Lacombe v. Bullhead City Hospital Corp et al

Filing 59

ORDER denying 49 Motion for Summary Judgment. FURTHER ORDERED that, in light of the somewhat unusual procedural posture of this case in which no effective scheduling order pursuant to Rule 16 has been entered, a status conference is hereby set for 01/19/09 at 1:30 a.m. during which such orders as may be necessary, including a potential pre-trial conference and trial date, will be set. Signed by Judge Robert C Broomfield on 12/08/08.(DNH)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Carla M. Lacombe, individually) and as Administrator for the ) Estate of David Nichols, ) deceased; Donald A. Nichols, ) father of David Nichols; ) Nancy Nichols, mother of ) David Nichols, ) Plaintiffs ) vs. ) ) Bullhead City Hospital Corp., ) a Tennessee corporation doing ) business in Arizona as Western) Arizona Regional Medical ) Center, ) ) Defendant. )

No. CIV 06-2037-PHX-RCB ORDER

Currently pending before the court in this medical malpractice action is a motion for summary judgment pursuant to Fed. R. Civ. P. 56 by defendant, Bullhead City Hospital, a Tennessee corporation doing business in Arizona as Western Arizona Regional Medical Center ("WARMC") (doc. 49).1 WARMC is moving for summary judgment

on the narrow issue of proximate cause, arguing that "no reasonable jury could conclude that any act by [it] caused" the death of plaintiffs' decedent, David Nichols. Mot. (doc. 49) at 1. Summary

judgment is improper, plaintiffs respond, because they have
1

same.

Finding oral argument unnecessary, the court denies WARMC's request for

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produced expert opinion which contradicts WARMC's theory as to the cause of death. Thus, from plaintiffs' standpoint, there is a

genuine issue of material fact rendering summary judgment improper. For the reasons set forth below, the court finds that WARMC has not met its initial burden of showing the absence of a genuine issue of material fact. Therefore, the court must deny WARMC's summary

judgment motion. Background Even though, as the SAC alleges, penicillin was "contraindicat[ed]" given Mr. Nichols's overall medical history, including a "previous anaphylactic reaction to penicillin[,]" while at WARMC, "physicians ordered I.V. administration of Primaxin." SAC (doc. 40) at 3, ¶¶ 11; 13; and 14. According to the SAC,

Primaxin is a "broad spectrum antibiotic which is in the same general class as penicillin." Id. at 3, ¶ 14. As the SAC

describes it, "Mr. Nichols' condition deteriorated into full respiratory decompensation, secondary to reaction from Primaxin, and he died." Id. at 3, ¶ 15. The SAC further alleges that "[t]he

administration of Primaxin to Mr. Nichols in the face of his prior anaphylactic reaction to penicillin, his known allergy to penicillin and his subsequent reaction to same, constituted medical negligence[.]" Id. at 3, ¶ 17. "As a proximate result" of that

negligence, the SAC alleges that Mr. Nichols died on September 3, 2004. See id. at 3, ¶15; and at 4, ¶ 22. Dr. Arthur DelRosario, a physician licensed in Nevada and "board certified in clinical and endemic pathology," with a subspecialty in cytopathology, performed an autopsy on Mr. Nichols on September 5, 2004. WARMC's Separate Statement of Facts Supporting -2-

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its Motion for Summary Judgment ("Def. SOF") (doc. 50) at 2, ¶¶ 5-7 (citations omitted). Following that autopsy, on September 30,

2004, Dr. DelRosario prepared an autopsy report, id., exh. 3 thereto, which pursuant to court order was filed under seal. 54. Doc.

"The major autopsy findings[,]" according to Dr. DelRosario,

"include pulmonary decongestion and edema, and cardiomegaly with left ventricular hypertrophy." SOF (doc. 50), exh. 3 thereto at 4;

see also SOF (doc. 50) at 2, ¶ 8 (citation omitted). During his deposition, Dr. DelRosario opined that "hypertension . . . caused the enlargement of [Mr. Nichols'] heart[.]" Id. at 2, ¶ 9 (citing exh. 2 thereto at 24:2-4). In

discounting the possibility that Mr. Nichols' "death resulted in something relating to his penicillin allergy[,]" Dr. DelRosario further explained that in addition to containing "a lot of fluid[,]" Mr. Nichols' lungs had "a lot of pigment-latent microphages[.]" Id., exh. 2 thereto at 23:17-18. Those factors,

along with what Dr. DelRosario described as Mr. Nichols' "enlarged" heart contributed to the doctor's opinion that, in lay terms, heart failure was the cause of Mr. Nichols' death. Dr.

DelRosario further opined that if Mr. Nichols had had anaphylactic shock, there would have been "a so-called capillary leak[,]" making "all parts of the body edematous[,]" which Dr. DelRosario testified he did not "seem to have seen" in Mr. Nichols. Id. at 27:11-17.

Plaintiffs strongly disagree with Dr. DelRosario's conclusion as to the cause of Mr. Nichols' death. They postulate that Mr.

Nichols died as a result of an anaphylactic reaction to the Primaxin. Dr. DelRosario was specifically asked about that theory "[H]ow much percentagewise [sic] would you give -3-

at his deposition:

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to saying that the cause of death was related to anaphylactic shock based on your report . . . on a 1-to-100 scale?" thereto at 27:1-4. He responded: Id., exh. 2

"It's extremely low[;] I would Id. at 27:7-8.

say, lower than less than one percent."

Contrary to the dictates of LRCiv 56.1(b), plaintiffs did not file a controverting statement of facts. Nor, as that Rule also

requires, did plaintiffs file a statement setting forth "any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party." Id.

Instead, along with their response to WARMC's summary judgment motion, plaintiffs filed an affidavit from Dr. Hugh E. Wilson, who is board certified by the American Board of Pathology in Anatomical and Clinical Pathology, and his curriculum vitae. Doc. 56-2 at 1.

In his affidavit Dr. Wilson criticizes Dr. DelRosario's autopsy report, and concludes by opining that "the cause of death would appear to be complete cardiorespiratory arrest secondary to anaphylactic reaction." Wilson Aff. (doc. 56-2), at 7, ¶ 17(6).

Plaintiffs argue Dr. Wilson's opinions as set forth in his affidavit create a genuine issue of material fact as to proximate cause. Therefore, the court should deny WARMC's summary judgment

motion and allow this case to proceed to trial. WARMC's response is twofold. First, it counters that because

plaintiffs did not specifically controvert WARMC's SOF, as LRCiv 56.1(b) requires, that SOF is deemed admitted, thus entitling WARMC to summary judgment. Second, Dr. Wilson's affidavit is

insufficient in any event to defeat summary judgment because it merely "critiqu[es] Dr. DelRosario's autopsy without specifically controverting [WARMC's] facts[.]" See Reply (doc. 57) at 3. -4WARMC

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further challenges Dr. Wilson's affidavit as speculative because although he avers that tissue and/or blood samples "might have been helpful in establishing a diagnosis of anaphylaxis[,]" he did not take or review any such samples from Mr. Nichols. (doc. 56-2) at 4-5, ¶ 10. Wilson Aff.

Therefore, WARMC reasons, Dr. Wilson's

"speculation of what the tissues and samples could have shown is insufficient to prove causation[.]" Reply (doc. 57) at 4. As will

be seen, neither of these reasons justify granting summary judgment on this record. Discussion I. Summary Judgment Standards Pursuant to Fed.R.Civ.P. 56(c), a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is beyond dispute that "[t]he moving party

bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "The criteria of

`genuineness' and materiality' are distinct requirements." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.1996 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The requirement that an issue be `genuine relates to the quantum of evidence the plaintiff must produce to defeat the defendant's motion for summary judgment." Id. "There must be sufficient evidence `that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson, 477 U.S. at 248). As to -5-

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materiality, the substantive law will identify which facts are material." Anderson, 477 U.S. at 248. law of Arizona is the substantive law. "Once the moving party meets its initial burden, . . . , the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." citations omitted). Id. (internal quotation marks and Here, as will be seen, the

This "[e]vidence must be concrete and cannot Bates v.

rely on `mere speculation, conjecture, or fantasy.'"

Clark County, 2006 WL 3308214, at * 2 (D.Nev. Nov. 13, 2006) (quoting O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir.1986)). Similarly, "a mere `scintilla' of evidence" is

not sufficient "to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some significant probative evidence tending to support the complaint." Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir.1997) (quoting Anderson, 477 U.S. at 249, 252). Thus, in

opposing a summary judgment motion it is not enough to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(citations omitted). By the same token though, when assessing the record to determine whether there is a "genuine issue for trial the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in his favor." Horphag, 475 F.3d at 1035 (citation omitted). "Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the -6-

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inference may be drawn. Yang v. Peoples Benefit Ins. Co., 2007 WL 1555749, at *7 (E.D.Cal.2007) (citations omitted). Finally, the

court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. With these

principles firmly in mind, the court has carefully reviewed the record before it on this motion. II. LRCiv 56.1 LRCiv 56.1 expressly requires a party opposing summary

9 judgment to, among other things, provide: 10 11 12 13 14 a statement, . . . setting forth . . . for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed[.] That Rule further provides that "[e]ach numbered

15 LRCiv 56.1(b).

16 paragraph of the statement of facts set forth in the moving party's 17 separate statement of facts shall, unless otherwise ordered, be 18 deemed admitted for purposes of the motion for summary judgment if 19 not specifically controverted by a correspondingly numbered 20 paragraph in the opposing party's separate statement of facts." 21 Id. (emphasis added). 22 As earlier noted, plaintiffs did not comply with Local Rule The court therefore could deem admitted

23 56.1(b) in any respect. 24 WARMC's entire SOF.

"However, given the phrase, `unless otherwise

25 ordered,' the court finds that it has the discretion, but is not 26 required, to deem the uncontroverted facts admitted." See Huynh v.

27 J.P. Morgan Chase & Co., 2008 WL 2789532, at *5 (D.Ariz. July 17, 28 2008) (internal quotation marks and citation omitted). -7In the

1 exercise of that discretion, because the issue as WARMC frames it 2 is so narrow - proximate cause - as will soon become evident, the 3 court had no difficulty discerning the disputed facts. 4 Accordingly, it will not deem any of WARMC's facts admitted due to 5 plaintiffs' failure to comply with LRCiv 56.1(b). 6 Obviously it would have been preferable for plaintiff to have

7 fully complied with LRCiv 56.1(b); and the court hastens to add 8 that in the future in this case it will not be so lenient. 9 stated, however, the disputed facts are easily discernible. 10 Furthermore, proceeding in this way is in keeping with the Ninth 11 Circuit's stated preference for resolving summary judgment motions 12 on the merits, rather than "turn[ing] the summary judgment rule 13 into a mere sanction for noncompliance with local rules." 14 Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). 15 III. 16 Medical Malpractice Under the Erie doctrine, this court sitting in diversity See As just

17 jurisdiction must apply state substantive law and federal 18 procedural law. 19 415, 427 (1996). Gasperini v. Ctr. for Humanities, Inc., 518 U.S. Therefore, the court must look to the law of

20 Arizona to determine the elements of plaintiffs' medical 21 malpractice cause of action. Pursuant to A.R.S. § 12-563 the

22 "[n]ecessary elements of proof" for such a cause of action are a 23 showing that: 24 25 26 27 28 1. [t]he health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances[;] [and] 2. [s]uch failure was a proximate cause of the injury. -8-

1 A.R.S. § 12-563(1)-(2) (West 2003).

Only the second element As is readily

2 proximate cause - is at issue on this motion.

3 apparent by now, WARMC maintains that the cause of death was heart 4 failure, whereas plaintiffs assert that it was an anaphylactic 5 reaction to Primaxin. 6 In challenging the sufficiency of plaintiffs' evidence on this

7 motion, the court agrees with WARMC that if Dr. Wilson's affidavit 8 was limited to criticizing Dr. DelRosario's methodology in 9 performing the autopsy, and hence the conclusions he reached, in 10 all likelihood, it would be insufficient to survive this summary 11 judgment motion on the issue of causation. WARMC overlooks the

12 fact, however, that in his opposing affidavit Dr. Wilson went one 13 step farther - a critical step, as it turns out, in terms of this 14 motion. Not only does Dr. Wilson outline the reasons why the

15 autopsy does not support a diagnosis of heart failure, but he goes 16 on to explain why he "concur[s] with Drs. Russo and Budny that to a 17 reasonable degree of medical certainty, the cause of death would 18 appear to be complete cardiorespiratory arrest secondary to 19 anaphylactic reaction." 20 Wilson Aff. (doc. 56-2), at 7, ¶ 17(6).

Based upon his review of certain medical records, the autopsy

21 report prepared by Dr. DelRosario and his deposition, in his 22 opposing affidavit Dr. Wilson explicates the reasons why "[i]t is 23 far more probable than not, that [Mr. Nichols'] died of something 24 other than heart failure." Id. at 7, ¶ 17(1). Among those reasons

25 is that "[n]either the autopsy on Mr. Nichols nor his clinical 26 course during his terminal admission support a diagnosis of heart 27 failure." Id. Second, "[t]he enlargement of Mr. Nichols' heart is

28 not striking and is consistent with his past medical history of -9-

1 hypertension."

Id. at 7, ¶ 17(2).

Additionally, "[t]he congestion

2 and edema of the lungs at the time of autopsy and the severe 3 reactive airways disease noted by Dr. Patel [the Nichols' family 4 doctor] are consistent with a diagnosis of anaphylaxis." 5 ¶ 17(5). Id. at 7,

Lastly, before rendering his ultimate conclusion on the

6 cause of death, Dr. Wilson averred that "[g]iven the lack of a 7 specific anatomical cause of death at autopsy, the cause of Mr. 8 Nichols' death is best determined on clinical grounds." 9 ¶ 17(6). Id. at 7,

Dr. Wilson continued: "The clinical history is most

10 consistent with an anaphylactic reaction to beta lactam antibiotic 11 and is also supported by the wet heavy lungs described at autopsy." 12 Id. 13 The court starts its assessment of this record from the well-

14 settled proposition that "[g]enerally, proximate cause is a 15 question of fact for the jury." Petolicchio v. Santa Cruz County

16 Fair & Rodeo Ass'n, Inc., 177 Ariz. 256, 262, 866 P.2d 1343, 1348 17 (1994) (citation omitted). The court relies on a related and

18 equally well-settled proposition that "[a] plaintiff need only 19 present probable facts from which the causal relationship may be 20 inferred." Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247,

21 253, 955 P.2d 3, 9 (1997) (internal quotation marks and citation 22 omitted). By the same token though, the court "may properly decide

23 proximate cause if, after reviewing the facts, there is no 24 reasonable chance or likelihood that the conclusions of reasonable 25 persons would differ." Petolicchio, 177 Ariz. at 262, 866 P.2d at

26 1348 (internal quotation marks and citation omitted) (emphasis 27 added). 28 Applying these principles, as well as the Supreme Court's - 10 -

1 summary judgment framework set forth above, to the record as 2 presently constituted, persuades the court that WARMC is not 3 entitled to summary judgment on the issue of proximate cause. 4 Through Dr. Wilson's affidavit, and drawing as it must all 5 reasonable inferences therefrom in plaintiffs' favor, the court 6 finds a genuine issue of material fact as to causation here. 7 Succinctly put, the evidence now before the court "presents a 8 sufficient disagreement to require submission to a jury[.]" See 9 Anderson, 477 U.S. at 251-52. It is not "so one-sided that one Id.

10 party must prevail as a matter of law." 11 12

Accordingly, for the reasons set forth herein, IT IS ORDERED denying the motion for summary judgment by

13 defendant Bullhead City Hospital, a Tennessee corporation doing 14 business in Arizona as Western Arizona Regional Medical Center 15 (doc. 49). 16 IT IS FURTHER ORDERED that, in light of the somewhat unusual

17 procedural posture of this case in which no effective scheduling 18 order pursuant to Rule 16 has been entered, a status conference is 19 hereby set for January 19, 2009 at 1:30 a.m. during which such 20 orders as may be necessary, including a potential pre-trial 21 conference and trial date, will be set. 22 23 24 25 26 27 28 - 11 DATED this 8th day of December, 2008.

1 Copies to counsel of record 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -