Scharf et al v. Trabucco et al

Filing 73

ORDER granting 66 Defendant PHC-Fort Mohave, Inc.'s(VVMC) Motion for Partial Summary Judgment. Signed by Judge H Russel Holland on 6/2/16.(LSP)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

HELEN SCHARF, et al.,

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)
Plaintiffs,
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vs.
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ARNALDO TRABUCCO, et al.,
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)
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Defendants, )
__________________________________________)

No. 3:14-cv-8183-HRH
(Prescott Division)

ORDER
Motion for Partial Summary Judgment
Defendant PHC-Fort Mohave, Inc. d/b/a Valley View Medical Center moves for
partial summary judgment.1 This motion is opposed.2 Oral argument was not requested
and is not deemed necessary.
Facts
Plaintiffs are Helen Scharf, the surviving spouse and personal representative of the
estate of Gerald Scharf; and Karen Bright and Randall Scharf, the adult children of Gerald

1

Docket No. 66.

2

Docket No. 67.
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Scharf, deceased. Defendants are Arnaldo Trabucco, M.D.; the Institute of Urology, LLC;
and PHC-Fort Mohave, Inc., dba Valley View Medical Center (VVMC). Also included as
defendants in plaintiffs’ complaint are DOES I through X, the names of which plaintiffs were
unaware at the time they filed their complaint.3
On September 24, 2012, Dr. Trabucco performed a hand-assisted laparoscopic
nephrectomy (removal of the kidney) on Gerald Scharf at VVMC. Mr. Scharf developed
complications and was transferred to Sunrise Hospital, where a second surgery was
performed, but on September 27, 2012, Mr. Scharf died. On September 23, 2014, plaintiffs
commenced this action, in which they assert negligence and wrongful death claims against
defendants.
In their complaint, plaintiffs identify the DOES I through X as “persons who were
present in the operating room, PACU or ICU who provided intraoperative care or advice
and/or post-operative care to Gerald Scharf.”4 Plaintiffs allege that the care and treatment
provided by Dr. Trabucco and DOES I through X fell below the applicable standards of care.5
Plaintiffs further allege that VVMC is “vicariously liable for the negligence of ... Dr. Trabucco

3

Complaint at 2, ¶ 7, Docket No. 1.

4

Id. at 3, ¶ 14.

5

Id. at 23, ¶¶ 67-68.
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and DOES I through X.”6 Plaintiffs allege that VVMC is vicariously liable because it was the
employer of these individuals.7
VVMC now moves for summary judgment on plaintiffs’ vicarious liability claims.
Discussion
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
First, as to plaintiffs’ vicarious liability claim based on Dr. Trabucco’s alleged
negligence, plaintiffs agree that VVMC is entitled to summary judgment on this claim
because Dr. Trabucco was not an employee of VVMC nor under VVMC’s control.8
Second, to the extent that plaintiffs have vicarious liability claims against health care
providers other than the nurses involved in Mr. Scharf’s care while he was hospitalized at
VVMC, VVMC is entitled to summary judgment on these claims. Plaintiffs did not respond
to VVMC’s argument that it is entitled to summary judgment on these claims. Thus,
plaintiffs are deemed to have abandoned any such claims. See Shakur v. Schriro, 514 F.3d
878, 892 (9th Cir. 2008) (citations omitted) (“We have previously held that a plaintiff has
abandoned ... claims by not raising them in opposition to [the defendant’s] motion for
summary judgment”).
6

Id. at 27, ¶ 73.

7

Id. at 23, ¶ 66.

8

Opposition [etc.] at 2, Docket No. 67.
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Finally, as to any vicarious liability claims plaintiffs might have based on the
negligence of the nurses who provided care to Mr. Scharf while he was hospitalized at
VVMC, VVMC argues that it is entitled to summary judgment on these claims because
plaintiffs have not disclosed a nursing expert. Plaintiffs do not dispute that under the
Arizona law that is applicable to this diversity case, they are required to “retain a nursing
expert to show any actions by the nursing staff at Valley View Medical Center fell below the
standard of care.”9 Plaintiffs also do not dispute that they have not yet retained a nursing
expert. Rather, plaintiffs seek leave to obtain such an expert now. More specifically,
plaintiffs request leave to depose the nurses who provided care to Mr. Scharf, “and then,
based upon their testimony, hire the appropriate experts if the testimony evidenced a breach
of the standard of care.”10
The deadline for plaintiffs’ expert witness disclosures was December 15, 2015.11 The
deadline for all discovery to be completed in this case was May 2, 2016.12 Nonetheless,

9

Opposition [etc.] at 2, Docket No. 67.

10

Id. at 3.

11

Order re Amendment of Discovery Plan and Pretrial Motion Deadlines at 1, Docket

No. 47.
12

Id. at 2-3. On May 26, 2016, Dr. Trabucco moved to amend the scheduling order
because he contends that the parties have not been able to take depositions of six
previously-disclosed fact witnesses and three previously-disclosed expert witnesses.
Docket No. 71. The other parties have not joined in this motion and it is not clear whether
the nurses who plaintiffs wish to depose are among the six previously-disclosed fact
(continued...)
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plaintiffs request that they be allowed to take the nurses’ depositions and retain a nursing
expert at this time because their “original theory of liability did not focus on the nursing
staff.”13 Plaintiffs’ counsel avers that during the April 22, 2016 deposition of plaintiffs’
expert, Dr. Danoff, Dr. Danoff “dramatically changed his testimony” as to what happened
during Mr. Scharf’s procedure and that plaintiffs “now believe that one of [their] strongest
claims is the nurses’ failure to meet the accepted standards of care post-operatively, if the
nurses failed to notify Dr. Trabucco of Mr. Scharf’s progressively developing lower
extremity paralysis.”14 Plaintiffs’ counsel avers that up until now plaintiffs “did not
investigate the post-operative care because our experts advised us that the injury occurred
during the procedure.”15 Thus, plaintiffs contend that they only recently learned that they
would need a nursing expert. Plaintiffs argue that allowing them to extend or reopen
discovery so that they can retain a nursing expert and depose the nurses will not prejudice
VVMC because discovery just closed and plaintiffs anticipate that expert depositions could
be completed by August 2016.

12

(...continued)
witnesses.
13

Opposition [etc.] at 2, Docket No. 67.

14

Declaration of Roger Sundling at ¶¶ 4, 6-7, attached to Opposition [etc.], Docket

No. 67.
15

Id. at ¶ 6.
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VVMC suggests that plaintiffs’ request be analyzed under Rule 37(c)(1), Federal Rules
of Civil Procedure, which provides that “[i]f a party fails to ... identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that ... witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
VVMC argues that plaintiffs cannot show that their failure to disclose a nursing expert was
substantially justified. VVMC disputes that plaintiffs just recently learned that they would
need a nursing expert. Although plaintiffs contend that they did not think they would need
a nursing expert until the deposition of their expert on April 22, 2016, VVMC points out that
plaintiffs alleged in their complaint that the care provided by the nursing staff at VVMC fell
below the applicable standard of care.16 In other words, the negligence of the nurses and the
standard of care applicable to them has been at issue since plaintiffs filed this case. Plaintiffs
could have retained a nursing expert long before now. Plaintiffs contend that they decided
not to investigate their allegations about the nursing staff based on Dr. Danoff’s original
theory of the case, which was a choice plaintiffs could make. But having made that choice,
plaintiffs are stuck with it. Plaintiffs chose to not investigate their nursing negligence claims
and thus did not timely disclose a nursing expert. This is not a situation in which plaintiffs
learned new facts right before the close of discovery or after discovery was closed. Rather,
this is a case in which plaintiffs failed to investigate the allegations that they made in their

16

Complaint at 23, ¶ 68, Docket No. 1.
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complaint in a timely manner. And, as VVMC points out, plaintiffs are not even certain at this
point whether they have nursing negligence claims. Plaintiffs want to depose two of the
nurses and then decide if they will need to retain a nursing expert. But, plaintiffs have not
provided any explanation as to why they have not already deposed the nurses, who are fact
witnesses, other than they were pursuing a different theory of the case. This is not a sufficient
reason to amend the scheduling order, which is what plaintiffs are requesting. Rule 16(b)(4),
Federal Rules of Civil Procedure, which governs amendments to scheduling orders, provides
that a scheduling order can only be modified for good cause. Plaintiffs have not shown good
cause for their failure to depose the nurses prior to the close of discovery.
In sum, plaintiffs’ failure to timely disclose a nursing expert was not substantially
justified nor have plaintiffs shown good cause to amend the scheduling order. Thus, VVMC
is entitled to summary judgment on plaintiffs’ vicarious liability claim as to the nursing staff
because plaintiffs do not have the required expert testimony to support a negligence claim
against the nurses.
Conclusion
Based on the foregoing, VVMC’s motion for partial summary judgment17 is granted.
DATED at Anchorage, Alaska, this 2nd day of June, 2016.
/s/ H. Russel Holland
United States District Judge

17

Docket No. 66.
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