Naki v. Hawaii, State of, et al

Filing 134

ORDER - As to 131 Motion for Reconsideration, ORDERED that Defendant shall file a response to Plaintiff's motion on or before 9/25/2015; Plaintiff may file a reply to Defendant's response on or before 10/2/2015. See attached Order. Signed by Senior Judge James A Teilborg on 9/11/2015. (TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Peter K. Naki,

No. CV-13-02189-PHX-JAT
Plaintiff,

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v.

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ORDER

State of Hawaii, et al.,

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Defendants.

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Pending before the Court is Plaintiff’s Motion for Reconsideration of the Court’s

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Order Filed on August 5, 2015 (Doc. 131).

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I.

Background

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On August 5, 2015, the Court granted Defendant Corrections Corporation of

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America’s (“Defendant”) motion for summary judgment. (Doc. 127). The Court excluded

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Plaintiff’s expert witness pursuant to Federal Rule of Evidence 702, and concluded in the

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absence of any expert witness that Plaintiff could not prevail on his state-law negligence

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claim. (Id. at 8-9). The Court also concluded that Defendant was entitled to summary

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judgment on Plaintiff’s Eighth Amendment claim. (Id. at 12).

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On August 19, 2015, Plaintiff filed the pending motion for reconsideration. (Doc.

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131). Before the Court could address this motion, on September 4, 2015, Plaintiff filed a

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notice of appeal to the Ninth Circuit Court of Appeals. (Doc. 132).

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II.

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Nature of Plaintiff’s Motion
Although Plaintiff captions his motion as a motion for reconsideration, there is no

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provision in the Federal Rules of Civil Procedure for the filing of motions for

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reconsideration. Nevertheless, the Local Rules of Civil Procedure for the District of

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Arizona (“Local Rules”) permit the filing of motions for reconsideration within fourteen

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days. LRCiv 7.1(g). The Court has previously distinguished between motions for

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reconsideration, which address interlocutory orders, and motions filed under Federal Rule

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of Civil Procedure (“Rule”) 59(e) and 60(b), which provide for relief from final

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judgments or orders. In Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, 215

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F.R.D. 581, 582-83 & n.1 (D. Ariz. June 18, 2003), the Court distinguished between

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motions under Rules 59(e) or 60 and motions for reconsideration of interlocutory orders.

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There, the Court cited the Local Rules’ discussion of motions for reconsideration in the

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context of reconsidering interlocutory orders. 215 F.R.D. at 583. Consistent with that

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case, a motion for reconsideration is proper when the order that is the subject of the

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motion is an interlocutory order.

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On the other hand, the Court ordinarily treats a motion for reconsideration of a

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final order as being made under Rule 59(e). DIRECTV Inc. v. Eagle West Commc’ns Inc.,

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2015 WL 274059, at *1 (D. Ariz. Jan. 22, 2015); see also School Dist. No. 1J,

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Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Accordingly, the

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Court will treat Plaintiff’s motion for reconsideration as a motion under Rule 59(e).

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Rule 59(e) permits a party to file a motion to alter or amend a judgment within 28

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days after the entry of the judgment. “Under Rule 59(e), a motion for reconsideration

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should not be granted, absent highly unusual circumstances, unless the district court is

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presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d

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656, 665 (9th Cir. 1999). Because the Court treats the present motion as a Rule 59

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motion, the Court was not divested of jurisdiction by Plaintiff’s filing of a notice of

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appeal. Fed. R. App. Proc. 4(a)(4)(B)(i).

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III.

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Analysis
Plaintiff argues the Court erred in concluding that a state-law negligence claim

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arising out of prison operations requires expert witness testimony. (Doc. 131 at 2). The

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Court quoted, in its original Order, St. Joseph’s Hospital and Medical Center v. Reserve

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Life Insurance Company, 742 P.2d 808 (Ariz. 1987) for the proposition that when “the

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alleged lack of care occurred during the professional or business activity, the plaintiff

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must present expert witness testimony as to the care and competence prevalent in the

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business or profession.” (Doc. 127 at 9). This statement in St. Joseph’s is a reference to a

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holding in Powder Horn Nursery, Inc v. Soil & Plant Laboratory, Inc., 579 P.2d 582

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(Ariz. Ct. App. 1978). See St. Joseph’s, 742 P.2d at 808 (“Where, as in Powder Horn

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Nursery, the alleged lack of care occurred . . . “).

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In Powder Horn Nursery, the Arizona Court of Appeals relied on an earlier case to
conclude that:
Where, as here, the duty which the law recognizes arises
because the defendant has held himself out to be trained in a
particular trade or profession, the standard required for the
protection of customers against unreasonable risks must be
established by specific evidence. It cannot be left to
conjecture nor be established by argument of counsel. In the
absence of evidence establishing the requisite standard of care
and that defendant’s conduct failed to meet that standard,
there was no basis upon which the jury could have found
defendant liable to the plaintiff, and therefore the trial court
did not commit error in refusing to submit the matter to the
jury.

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Powder Horn Nursery, 579 P.2d at 587 (quoting Kreisman v. Thomas, 469 P.2d 107, 113

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(Ariz. Ct. App. 1970)). The issue in Powder Horn Nursery was the appropriate standard

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of care owed by a professional plant laboratory to its customers. Id. at 583, 585. In turn,

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Kriesman v. Thomas involved the standard of care owed by a seller of hearing aids to his

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customers; there, the court held that the “standard required for the protection of others

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against unreasonable risks is that the defendant exercise the skill and knowledge normally

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possessed by members of that trade or profession in good standing in similar

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communities.” Kriesman, 469 P.2d at 112. Thus, the line of cases culminating in St.

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Joseph’s Hospital concerned the standard of care in professional malpractice. As the

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Arizona Court of Appeals explained in Bell v. Maricopa Medical Center, 755 P.2d 1180

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(Ariz. Ct. App. 1988):
In the ordinary negligence action, the standard imposed is that
of the conduct of a reasonably prudent man under the
circumstances. In such cases, it is not necessary for the
plaintiff to present evidence to establish the standard of care
because the jury can rely on its own experience in
determining whether the defendant acted with reasonable care
under the circumstances.
Within their areas of expertise, health care providers and
other professionals are held to a higher standard of care than
that of the ordinary prudent person. In professional
malpractice cases, the reasonable man standard is therefore
replaced by a standard based upon the usual conduct of other
members of the defendant’s profession in similar
circumstances. In such cases, the plaintiff must present
evidence of this accepted professional conduct to enable the
jury to determine the applicable standard. The plaintiff must
then establish the professional defendant's negligence by
demonstrating that his conduct deviated from the standard.
Bell, 755 P.2d at 1182 (citations omitted).
Arizona courts have held that “[t]he threshold test for expert testimony is whether
it will assist the trier of fact.” Messina v. Midway Chevrolet Co., 209 P.3d 147, 152 (Ariz.
Ct. App. 2008). “Expert testimony is unnecessary when the disputed subject is something
that persons unskilled in the relevant area are capable of understanding and are therefore
able to decide relevant fact questions without the opinions of experts.” Rudolph v. Ariz.
B.A.S.S. Federation, 898 P.2d 1000, 1004 (Ariz. Ct. App. 1995) (holding that expert
testimony was not necessary to determine whether the defendants held a fishing
tournament in a reasonable manner); see also Rossell v. Volkwagen of Am., 709 P.2d 517,
524 (Ariz. 1985) (expert testimony unnecessary to establish the standard of care unless
“factual issues are outside the common understanding of jurors”).
In the present case, Plaintiff alleges that Defendant breached its duty by refusing
to reassign Plaintiff from the top level of his in-cell bunk bed to the bottom level of the
bed when Defendant should have known that Plaintiff’s short height exposed Plaintiff to
excessive risk of harm. (Doc. 39 at 9). Plaintiff also alleges that Defendant instructed
Plaintiff to stack unstable plastic crates on the floor of his cell in order to reach the top
bunk and repeatedly ignored Plaintiff’s complaints regarding the difficulty of reaching
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the top bunk. (Id.)

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This Court has recently held that a claim for negligence against prison officials in

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the failure to provide medical attention in some circumstances does not require expert

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testimony as to the standard of care. See Reidhead v. Arizona, 2014 WL 2861046, at *6

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(D. Ariz. June 24, 2014). In Reidhead, the plaintiff alleged that the defendant’s

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negligence arose from failure to conduct security checks consistent with Defendant’s own

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policy, guards’ failure to inform other guards’ about the inmate having breathing

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problems, the failure to timely respond to the inmate’s complaint of breathing problems,

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and the failure to seek immediate help when the inmate complained of the symptoms of a

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heart attack. Id. The Court held that expert testimony was not necessary as to the standard

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of care in these circumstances. Id.

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Accordingly, the Court will require Defendant to file a response addressing

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whether the Arizona cases governing expert testimony require expert testimony on the

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standard of care in this case or whether the allegations in this case would be within “the

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common understanding of jurors.”

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IV.

Conclusion

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Accordingly,

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IT IS ORDERED that Defendant shall file a response to Plaintiff’s motion for

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reconsideration (Doc. 131) on or before September 25, 2015. Plaintiff may file a reply to

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Defendant’s response on or before October 2, 2015.

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Dated this 11th day of September, 2015.

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