Rebman, et al v. Burlington Northern, et al, No. 2:2004cv05064 - Document 423 (E.D. Wash. 2007)
Court Description: ORDER Denying 291 Plaintiff's Motion for Attorney Fees and Costs, Imposing Sanctions Against Mr. Aiken, and Denying 365 Motion for Reconsideration; granting 415 Plaintiffs' Request for Ruling Regarding Sanctions. Signed by Judge Edward F. Shea. (CV, Case Administrator)
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Rebman, et al v. Burlington Northern, et al Doc. 423 Case 2:04-cv-05064-EFS Document 423 Filed 05/14/2007 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 DONALD L. REBMAN and YOUNG REBMAN, husband and wife, 9 Plaintiffs, 12 ORDER DENYING PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS, IMPOSING SANCTIONS AGAINST MR. AIKEN, AND DENYING MOTION FOR RECONSIDERATION v. 10 11 NO. CV-04-5064-EFS JOHNATHAN R. PERRY, M.D.; and KADLEC MEDICAL CENTER, a Washington corporation, Defendants. 13 14 15 On January 26, 2007, the Court held a hearing in the above-captioned 16 matter. Plaintiffs were represented by Richard Eymann and Richard 17 Rogers. Defendant Johnathan Perry was represented by David Thorner, and 18 Kadlec Medical Center ("Kadlec") was represented by Jerome Aiken. The 19 Court heard oral argument on Plaintiffs’ Motion for Attorney Fees and 20 Costs (Ct. Rec. 291). 21 sanctions should issue against counsel in this case (Ct. Rec. 272). This 22 Order memorializes and supplements the Court’s oral rulings of January 23 26, 2007. 24 Defendant Kadlec's Motion for Reconsideration (Ct. Rec. 365). 25 Kadlec 26 sanctions on attorney Jerome Aiken for the Response to Interrogatory In addition, the Court heard argument on whether Also before the Court for hearing without oral argument is seeks reconsideration of the Court’s oral ruling Defendant imposing ORDER ~ 1 Dockets.Justia.com Case 2:04-cv-05064-EFS 1 Number 9. 2 is denied. 3 A. Document 423 Filed 05/14/2007 For the reasons stated herein, the Motion for Reconsideration Plaintiffs’ Motion for Award of Attorney Fees and Costs 4 In Plaintiffs’ Motion for Award of Attorney Fees and Costs (Ct. Rec. 5 291), Plaintiffs seek attorney fees for Defendants’ failure to make three 6 admissions, which required Plaintiffs to incur costs and attorney fees 7 to make that proof at trial. 8 appropriate, unless the party refusing to admit satisfies one of the 9 exceptions listed in the rule. Marchand v. Mercy Med. Ctr., 22 F.3d 933, 10 936 (9th Cir. 1994). Plaintiffs argue Defendants Perry and Kadlec should 11 be sanctioned with an attorney fee award under Rule 37(c)(2), for failure 12 to make the following admissions: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FED . R. CIV . P. 37(c)(2). A fee award is REQUEST NO. 1: The care and treatment provided to Donald Rebman at Kadlec Medical Center on June 1, 2001, through June 6, 2001, by Johnathan R. Perry, M.D. failed to comply with the applicable standard of care which existed for that person at that time. REQUEST NO. 2: The care and treatment provided to Donald Rebman at Kadlec Medical Center on June 1, 2001, through June 7, 2001, by the nurses employed by Kadlec Medical Center failed to comply with the applicable standard of care which existed for those nurses at that time. REQUEST NO. 3: The amputation of Donald Rebman’s leg on June 12, 2001, could have been avoided if proper care and treatment had been provided to Donald Rebman after his admission to Kadlec Medical Center on June 1, 2001. In this case, as in Marchand, the Defendants argue the denials were appropriate because Defendants had “reasonable ground to believe that the party might prevail in the matter.” FED . R. CIV . P. 37(c)(2)(C), Marchand, 22 F.3d 933, 937. The Ninth Circuit in Marchard did observe that providing an expert opinion in support of a denial does not “per se” provide a “reasonable ground” to believe a party might prevail at trial. ORDER ~ 2 Case 2:04-cv-05064-EFS Document 423 Filed 05/14/2007 1 In that case, as in this one, the denial was supported by expert 2 testimony. 3 a belated admission by the physician that he failed to remove the 4 cervical collar before a complete series of cervical spine x-rays was 5 obtained. 6 so would be improper. Id. 7 factual admission, there was no reasonable ground to deny negligence. 8 Id. In Marchand, however, application of the sanction involved Id. The same physician had previously testified that to do The district court determined, given the In this case, the Defendants did in fact have reasonable ground to 9 10 believe they might prevail. There was contradiction between the experts 11 as to whether there was a tibial plateau fracture or a knee dislocation, 12 and the consequence that may have had on the popliteal artery. 13 experts testifying for the defense testified there was no dislocation, 14 which led them to believe there was no popliteal artery injury. The fact 15 that this was different from the diagnosis of Plaintiffs' experts, and 16 that the jury found Plaintiffs' experts to be persuasive, does not make 17 Defendants’ reliance on the testimony unreasonable. Unlike Marchand, the 18 experts had an opinion that was supported by fact to some extent. 19 Consequently, the Court denies Plaintiffs’ Motion for Award of Attorney 20 Fees and Costs. 21 B. The Imposition of Sanctions and Motion for Reconsideration 22 At trial, Plaintiffs orally moved for sanctions against Defendant 23 Kadlec based on providing a materially misleading answer to Interrogatory 24 Number 9. 25 26 Specifically, the Interrogatory asked: Did the Nurses attending to Donald Rebman have any communication with his attending physicians regarding his right lower extremity from June 1st, 2001 through June 7th, 2001, which are not documented in the Kadlec Medical Center charts ORDER ~ 3 Case 2:04-cv-05064-EFS Filed 05/14/2007 for Donald Rebman’s admission June 1, 2001 for June 21st, 2001? If the answer is yes, please state the following [for] every undocumented conversation? 1 2 3 (Ct. Rec. 260 at 4-5.) 4 answered: In response to the Interrogatory, Kadlec Yes, there obviously is communication at those times documented in the records where the attending physicians were at the hospital examining and while the physicians were giving verbal orders related to the patient. Furthermore, on June 6, probably 5:30 p.m. and 6:30 p.m., the nurses recall a conversation between Pam Dempewolf and/or Marsha Summer and Dr. Chau. Conversation was a telephonic conversation. The substance of the communication was essentially to confirm the status of Mr. Rebman’s right lower extremity and that there was no change in that status that there is no record of that communication. 5 6 7 8 9 10 11 Document 423 Id. The Court reviewed an ex parte document submitted by Kadlec at the 12 13 time of the 14 memorandum 15 memorialized on August 16 Nurse Dempewolf had a conversation with Dr. Perry and a conversation with 17 Dr. Chau. 18 before the interrogatory responses were served. However, at trial, Nurse 19 Dempewolf admitted knowledge of her statement in the notes; but that no 20 one had ever questioned her on the statement. The fact that the 21 interrogatory Nurse 22 conversation with Dr. Perry on June 6th regarding the condition of the 23 leg; and (2) her conversation with Dr. Charu to confirm that Mr. Rebman’s 24 leg lacked pulses; was a materially misleading answer. of original an motion interview for by 20, 2004. sanctions Mr. Aiken (Ct. of Rec. Nurse 237). Dempewolf This was The memorandum plainly indicated that There is no evidence that the Nurse recanted her testimony response fails to identify (1) Dempewolf’s 25 The Court considered Mr. Aiken’s argument that--when confronted with 26 the absence of such conversations in the chart notes--Nurse Dempewolf ORDER ~ 4 Case 2:04-cv-05064-EFS Document 423 Filed 05/14/2007 1 later recanted, but there is no evidence that this had occurred at the 2 time that the interrogatory response was served. 3 have cause to cross-examine a witness’ memory or account of events, as 4 by challenging the witness with the lack of such a record in the chart 5 notes. 6 remove her statements from the realm of facts which had to be disclosed 7 in a full and fair manner in response to the interrogatory. 8 therefore ordered an award of fees and costs to the plaintiff as an 9 appropriate sanction against Mr. Aiken under Federal Rule of Civil An attorney may indeed However, suspicions or contrary evidence in the record does not 10 Procedure 26(g), 11 interrogatory. for improperly certifying a The Court response to an 12 Defendant Kadlec filed a Motion for Reconsideration (Ct. Rec. 365). 13 Reconsideration is appropriate if the district court (1) is presented 14 with newly discovered evidence, (2) committed clear error or the initial 15 decision was manifestly unjust, or (3) if there is an intervening change 16 in controlling law. 17 Ctr., 116 F.R.D. 645, 648 (D. Hawaii 1987), rev'd on other grounds, 855 18 F.2d 860 (9th Cir. 1988). Nothing in the memorandum in support of 19 reconsideration 366), 20 reconsideration exists. 21 ex parte documents submitted by counsel (Ct. Recs. 368 & 369). 22 memorandum merely disagrees with the Court’s prior conclusion; but does 23 not establish error in that determination. See All Hawaii Tours, Corp. v. Polynesian Cultural (Ct. Rec. suggests that any The Court does not find reconsideration appropriate. 25 For the reasons given above, IT IS HEREBY ORDERED: ORDER ~ 5 for The Court declines to consider the additional 24 26 grounds The Case 2:04-cv-05064-EFS Filed 05/14/2007 Plaintiffs’ Motion for Attorney Fees and Costs (Ct. Rec. 291) 1. 1 Document 423 2 is DENIED. 2. 3 Defendant Kadlec’s Motion for Reconsideration (Ct. Rec. 365) is 4 DENIED. 5 3. 6 and costs Plaintiffs shall file and serve their request for attorney fees related solely to the materially misleading Answer to 7 Interrogatory No. 9 supported by the appropriate declarations within 8 twenty-one (21) days of this Order. Response are due five (5) business 9 days thereafter; Reply is due five (5) business days thereafter. 10 4. Plaintiffs' Request for Ruling Regarding Sanctions (Ct. Rec. 11 415) is GRANTED. 12 IT IS SO ORDERED. The District Court Executive is directed to enter 13 this Order and provide copies to counsel. 14 DATED this 14th day of May 2007. 15 s/ Edward F. Shea EDWARD F. SHEA United States District Judge 16 17 18 Q:\Civil\2004\5064.den.recon.wpd 19 20 21 22 23 24 25 26 ORDER ~ 6
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