Weissmueller et al v. Breg Incorporated et al

Filing 63

ORDER denying Defendant's Motion for Summary Judgment Under the Statute of Limitations (Doc. 53 ). Signed by Judge John J Tuchi on 7/20/2016.(KMG)

1

WO

NOT FOR PUBLICATION

2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7
8

Thomas Weissmueller, et al.,
Plaintiffs,

9
10

ORDER

v.

11

No. CV-14-02802-PHX-JJT

Breg Incorporated, et al.,

12

Defendants.

13
14

At issue is Defendant Breg, Incorporated’s Motion for Summary Judgment Under

15

the Statute of Limitations (Doc. 53, MSJ), to which Plaintiffs Thomas Weissmueller and

16

Cynthia Weissmueller filed a Response (Doc. 58, Resp.) and Defendant filed a Reply

17

(Doc. 59, Reply). The Court heard oral argument on the Motion on June 27, 2016. (Doc.

18

62.) For the reasons that follow, the Court finds that Plaintiffs have shown there is a

19

genuine issue of material fact as to the discovery of their claim and Defendant is not

20

entitled to judgment as a matter of law. The Court therefore denies Defendant’s Motion

21

for Summary Judgment.

22

I.

BACKGROUND

23

Plaintiffs Thomas and Cynthia Weissmueller brought this case following a

24

shoulder surgery that Mr. Weissmueller underwent in 2006 in which the operating

25

surgeon used a medical device known as a pain pump to administer pain medication

26

following the surgery. Plaintiffs allege that the pain pump caused permanent injury to Mr.

27

Weissmueller’s shoulder. A product identification label that Plaintiffs uncovered in

28

discovery in 2012 shows that Defendant Breg is the manufacturer of the pain pump. The

1

sole issue before the Court is whether Plaintiffs’ claims are barred under the statute of

2

limitations.

3

A.

4

The following facts are undisputed unless otherwise indicated. Dr. David Bailie

5

performed two shoulder surgeries on Mr. Weissmueller—one on November 7, 2005, and

6

the other on March 27, 2006—in which he used a pain pump. (Doc. 54, Defendant Breg,

7

Inc.’s Statement of Facts In Support of Its Motion for Summary Judgment (DSOF), Ex. 1,

8

Deposition of David Bailie, M.D. (Bailie Dep.) at 9:1-8, 20:22-21:1.) The pain pump

9

used in the March 27, 2006 surgery gave rise to this lawsuit. After that surgery, Mr.

10

Weissmueller suffered from such intense pain that his right arm was essentially useless.

11

(Doc. 58, Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion for

12

Summary Judgment (PSOF), Ex. 4, Deposition of Thomas Weissmueller (Weissmueller

13

Dep.) at 147:9-24, 173:21-25.)

Mr. Weissmueller’s Surgeries

14

For both surgeries, there was conflicting evidence about whether Dr. Bailie used a

15

pain pump manufactured by I-Flow, Incorporated or one manufactured by Breg. Dr.

16

Bailie’s operative report for the November 7, 2005 surgery indicated he used a Breg pain

17

pump, and the nursing record contained a product identification sticker for the Pain Care

18

3200, which is manufactured by Breg. (Bailie Dep. at 20:7-12; DSOF, Ex. 2, Nov. 7,

19

2005 Nursing Record.) However, a billing letter from Dr. Bailie’s office dated December

20

5, 2005 and addressed “To Whom It May Concern” stated that he used an ON-Q Pain

21

Pump, which is manufactured by I-Flow. (Bailie Dep. at 6:15-23, 8:15-19; DSOF, Ex. 4,

22

Dec. 5, 2005 Letter.)

23

Dr. Bailie’s operative report for the March 27, 2006 surgery also indicated he used

24

a Breg pain pump. (Bailie Dep. at 9:19-10:24; DSOF, Ex. 7, March 27, 2006 Operative

25

Report.) Unlike in the first surgery, the nursing record from this surgery did not contain a

26

product identification sticker. (DSOF, Ex. 5, Mar. 27, 2006 Nursing Record.) A billing

27

letter from Dr. Bailie’s office dated April 5, 2006 and addressed “To Whom It May

28

Concern” stated that he used an I-Flow ON-Q Pain Pump. (Bailie Dep. 7:9-13, 8:20-24;
2

1

DSOF, Ex. 8, April 5, 2006 Letter.)

2

B.

3

In 2008, Plaintiffs retained the law firm Wagstaff & Cartmell LLP to represent

4

them in their lawsuit for the injuries arising from Mr. Weissmueller’s March 27, 2006

5

surgery. (PSOF, Ex. 1, Affidavit of Jeffrey M. Kuntz, Esq. (Kuntz Aff.) ¶ 6; PSOF, Ex. 5,

6

Thomas P. Cartmell Affidavit (Cartmell Aff.) ¶ 6.) Thomas P. Cartmell and Jeffrey M.

7

Kuntz acted as primary counsel. (Kuntz Aff. ¶ 6.)

Plaintiffs’ Investigation and Lawsuits Against I-Flow

8

Mr. Kuntz testified that he reviewed the operative report and the billing letter from

9

Mr. Weissmueller’s March 27, 2006 surgery and found that they conflicted on the issue

10

of whether I-Flow or Breg manufactured the pain pump used in the surgery. (Kuntz Aff.

11

¶ 7.) Subsequently, he stated that he “carefully searched all of the . . . records from the

12

hospital . . . and from the surgeon . . . for additional information identifying the

13

manufacturer” but was unable to find any information. (Kuntz Aff. ¶ 8.) Mr. Kuntz and

14

Mr. Cartmell stated that “[b]ecause it was impossible that both companies manufactured

15

the pump, we did not feel it was proper to sue both manufacturers.” (Kuntz Aff. ¶ 8;

16

Cartmell Aff. ¶ 8.) Instead, they testified that “[t]hey decided that the best course of

17

action was to speak directly to Dr. Bailie.” (Kuntz Aff. ¶ 9; Cartmell Aff. ¶ 9.) Mr. Kuntz

18

flew to Arizona to meet with Dr. Bailie to discuss which pain pump was used, and Dr.

19

Bailie “had no hesitation when telling [Mr. Kuntz] that it had to have been an I-Flow

20

pump” and that he “had stopped using Breg pumps by the date of that surgery.” (Kuntz

21

Aff. ¶ 10.)

22

Mr. Kuntz and Mr. Cartmell testified that they concluded, based on the evidence

23

they had gathered, that Dr. Bailie had used an I-Flow pain pump in the surgery. (Kuntz

24

Aff. ¶ 12; Cartmell Aff. ¶ 11.) They also stated that they “believed that filing suit against

25

Breg would be an ethical violation, as well as a violation of . . . Section 128.7 of the

26

[California] Code of Civil Procedure, or Rule 11 of the Federal Rules of Civil

27

Procedure.” (Kuntz Aff. ¶ 13; Cartmell Aff. ¶ 12.) On August 22, 2008, Plaintiffs filed

28

their first lawsuit, in California state court, against I-Flow and sixteen other defendants.
3

1

(DSOF, Ex. 10, August 22, 2008 Compl.) They did not name Breg as a defendant. (Id.)

2

Plaintiffs voluntarily dismissed the lawsuit on February 18, 2010. (DSOF, Ex. 11, Feb.

3

18, 2010 Voluntary Dismissal.) On February 23, 2010, Plaintiffs filed their second

4

lawsuit, in Arizona federal district court, against I-Flow and two other defendants.

5

(DSOF, Ex. 12, Feb. 23, 2010 Compl.) Again, they did not name Breg as a defendant.

6

(Id.) Mr. Kuntz and Mr. Cartwell testified that they were “convinced we sued the right

7

party” because I-Flow did not immediately raise the issue of product identification.

8

(Kuntz Aff. ¶ 16-17; Cartmell Aff. ¶ 16-17.)

9

C.

Dr. Bailie’s Deposition

10

In January 2011, I-Flow requested the deposition of Dr. Bailie on the issue of

11

product identification. (DSOF, Ex. 13, January 2011 Emails.) During Dr. Bailie’s

12

deposition on February 11, 2011, he testified that he did not remember which pain pump

13

he used in Mr. Weissmueller’s surgeries. (Bailie Dep. at 13:5-8.) He stated that the billing

14

letter sent by his office after the surgeries was “a form letter that is not dictated by case,”

15

and that his operative reports are generally more accurate than these billing letters. (Bailie

16

Dep. at 7:1-2, 12:22-13:16.) He testified that the only billing letter his office had ever

17

sent for a pain pump was the I-Flow letter, which was provided by I-Flow. (Bailie Dep. at

18

11:24-12:13.)

19

Dr. Bailie also testified that he switched from Breg to I-Flow “sometime in 2005”

20

and did not recall using Breg pain pumps in March 2006. (Bailie Dep. at 21:24-22:5,

21

22:19-21.) However, he stated that, after 2005, if no I-Flow pain pumps were available at

22

the surgical facility, he would have used a Breg pain pump. (Bailie Dep. at 24:5-15.)

23

Finally, he testified that “the nursing record where they put the [product identification]

24

sticker” would be the most reliable source of data, but no such sticker appeared in the

25

nursing records from Mr. Weissmueller’s 2006 surgery. (Bailie Dep. at 13:9-24, 17:6-20.)

26

Mr. Kuntz stated that Dr. Bailie’s “deposition did not change my belief that I-Flow

27

had manufactured the pain pump used in the March 2006 surgery.” (Kuntz Aff. ¶ 19.)

28
4

1

D.

2

In 2010, I-Flow hired Litigation Management, Inc. (LMI) to collect Mr.

3

Weissmueller’s medical records and store them in an electronic database. (DSOF, Ex. 14,

4

Deposition of Angela Browning (Browning Dep.) at 116:10-14.) On November 24, 2010,

5

LMI created accounts for several employees at Plaintiffs’ law firm so they could

6

download the records. (Browning Dep. at 116:18-22.) In July 2011, the employees at

7

Plaintiffs’ law firm had access through the database to Mr. Weissmueller’s records from

8

Elite Care. (Browning Dep. at 120:10-25.) The Elite Care records contained the Paincare

9

3200 product identification sticker from the pain pump used in Mr. Weissmueller’s 2006

10

surgery, which showed that Breg was the manufacturer. (DSOF, Ex. 17, Elite Care

11

Records.) The Elite Care records were available to Plaintiffs’ law firm from July 2011

12

until February 2012, but the firm did not download them. (Browning Dep. at 121:7-

13

122:9.)

Elite Care Records

14

Mr. Kuntz testified that he and a paralegal at his firm discussed which records

15

from the LMI database might have relevant information for Mr. Weissmueller’s case.

16

(Kuntz Aff. ¶ 21.) The database contained 145 records from multiple providers, and the

17

firm had to pay $30 per download. (PSOF, Ex. 10 Medical Order Transaction Report;

18

PSOF, Ex. 12, LMI Weissmueller Records.) The firm downloaded several records but not

19

the Elite Care records. (PSOF, Ex. 11, Chart of Plaintiffs’ Downloads.) On April 23,

20

2012, I-Flow’s counsel informed Plaintiffs’ counsel that the Elite Care records contained

21

the Breg product identification sticker. (DSOF, Ex. 23, April 23, 2012 Email from

22

McLaughlin to Kuntz.) Shortly thereafter, Plaintiffs stipulated to dismiss the action

23

against I-Flow. (DSOF, Ex. 24, May 23, 2012 Stip. to Dismiss With Prejudice.)

24

E.

25

On December 4, 2012, Plaintiffs filed their third lawsuit, this time back in

26

California state court, and named Breg as a defendant for the first time. (DSOF, Ex. 25,

27

December 4, 2012 Compl.) Mr. Weissmueller’s case against Breg was part of a

28

consolidation of cases, and Plaintiffs’ attorneys traveled to California for status

Plaintiffs’ Lawsuits Against Breg

5

1

conferences and participated in two court-ordered mediations. (Kuntz Aff. ¶ 25; Cartmell

2

Aff. ¶ 22.) The case did not settle, and on August 5, 2013, Plaintiffs stipulated to

3

voluntarily dismiss the action. (DSOF, Ex. 26, August 5, 2013 Request for Dismissal;

4

Kuntz Aff. ¶ 25; Cartmell Aff. ¶ 22.) The California court’s order of dismissal of

5

Plaintiffs’ claim against Breg is dated November 4, 2013. (DSOF, Ex. 26, Nov. 4, 2013

6

Order of Dismissal.)

7

Plaintiffs filed the present lawsuit, their fourth, on March 28, 2014, in Arizona

8

state court and named Breg and Dr. Bailie as Defendants. (DSOF, Ex. 6, March 28, 2014

9

Compl.) When Plaintiffs moved to voluntarily dismiss Dr. Bailie without prejudice, the

10

dismissal created complete diversity between the parties, and Breg removed the action to

11

this Court. (Doc. 1-3 at 73-74, Mot. to Dismiss Dr. Bailie; Doc. 1, Notice of Removal.)

12

Before Breg removed the action, the state court denied Breg’s motion to dismiss on

13

statute of limitations grounds, concluding that a jury question exists as to the date of

14

accrual. (Doc. 1 at 238, Arizona Superior Court Minute Entry.)

15

This Court set a bifurcated discovery schedule (Doc. 43), allowing the parties to

16

initially conduct discovery and file dispositive motions as to the statute of limitations.

17

Breg now moves for summary judgment on statute of limitations grounds.

18

II.

LEGAL STANDARD

19

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is

20

appropriate when: (1) the movant shows that there is no genuine dispute as to any

21

material fact; and (2) after viewing the evidence most favorably to the non-moving party,

22

the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.

23

Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285,

24

1288-89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect

25

the outcome of the suit under governing [substantive] law will properly preclude the

26

entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

27

A “genuine issue” of material fact arises only “if the evidence is such that a reasonable

28

jury could return a verdict for the nonmoving party.” Id.
6

1

In considering a motion for summary judgment, the court must regard as true the

2

non-moving party’s evidence, if it is supported by affidavits or other evidentiary material.

3

Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party

4

may not merely rest on its pleadings; it must produce some significant probative evidence

5

tending to contradict the moving party’s allegations, thereby creating a material question

6

of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative

7

evidence in order to defeat a properly supported motion for summary judgment); First

8

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).

9

“A summary judgment motion cannot be defeated by relying solely on conclusory

10

allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

11

1989). “Summary judgment must be entered ‘against a party who fails to make a showing

12

sufficient to establish the existence of an element essential to that party’s case, and on

13

which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d

14

1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322).

15

III.

ANALYSIS

16

Plaintiffs’ Complaint alleges that the pain pump used in Mr. Weissmueller’s 2006

17

surgery caused “the destruction of and chondrolysis in his right shoulder.” (March 28,

18

2014 Compl. ¶ 26.) The Complaint also alleges that Plaintiffs’ counsel initially filed a

19

lawsuit against I-Flow based on Dr. Bailie’s representation that he believed he used an I-

20

Flow pain pump in the surgery. (March 28, 2014 Compl. ¶ 36.) The Complaint alleges

21

that after nearly four years of litigation, Plaintiffs’ counsel received the Elite Care records

22

that contained the product identification sticker indicating that the pain pump was in fact

23

manufactured by Breg. (March 28, 2014 Compl. ¶ 38.)

24

A.

25

Defendant asserts that Plaintiffs’ cause of action accrued as of 2008, when Mr.

26

Weissmueller realized he had been injured by the pain pump used in his 2006 surgery,

27

and, because Plaintiffs did not file this lawsuit until March 28, 2014, the claim is barred

28

under the statute of limitations. (MSJ at 7-8.) Plaintiffs argue that the discovery rule

The Discovery Rule

7

1

should be applied to toll the statute of limitations. (Resp. at 4.) They contend that they

2

have not slept on their rights, but rather have engaged in litigation for over six years.

3

(Resp. at 8.) They further contend that their cause of action accrued on April 23, 2012,

4

when Plaintiffs’ counsel first viewed the product identification sticker from Mr.

5

Weissmueller’s surgery. (Resp. at 5.) Alternatively, Plaintiffs argue that there is a

6

genuine dispute of fact as to whether their claims accrued before April 23, 2012. (Resp. at

7

7.)

8

Under Arizona law, a personal injury, product liability action must be

9

“commenced and prosecuted within two years after the cause of action accrues.” A.R.S.

10

§ 12-542(1). In a case where the “complaint shows on its face that the cause of action is

11

barred by the statute of limitations, the burden is on the plaintiff to show the statute

12

should be tolled.” Ulibarri v. Gersentberger, 871 P.2d 698, 702 (Ariz. Ct. App. 1993)

13

(citing Cooney v. Phoenix Newspapers, Inc., 770 P.2d 1185, 1187 (Ariz. Ct. App. 1989)).

14

The “discovery rule” can be applied to toll the accrual of an action where the “injury or

15

the act causing the injury, or both, have been difficult for the plaintiff to detect.” Gust,

16

Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 898 P.2d 964, 967 (Ariz. 1995)

17

(quoting April Enters. V. KTTV, 195 Cal. Rptr. 421, 436 (Ct. App. 1983)). Under the

18

discovery rule, “a cause of action ‘accrues’ when the plaintiff discovers or by the exercise

19

of reasonable diligence should have discovered that he or she has been injured by a

20

particular defendant’s conduct.” Lawhon v. L.B.J. Institutional Supply, Inc., 765 P.2d

21

1003, 1007 (Ariz. Ct. App. 1988) (emphasis in original).

22

The parties disagree as to whether the test for the discovery rule is subjective or

23

objective. (Resp. at 4; Reply at 4-5.) Plaintiffs rely on Walk v. Ring and Doe v. Roe for

24

the proposition that “[a] plaintiff has no duty to file a complaint based on information she

25

subjectively believed to be false or unbelievable at the time.” Walk v. Ring, 44 P.3d 990,

26

996 (Ariz. 2002) (citing Doe v. Roe, 995 P.2d 951, 962 (Ariz. 1998)). To the extent that

27

subjectivity plays a role in the discovery rule test, these cases are distinguishable from the

28

instant one because they involve the plaintiff’s beliefs and awareness as to whether the
8

1

facts underlying a cause of action even existed. Walk, 44 P.3d at 990 (patient aware she

2

had been injured during course of physician’s treatment but unaware that injury was

3

attributable to physician’s fault or neglect); Doe, 955 P.2d at 995-96 (plaintiff allegedly

4

unaware of injury until her repressed memories of being sexually abused as a child began

5

to surface during adulthood). In this case, Mr. Weissmueller was aware that he was

6

injured and believed that the manufacturer of the pain pump used in his 2006 shoulder

7

surgery—either I-Flow or Breg—was liable for the injury. The dispute, instead, is over

8

when a reasonable plaintiff should have discovered that Breg was the proper Defendant.

9

The issue of whether Plaintiffs acted with “reasonable diligence” in discovering

10

that they had been injured by Breg’s conduct necessarily depends on the specific facts

11

and circumstances of the case. The circumstances in Lawhon are similar to this case. 765

12

P.2d at 1004. There, the plaintiff knew the cause of injury but not the identity of the

13

defendant whose product allegedly caused the injury. Id. Specifically, the plaintiff knew

14

that a sulfite product her husband ingested at a restaurant caused his death, but the

15

restaurant did not know which of two companies had distributed the product. Id. The

16

plaintiff’s counsel filed a lawsuit against the wrong distributor based on information

17

obtained through informal conversations and correspondence. Id. Several years later, the

18

plaintiff’s counsel received information from a Food and Drug Administration report and

19

depositions indicating that L.B.J. Institutional Supply, Inc. was the potentially liable

20

distributor. Id. The plaintiff’s attorney subpoenaed L.B.J.’s records, which revealed that it

21

was the correct defendant for the lawsuit. Id. at 1004-05. The court held that the question

22

of when the plaintiff “knew or with the exercise of reasonable diligence could have

23

known” the identity of the correct defendant was a factual issue. Id.

24

Plaintiffs’ case has many factual similarities to Lawhon. The immediately

25

available evidence suggested that one of two companies manufactured the product that

26

caused Mr. Weissmueller’s injury. Plaintiffs’ counsel filed a lawsuit against the wrong

27

company largely based on information obtained through informal conversations. In

28

addition, there were records available—in Lawhon, L.B.J.’s business records, and in this
9

1

case, the product identification sticker in the Elite Care records—that would have

2

definitively identified the correct defendant, but plaintiffs’ counsel failed to obtain this

3

information until the statute of limitations period had run. Unlike in Lawhon, Plaintiffs’

4

counsel here had written evidence from the day the injury occurred—the operative

5

report—that pointed to the correct Defendant. However, other written evidence—the

6

billing letter—indicated that an I-Flow pump was used. Despite this difference, this case

7

is substantially similar to Lawhon in that it is factually complex and the question of

8

reasonableness is a close one. This weighs in favor of finding that the question of whether

9

Plaintiff “knew or with the exercise of reasonable diligence could have known” the

10

identity of the correct defendant is a factual issue for a jury. See Lawhon, 765 P.2d at

11

1004-05.

12

Defendant, nonetheless, contends that this case should be decided as a matter of

13

law “because the undisputed facts show that [P]laintiffs knew or should have known that

14

Breg was the manufacturer before March 28, 2012,” and that, in any event, Plaintiffs

15

could have sued both manufacturers in the alternative under Arizona law, but failed to do

16

so. (MSJ at 9; Reply at 6-7.) Defendant cites Braxton-Secret v. A.H. Robins Co. for the

17

proposition that “questions involving a person’s state of mind” are generally factual

18

issues, but “where the palpable facts are substantially undisputed,” such issues can be

19

decided as a matter of law. 769 F.2d 528, 531 (9th Cir. 1985) (applying California

20

substantive law). Defendant omits the subsequent sentence in the Braxton-Secret opinion,

21

which states that “summary judgment should not be granted where contradictory

22

inferences may be drawn from such facts, even if undisputed.” Id. Even if the Court

23

assumes that the facts here are “substantially undisputed,” contradictory inferences could

24

be drawn from those facts about what Plaintiffs knew or should have known. For

25

example, the parties disagree about what effect Dr. Bailie’s deposition testimony had on

26

Plaintiffs’ knowledge. (MSJ at 11-12; Resp. at 12-13; Reply at 9.)

27

Given these circumstances, Plaintiffs have established a genuine issue of material

28

fact because the evidence would allow a reasonable jury to determine that it was
10

1

reasonable for Plaintiffs not to have discovered the proper Defendant until either the

2

product identification sticker was available to them, in 2011, or they actually uncovered

3

it, in 2012.

4

B.

5

If a jury concludes that a reasonable plaintiff would have discovered the proper

6

defendant only when Plaintiffs actually uncovered the Breg product identification label,

7

in April 2012, then the present action, filed in March 2014, was timely. If a jury

8

concludes that a reasonable plaintiff would have discovered the proper defendant when

9

Dr. Bailie was deposed, in February 2011, or when the Breg product identification label

10

was available to Plaintiffs, in July 2011, then the present action is untimely on the face of

11

the Complaint, but Plaintiffs’ third lawsuit, filed against Breg in California in December

12

2012, was timely1.

The Savings Statute

13

In that instance, Plaintiffs urge the Court to exercise its discretion to apply the

14

Arizona savings statute so that December 4, 2012, the date Plaintiffs filed their claim

15

against Breg in California state court, becomes the date of reference for applying the

16

statute of limitations. (Resp. at 5.) Under the savings statute, “[i]f an action timely

17

commenced is terminated by . . . voluntary dismissal,” the Court has discretion to

18

“provide a period for commencement of a new action for the same cause, although the

19

time otherwise limited for commencement has expired.” A.R.S. § 12-504. The second

20

action must be filed no more than six months from the date of termination. Id. When

21

determining whether to allow a plaintiff to refile under the savings statute, a court

22

“should ascertain whether the plaintiff acted reasonably and in good faith, whether he

23

prosecuted his case diligently and vigorously, whether a procedural impediment exists

24

which affects his ability to [refile], and whether each party will be substantially

25

prejudiced.” Flynn v. Cornoyer-Hedrick Architects & Planners, Inc., 772 P.2d 10, 15

26
27
28

1

If a jury concludes that a reasonable plaintiff would have discovered the proper
defendant prior to December 2010—for example, based on the 2006 operative report—
then this action is time barred.
11

1

(Ariz. Ct. App. 1988).

2

The California court’s order of dismissal of Plaintiffs’ claim against Breg is dated

3

November 4, 2013. (Nov. 4, 2013 Order of Dismissal) As required for the savings statute

4

to apply, Plaintiffs filed the present lawsuit within six months of that date—on March 28,

5

2014—in Arizona state court. (March 28, 2014 Compl.)

6

Plaintiffs assert that they “made all court-imposed deadlines and participated in

7

good faith in two separate mediations” in their California state court case against Breg.

8

(Resp. at 6.) They also contend that they performed “substantial work” for the mediations

9

and “did what they could to move the litigation forward and tried to achieve a

10

settlement.” (Resp. at 6.) Plaintiffs state that after they failed to reach a settlement in

11

California, they refiled in Arizona and added Dr. Bailie as a Defendant. (Resp. at 6.)

12

They argue that the Court should apply the savings statute because they “were diligently

13

pursuing their claims in good faith.” (Resp. at 6.)

14

Defendant argues that the Court should not apply the savings statute because

15

Plaintiffs “did not act reasonably in filing, dismissing, and refiling suit against Breg.”

16

(Reply at 2.) Defendant contends that Plaintiffs decided to refile in Arizona because

17

“their California action was itself untimely under California law,” and they “hoped they

18

would fare better in Arizona.” (Reply at 2.) Defendant urges the Court not to use the

19

savings statute “to facilitate such blatant forum shopping.” (Reply at 2.)

20

Defendant admits that Plaintiffs were facing a procedural impediment—the statute

21

of limitations. However, Defendant argues that Plaintiffs did not act reasonably or in

22

good faith in pursuing their claim against Breg, and therefore the savings statute should

23

not apply. Defendant presents no evidence to support this allegation. Rather, Defendant

24

asks the Court to infer that Plaintiffs were forum shopping, and therefore acting in bad

25

faith, when they refiled a similar claim against Breg in Arizona after voluntarily

26

dismissing their claim in California. The Court declines to make an inference that

27

Plaintiffs acted unreasonably or in bad faith based only on these facts. In addition,

28

Defendant produces no evidence that Plaintiffs did not prosecute their case diligently.
12

1

Finally, Defendant does not show that it will be substantially prejudiced if the Court

2

decides to apply the savings statute, other than by having to defend itself in this litigation.

3

Consequently, the Court will apply the savings statute. At trial, Plaintiffs must prove that

4

their cause of action accrued after December 4, 2010.

5

For the foregoing reasons,

6

IT IS ORDERED denying Defendant’s Motion for Summary Judgment Under the

7
8

Statute of Limitations (Doc. 53).
Dated this 20th day of July, 2016.

9
10
11

Honorable John J. Tuchi
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13