Dougherty, et al v. Lincare Holdings, Inc., et al

Filing 78

ORDER granting in part and denying in part 65 Motion for Summary Judgment. The Court will set a final pretrial hearing by separate order. Signed by Judge David G Campbell on 8/10/2011.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Catherine Dougherty, et al.,

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Plaintiffs,
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vs.
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Lincare, Inc., a foreign corporation, et al.,)
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Defendants.
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_________________________________ )

No. CV10-0978 PHX DGC
ORDER

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Defendant Lincare Inc. (“Lincare”) moves for summary judgment, the motion has

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been fully briefed (Doc. 65, 73, 76), and the parties do not request oral argument. For the

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reasons that follow, the Court will grant the motion in part and deny it in part.

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I.

Background.

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Some of the facts relevant to this motion are not in dispute.1 Plaintiff Catherine

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Dougherty contracted with Lincare in Wisconsin “for the provision of oxygen, related

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respiratory therapy services, and certain durable medical equipment.” Doc. 66 ¶ 3. Mrs.

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Dougherty’s doctor in Wisconsin prescribed her “continuous oxygen at the flow rate of 2.0

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liters per minute.” Id. at ¶ 2. On or about April 28, 2008, Mrs. Dougherty informed Lincare

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that she was moving to Arizona on May 6, 2008. Id. at ¶ 7.

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Mrs. Dougherty alleges that she requested portable oxygen for at least five days from

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Because the parties’ statements of facts indicate agreement as to these facts, the
Court will cite only to the filing that contains the affirmative statement of fact.

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a Lincare representative (Doc. 75 ¶¶ 6-8); that the representative left her three oxygen tanks

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assuring the Doughertys they had plenty of oxygen for the trip (id. at ¶ 9); that a hospital

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along the route checked the oxygen supply and determined it was low (id. at ¶ 14); that the

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Doughertys’ attempts to refill the bottles at the hospital and fire station were refused (id. at

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¶¶ 14, 16); that when Mrs. Dougherty arrived in Phoenix she was admitted to the emergency

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room with respiratory symptoms (id. at ¶¶ 20); that upon admission her oxygen saturation

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level was 58% and the lab analysis showed “hypoxia” (id. at ¶¶ 20, 23); and that she was

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diagnosed with “respiratory distress, acute myocardial infarction, and new onset atrial

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fibrillation” (id. at ¶ 24). Plaintiffs filed a suit in Maricopa County Superior Court. Doc. 1-1.

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The case was removed to this Court.

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II.

Discussion.

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Defendant moves for summary judgment. Some of its arguments present issues of

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law, while others challenge the sufficiency of the evidence. As to the latter, summary

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judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving

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party, shows “that there is no genuine issue as to any material fact and that the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only disputes over facts that

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might affect the outcome of the suit will preclude the entry of summary judgment, and the

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disputed evidence must be “such that a reasonable jury could return a verdict for the

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nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court

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relies on “the nonmoving party to identify with reasonable particularity the evidence that

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precludes summary judgment,” and is not obligated to “scour the record in search of a

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genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal

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quotation marks and citation omitted).

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A.

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Defendant asserts that “expert testimony is required both to establish whether an

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adequate supply of oxygen was delivered to Mrs. Dougherty and whether any alleged failure

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caused her injury.” Doc. 65 at 4:16-18. Defendant argues that it is entitled to summary

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Expert Witnesses.

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judgment because Plaintiffs have identified no expert witness to address these issues at trial.

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Id. at 3-7. Plaintiffs respond that expert testimony is not required, and that hospital records

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and Defendant’s own experts will be sufficient for Plaintiffs’ case. Doc. 73 at 6-7, 10.

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Ninth Circuit case law suggests that state law governs whether expert testimony is

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required to establish causation in a diversity action. See Domingo ex rel. Domingo v. T.K.,

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289 F.3d 600, 607 (9th Cir. 2002) (“Under Hawaiian law, the plaintiff in a medical

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malpractice action must show causation through expert testimony.” (citation omitted)). The

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relevant inquiry, therefore, is whether an expert witness is required by Arizona law to

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(1) “establish whether an adequate supply of oxygen was delivered to Mrs. Dougherty” and

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(2) “whether any alleged failure caused her injury” (Doc. 65 at 4:16-18).

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Defendant’s motion cites Arizona cases, but none of them specifically addresses these

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issues and none holds that expert evidence is always required in a case of this kind. Arizona

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case law suggests that experts may or may not be mandatory depending on the source of the

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requirement, the cause of action, and the nature of the issue on which the expert’s testimony

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would bear. See, e.g., Seisinger v. Siebel, 203 P.3d 483 (Ariz. 2009); Boyce v. Brown, 77

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P.2d 455 (Ariz. 1938) (noting established law that “negligence on the part of a physician or

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surgeon, by reason of his departure from the proper standard of practice, must be established

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by expert medical testimony,” unless the negligence is grossly apparent (emphasis added));

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Governale v. Lieberman, 250 P.3d 220 (Ariz. App. 2011).

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The Court concludes that Plaintiffs have presented sufficient evidence to raise triable

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issues of fact on causation. Plaintiffs’ evidence, if believed by the jury, will show that Mrs.

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Dougherty requested portable oxygen for at least five days from a Lincare representative

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(Doc. 75 ¶¶ 6-8); that the representative left her three oxygen bottles and assured the

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Doughertys they had plenty of oxygen for the trip (id. at ¶ 9); that a hospital along the route

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checked the oxygen supply and determined it was low (id. at ¶ 14); that the Doughertys’

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attempts to refill the bottles at the hospital and fire station were refused (id. at ¶¶ 14, 16); that

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when Mrs. Dougherty arrived in Phoenix she was admitted to the emergency room with

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respiratory symptoms (id. at ¶¶ 20); that upon admission her oxygen saturation level was
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58% and the lab analysis showed “hypoxia” (id. at ¶¶ 20, 23); and that she was diagnosed

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with “respiratory distress, acute myocardial infarction, and new onset atrial fibrillation” (id.

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at ¶ 24). A reasonable jury could find from these facts that Defendant provided Mrs.

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Dougherty with insufficient oxygen and that she suffered adverse health effects, including

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a heart attack, as a result. Defendant of course will assert through its evidence and experts

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that these conclusions are not supported, and a jury may choose to believe Defendant in light

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of the lack of an expert to support Plaintiffs’ case. But that issue must be resolved by the

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jury at trial, not by the Court on summary judgment.

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B.

Conserving Device.

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Defendant argues that to the extent Plaintiffs assert negligence based on Defendant’s

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failure to provide an oxygen-conserving device, Defendant lacked the authority to provide

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such device because it was not prescribed. Doc. 65 at 7-12. Plaintiffs respond that the

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dispositive issue is whether Lincare provided sufficient oxygen, suggesting that whether or

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not a conserving device was present is not critical to their case. Doc. 73 at 11-12. The

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complaint clearly alleges Lincare was negligent by both failing to supply sufficient oxygen

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as well as by failing to provide proper dispensing equipment. Id. at 10. Plaintiffs fail to

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defend the latter theory. Summary judgment will therefore be granted on the claim that

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Defendant is liable for failing to provide an oxygen-conserving device.

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C.

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Defendant argues Plaintiffs have failed to show that Mrs. Dougherty’s injuries were

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caused by Defendant’s alleged negligence. Doc. 65 at 14-15. Plaintiffs respond that the

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evidence available in this case shows Lincare’s conduct is a substantial factor in Mrs.

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Dougherty’s injuries. Doc. 73 at 7-10. Plaintiffs further suggest that hospital records show

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Mrs. Dougherty’s oxygen deprivation and her heart attack are correlated. Id. at 12-13.

Causation.

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Under Arizona law, “[t]he proximate cause of an injury is that which, in a natural and

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continuous sequence, unbroken by an efficient intervening cause, produces an injury, and

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without which the injury would not have occurred.” Brand v. J.H. Rose Trucking Co., 427

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P.2d 519, 523 (Ariz. 1967) (citations omitted). “Moreover, there may be more than one
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proximate cause of an accident if each was an efficient cause without which the resulting

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injuries would not have occurred.” Id. (citations omitted). “In establishing the proximate

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cause of an accident, speculation cannot be substituted for probative facts after making due

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allowance for all reasonably possible inferences favoring the party whose case is attacked;

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and, if a possible reasonable inference is present, the issue must be presented to the jury for

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its determination.” Id. at 524 (citation omitted). “When there is any evidence of negligent

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conduct which reasonable men might infer was one of the proximate causes of the accident,

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the cause must be submitted to the jury for decision.” Id. (citation omitted).

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Mrs. Dougherty submitted evidence that she asked Defendant for oxygen to last a

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certain number of days for a trip from Wisconsin to Arizona, that Defendant provided

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oxygen, that the oxygen lasted a significantly shorter amount of time before it ran out, that

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Mrs. Dougherty experienced several health issues on the trip, that upon admission to the

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emergency room her blood oxygen level was 58%, and that medical staff described the latter

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as hypoxia. A reasonable jury, if it finds the evidence credible, may conclude that Defendant

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provided less-than-requested oxygen and that a deficiency of oxygen was one of the

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proximate causes of Mrs. Dougherty’s injuries.

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D.

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Defendant argues Mrs. Dougherty’s husband has not presented evidence he suffered

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a physical injury or was within the zone of danger, thereby failing to establish his negligent

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infliction of emotional distress claim. Doc. 65 at 13-14. Plaintiffs suggest that this claim is

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brought by Mrs. Dougherty and her husband independently, and that Mr. Dougherty has

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experienced stress and anxiety as a result of seeing his wife’s health decline. Doc. 73 at 13-

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Negligent Infliction of Emotional Distress.

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Under Arizona law, “[a] negligent infliction of emotional distress cause of action

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requires the plaintiff to: (1) witness an injury to a closely related person, (2) suffer mental

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anguish manifested as physical injury, and (3) be within the zone of danger so as to be

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subject to an unreasonable risk of bodily harm created by the defendant.” Pierce v. Casas

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Adobes Baptist Church, 782 P.2d 1162, 1165 (Ariz. 1989) (citations omitted). Defendant
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challenged Mr. Dougherty’s claim as failing the second and third elements of this test.

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Plaintiffs’ response appears to argue that Mr. Dougherty’s anguish manifested as physical

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injury because he was hospitalized for heart conditions. Doc. 73 at 14. Plaintiffs cite to no

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evidence supporting this assertion, however, and admit that such evidence “has not been

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produced to the Defendant.” Id. at 14:3. Nor do Plaintiffs present evidence that Mr.

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Dougherty was within the zone of danger created by Defendant’s alleged negligence.

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Plaintiffs have therefore not met their burden of raising a genuine issue of fact from which

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a reasonable jury could return a verdict on Mr. Dougherty’s behalf. Judgment will therefore

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be entered against Mr. Dougherty on his claim for negligent infliction of emotional distress.

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E.

Loss of Consortium.

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Defendant argues Mr. Dougherty’s loss of consortium fails because the other alleged

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torts fail. Doc. 65 at 14. Because tort claims still remain in this case, the loss of consortium

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claim also remains.

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IT IS ORDERED:

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1.

Defendant’s motion for summary judgment (Doc. 65) is granted in part and
denied in part as stated above.

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2.

The Court will set a final pre-trial conference by separate order.

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DATED this 10th day of August, 2011.

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