Barrowman et al v. Wright Medical Technology, Inc. et al

Filing 45

ORDER denying Plaintiffs' 44 Motion for Reconsideration signed by Judge James L. Robart. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ALAN BARROWMAN, et al.,

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Plaintiffs,
v.

CASE NO. C15-0717JLR
ORDER DENYING MOTION
FOR RECONSIDERATION

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WRIGHT MEDICAL
TECHNOLOGY INC., et al.,

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Defendants.

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I.

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INTRODUCTION

Before the court is Plaintiffs Alan Barrowman and Jessica Robertson’s

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(collectively, “Plaintiffs”) motion for reconsideration of the court’s September 19, 2017,

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order. (Mot. (Dkt. # 44).) The court has considered the motion, the relevant portions of

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the record, and the applicable law. Being fully advised,1 the court DENIES the motion

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for the reasons set forth below.

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II.

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BACKGROUND

The court extensively detailed the factual background of this case in its earlier

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order. (See 9/19/17 Order (Dkt. # 82) at 2-9.) Accordingly, the court limits its discussion

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here to those facts relevant to the issues Plaintiffs now raise.

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On January 23, 2012, Dr. Solomon Wu performed multiple outpatient surgical

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procedures on Ms. Robertson’s right foot, and on February 13, 2012, he performed the

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same procedures on Mr. Barrowman’s right foot.2 (Compl. (Dkt. # 1-1) ¶¶ 3.2, 3.4.)

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During the operations, Dr. Wu implanted a Cancello-Pure 10x50 millimeter Wedge,

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manufactured by Defendant RTI Surgical, Inc. (“RTI”) and distributed by Defendant

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Wright Medical Technology, Inc. (“Wright”). (Id. ¶¶ 3.3, 3.5; 1st Bigby Decl. ¶ 1.) A

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different surgeon, Dr. Rodney Graves, removed the Wedge from Ms. Robertson’s foot on

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March 1, 2013, and from Mr. Barrowman’s foot on February 24, 2014. (Id. ¶¶ 3.7, 3.9.)

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On January 23, 2015, Plaintiffs filed suit against Wright and RTI (collectively,

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“Defendants”) in King County Superior Court, asserting product liability claims and

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violations of Washington’s Consumer Protection Act (“CPA”), RCW 19.86. (Id.

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Plaintiffs did not request oral argument, and the court finds that oral argument would
not be helpful to its disposition of the motion. Local Rules W.D. Wash. LCR 7(b)(4).

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The complaint states that Mr. Barrowman’s surgery was in 2013, but his surgery
appears to have actually occurred in 2012. (See 1st Bigby Decl. (Dkt. # 35) ¶¶ 6-7, 12, Ex. 5
(“Christensen Rep.”) at 8.)

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¶¶ 6.1-6.3.) On May 7, 2015, Defendants removed the action on the basis of diversity

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jurisdiction.3 (Not. of Rem. (Dkt. # 1)); see also 28 U.S.C. § 1332.

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Beginning in 2013—before Plaintiffs brought this suit—Plaintiffs’ counsel

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investigated Dr. Wu’s potential liability for medical malpractice. (1st Bigby Decl. ¶ 3; 2d

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Bigby Decl. (Dkt. # 41) ¶¶ 2-7.) In May 14, 2015, RTI asserted an affirmative defense in

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its answer, alleging that Dr. Wu caused or contributed to Plaintiffs’ injuries. (RTI

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Answer (Dkt. # 6) at 6.). Dr. Aprajita Nakra, Plaintiffs’ expert witness, reviewed

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Plaintiffs’ medical files and opined that “[t]here is no evidence that Dr. Solomon Wu’s

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surgical technique in either of the plaintiff’s surgeries was a contributing factor to the

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graft nonunion, and “[t]he treatment received by both the plaintiffs has been appropriate,

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medically necessary[,] and meets [the] standard of care.” (1st Bigby Decl. ¶¶ 5, 11, Ex. 3

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(“Nakra Rep.”).) On May 3, 2017, Defendants produced a report from their expert, Dr.

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Jeffrey C. Christensen, in which Dr. Christensen concluded that Dr. Wu improperly

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performed the Wedge implantation procedure. (1st Bigby Decl. ¶ 6; Christensen Rep.

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at 11.)

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After receiving Dr. Christensen’s reports, Plaintiffs sought relief from the court’s

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scheduling order to amend their pleadings to add a claim of medical malpractice against

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Dr. Wu. (MTA (Dkt. # 34) at 1; Prop. Am. Compl. (Dkt. # 34-1) ¶¶ 7.1-7.6; 4/22/16

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Order (Dkt. # 20) at 1 (setting the deadline for joining additional parties as October 30,

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2015); 2/10/17 Order (Dkt. # 24) at 4 (setting the deadline for amending pleadings as

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Wright’s principal place of business is Tennessee, and RTI’s is Florida; both are
incorporated in Delaware. (Not. of Rem.) Plaintiffs reside in Washington. (Compl. ¶¶ 2.1-2.2.)
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May 3, 2017).) Plaintiffs contended that they could not have amended their complaint

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earlier because they did not know about any alleged medical malpractice on Dr. Wu’s

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part until receiving Dr. Christensen’s report on May 3, 2017. (MTA at 1.) Because

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adding Dr. Wu—a Washington domiciliary—would deprive the court of subject matter

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jurisdiction by destroying complete diversity, Plaintiffs also sought remand to state court

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if the court granted their motion to amend. (MTR (Dkt. # 36) at 1.)

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On September 19, 2017, the court denied Plaintiffs’ motion to amend. (See

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9/19/17 Order.) The court concluded that Plaintiffs failed to show good cause for not

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seeking to amend earlier and that even if they had, leave to amend would be futile. (Id. at

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11-12, 14, 17.) The court also denied as moot Plaintiffs’ motion to remand because

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without Dr. Wu’s joinder, complete diversity remained intact. (Id. at 18.)

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Plaintiffs seek reconsideration of the court’s order. (See Mot.) They argue that

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the court erred in finding no good cause to seek leave to amend and in denying leave to

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amend as futile. (Id. at 3-5.) If the court reconsiders and permits amendment, Plaintiffs

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also move to remand to state court. (Id. at 2.) The court now addresses the motion.

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III.

ANALYSIS

“Motions for reconsideration are disfavored,” and the court “will ordinarily deny

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such motions in the absence of a showing of manifest error in the prior ruling or a

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showing of new facts or legal authority which could not have been brought to [the

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court’s] attention earlier with reasonable diligence.” Local Rules W.D. Wash. LCR

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7(h)(1). The court finds that Plaintiffs fail to make the required showing of manifest

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error for the following reasons.

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Good Cause

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Plaintiffs first argue that the court applied the incorrect standard to determine

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whether they had good cause for failing to seek amendment earlier. (See Mot. at 3.)

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Specifically, they contend that the court’s analysis “focused on the reasons Plaintiffs did

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not amend sooner, rather than the reasons Plaintiffs could not meet the case scheduling

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deadlines.” (Id.)

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When the deadlines for adding parties and amending pleadings have passed, as is

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the case here (see 4/22/16 Order at 1; 2/10/17 Order at 4), a plaintiff may seek

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amendment only by first showing “good cause” under Federal Rule of Civil Procedure

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16(b)(4), Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992);

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Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the

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judge’s consent.”). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence

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of the party seeking the amendment.” Johnson, 975 F.2d at 609. To show “good cause,”

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a party must show that it could not meet the deadline in the scheduling order despite the

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party’s diligence. Id. The court’s inquiry thus turns on whether Plaintiffs were “diligent

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in discovering the basis for and seeking” to join Dr. Wu and add the medical malpractice

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claim. Rain Gutter Pros, LLC v. MGP Mfg., LLC, No. C14-0458RSM, 2015 WL

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6030678, at *2 (W.D. Wash. Oct. 15, 2015); see also Deep9 Corp. v. Barnes & Noble,

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Inc., No. C11-0035JLR, 2012 WL 4336726, at *15 (W.D. Wash. Sept. 21, 2012) (stating

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that the good cause requirement focuses on whether the moving party “was unable to

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uncover the information underlying its motion to amend”).

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In its September 19, 2017, order, the court found no such good cause. The court

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noted that “Dr. Christensen based his report on a review of Plaintiffs’ own medical

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records, which date from 2014 or earlier, and Plaintiffs have not shown those records

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were inaccessible to them before Dr. Christensen created his report.” (Id. at 11 (citing

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Christensen Rep. at 1, 7).) The court determined that the only new fact precipitating

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Plaintiffs’ motion was Dr. Christensen’s report itself—not any facts upon which the

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report was based. (Id.) In addition, Plaintiffs knew RTI intended to pursue the theory

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that Dr. Wu was at fault for Plaintiffs’ injuries. (See RTI Answer at 6; 1st Bigby Decl.

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¶ 4 (stating that during discovery “Wright answered that Dr. Wu may be an at-fault non-

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party”).) Against this backdrop, Plaintiffs’ claim that it would have been “impossible” to

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join Dr. Wu and add a malpractice claim prior to Dr. Christensen’s expert report rings

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hollow. Thus, Plaintiffs had not been diligent in meeting the court’s scheduling order

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because they already had the necessary facts underlying their proposed joinder and

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amendment. See Rain Gutter Pros, 2015 WL 6030678, at *2; Deep9, 2012 WL 4336726,

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at *15.

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The court therefore declines to disturb its prior ruling. The court focused on

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Plaintiffs’ diligence in seeking amendment and in so doing, applied the proper standard.

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However, the court provided an alternative basis for its denial of leave to amend—even if

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Plaintiffs had demonstrated good cause, amendment was futile. (Id. at 12 (“Although the

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court need not address Plaintiffs’ arguments under Rule 15, the court nevertheless

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concludes that amending the complaint to add a claim for medical malpractice against Dr.

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Wu would be futile.”).) Thus, even if the court applied an improper standard, the court’s

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good cause analysis was not dispositive of Plaintiffs’ motion.

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B.

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Leave to Amend
A proposed amendment is futile “if no set of facts can be proved under the

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amendment to the pleadings that would constitute a valid and sufficient claim or

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defense.” Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988); see also

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Gamez v. Ryan, No. CIV 12-00760 PHX RCB MEA, 2012 WL 8015674, at *2 (D. Ariz.

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Nov. 21, 2012) (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.

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1998) (“A claim in a proposed amended complaint is futile if it would be immediately

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subject to dismissal pursuant to Rule 12(b)(6) . . . for failure to state a claim . . . .”);

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Nordyke v. King, 644 F.3d 776, 790 n.12 (9th Cir. 2011). Futility alone is a reason to

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deny an amendment. Novak v. United States, 795 F.3d 1012, 1020 (9th Cir. 2015).

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The court denied leave to amend as futile because the three-year statute of

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limitations on Plaintiffs’ proposed medical malpractice claim had passed and they could

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not invoke the one-year discovery rule. (9/19/17 Order at 17.) Plaintiffs argue that the

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court erred in its denial. (Mot. at 4-5.) Plaintiffs’ argument in favor of reconsideration is

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based solely on Lo v. Honda Motor Company, 869 P.2d 1114 (Wash. Ct. App. 1994), a

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case the parties and the court previously addressed. (See MTA at 10-11; MTA Resp. at 9;

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9/19/17 Order at 15-17.) Although the court declines to reconsider its ruling denying

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leave to amend, it takes the opportunity to clarify the basis for that ruling.

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Under Washington law, a party must bring a malpractice claim within three years
of injury “or one year of the time the patient or his or her representative discovered or

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reasonably should have discovered that the injury or condition was caused by said act or

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omission, whichever period expires later.” RCW 4.16.350(3). The one-year alternative

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period is known as the discovery rule. In re Estates of Hibbard, 826 P.2d 690, 694

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(Wash. 1992). Because Plaintiffs’ proposed claim is untimely under the three-year

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statute of limitations, they invoked the discovery rule. (See MTA at 10 (“ . . . Plaintiffs

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do not meet the three-year requirement,” and “[a]s a result, Plaintiffs are relying upon the

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one-year time period, also known as the ‘discovery rule’ to assert their claims against Dr.

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Wu.”).)

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“Under the discovery rule, a cause of action accrues when the plaintiff knew or

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should have known the essential elements of the cause of action: duty, breach,

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causation[,] and damages.” Allen v. State, 826 P.2d 200, 203 (Wash. 1992). The key

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consideration is “when the plaintiff knows or should know the relevant facts, whether or

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not the plaintiff also knows that these facts are enough to establish a legal cause of

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action.” Id.; see also Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 864 P.2d 921,

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933 (Wash. 1993). “To invoke the discovery rule, the plaintiff must show that he or she

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could not have discovered the relevant facts earlier.” Giraud v. Quincy Farm & Chem., 6

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P.3d 104, 109 (Wash. Ct. App. 2000). To discover the relevant facts, “[t]he plaintiff need

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only discover some information about each of the four elements of a possible cause of

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action,” although a “mere inquiry” is insufficient. Olson v. Siverling, 758 P.2d 991, 995

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(Wash. Ct. App. 1988). If the plaintiff has that information, “the statute will run even if

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she is advised by a physician or an attorney that she has no cause of action.” Id.; cf.

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Gevaart v. Metco Constr., Inc., 760 P.2d 348, 350 (Wash. 1988) (holding that “the

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discovery rule does not require knowledge of the existence of a legal cause of action”

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because that would “effectively do away with the limitation of actions until an injured

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person saw his/her attorneys”). Thus, a plaintiff “who reasonably suspects that a specific

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wrongful act has occurred is on notice that legal action must be taken.” Giraud, 6 P.3d at

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109.

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Based on this authority, the court correctly concluded that the only new fact in this

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case—Dr. Christensen’s expert report—provided no basis for invoking the discovery

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rule. (See 9/19/17 Order at 16-17.) Plaintiffs had the same information upon which Dr.

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Christensen based his opinions and indeed relied on that information to investigate

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malpractice. (Id. at 16 (citing 2d Bigby Decl. ¶¶ 2-3).) Thus, Plaintiffs had—or at the

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least, should have had—all of the relevant facts underlying the cause of action before the

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three-year limitations period expired. See Allen, 826 P.2d at 203. The fact that Plaintiffs

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may not have discovered a legal cause of action until Dr. Christensen’s report does not

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change the analysis.4 Id. Moreover, even if discovery of a legal cause of action were

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sufficient, Plaintiffs knew of Defendants’ intention to assert the medical malpractice

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defense as early as May 2015. (See RTI Answer at 6; see also 1st Bigby Decl. ¶ 4

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(stating that during discovery “Wright answered that Dr. Wu may be an at-fault

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non-party”)); Giraud, 6 P.3d at 109.

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The court finds the Washington Court of Appeals’s decision in McFadden v. South

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Sound Inpatient Physicians, PLLC, 191 Wash. App. 1008, 2015 WL 6873463 (Wash. Ct.

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Nor does the fact that Plaintiffs’ expert, Dr. Nakra, opined that Dr. Wu had not
committed medical malpractice change the court’s analysis. See Olson, 758 P.2d at 995.
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App. Nov. 9, 2015), persuasive. There, the plaintiff argued that she could invoke the

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discovery rule to state a claim of medical malpractice after the limitations period because

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she brought the claim within one year of discovering the “salient facts”—an expert

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opinion that her husband’s physician was negligent. Id. at *3. The court held, however,

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that it was contrary to Washington law that a “cause of action” did not begin accruing

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“until a medical expert specifically opined about each element” of the claim. Id. In

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reaching its conclusion, the court noted that the expert “relied on the same medical

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records” that the plaintiff previously had access to, undermining the plaintiff’s argument

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that she could not have earlier discovered the acts comprising medical malpractice. Id. at

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*4. This case fits with the weight of authority in Washington that focuses on two

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overarching principles in determining whether a party may invoke the discovery rule: (1)

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when the party discovers the factual—rather than the legal—basis for the claim, and (2)

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that the limitations period begins to accrue even if a physician or attorney affirmatively

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states that there is no claim. Allen, 826 P.2d at 203; Adcox, 864 P.2d at 933; Olson, 758

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P.2d at 995; Gevaart, 760 P.2d at 350. More importantly, this case undermines

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Plaintiffs’ contention that they did not have a medical malpractice cause of action until

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Dr. Christensen provided his opinion.

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In addition, as the court discussed in its September 19, 2017, order, Lo is

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distinguishable. In that case, the plaintiff attributed her car accident and resultant injuries

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to her prematurely born son’s birth defects: The plaintiff “became convinced in her own

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mind that [her son’s] afflictions were related to his premature birth, which she in turn

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believed to have been caused by the thrashing about she received in her Honda

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automobile . . . .” Lo, 869 P.2d at 1115. Although her attorney consulted several

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physicians and one eventually opined that medical negligence caused her son’s injuries,

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there is no indication that she earlier suspected medical malpractice. See id. at 1116

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(quoting the plaintiff’s attorney’s letter in which he asked physicians “whether or not [the

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son’s prematurity] could have related to the trauma suffered by his mother in the car

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accident” (emphasis omitted)). Here, Plaintiffs suspected, investigated, and dismissed

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medical malpractice as a potential cause of action. (MTA at 5; 1st Bigby Decl. ¶ 3

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(“Plaintiffs did not otherwise have any reason to blame Dr. Wu and desired to proceed

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with a product liability claim against the named Defendants.”); 2d Bigby Decl. ¶¶ 2-7.)

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Their decision not to pursue the claim does not toll the statute of limitations, and leave to

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amend to add the claim would be futile. See Olson, 758 P.2d at 995; cf. Gevaart, 760

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P.2d at 350.
Finally, the court addresses Plaintiffs’ contention that the court’s ruling “force[s]

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[them] to spend significant costs on experts in chasing an opinion in the affirmative when

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another logical explanation exists for the adverse medical outcome.” (Mot. at 5.)

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Although “[e]xpert testimony is generally required to prove proximate cause in medical

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malpractice cases,” McFadden, 2015 WL 6873463, at *3, that element of proof need not

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be supported before the statute of limitations runs, see Olson, 758 P.2d at 995. To hold

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otherwise would be to “effectively do away with the limitation of actions until an injured

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person” finds an expert who will affirmatively state that medical malpractice occurred.

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Gevaart, 760 P.2d at 350. Washington law does not support such an outcome.

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IV.

CONCLUSION

Based on the foregoing analysis, the court DENIES Plaintiffs’ motion for
reconsideration (Dkt. # 44).
Dated this 30th day of October, 2017.

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JAMES L. ROBART
United States District Judge

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