Garza et al v. Yuma County et al

Filing 269

ORDER denying 206 Motion for Summary Judgment. See PDF document for details. Signed by Judge John W Sedwick on 11/10/11.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

M.M., et al.,
Plaintiffs,
vs.
YUMA COUNTY, et al.,
Defendants.

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2:07-cv-01270- JWS
ORDER AND OPINION
[Re: Motion at Docket 206]

I. MOTION PRESENTED
At docket 206, defendant Kindra Gonzales (“Gonzales”) moves pursuant to
Federal Rule of Civil Procedure 56 for summary judgment. Plaintiffs M.M., Ashley
Ingraham (“Ingraham”), and Alex Garza (collectively “plaintiffs”) oppose the motion at
docket 213. Ingraham’s reply is at docket 219. Oral argument was requested, but it
would not assist the court.
II. BACKGROUND
This lawsuit arises out of the premature birth of M.M. Ingraham is her mother,
and Alex Garza is her father. Ingraham was taken into custody at the Yuma County
Detention Center on September 7, 2006. Ingraham was examined at intake by Elanor

Snider (“Snider”). Ingraham informed Snider that she was pregnant, suffered from
bipolar disorder, and was taking medication. Ingraham was given prenatal vitamins.
Gonzales’ first interaction with Ingraham was at 10:39 a.m. on September 8,
2006. Gonzales was informed that Ingraham had an outburst at a court hearing that
morning. She did not know whether Ingraham would be in jail for an extended period,
but was informed that Ingraham was pregnant. She recognized a need for Ingraham’s
medical records, and ordered a vital sign check and a urinalysis to confirm the
pregnancy.
Ingraham was brought back to the medical department at 10:56 a.m. after she
complained that she was having contractions. Gonzales performed an abdominal exam
and did not notice anything out of the ordinary. Ingraham asked to be taken to the
hospital and stated that her water broke. Gonzales examined Ingraham’s underwear
and found “a small amount of yellow fluid with urine smell [and] no bloody show.”1
Gonzales reported that it did “not appear to be amniotic fluid” and that she was “unable
to test” it.2 Gonzales then contacted Dr. Jose Piscoya (“Piscoya”). Piscoya ordered that
Ingraham be given Tylenol for pain and instructed that she not be sent to the hospital at
that time. Gonzales placed Ingraham on behavior watch.
At 1:38 p.m. Gonzales recorded that Ingraham’s pregnancy test came back
positive and made a note that Ingraham had seemed to calm down after returning to her

1

Doc. 207-1 at 6.

2

Id. at 7.

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cell. Gonzales had no further interaction with Ingraham or direct involvement with her
treatment that is pertinent to the pending motion.
On September 9, 2006, it was reported that Ingraham was jumping on her belly
in an effort to harm her unborn child. Ingraham yelled from her cell that she was in
labor, was in pain, needed her medications, and that she had been experiencing vaginal
bleeding for hours. At around 1:00 a.m. on September 10, 2006, Ingraham gave birth to
M.M. in her cell.
Ingraham and Alex Garza, individually and on behalf of M.M., filed a lawsuit
against the Yuma County Jail District, various jail officers, and various employees of
Northend Health Associates, the company which had contracted to perform medical
services at the jail. Plaintiffs allege that all defendants deprived them of their civil rights
in violation of 42 U.S.C. § 1983 and that all defendants were negligent.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a matter of law.”3 The
materiality requirement ensures that “only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”4 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”5 In resolving a motion

3

Fed. R. Civ. P. 56(c)(2).

4

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

5

Id.

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for summary judgment, a court must view the evidence in the light most favorable to the
non-moving party.6 The reviewing court may not weigh evidence or assess the
credibility of witnesses.7 The burden of persuasion is on the moving party.8
IV. DISCUSSION
A. Slosberg’s Testimony Supports a Claim that Gonzales Breached the Applicable
Standard of Care
The law of Arizona, the place where the relevant events transpired, applies to
plaintiffs’ negligence claim against Gonzales. In Arizona, “[i]n order for a plaintiff to
establish the statutory elements to maintain a malpractice claim, he must normally
utilize medical testimony by qualified physicians.”9 Expert medical testimony must be
used unless “the negligence is so grossly apparent that a layman would have no
difficulty in recognizing it.”10 The main thrust of Gonzales’ argument is that she is
entitled to judgment as a matter of law because plaintiffs’ expert–Sandra Slosberg
(“Slosberg”)–stated that Gonzales did not breach the applicable standard of care.
At Slosberg’s deposition, defendant’s counsel questioned Slosberg about
Gonzales’ treatment of Ingraham. For instance, defendant’s counsel asked Slosberg
about the vital sign check and pregnancy test.11 He sought to establish that Ingraham’s

6

Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000).

7

Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).

8

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

9

Peacock v. Samaritan Health Svc., 765 P.2d 525, 528 (Ariz. Ct. App. 1988).

10

Id. (internal quotations omitted).

11

Doc. 207-1 at 5.

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medical records were needed before medication could be administered and that those
records had not yet arrived at the jail when Gonzales examined Ingraham.12 Slosberg
agreed that it would be important to use the medical records to determine what had
been prescribed, in what dosage, at what intervals, and whether in combination with
other drugs.13 Defendant’s counsel also asked Slosberg about the abdominal
examination that Gonzales performed in response to Ingraham’s complaints that she
was having contractions and the fact that Gonzales checked Ingraham’s underwear in
response to Ingraham’s statement that her water broke.14 Slosberg conceded that she
had no reason to believe Gonzales’ abdominal examination did not involve appropriate
palpation.15
Defendant’s counsel then asked whether any of Gonzales’ actions violated the
applicable standard of care, and Slosberg opined that they did not.16 To put the matter
in more detail, the deposition transcript shows the following questions by Gonzales’
lawyer and Slosberg’s answers:17
“Q: So what we have then is a situation where Nurse Gonzales checked
for contractions, found none, counseled the patient, put her on behavioral
watch, followed up on that, and had a pregnancy test run, vital signs run
and indicated that if the were . . . To stay incarcerated, that she would set
up an appointment with the obstetrician. All of that occurred, didn’t it?

12

Doc. 207-1 at 6.

13

Id.

14

Id.

15

Id.

16

Doc. 207-1 at 8.

17

Id.

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A: Yes.
Q: None of that was below the standard of care was it?
A: No.
Subsequent questions and answers, however, show that Slosberg did have one
concern about Nurse Gonzales’ actions:18
Q: You would agree with me to a reasonable degree of medical probability
that Nurse Gonzales did not violate the standard of care in everything that
we have discussed so far, correct?
A: Correct. But if she had the proper tools, it would have helped.
Q: You don’t know whether with the proper tools–and I assume you’re
talking about Nitrazine paper, correct?
A: Correct.
Q: You don’t know one way or the other whether Nitrazine paper would
have revealed amniotic fluid or not revealed amniotic fluid, that’s true isn’t
it?
A: No, but she would have had a determination and answer.
The court reads this last exchange (and the subsequent question and answer in the
transcript to the same effect) to be potentially ambiguous. Slosberg might have meant
that the determination and answer from the test could not have confirmed or ruled out
the presence of amniotic fluid. Alternatively, Slosberg might have meant that Slosberg
herself could not say what the test result would have shown, because no test was run.
However, in light of Slosberg’s previous statement that “if they had Nitrazine paper, they
could test [the fluid] in a moment to find out whether it was amniotic fluid or not,” the
potential ambiguity disappears. Slosberg’s answer suggests that the test would have

18

Id.

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been able to show whether or not Ingraham was at imminent risk of giving birth.
Consequently, Slosberg’s testimony that Gonzales should have tested the fluid found on
Ingraham’s underwear in order to meet the requisite standard of care is sufficient.
Whether Nitrazine was available on-site is a disputed issue of fact.
With respect to Gonzales herself, as distinguished from the entire array of nurses
who eventually examined or treated Ingraham, plaintiffs assert fault only in that
Gonzales did not perform a test with Nitrazine paper, that she did not perform a mental
health evaluation, and that she did not have medicines administered at the time
Gonzales was in contact with Ingraham.19 Plaintiffs have not produced expert testimony
demonstrating that the latter two allegations fell below the standard of care. However,
because Gonzales may have breached that standard when she did not test the fluid that
she observed on Ingraham’s underwear, summary judgment is inappropriate.
B. Defendant’s Causation Argument Was Not Raised in Her Motion
Gonzales also argues that plaintiffs have not produced any evidence of
causation. That argument was raised for the first time in Gonzales’ reply brief.20 A
“district court need not consider arguments raised for the first time in a reply brief.”21
Because plaintiffs have not had an opportunity to respond, the court declines to address
Gonzales’ causation argument.

19

Id. at 5-6. Plaintiffs also say that Gonzales did not try to determine if Ingraham’s water
had broken, but offer not the slightest suggestion of what could have been done beyond the
examination and observation made by Gonzales, and Slosberg’s testimony is not cited in
support of this proposition.
20

Doc. 219 at 6–8.

21

Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).

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V. CONCLUSION
For the reasons above, Gonzales’ motion at docket 206 for summary judgment
pursuant to Rule 56 is DENIED.
DATED this 10th day of November 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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