Opinion
CV-21-08054-PCT-DLR
10-24-2022
Michael Buffington, et al., Plaintiffs, v. United States of America, Defendant.
ORDER
DOUGLAS L. RAYES, DISTRICT JUDGE
This wrongful death action arises from the death of Savannah Skenadore (“Decedent”) on August 21, 2019. (Doc. 1 at 4.) Defendant admits that it is vicariously liable for damages, if any, caused by a physician at the Chinle Comprehensive Health Care Facility. (Doc. 9 at 1-2.) Defendant named Banner University Medical Center as a nonparty at fault, on the grounds that the negligence of Banner's providers led to Decedent's death. (Doc. 27 at 1.) Plaintiffs now move for summary judgment, arguing that Defendant has not presented sufficient expert testimony, as required by Arizona law. (Doc. 45.) The motion is fully briefed. (Docs. 46, 47.)
I. Standard
Summary judgment is appropriate when there is no genuine dispute as to any material fact and, viewing those facts in a light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The burden then shifts to the non-movant to establish the existence of a genuine and material factual dispute. Id. at 324. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” and instead “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation omitted).
II. Discussion
Arizona law requires that a defendant “give[] notice before trial . . . that a nonparty was wholly or partially at fault.” A.R.S. § 12-2506(B). In the medical malpractice context, a defendant must establish, usually through expert testimony, the standard of care and that the nonparty “deviated” from that standard, that is, that “[t]he health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.” Bell v. Maricopa Med. Ctr., 755 P.2d 1180, 1182-83 (Ariz.Ct.App. 1988) (quoting A.R.S. § 12-563)).
Plaintiffs' argument is straightforward. In their view, Defendant's expert did not testify to the relevant standard of care or that the nonparty did not comply with this standard, whatever it might be. Therefore, Plaintiffs conclude, the nonparty “cannot be found to be at fault for [Decedent's] death.” (Doc. 45 at 2.)
Defendant contends that its expert met these requirements, arguing that even though its expert did not utter the magic words his opinion provides a sufficient basis for the jury to consider the fault of the non-party. In his affidavit, Defendant's expert opined that “reasonable doctors could differ on whether to use the thrombectomy” when treating a stable patient with pulmonary embolism (“PE”) and that the standard of care doesn't necessarily exclude thrombectomy. (Doc. 46-2 at 4.) Although it appears as if the expert suggested that most doctors might not have used the thrombectomy, he does not opine that the thrombectomy fell below the standard of care, which is the crucial issue. The law doesn't require a medical expert to recite a specific incantation, but it does require the expert to at least opine as to the standard of care and that the nonparty's conduct fell below it. Rasor v. Nw. Hosp., LLC, 403 P.3d 572, 575 (Ariz. 2017) (“Unless malpractice is grossly apparent, the standard of care must be established by expert medical testimony.”). The expert did not do so here. Without testimony from an expert about the applicable standard of care, a jury of lay people would be asked to make a decision for which the average person would have no basis to decide. See Seisinger v. Siebel, 203 P.3d 483, 492 (Ariz. 2009) (“[E]xpert testimony on the standard of care can be presented only by a physician.”).
In the alternative, Defendant argues that when “there is no currently accepted standard of care,” the factfinder-here, the Court-can “interpolate” a SOC from the expert's testimony. (Doc. 46 at 7, 8.) This argument is unavailing. Arizona law requires the party seeking to name a nonparty at fault to establish the relevant standard of care. Bell, 755 P.2d at 1182-83. Defendant cannot evade this requirement by charming the Court into conjuring up a standard of care where a medical expert could not. Indeed, to reach Defendant's preferred outcome, the Court would have to find, contrary to Defendant's expert's opinion and bereft of any evidence in the record, that no reasonable doctor would have used thrombectomy to treat a stable patient with PE. Plaintiffs, having pointed out a material deficiency in Defendant's argument about a nonparty at fault, are entitled to judgment as a matter of law.
Defendant also raises an argument about Banner University's care being an intervening, superseding cause, an argument beyond the scope of Plaintiffs' motion for summary judgment. The Court thus declines to address this argument any further. If supported by the evidence, at trial Defendant may ask for a jury instruction on intervening, superseding cause. Accordingly, IT IS ORDERED that Plaintiffs' motion for summary judgment (Doc. 45) is GRANTED.
IT IS FURTHER ORDERED that the parties shall participate in a telephonic trial scheduling conference on November 10, 2022, at 9:30 a.m.