E.R. v. Sutter Davis Hospital et al

Filing 69

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 12/13/2016 ORDERING 37 that third-party defendant United States' motion for summary judgment be, and the same hereby is, GRANTED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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E.R., a minor, by and through
his Guardian ad Litem,
CAROLYN YOUNG,
Plaintiff,

CIV. NO. 2:14-2053 WBS CKD
MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

v.
SUTTER DAVIS HOSPITAL; SUTTER
WEST WOMEN’S HEALTH; SUSAN
MAAYAH, M.D.;

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Defendants.

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AND RELATED THIRD-PARTY
CLAIMS.
----oo0oo----

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Plaintiff E.R., by and through his Guardian ad Litem,

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Carolyn Young, brought this action, alleging defendants Sutter

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Davis Hospital (“Sutter Davis”), Sutter West Women’s Health, and

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Dr. Susan Maayah were negligent during E.R.’s birth.

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1-1.)

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States for indemnification and contribution.

(Docket No.

Sutter Davis brought third-party claims against the United

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(Docket No. 1-2.)

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The United States now moves for summary judgment against Sutter

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Davis pursuant to Federal Rule of Civil Procedure 56 on Sutter

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Davis’s third-party claims.

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I.

Factual and Procedural History

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E.R. was born at Sutter Davis in February 2010.

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Jennifer Lara, E.R.’s mother, arrived at Sutter Davis Labor and

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Delivery early in the morning and the individuals supervising her

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care ordered intermittent fetal monitoring.

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an amniotic fluid embolism and the fetus’s heart rate suddenly

Lara suffered from

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dropped around 10:42 p.m., requiring Dr. Maayah to deliver E.R.

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through an emergency Caesarean section.

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embolism interfered with E.R.’s oxygen supply and resulted in

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brain injuries.

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malpractice in California Superior Court.

The amniotic fluid

E.R. filed suit against defendants for medical

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Sutter Davis filed a third-party complaint in

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California Superior Court against the United States, alleging the

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federally funded midwives caring for Lara during labor and

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delivery were negligent and caused some or all of E.R.’s

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injuries.

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States removed this case to federal court.

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United States served interrogatories on Sutter Davis to determine

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the basis for its third-party claims and Sutter Davis responded

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that each request sought premature disclosure of expert witness

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information and that it reserved the right to supplement its

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response.

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Davis never amended these responses and never disclosed experts

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that opined the midwives breached a duty of care or caused E.R.’s

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injuries.

(Cross-Compl. at 3-4 (Docket No. 1-2).)

The United

(Docket No. 1.)

(Broderick Decl. Ex. A (Docket No. 37-3).)

(Id. ¶¶ 2-3, Exs. B-C.)
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The

Sutter

The United States now moves

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for summary judgment, arguing Sutter Davis cannot prove the

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federally funded midwives breached the standard of care and

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proximately caused E.R.’s injuries.

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(Docket No. 37-1).)

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II.

(Cross Def.’s Mot. 2:10-12

Discussion

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

Fed. R. Civ.

A material fact is one that could affect the outcome

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the movant can demonstrate that the non-moving

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party cannot produce evidence to support an essential element

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upon which it will bear the burden of proof at trial.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

Id.

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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must “do more than simply show that there is some metaphysical

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doubt as to the material facts.”

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Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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existence of a scintilla of evidence . . . will be insufficient;

Id. at

The non-moving party

Matsushita Elec. Indus. Co. v.

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“The mere

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there must be evidence on which the jury could reasonably find

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for the [non-moving party].”

Anderson, 477 U.S. at 252.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

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Id. at

“Credibility determinations, the weighing of the evidence,

Id.

Sutter Davis argues the United States should be

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responsible for E.R.’s injuries since the federally funded

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midwives were Lara’s primary providers and caretakers during

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labor.

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Claims Act (“FTCA”) waives the government’s immunity for tort

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claims arising out of the negligent conduct of government

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employees acting within the scope of their employment.

Terbush

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v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008).

A suit

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brought against the United States under the FTCA “is to be

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determined in accordance with the law of the place where the

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[allegedly tortious] act or omission occurred.”

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States, 511 F.3d 839, 844 (9th Cir. 2006) (alteration in

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original) (citations omitted).

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California, so California law applies.

(Def.’s Opp’n 6:21-26 (Docket No. 40).)

The Federal Tort

Tekle v. United

The events occurred in
Id.

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California law states that “there can be no indemnity

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without liability” and thus Sutter Davis must show the midwives

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were liable for E.R.’s injuries.

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Inc., 147 Cal. App. 4th 80, 130 (2d Dist. 2007) (quoting Munoz v.

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Davis, 141 Cal. App. 3d 420, 425 (2d Dist. 1983)).

See Bostick v. Flex Equip. Co.,

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The elements

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for professional negligence in California are: “(1) the duty of

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the professional to use such skill, prudence, and diligence that

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other members of his profession commonly possess and exercise;

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(2) a breach of that duty; (3) a proximate causal connection

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between the negligence conduct and resulting injury; and (4)

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actual loss or damage resulting from the professional’s

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negligence.”

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Dist. 2015).

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Paul v. Patton, 235 Cal. App. 4th 1088, 1095 (6th

“Whenever the plaintiff claims negligence in the

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medical context, the plaintiff must present evidence from an

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expert that the defendant breached his or her duty to the

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plaintiff and that the breach caused the injury to the

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plaintiff.”

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Dist. 2007).

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professional is not within the common knowledge of laymen, a

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plaintiff must present expert witness testimony to prove a breach

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of the standard of care.”

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Cal. App. 4th 493, 509 (3d Dist. 2004) (citations omitted).

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“Plaintiff also must show that defendants’ breach of the standard

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of care was the cause, within a reasonable medical probability,

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of his injury.”

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judgment and supports his motion with expert declarations that

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his conduct fell within the community standard of care, he is

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entitled to summary judgment unless the plaintiff comes forward

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with conflicting expert evidence.”

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123 (quoting Munro v. Regents of Univ. of Cal., 215 Cal. App. 3d

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977, 985 (2d Dist. 1989)).

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Powell v. Kleinman, 151 Cal. App. 4th 112, 123 (5th
“[W]here the conduct required of a medical

Id.

Bushling v. Fremont Med. Ctr., 117

“When a defendant moves for summary

Powell, 151 Cal. App. 4th at

Sutter Davis’s expert witness, Michael Benson, stated
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in his rebuttal report that “[m]idwife care [is] totally moot”

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and “[a]s the midwives consulted regularly with the physicians,

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the fact that they participated in the care of Ms. Lara had

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nothing to do with the injury of [E.R.]”

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(“Benson Report”), at 6 (Docket No. 37-3).)

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“no act of omission or commission by the midwife [or nurses]

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would have made any difference” to E.R.’s injuries.

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Benson affirmed this in his deposition, where he stated that he

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held all of the opinions expressed in his original and rebuttal

(Broderick Decl. Ex. D
According to Benson,

(Id.)

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reports to a reasonable degree of medical certainty.

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Dep. 148:21-149:15 (Docket No. 37-3).)

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thus presented evidence, through Sutter Davis’s own expert, that

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the midwives’ conduct fell within the standard of care and their

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conduct did not cause E.R.’s injuries.

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(Benson

The United States has

The United States argues Sutter Davis is unable to

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rebut this evidence because Sutter Davis never disclosed or

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provided any conflicting expert testimony or reports.

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Decl. ¶¶ 3-4, Exs. B-C); see Robinson v. Kaweah Delta Hosp., Civ.

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No. 1:09-1403 LJO GSA, 2010 WL 4624090, at *6 (E.D. Cal. Nov. 5,

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2010) (“A party failing to satisfy expert disclosure requirements

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‘is not allowed to use that information or witness to supply

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evidence . . . at trial unless the failure was substantially

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justified or is harmless.’” (quoting Fed. R. Civ. P. 37(c)(1))).

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(Broderick

Sutter Davis concedes it did not disclose any experts

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that establish the midwives breached the standard of care and

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caused E.R.’s injuries, but it instead argues there are other

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experts that establish the midwives’ liability.

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relies on two experts disclosed by plaintiff --Dr. Barry Schifrin
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Sutter Davis

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and Dr. Charles Ballard--to prove the midwives breached the

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applicable standard of care and caused E.R.’s injury.

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was not Sutter Davis who disclosed these experts, Federal Rule of

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Civil Procedure 56 allows a party to rely upon “particular parts

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of materials in the record.”

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Assuming it is fair to permit Sutter Davis to rely on plaintiff’s

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experts even though plaintiff has no claim against the United

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States, see House v. Combined Insurance Co. of America, 168

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F.R.D. 236, 240-46 (N.D. Iowa 1996) (summarizing case law

While it

Fed. R. Civ. P. 56(c)(1)(A).

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regarding when a party can rely upon an opposing party’s expert

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to prove its claim), the United States argues there is no expert

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causation evidence.1

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Throughout its supplemental brief on causation, Sutter
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Although it does not form the basis for the court’s
decision on this motion, there is serious doubt that Sutter Davis
has met its burden of proving the experts are qualified. See
United States v. 87.98 Acres of Land More or Less in the County
of Merced, 530 F.3d 899, 904 (9th Cir. 2008). While both experts
are doctors, this does not mean they are qualified to speak to
the standard of care of nurse midwives. See Diviero v. Uniroyal
Goodrich Tire Co., 919 F. Supp. 1353, 1357-58 (D. Ariz. 1996)
(“Expertise in the technology of fruit is not sufficient when
analyzing the science of apples. Courts have excluded the
testimony of engineers because their expertise was not particular
to the science involved in the case.”). Dr. Schifrin last
managed a delivery involving a midwife in 1975. (Schifrin Dep.
27:1-7 (Docket No. 42-1).) Dr. Schifrin cannot recall the last
time he reviewed the scope of practice for a certified nurse
midwife and has not reviewed the Sutter Davis midwife practice
guidelines. (Id. 27:12-20, 135:22-136:3, 140:14-24.) There is
no evidence that Dr. Ballard has ever managed a labor and
delivery involving a midwife. (Ballard Dep. 38:17-39:4, 41:16-19
(“Is it accurate to say you have no independent memory of
managing a labor and delivery with a nurse midwife ever? A: I
think that may be an accurate statement, yes.”).) Dr. Ballard
has also never reviewed the Sutter Davis midwife practice
guidelines. (Id. 100:3-5.)
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Davis repeats the same conclusory causation statements in Dr.

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Ballard’s and Dr. Schifrin’s reports.

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Lara’s medical providers should have delivered E.R. “long before

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the terminal bradycardia he experienced beginning at

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approximately 22:42.

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probability, had these violations of the standard of care not

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occurred and had the baby been delivered in a timely fashion, he

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would not have suffered hypoxic-ischemic encephalopathy.”

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(Thornton Decl. Ex. B (“Schifrin Report”), at 13 (Docket No. 40-

Dr. Schifrin notes that

To a reasonable degree of medical

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3).)

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provided to Ms. Lara by the nurse midwives at Sutter Davis

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Hospital and by Dr. Maayah, [E.R.] suffered profound neurologic

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injury.

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could have been avoided had he been delivered at any time before

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22:42.”

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No. 40-3).)

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statement of all opinions the witness will express and the basis

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and reasons for them.”

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conclusions alone, as proposed by Sutter Davis, are insufficient

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to establish causation under Rule 26(a)(2)(B)(i) because they do

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not provide the basis or reasons for their conclusions.

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Dr. Ballard notes that “[a]s a result of the negligent care

To a reasonable degree medical probability that injury

(Thornton Decl. Ex. C (“Ballard Report”), at 7 (Docket
An expert witness’s report must contain “a complete

Fed. R. Civ. P. 26(a)(2)(B)(i).

Both

Plaintiff, in her supplemental brief in opposition to

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summary judgment, argues that the expert reports conclude that

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the midwives’ failure to accurately report Lara’s health status

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and keep Dr. Maayah apprised about the condition of Lara and her

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fetus caused E.R.’s injury because Dr. Maayah would have ordered

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an emergency C-section earlier if the midwives provided an

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accurate report.

(Pl.’s Supplemental Opp’n 7:2-5 (Docket No.
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51).)

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midwives] gave an accurate report to Dr. Maayah during the 22:15

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call, Dr. Maayah should have ordered that the patient and the

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operating room be prepared for an emergency Caesarean section”

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and “[t]he failure by [the midwives] and Dr. Maayah to recognize

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the need for and take immediate action at this point represents a

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violation of the standard of care which had disastrous

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consequences for Ms. Lara and her baby.”

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Dr. Ballard, in his expert report, noted that “[i]f [the

(Ballard Report at 7.)

The problem with this hypothesis is that it is negated

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by the testimony of Dr. Maayah herself.

Nowhere does she state

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or suggest that she would have ordered a C-section, or done

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anything different, if she had been apprised of all the

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information available to the midwives.

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after independently reviewing the fetal monitoring strip and all

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of the data in the system--and with the knowledge that E.R.’s

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heart rate would drop around 10:42 p.m.--Dr. Maayah concluded

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that the data did not indicate “that there was any concern in

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fetal status until the moment of the bradycardia” and there was

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“nothing that would indicate that there would be a sudden drop”

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in E.R.’s heart rate.

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Thus, an accurate report of Lara’s data would not have caused Dr.

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Maayah to call for an earlier C-section.2

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midwives in failing to provide an accurate report, therefore, is

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moot and “had nothing to do with the injury.”

To the contrary, even

(Maayah Dep. 127:16-20; 129:18-130:1.)

Any actions by the

(Benson Report at

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At oral argument, counsel for Sutter Davis argued that
the midwives had a duty to go over Dr. Maayah’s head and report
their findings to a higher authority and that their failure to do
so caused E.R.’s injuries, but nowhere do any of the experts
proffer such an opinion.
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6.)

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report Lara’s health status to Dr. Maayah, this did not cause

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E.R.’s injuries.

Accordingly, even assuming the midwives did not accurately

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E.R. also argues that the expert reports conclude that

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the midwives’ failure to properly monitor Lara caused E.R.’s

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injury.

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midwives] . . . directed, approved or were aware of the failure

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to appropriately monitor Ms. Lara and her fetus, they violated

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the standard of care, which was a substantial factor in causing

Dr. Schifrin did state that “[t]o the extent the [nurse

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the injury to E.R.”

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conclusory statement may appear at first blush to be an

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expression of an opinion as to causation, it is clear that Dr.

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Schifrin did not intend it as such.

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rebuttal expert report, made it clear that he cannot determine

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the cause of E.R.’s injury.

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rebuttal report that “it cannot be the role of the

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obstretrical/maternal-fetal expert to determine the cause of the

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fetal neurological injury - that rests with others.”

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Ex. 7, at 3 (Docket No. 51-2) (emphasis added).)

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(Schifrin Report at 10.)

While this

Dr. Schifrin, in his

In fact, he acknowledged in his

(Rice Decl.

Moreover, neither Dr. Ballard nor Dr. Schifrin explains

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how the failure to properly monitor Lara caused E.R.’s injury.

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See Fed. R. Civ. P. 26(a)(2)(B)(i) (requiring that an expert

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report contain “the basis and reasons for” the expert’s

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conclusions).

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monitoring . . . would have significantly increased the

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likelihood that the [midwife] (or obstetrician) would have

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detected fetal distress at a much earlier point during labor”

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(Schifrin Report at 10), there is no showing that earlier

While Dr Schifrin stated that “constant fetal

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detection of fetal distress would have caused Dr. Maayah to

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conduct an earlier C-section.

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a causal link between the intermittent monitoring and E.R.’s

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injury.

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Chemical Corp., 707 F.2d 1086, 1092 (9th Cir. 1983) (“Negligence,

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in and of itself, is irrelevant in the absence of some causal

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connection with the injury.”).

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Neither expert report establishes

See Dillingham Tug & Barge Corp. v. Collier Carbon &

Further, Dr. Schifrin stated in his deposition that
there are several “potential explanations for [the sudden fetal

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bradycardia].”

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147:6 (Docket No. 42-1).)

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insufficient to establish a prima facie case” of professional

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negligence.

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Dist. 1992).

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not included in his report.

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(Broderick Decl. Ex. 1 (“Schifrin Dep.”) 146:21“Mere possibility alone is

Bromme v. Pavitt, 5 Cal. App. 4th 1487, 1498 (3d
He further notes that this causation opinion was
(Schifrin Dep. 147:16-148:4.)

In conclusion, Sutter Davis has not provided any expert

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evidence which is contrary to its own expert’s opinion that the

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midwives did not cause E.R.’s injuries.

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States is not required to indemnify Sutter Davis for E.R.’s

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injuries, and the court must grant third-party defendant United

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States’ motion for summary judgment on Sutter Davis’s third-party

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complaint for indemnity.

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Accordingly, the United

IT IS THEREFORE ORDERED that third-party defendant

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United States’ motion for summary judgment be, and the same

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hereby is, GRANTED.

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Dated:

December 13, 2016

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