Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1988)

MEMORANDUM^* 

Christy Walker appeals the district court's order granting summary judgment for defendants as well as the court's order granting the defendants' motion to strike a witness's statement submitted in response to the motion for summary judgment. Defendant Cochise County Health Department appeals the court's denial of its motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure. We affirm.

* Laura Walker was born on August 23, 1965. She lived with her mother, Mandy Walker, in Arkansas until November, 1974, when they moved to Arizona. In November, 1974, Laura enrolled in the fourth grade at Huachuacha Terrace School, a school in the Bisbee School District in Cochise County. In January, 1976, she transferred to Naco Elementary School, also located in Cochise County but not part of the Bisbee School District. She attended grades 5 through 8 at Naco Elementary School. In 1980, she graduated from the eighth grade at Naco Elementary School and on August 19, 1980, she enrolled for her freshman year at Bisbee High School, a school in the Bisbee School District.

In early 1981, Laura became pregnant. She contracted rubella during her pregnancy. On October 29, 1981, Laura gave birth to a daughter, Christy Walker. Shortly after Christy's birth, Laura learned that Christy suffered from Congenital Rubella Syndrome as a result of Laura's infection with rubella during pregnancy. That condition has caused deafness, loss of speech, and heart and motion deficits in Christy.

When Laura attended school in Arkansas, her mother brought her for immunizations to the Servier County Health Department. When Laura moved to Arizona in 1974, her mother brought with her Laura's immunization records for Servier County. Those records became part of Laura's school records when she enrolled at Naco Elementary School and Bisbee High School.

Laura's immunization records from Arkansas included numerous entries for inoculations which were administered at the Servier County Health Department. With one exception, the date of each inoculation and initials of the public health nurse who inoculated Laura were written on the immunization record. These included vaccines for Diptheria-Tetanus-Pertussis (DTP), measles, and polio. The polio record also included the type of vaccine administered. It was the ordinary practice for public health nurses in Servier County to record vaccinations by date (including day, month and year) and by the initials of the person administering the vaccine.

However, Laura's immunization record also included the entry: "Rubella 72." In contrast to the other entries, it contained neither a complete date nor any initials nor any description of a vaccine.

When Laura enrolled at Naco Elementary School, these records became part of her school records. On September 3, 1979, Laura's mother signed a document described as an "Immunization Record for School Attendance (Form 109)." Form 109 included a section entitled "Immunization History" on which the dates of Laura's vaccinations were transcribed. The form expressly provided that, "This immunization history must be filled out before a child can attend school. It should be checked by school personnel before one of the following statements is signed." Form 109 then offered areas for parental certification that the child had either been immunized, that immunizations were not completed, or that the child should be exempt from immunizations for medical or religious reasons. Laura's mother certified that the immunizations were not complete, and she specifically requested that Laura be included in the school's immunization program. On September 4, 1979, the day after Laura's mother signed Form 109, Laura received vaccinations for polio and DTP.

Naco Elementary School did not have its own school nurse. Therefore, it was customary for Cochise County health officials to travel to Naco Elementary School to give immunizations. Naco Elementary School would ordinarily send consent forms home for parents to sign. When the children returned to school with the consent forms, the Cochise County nurse would go through the forms to see whether parental consent had been given for specific inoculations. The nurse merely matched the child to the forms that the parents had signed.

Naco Elementary School had specific consent forms available for parents requesting rubella immunizations as well as for other vaccines, including polio and DTP. However, despite her September 4, 1979 vaccinations, the only records found in Laura's health file at Naco Elementary School were Form 109 and her Arkansas immunization records. Information regarding the September 4, 1979 inoculations was entered on the Form 109; but no consent forms were found in her file. The immunization records, including any consent forms, are ordinarily maintained indefinitely.

On August 22, 1986, Laura Walker Pizano filed a complaint on behalf of her daughter, Christy Walker, in the United States District Court for the District of Arizona. Laura contended that the defendants negligently failed to ascertain her doubtful immune status and to immunize her against rubella. After a substantial amount of discovery, all parties to this appeal moved for summary judgment. Cochise moved to strike the statement of Raymond Boyuk. Bisbee and Cochise also filed motions for sanctions under rule 11 of the Federal Rules of Civil Procedure.

The court granted Cochise's motion to strike Boyuk's statement, but denied the motions for sanctions. The court also granted summary judgment against Laura on the issue of whether Cochise, Bisbee and Naco had been negligent in failing to immunize Laura for rubella. The court stated:

It is the judgment of this Court that reasonable persons could not differ as to the meaning of the entry "Rubella 72" on the immunization record. Logically, it indicates either that the child was immunized or that the child was exposed to rubella. Either one divests the county and school districts of liability for negligence.

The court, therefore, denied plaintiff's motion for summary judgment.

On October 18, 1988, the court entered its judgment pursuant to Rule 54(b). On November 15, 1988, Christy filed her Notice of Appeal.

II

We review a grant of summary judgment de novo. Christofferson Dairy, Inc. v. MMM Sales, Inc., 849 F.2d 1168, 1171 (9th Cir. 1988). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

The plaintiff, Christy Walker, contends that the defendants had a duty to immunize her and were negligent in failing to do so. Prior to 1976, Arizona statutes provided that "each school district in cooperation with the county health department shall provide for the vaccination or immunization" of school children. Ariz.Rev.Stat. Sec. 36-629. In 1976, however, the Arizona legislature revised the statute to reverse the roles of the school districts and county health departments. Thus, after 1976, the county health department was charged with primary responsibility for "providing for" vaccinations of school children, albeit "in cooperation with each school within the county." Ariz.Rev.Stat. Sec. 36-629 (1976).

After 1976, Ariz.Rev.Stat. Sec. 36-629 required that school districts provide physical facilities and administrative and clerical personnel to carry out the immunization programs and to collect and maintain immunization records. In that same year, the state legislature also enacted Ariz.Rev.Stat. Sec. 15-342 which provided that prior to a child's enrollment in any school in the state, parents were required to submit an immunization record to school administrators which contained the parent's statement either that the child had received the required immunizations, or would receive them during the school year, or was exempt from immunization requirements for health or religious reasons. The Arizona statutes prohibit the vaccination of minor children without such parental consent. Ariz.Rev.Stat. Sec. 36-629(F).

The plaintiff argues that once a parent has filled out Form 109 indicating that a child's immunizations are not complete and specifically requesting the school to include the child within the immunization program required by section 36-629, the parent may rely on the school and county health department to provide his or her child with the appropriate vaccinations. The plaintiff points to both the statutes and Restatement of Torts, Second, section 324(A),¹  as a source for defendants' duty. The defendants argue that the statutes merely require them to provide a system for immunizing school children and do not create a duty to immunize any individual child. The defendants also deny assuming any such duty voluntarily as described by the Restatement. Defendant Cochise also denies ever having seen the plaintiff's immunization records.

Even assuming the defendants owed a duty to the plaintiff to provide the immunizations described in the Arizona statutes, the district court was correct in granting summary judgment on the ground that the defendants were not negligent. The district court held that a reasonable person could only read the "Rubella 72" entry one of two ways: either Laura had been inoculated against the disease in 1972 or she had contracted the disease in 1972. In either event, she would be immune from rubella. Of course, in hindsight it is apparent that a third alternative exists--that the entry was a mistake. As the district court noted " [t]here isn't any data entry that's ever been made that couldn't be wrong." However, as the district court correctly held, parties may nevertheless reasonably rely on certain records.

In this case, Arizona school officials relied upon an entry in Laura's immunization records prepared by the Servier County Health Unit in DeQueen, Arkansas. Althoughthe entry "Rubella 72" lacks the specificity of the other entries, it nevertheless appears on both Laura's "Permanent Immunization Record" and the "Immunization and Test Record" which is prepared by health officials to represent a child's immunization status to school officials. Further, immunization records indicating only the year of the vaccination or illness were not unusual in Arizona.

Reliance on these records was not unreasonable. The officials did not rely upon a parent's memory or even upon general medical records including an unconfirmed physician's diagnosis. Instead, they relied upon information contained in the plaintiff's "Permanent Immunization Record." It was reasonable for them to assume that the information on this record was correct and that any ambiguities had been resolved by the health department officials prior to entering the information in the plaintiff's permanent record. No rational jury could reach the opposite conclusion.

The district court's decision was also correct with regard to the Cochise County Health Department. Even assuming that a health department nurse gave the plaintiff her September 4, 1979 vaccinations based on her mother's consent on the Form 109 rather than requiring a standard consent form, it would not have been unreasonable for the nurse to have given the vaccinations without questioning the plaintiff's immunity to rubella. Like the school officials, the nurse would have seen the entry "Rubella 72" on an immunization record prepared by health department officials. Year only entries are common in Arizona. As the district court held, the entry could have reasonably been given only two meanings, either of which led to the conclusion that the plaintiff was immune to rubella.

III

The plaintiff submitted a statement by Raymond Boyuk in opposition to the defendants' motion for summary judgment. However, the court granted the defendants' motion to strike this statement because it was not based on the witness's personal knowledge. The plaintiff appeals this decision.

In his statement, Boyuk expressed his "impression" that a health department nurse assisted his secretary in keeping the students' immunization records. However, he later stated in an affidavit that he had no personal knowledge of the extent of the assistance provided by the health department nurse. As he stated, he lacked "specific knowledge as to whether she was involved in obtaining parental consents, or reviewing either those or any immunization data or documents provided by the parents to the school." Because his statement was not based on personal knowledge, it was properly excluded by the district court. See Doff v. Brunswick Corp., 372 F.2d 801, 804-05 (9th Cir. 1966), cert. denied, 389 U.S. 820 (1967) (statement in second affidavit that affiant was without personal knowledge of certain events "completely devitalized his prior affidavit" with respect to those events); Box v. A & P Tea Co., 772 F.2d 1372, 1378 (7th Cir. 1985), cert. denied, 478 U.S. 1010 (1986) ("Conjecture, speculation, references to matters outside the [affiant's] personal knowledge, conclusory statements and bare assertions of the general truth of a particular matter will not suffice to withstand a properly supported motion for summary judgment."); Fed. R. Civ. P. 56(e) ("supporting and opposing affidavits [must] be made on personal knowledge....").

IV

Defendant Cochise also appeals, arguing that the district court erred in denying its motion for sanctions under Rule 11. After hearing argument on the summary judgment motions, the district court in this case stated: "I'll tell you right away, its a close question and I'm going to mull it over, and that ought to tell you that I'm not too impressed by the motions for sanctions...." After hearing brief arguments on the issue of sanctions, the court denied the motions. Only Cochise appeals this decision.

Whether specific conduct violates Rule 11 of the Federal Rules of Civil Procedure is a legal question which must be reviewed de novo. However, factual determinations relied upon by the district court to establish a violation are reviewed under the clearly erroneous standard. The appropriateness of the sanction imposed is reviewed for an abuse of discretion. King v. Idaho Funeral Service Assoc., 862 F.2d 744, 747 (9th Cir. 1988).

The district court did not err. Prior to 1976, Arizona statutes required the schools in cooperation with the county health departments to provide for immunizations. The 1976 amendment reversed the roles of the schools and county health departments. Under either statutory scheme, the county health department was required by statute to be involved in the immunization of school children. Laura's mother requested that she receive the necessary immunizations. Additionally, the plaintiff offered some evidence that the county health nurse examined students' immunization records.

Ultimately, whether the case should be permitted to proceed turns upon the meaning of "Rubella 72." As stated above, the district court was correct in granting summary judgment based on the fact that the entry "Rubella 72" could only be read to mean that Laura was immune to rubella. Nevertheless, the claim was not frivolous.

The district court's decision is AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

Mandy Walker sent her daughter, Laura, to school at Naco Elementary School in September 1979 with a form 109. The form expressly stated that the child's immunizations were incomplete. Laura's mother signed the statement that "The child whose name appears on this form has not received all the doses of the vaccines required by the regulations of ADHS [Arizona Department of Health Services]," and specifically checked the provision, "Please include this child in the school immunization program." When parents sign a form acknowledging that their child has not had all the necessary vaccinations and requesting that he or she be immunized, they are entitled to rely on the school district to check the child's immunization record to ascertain which additional vaccinations are required and to provide the necessary immunizations. The school district and the county health department have a special obligation to exercise due care in reviewing student's medical records. They should not fail to take necessary health measures on the basis of unclear or questionable records. The failure to take appropriate medical steps in cases such as the one before us can result in serious injury to an individual child or in a tragic epidemic among the students. Where the record is ambiguous, the public officials have a duty to inquire further.¹ 

Here, the record is sufficient to raise a material question of fact as to whether there was an ambiguity in the medical records that required further investigation. The public health nurse with the Bisbee School District in Arizona, Marge Bruner, testified that if she had seen the entry of "Rubella 72" on Laura's immunization record, she would have questioned it. The rubella entry was different from all the other entries on Laura's record; all the others set forth the date, the month, and the year on which the vaccinations were given. The disputed entry said only "Rubella 72." Nurse Bruner stated that her suspicion would have led her to pursue the matter further with the mother, to reimmunize the child, or to contact Arkansas directly. Additional testimony reveals that further inquiry would have led to even greater suspicion on the part of the defendants. The public health nurse for Sevier County and Custodian of the Arkansas immunization records, Shirely Hadley, testified that if a child was immunized in 1972, the nurse was required to record the day, the month, and the year of the immunization, and to write down her initials. Hadley had never seen a nurse or doctor or secretary document anything with just a figure like seventy-two. Based on her review of the records, and relying on the absence of a complete entry, Hadley concluded that Laura Walker was not vaccinated for rubella by the Sevier County Health Unit. Both nurses testified that at the very least the inconsistent entry would have raised their suspicion and led them to investigate the matter further.

Fundamentally, both the question whether the defendants should have been placed on notice by the unusual entry in the record and the underlying question of negligence are preeminent questions of fact that fall squarely within the province of a jury. "The presence of negligence in a given factual situation is normally, of course, a determination to be made by the jury." J.J. Newberry Co. v. Crandall, 171 F.2d 281, 282 (9th Cir. 1948) (Arizona juries should be given the question of negligence to decide so long as reasonable individuals might differ in their conclusions). Here, Laura Walker's claims never reached a jury; instead, they were peremptorily dismissed on summary judgment. Given the testimony regarding the uncertainly of the meaning of "Rubella 72," a jury, not a judge, should have been afforded the opportunity to resolve the disputed question.

The majority agrees with the district court's rationale that a reasonable person could have read the entry only in one of two ways: either Laura had been inoculated against rubella in 1972 or she had contracted the disease in that year. My colleagues simply ignore the more prudent alternative--delay interpreting the cryptic entry until further investigation reveals the facts.

The majority concludes that the defendants' reliance on Laura's record was not unreasonable since immunization records with " [y]ear only entries are common in Arizona." This determination is based on the testimony of Yvonne Taylor, Cochise County health nurse, and Kenneth McElyea, which testimony conflicts with the testimony of appellants' witnesses. Accordingly, summary judgment was inappropriate. Taylor testified that one out of every five records she reviewed might have had an entry noting only the year. McElyea testified that it was not uncommon for immunization entries to be missing the day, the month, and the initials since the school district is so close to the border and doctors in Mexico may not completely fill out the records. However, the two statements fail to establish conclusively that the critical entry in Laura's record was "common" or "not unusual." In the first place Laura's record was an American not a Mexican record. The records referred to by Taylor and McElyea that omitted parts of the essential information may in light of McElyea's own testimony, have been Mexican. Moreover, under the evidence adduced, all the entries on the particular records reviewed by defendants' witnesses--and not just one--may have listed the year only. In their testimony, Taylor and McElyea failed to distinguish among the various types of records they reviewed. They did not say how many were American. Equally important, they gave no indication of how many, if any, of the records gave the date, month, and year for all entries except one and how many simply gave a yearly date for all. A record with all entries by year, month, and day except one would naturally raise suspicion whereas a record in which all of the entries listed only the year might not. It is significant that there is no testimony in this case that any of the records other than Laura's had the year, month, and date listed for all entries except one. Even were we to view Taylor and McElyea's testimony in the light most favorable to the defendants--and we are required to do precisely the opposite--we would still be left with a square conflict. Plaintiffs' evidence conflicts squarely with defendants'. Under these circumstances, summary judgment is not appropriate.

The majority states that with hindsight it recognizes the existence of a third possible explanation--one other than that Laura Walker had had a rubella shot or that she had contracted the infection. That third possibility--that there was a mistake in the records--it immediately classifies as erroneous. After raising the mistake issue, the majority dismisses its "third possibility" by quoting the district court's statement that " [t]here isn't any data entry that's ever been made that couldn't be wrong." The majority's error, however, is in its failure to comprehend that while a mistake may exist with respect to any entry, no matter how regular it appears on the surface, the present case presents an entirely different set of circumstances. The "Rubella 72" entry was not regular and certainly not typical. It was different in form from all the other entries on Laura's card. While a regular entry presents the remote possibility of being inaccurate, the odds that an error exists are far higher in the case of an irregular entry. As I have demonstrated earlier, the record in this case presents a factual dispute regarding whether the rubella entry is irregular and suspect, and should have caused further inquiry--or whether similar entries were commonplace. The answers to these questions are material. Under these circumstances, summary judgment was unwarranted.

The majority places great emphasis on the fact that the defendants relied on the information contained in Laura's Permanent Immunization Record. As discussed supra, the inconsistency in the entry should have been sufficient to raise the defendants' suspicion. But even if the majority is correct in assuming that the statement was entered by a school nurse in Arkansas and that it signified either that 1) Laura had a rubella shot, or 2) Laura had contracted rubella in 1972, the statement is inadequate under Arizona law. In order to obviate the need for Laura to be immunized against rubella, a shot would have had to be unnecessary whichever of the two propositions was correct. However, under Arizona law, the statement is clearly not sufficient if the second proposition is right.

The majority's first theory is that Laura was inoculated against rubella in 1972. If that is the case, a record entry indicating inoculation would be acceptable under Arizona law. However, the majority argues, in the alternative, that the record may mean that Laura contracted rubella in 1972. It is at this point that the majority's case fails. An entry merely containing a note that a child has had rubella during a particular year is insufficient under Arizona law. Arizona's rules clearly preclude accepting such an entry without more--it is not enough to assert that a student has previously contracted a disease; such an assertion must be confirmed by laboratory tests and requires a signed statement by a responsible medical official. Neither occurred here.

Under the Arizona Guidelines for Implementation of Immunization Rules and Regulations, " [l]aboratory confirmation is required if the parent states the child has a history of measles or rubella disease. Physician's diagnosis is not acceptable." Nurse Taylor testified that at all relevant times, the Guidelines were substantially similar to those quoted. Furthermore, the modified regulations of the Arizona Department of Health Services, which were in effect when Laura enrolled at Bisbee High School in September 1980, specifically required serologic confirmation.²  The regulations required a laboratory blood test confirming prior rubella infection as well as proof of such test in the form of a statement signed by a licensed physician, county health officer, or a physician employed in Arizona by a Federal Agency. On appeal defendants do not contest that such a requirement existed under Arizona law. Nor do they assert that any such serologic confirmation was obtained in Laura Walker's case. Since the majority's holding is based on the assumption that the disputed entry may refer to a prior rubella infection, and since Arizona law precludes reliance on such an entry in the absence of serologic verification, the majority's position is clearly insupportable. The plain fact is that the defendants failed to follow its own statutory and regulatory commands with respect to obtaining confirmation of a purported prior rubella episode before failing to provide immunization.

I think it clear that a jury should have had the opportunity to determine whether the defendants owed a duty to inquire further and whether they were negligent in failing to immunize Laura. The rationale relied on by the majority cannot, under any circumstances, support a grant of summary judgment for the defendants.

It is undisputed that Laura's mother advised the public officials involved that her daughter had not had all the vaccines required by state law and requested that they be provided. The officials cavalierly decided on the basis of a questionable and irregular medical entry that Laura did not need a rubella vaccination. They ignored the warning provided by the puzzling, irregular, and incomplete entry on Laura's medical records. Moreover, they failed to obtain the serologic proof of prior illness required by state law and they failed to require a signed medical statement. Under these circumstances, summary judgment for Laura and her family might have been appropriate. However, there was clearly no basis in fact or law for granting summary judgment to defendants.

For the above reasons, I respectfully dissent.