Wright et al v. United States of America et al, No. 2:2015cv00305 - Document 113 (E.D. Wash. 2017)
Court Description: ORDER GRANTING DEFENDANT UNITED STATES OF AMERICAS MOTION FOR SUMMARY JUDGMENT. Defendants Motion for Summary Judgment ECF No. 94 is GRANTED. Defendants Motion to Exclude ECF No. 107 and Expedite ECF No. 108 are DENIED AS MOOT. The remaining claims are DISMISSED WITH LEAVE TO FILE SUIT IN STATE COURT. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Wright et al v. United States of America et al Doc. 113 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 9 ERIC WRIGHT, individually and in his capacity as personal representative of the ESTATE OF STEVEN O. WRIGHT; and AMY SHARP, individually, Plaintiffs, 10 11 12 13 NO: 2:15-CV-0305-TOR ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA’S MOTION FOR SUMMARY JUDGMENT v. UNITED STATES OF AMERICA; MEDFORD CASHION, M.D.; STAFF CARE, INC., Defendants. 14 15 16 BEFORE THE COURT is Defendant United States of America’s Motion for 17 Summary Judgment (ECF No. 94), Motion to Exclude (ECF No. 107) and 18 corresponding Motion to Expedite (ECF No. 108). These matters were submitted 19 without oral argument. The Court has reviewed all the briefing and files herein, 20 and is fully informed. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 For the reasons discussed below, Defendant’s Motion for Summary 2 Judgment (ECF No. 94) is GRANTED; Defendant’s Motion to Exclude (ECF No. 3 107) and Expedite (ECF No. 108) are DENIED AS MOOT. BACKGROUND 1 4 5 Eric Wright visited the Emergency Department at the VA medical center and 6 hospital in Spokane, Washington on August 2, 2014. Mr. Wright came to the 7 hospital complaining of knee pain resulting from a fall approximately one week 8 earlier. ECF No. 84 at ¶¶ 3.1-3.2. Mr. Wright came to the hospital using a crutch 9 and was further able to ambulate without other assistance during his stay at the 10 hospital. See ECF No. 100 at ¶¶ 6, 9. After a series of tests lasting most of the 11 day, Mr. Wright was discharged from the hospital. ECF No. 100 at ¶ 9. 12 While Mr. Wright was waiting in the hospital for his ride home, Karla 13 Linton, LPN, despite seeing Mr. Wright was ambulating on his own accord, 14 informed Mr. Wright that she would escort him out of the hospital via wheelchair 15 when his friend arrived to take him home. ECF No. 95-2 at 118. While Mr. 16 Wright was leaving the hospital, Nurse Linton twice repeated her offer to help 17 18 19 1 20 ECF Nos. 94; 95, with ECF Nos. 97; 102. Unless otherwise noted, the underlying facts are not in dispute. Compare ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 escort Mr. Wright via wheelchair, which he refused. 2 ECF No. 95-2 at 118. Upon 2 leaving the hospital, Mr. Wright fell and hit his head. ECF No. 84 at ¶¶ 3.7-3.8. 3 Mr. Wright was readmitted and Dr. Cashion examined his head injury. 4 Elizabeth Ford, RN, was the charge nurse and assisted Dr. Cashion with Mr. 5 Wright’s further examination. ECF No. 84 at ¶ 3.9. Nurse Linton became aware 6 of Mr. Wright’s fall and injury and, worried about blood thinning medication given 7 to Mr. Wright, Nurse Linton told Nurse Ford that she believed Mr. Wright should 8 be given a CT scan and should remain at the hospital overnight for observations. 9 ECF No. 84 at ¶¶ 3.11-12. Nurse Ford also believed Mr. Wright needed a CT scan 10 and that he should remain at the hospital, and she discussed this option with Dr. 11 Cashion. ECF No. 84 at ¶¶ 3.13. Dr. Cashion reviewed the file and chose to 12 discharge Mr. Wright. ECF No. 84 at ¶ 3.6. 13 Plaintiffs contend that nurses Linton and Ford did not do enough to meet the 14 standard of care and that Defendant United States of America is liable for their 15 conduct under the Federal Tort Claims Act. 16 // 17 18 2 19 this point, see ECF No. 99 at 11, does not create a genuine issue. See Anheuser- 20 Busch, Inc. v. Nat. Beverage Distributors, 69 F.3d 337, 345 (9th Cir. 1995). Plaintiffs’ bald assertion that Nurse Linton may have been mistaken as to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 2 STANDARD OF REVIEW The Court may grant summary judgment in favor of a moving party who 3 demonstrates “that there is no genuine dispute as to any material fact and that the 4 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling 5 on a motion for summary judgment, the court must only consider admissible 6 evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The 7 party moving for summary judgment bears the initial burden of showing the 8 absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 9 317, 323 (1986). The burden then shifts to the non-moving party to identify 10 specific facts showing there is a genuine issue of material fact. See Anderson v. 11 Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla 12 of evidence in support of the plaintiff’s position will be insufficient; there must be 13 evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. 14 For purposes of summary judgment, a fact is “material” if it might affect the 15 outcome of the suit under the governing law. Id. at 248. An issue is “genuine” 16 where the evidence is such that a reasonable jury could find in favor of the non- 17 moving party. Id. The Court views the facts, and all rational inferences therefrom, 18 in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 19 378 (2007). However, “where the ultimate fact in dispute is destined for decision 20 by the court rather than by a jury, there is no reason why the court and the parties ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 should go through the motions of a trial if the court will eventually end up deciding 2 on the same record.” TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 3 F.2d 676, 684 (9th Cir. 1990). 4 DISCUSSION 5 Plaintiffs’ medical negligence claim against Defendant is based on two 6 arguments: (1) Nurse Linton did not meet the standard of care when she offered 7 Mr. Wright assistance, contending Nurse Linton had a duty to “insist” and try to 8 “convince” Mr. Wright that he should accept wheelchair assistance and (2) Nurse 9 Ford did not meet the standard of care when she discussed the possibility of giving 10 Mr. Wright a CT scan with Dr. Cashion, contending she should have done more. 11 Compare ECF Nos. 94; 104, with ECF Nos. 97; 106. 12 A cause for medical negligence generally requires expert testimony to 13 establish the standard of care and causation. Harris v. Robert C. Groth, M.D., Inc., 14 P.S., 99 Wash. 2d 438, 449 (1983); Frausto v. Yakima HMA, LLC, 393 P.3d 776, 15 779 (2017). The crux of Defendant’s request for summary judgment is that 16 Plaintiffs’ expert testimony is inadequate and is not sufficient to survive summary 17 judgment. Defendants reason that the testimony rests on the ipse dixit of the 18 expert; is devoid of any support or explanation; and that the testimony is not a 19 product of reliable principles or methods. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 Rule 702 of the Federal Rules of Evidence governs the admission of expert 2 testimony. Per Rule 702, a “witness who is qualified as an expert by knowledge, 3 skill, experience, training, or education may testify in the form of an opinion” only 4 if: 5 6 7 a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b) the testimony is based on sufficient facts or data; c) the testimony is the product of reliable principles and methods; and d) the expert has reliably applied the principles and methods to the facts of the case. 8 9 10 Fed. R. Evid. 702. Defendant is correct—Nurse O’Neill’s declaration states that her opinion is 11 based on her training, experience, and knowledge, but otherwise does not provide a 12 basis for the proposed standard of care or any explanation other than a bald 13 conclusion that nurses Linton and Ford’s conduct fell below the standard of care by 14 failing to do more. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th 15 Cir. 1995) (“We’ve been presented with only the experts’ qualifications, their 16 conclusions and their assurances of reliability. Under Daubert, that’s not 17 enough.”); see Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“nothing in 18 either Daubert or the Federal Rules of Evidence requires a district court to admit 19 opinion evidence that is connected to existing data only by the ipse dixit of the 20 expert. A court may conclude that there is simply too great an analytical gap ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 between the data and the opinion proffered.”); see also Johnson v. Kelly, 2017 WL 2 1838140, at *4 (W.D. Wash. May 8, 2017) (“the court cannot conclude that a non- 3 scientific expert’s proffered testimony is reliable unless the expert explains the 4 manner in which her knowledge and experience support her conclusions.”). 5 Without an adequate expert opinion on this point, Defendant is entitled to summary 6 judgment. 7 Even accepting Nurse Linton had a duty to insist and attempt to persuade, as 8 Plaintiffs’ expert baldly asserts, ECF No. 101 at ¶¶ 11-13, Nurse Linton met this 9 duty. Nurse O’Neill’s declaration fails to note that Nurse Linton offered 10 wheelchair assistance to Mr. Wright not once, but three times, and fails to explain 11 why this was not enough. ECF No. 97-2 at ¶ 6. Nurse Linton’s conduct is 12 tantamount to an insistence and a reasonable attempt to persuade Mr. Wright, 13 especially in light of the uncontroverted fact that Mr. Wright was able to 14 successfully ambulate the week before visiting the hospital and during his visit of 15 the hospital. The opinion that a reasonable nurse would have done more is 16 completely unsupported. Nurse O’Neill’s assertion that Mr. Wright would be 17 amenable to persuasion is further outside of Nurse O’Neill’s area of expertise. 18 As for Nurse Ford, Nurse O’Neill opines that a nurse has a duty to advocate 19 for appropriate care and must go up the chain of command to ensure the patient’s 20 care where the nurse believes the patient’s safety may be in jeopardy. ECF No. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 101 at ¶ 14. Even accepting Nurse O’Neill’s opinion that a nurse has a duty to 2 advocate for proper care, Nurse Ford met this standard by discussing additional 3 testing with Dr. Cashion, who determined neither were necessary. Nurse O’Neill’s 4 opinion, if counted as true, would render a nurse liable because she disagreed with 5 the doctor and did not go above the doctor for a second opinion. This is not the 6 law in Washington: 7 Like pharmacists, nurses do not owe a duty to patients that would place them in a position to second-guess the physician or otherwise substitute their judgment in place of that provided by the physician. 8 9 Duty of nurses, 16 Wash. Prac. Tort Law And Practice § 16:21 (4th ed.) (citations 10 omitted); see also Silves v. King, 93 Wash. App. 873, 883–84 (1999) (“Mr. Silves 11 also argues that the nurse had a duty to consult with Dr. King about the potentially 12 harmful effects of indomethacin. We decline to impose such a duty here, for the 13 reasons earlier discussed as to whether the pharmacist had such a duty: the 14 prescription contained no clear error or mistake. We also doubt the propriety of 15 imposing on a discharge nurse the duty to recognize such an error or mistake even 16 if it exists, but we need not address that issue here.”). 17 Plaintiffs have not met their burden in establishing a genuine issue of fact 18 and Defendant has demonstrated it is entitled to summary judgment on all claims. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 DISMISSING REMAINING CLAIMS Plaintiffs asserted federal jurisdiction under the Federal Tort Claims Act 2 3 based on their claim against United States of America for Nurse Linton and Nurse 4 Ford’s allegedly negligent conduct. ECF No. 84 at ¶ 1.1. Plaintiffs’ remaining 5 claims against Dr. Cashion and Staff Care were entertained under pendent 6 jurisdiction. ECF No. 84 at ¶ 1.3. As discussed above, the claims on which federal 7 non-pendent jurisdiction were premised fail. This gives rise to the question of 8 whether it would be proper to allow the remaining claims to proceed in federal 9 court or whether they should be dismissed with leave to file suit in state court. 10 Generally, a district court will dismiss an action based solely on pendent 11 jurisdiction when the remaining claims are dismissed. As the Supreme Court has 12 noted: 13 14 15 16 17 [P]endent jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims . . . . Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. 18 United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (footnotes 19 omitted). “Under Gibbs, a federal court should consider and weigh in each case, 20 and at every stage of the litigation, the values of judicial economy, convenience, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 fairness, and comity in order to decide whether to exercise jurisdiction over a case 2 brought in that court involving pendent state-law claims.” Carnegie-Mellon Univ. 3 v. Cohill, 484 U.S. 343, 350 (1988). “When the balance of these factors indicates 4 that a case properly belongs in state court, as when the federal-law claims have 5 dropped out of the lawsuit in its early stages and only state-law claims remain, the 6 federal court should decline the exercise of jurisdiction by dismissing the case 7 without prejudice.” Id. (footnote removed). 8 9 Plaintiffs claim accrued on August 2, 2014, at the earliest. See ECF No. 84 at ¶ 3.2. The statute of limitations for a personal injury action in Washington is 10 three years. RCW 4.16.080(2); Deggs v. Asbestos Corp. Ltd., 188 Wash. App. 495, 11 499 (2015). Moreover, 28 U.S.C. § 1367(d) provides for the tolling of the period 12 of limitations while these supplemental claims were pending and for 30 days after 13 they are dismissed. Trial has not begun and all discovery can be rolled over into a 14 state court action. There does not appear to be any substantial prejudice 15 outweighing the general tendency to dismiss pendent actions when only state-law 16 claims remain. 17 ACCORDINGLY, IT IS HEREBY ORDERED: 18 1. Defendant’s Motion for Summary Judgment (ECF No. 94) is GRANTED; 19 2. Defendant’s Motion to Exclude (ECF No. 107) and Expedite (ECF No. 108) 20 are DENIED AS MOOT. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 3. The remaining claims are DISMISSED WITH LEAVE TO FILE SUIT 2 IN STATE COURT. 3 The District Court Clerk is directed to enter this Order, and Judgment 4 5 accordingly, provide copies to counsel, and CLOSE the file. DATED June 14, 2017. 6 7 8 THOMAS O. RICE Chief United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11
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