Atcherian et al v. United States of America

Filing 71

ORDER Regarding Pending Motions. (Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOSEPH J. ATCHERIAN, on his own
behalf and as the Personal Representative
of the ESTATE OF MARTHA JO
ATCHERIAN, Deceased; and MAX
YUNAK, Sr., as the Personal
Representative for the ESTATE OF
PAULA KAREN YUNAK,

Case No. 3:12-cv-0211-RRB
Order Regarding Pending
Motions
Docket Nos. 28, 30, 38, 61 & 65

Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

This is a wrongful death matter involving the estates of Paula Yunak and her infant
daughter, Martha Jo Atcherian. The facts are discussed at length in the Order at Docket 60.
Plaintiffs allege four causes of action: 1) Negligence, in the form of breach of the
standard of medical care; 2) Failure to provide informed consent; 3) Wrongful death and survival
claim (Paula); and 4) Wrongful death and survival claim (Martha). Docket 1. Pending before
the Court are several motions addressed in turn below.

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I. Motion in Limine Regarding Qualification of Plaintiffs’ Experts
and Failure to Produce Opinion on Informed Consent (Docket 28)
The Government has filed a Motion in Limine regarding qualification of Plaintiffs'
experts and failure to produce rebuttal opinion on the issue of whether cardiomyopathy was the
case of death. Specifically, the Government argues that: 1) Plaintiffs' experts are OB/GYNs,
not family practice physicians, and therefore under Alaska law are not able to provide opinions
regarding the care provided by providers of a different specialty; and 2) Plaintiffs' experts did
not rebut any of the government expert opinions regarding cardiomyopathy, and therefore should
not be permitted to testify regarding cardiomyopathy.
The Government’s first argument is unpersuasive. The physicians in this matter were
family practice physicians treating a pregnant woman. An OB/GYN is clearly qualified to testify
as to the standard of care in this matter. The Court also finds unpersuasive the argument that the
remote location of Bethel is relevant to the standard of care. While it may be relevant to the
methodology and practicality of implementing the standard of care, (such as requiring a medevac
to a hospital that can provide the needed services), the standard of care itself is not lower (or
different) merely due to the location of the patient.
With respect to the Government’s second argument regarding testimony of Plaintiff’s
experts at trial, the pleadings suggest that the Government did not raise its cardiomyopathy
defense until 2014, four years after the incident, and two years after this lawsuit was filed.
Nothing appears to preclude Plaintiffs’ experts from rebutting what is contained in the
Government’s expert reports, and no prejudice will occur from permitting such testimony.

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In light of the foregoing, the Motion at Docket 28 is DENIED.
II. Motion to Dismiss the Claim Regarding Informed Consent (Docket 30)
Plaintiffs’ second cause of action alleges that there was a "duty to disclose all significant
medical information that they possessed or reasonably should have possessed that is material to
form an intelligent decision by a patient on whether to leave an emergency care hospital when
experiencing and continuing to experience pre-eclampsia." In other words, Plaintiffs seek relief
for failure to provide informed consent. The Government moves to dismiss this cause of action,
complaining that Plaintiffs have not provided an expert opinion stating whether there is such a
duty, and if so, the extent of the duty. Docket 31 at 2.
The Court observes that in order to prevail on the informed consent cause of action,
Plaintiffs will necessarily need to prevail on at least one other cause of action in their Complaint.
At that juncture, whether or not Paula Yunak gave informed consent becomes relevant. The
cause of death in this matter remains a question of fact. Until that question is resolved, whether
or not she should have been provided with additional information to give informed consent to
leave the hospital - and whether the hospital even owed such a duty- is unknown.
Accordingly, the Motion to Dismiss at Docket 30 is DENIED WITHOUT
PREJUDICE.
III. Plaintiffs’ Motion for Partial Summary Judgment
(Cardiomyopathy Defense) (Docket 38)
Whether the decedent suffered from severe pre-eclampsia or, rather, peripartum
cardiomyopathy is a critical determination in this matter. At trial, the expert witnesses will be

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able to explain to the Court, with a reasonable degree of medical certainty, the cause of death in
this matter. The Court will weigh the evidence and the credibility of experts and render its
opinion. Accordingly, the Plaintiffs' Motion for Partial Summary Judgment on the Federal
Government's cardiomyopathy defense at Docket 38 is DENIED.
IV. Motion to Strike (Docket 61) and
Motion for Judicial Notice of Medical Treatise (Docket 65)
The excerpt of the medical treatise at issue in the motions at docket numbers 61 & 65
shall be admissible at trial if Plaintiffs submit it in accordance with Federal Rule of Evidence
803(18). The Motion to Strike Additional Information at Docket 61 is DENIED WITHOUT
PREJUDICE. The Motion for Judicial Notice at Docket 65 is also DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED this 23rd day of January, 2015.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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