueller

MUELLER v. CITY OF BOISE 12927

v. Auker, 576 F.3d at 984-86. At the time, the State had taken

legal custody of the Muellers’ daughter. Id.

Neal v. Neal, 125 Idaho 617, 622; 873 P.2d 871, 876

(1994), states that “[c]ivil battery consists of an intentional,

unpermitted contact upon the person of another which is

either unlawful, harmful or offensive.” Id. The Supreme Court

of Idaho also held that “lack of consent is . . . an essential ele-

ment of battery,” and that “[c]onsent obtained by fraud or

misrepresentation vitiates the consent and can render the

offending party liable for a battery.” Id.

[14] Auker’s consent to treatment was valid unless

obtained by fraud or misrepresentation. Although we ordinar-

ily view the evidence on this issue in the light most favorable

to the non-moving party, Torres v. City of Los Angeles, 548

F.3d 1197, 1205-06 (9th Cir. 2008), the issue of possible

fraud or misrepresentation on the part of Dr. Macdonald lead-

ing to April Auker’s consent has now been resolved by dispo-

sitive events. As previously discussed in Part IV.A of this

opinion, the issue of whether or not Dr. Macdonald know-

ingly made a false report to Detective Rogers of imminent

danger to Taige in order to deprive the Muellers of their

parental rights was litigated and did go to the jury. In a special

verdict, the jury rejected the Muellers’ theory. This finding of

fact is fully supported by the record and conclusively deter-

mines between these parties in favor of Dr. Macdonald the

factual issue of the validity of the State’s consent to treat

Taige upon which he relied. The jury’s verdict is entitled to

preclusive effect pursuant to the doctrine of collateral estop-

pel. Therefore, this issue is moot because it has become

merely academic and thus no longer justiciable.

V

The Jury Instructions

[15] We review de novo jury instructions challenged as a

misstatement of the law, and the formulation of jury instruc-

12928 MUELLER v. CITY OF BOISE

tions for abuse of discretion. Gilbrook v. City of Westminster,

177 F.3d 839, 860 (9th Cir. 1999). “Jury instructions must be

formulated so that they fairly and adequately cover the issues

presented, correctly state the law, and are not misleading.”

Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000).

The jury instructions and the district court’s rulings in relation

to them, examined in the light of the issues and viewed as a

whole, were complete, clear, correct, and adequate to allow

the Muellers to pursue all their theories of liability.

First, the Muellers argue that the court was required to

direct the jury that there is a presumption that the parents

acted reasonably. They are mistaken because the Muellers’

reasonableness is irrelevant to the question put to the jury:

whether Taige was in imminent danger. See Wallis, 202 F.3d

at 1138.

Next, the Muellers contend that the jury instructions erro-

neously put the burden on them to show an absence of immi-

nent danger. However, in a claim brought under 42 U.S.C.

§ 1983 “the plaintiff carries the ultimate burden of establish-

ing each element of his or her claim.” Pavao v. Pagay, 307

F.3d 915, 919 (9th Cir. 2002). Because the Muellers’ claims

arise under section 1983 the jury instructions properly placed

the burden on the Muellers.

Next, the Muellers argue that the jury instructions errone-

ously failed to mention the officers’ duty to conduct a reason-

able investigation. If there was any error here, it was

harmless. The jury instructions mentioned most of the issues

the Muellers contend should have been investigated. They

argue the officers should have investigated the risks of treat-

ment, how long it takes to obtain a warrant, and whether Mr.

Mueller would have consented. All but the last of these were

already included in the instructions as factors for the jury to

consider. As to the remaining factor, our prior opinion in this

case ruled that the officers were not liable for failing to con-

tact Mr. Mueller. Mueller, 576 F.3d at 995-97.

MUELLER v. CITY OF BOISE 12929

Next the Muellers argue that the jury instructions incor-

rectly listed as an optional factor—rather than a required

element—whether there was time to obtain a warrant. While

our cases have discussed whether there is time to hold a hear-

ing and obtain a warrant, see, e.g., Rogers, 487 F.3d at 1294,

this factor has never supplanted the central question, which is

whether the child is in “imminent danger.”

VI

Motion for New Trial

We review the denial of a motion for new trial for abuse of

discretion. DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218

(9th Cir. 2010). “A district court may grant a new trial only

if the jury verdict is contrary to the clear weight of the evi-

dence.” Id. “The district court’s denial of a motion for a new

trial is reversible only if the record contains no evidence in

support of the verdict or if the district court made a mistake

of law.” Id. (internal quotation marks omitted).

[16] The Muellers’ claim that the district court erroneously

denied their motion for a new trial is unsupported by the

record. The Muellers argue that the jury implicitly found that

Dr. Macdonald’s conduct could not be attributed to St. Luke’s

and argue that this implicit finding is against the weight of the

evidence, which, they argue, establishes that he was an appar-

ent agent of St. Luke’s. The jury’s failure to find that Dr.

Macdonald was an “apparent agent” of St. Luke’s was not

against the weight of evidence. See id. The evidence was such

as to permit a reasonable factfinder to decide as this jury did.

Although the Muellers argue that the district court abused its

discretion “because the law requires some notice that the spe-

cific doctor in question . . . was an independent contractor,”

Idaho has not expressly adopted such a rule. See Jones v.

HealthSouth Treasure Valley Hosp., 147 Idaho 109, 116, 206

P.3d 473, 480 (2009). And, as we have already discussed, the

court did not err in allowing the jury to hear Dr. Rosen’s testi-

12930 MUELLER v. CITY OF BOISE

mony. Thus, we conclude that the district court did not abuse

its discretion in denying the Muellers’ motion for a new trial.

See DSPT Int’l, Inc., 624 F.3d at 1218.

VII

Failure to Train

We review de novo the district court’s judgment as a matter

of law in favor of the City of Boise with regard to the Muel-

lers’ claim of failure properly to train its officers. Torres, 548

F.3d at 1205.

[17] The court properly granted judgment as a matter of

law against the Muellers’ failure to train claim. To establish

this claim, the Muellers had to “present[ ] . . . evidence of

prior incidents” of the same character that would have made

City officials “aware of the situation such that the [City] could

reasonably be said to have been deliberately indifferent to the

need for further training.” Merrit v. Cnty. of Los Angeles, 875

F.2d 765, 771 n.10 (9th Cir. 1989) (internal quotation marks

and alteration omitted).

The Muellers presented four “prior incidents” to support

their claim. These incidents were insufficient to put the City

on notice such that it could reasonably be said to have been

deliberately indifferent to the need for further training. The

Muellers rely exclusively on reports and affidavits prepared

by officers, rather than complaints by the parents or other evi-

dence that may have flagged these training problems for the

City. See City of Canton v. Harris, 489 U.S. 378, 398-99

(1989). Without ruling on the merits of these incidents, these

reports show officers taking measured steps to respond to life-

or-death threats to infants. Nothing in these reports would

have alerted a reviewing supervisor that the officers’ training

was so inadequate that the City can be said to have been

deliberately indifferent to the need for training.

MUELLER v. CITY OF BOISE 12931

VIII

The Protective Order

We “review the grant or denial of a motion to quash a sub-

poena for abuse of discretion.” In re Cal. Pub. Util. Comm’n,

892 F.2d 778, 780 (9th Cir. 1989). “Such abuses must be

unusual and exceptional; we will not merely substitute our

judgment for that of the trial judge.” Premium Serv. Corp. v.

Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975).

[18] The district court’s handling of the court’s protective

order granted to the Ada County Prosecutor’s Office was not

defective. The prosecutor’s complete file was turned over to

and examined by the court. The court in camera concluded

that the prosecutor’s file did not contain anything of signifi-

cance, a point conceded during oral argument; and no ade-

quate showing of relevance has yet been offered by the

Muellers. They made no effort to subpoena or to depose the

persons who were no longer in the prosecutor’s office who

were responsible for the material in the file, and they made no

effort to include the file under seal in the record. Given this

record, we cannot conclude that the district court abused its

discretion in granting the protective order to the Ada County

Prosecutor’s Office. See In re Cal. Pub. Util. Comm’n, 892

F.2d at 780. Furthermore, the Muellers have not made the req-

uisite showing that they were prejudiced by the district court’s

handling of the protective order. See Konop v. Hawaiian Air-

lines, Inc., 302 F.3d 868, 886 (9th Cir. 2002).

IX

Class Certification

We “review a district court’s order denying class certifica-

tion for an abuse of discretion.” Vinole v. Countrywide Home

Loans, Inc., 571 F.3d 935, 939 (9th Cir. 2009).

12932 MUELLER v. CITY OF BOISE

[19] The Muellers argue that “class certification is particu-

larly appropriate when membership will be determined in the

future, and the challenge is to a continuing policy.” The fatal

defect in this argument is that the Muellers have not identified

either a generic policy or a refusal to act on the part of any

of the defendants that would be subject to the broad equitable

relief they seek. See Fed. R. Civ. P. 23(b). Moreover, their

request for class certification presents itself as an attempt to

represent persons not yet involved in a case or controversy,

and it lacks any showing of commonality, typicality, or ade-

quacy of representation. Wal-Mart Stores, Inc. v. Dukes, 564

U.S. ___, 131 S. Ct. 2541, 2551-57 (2011). “[T]o the extent

that [the Muellers] seek[ ] to represent a class of parents who

might in the future have their children removed, [they] lack[ ]

standing.” Caldwell, 928 F.2d at 335. The broad relief sought

by the Muellers is properly addressed as a matter of policy to

the legislature, not the courts. Thus, we conclude that the dis-

trict court’s decision to deny the Muellers class certification

was correct.

CONCLUSION

As best, this case involves a series of nighttime emergency

room judgments and decisions made under pressure about

which people might differ. At the end of the day, however, a

jury of their peers decided on the basis of a full and fair airing

of their evidence that the Muellers had not proved their case.

Doctors nowadays—especially in emergency rooms—and

police officers face daunting challenges, one of which is state

law requiring them to report to state authorities possible child

abuse, endangerment, or neglect. Their failure to do so lands

them in serious trouble. Also, a doctor’s failure to recognize

possible meningitis is equally problematic—as we discover

from the testimony of Dr. Shapiro, the Muellers’ expert wit-

ness.

Society has seen fit to qualify parental rights in certain cir-

cumstances in favor of the life and liberty rights of a child.

MUELLER v. CITY OF BOISE 12933

When the statutory due process used to actualize a child’s

right as recognized by state law comes into play, understand-

ably parents will be upset. This case illustrates the validity of

Justice Rehnquist’s observation in Santosky v. Kramer, 455

U.S. 745, 771 (1982) (Rehnquist, J. dissenting), that “[s]tate

intervention in domestic relations has always been an

unhappy but necessary feature of life in our organized soci-

ety.” If anything, the completed record shows that Dr. Mac-

donald exercised his best judgment in an emergency setting in

favor of ensuring an infant’s safety from the very peril that

caused her mother to take her in the middle of the night to a

hospital emergency room. This is hardly the stuff of which a

cognizable civil rights violation can be made.

AFFIRMED.