Bourg v. Cerner Corporation

• Court: District Court, E.D. Washington
• Decided: July 19, 2024
• Docket: 2:23-cv-00348
• Status: Unknown

Opinion

1 U.S. F DIL ISE TD R I IN C TT H CE O URT 2 EASTERN DISTRICT OF WASHINGTON Jul 19, 2024 3

SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6

7 CHARLES BOURG and DEBORAH

LYNN BRINSON, individually and as 8 a marital community, No. 2:23-CV-00348-SAB 9 Plaintiffs, 10 v. 11 ORACLE HEALTH GOVERNMENT ORDER GRANTING MOTION TO ALTER JUDGMENT; 12 SERVICES, f/k/a CERNER GRANTING MOTION TO GOVERNMENT SERVICES, INC.; 13 and CERNER CORPORATION, AMEND/CORRECT 14 Defendants. 15 16 Before the Court are Plaintiffs’ Motion to Alter or Amend the Judgment 17 Dismissing Their Complaint Against Defendant United States of America, ECF 18 No. 47, and Motion for Leave to File Second Amended Complaint, ECF No. 48. 19 Plaintiffs are represented by George Ahrend, J. Andrew Hoyal, Mark Kamitomo, 20 and Robert Gellatly. Defendants Cerner and Oracle Health are represented by Dean 21 Baxtresser, Mary Alexander, Robin Hulshizer, and Vanessa Soriano Power. The 22 United States is represented by Derek Taylor, John Drake, and Martin St. Aubin. 23 The motions were considered without oral argument. 24 After reviewing the briefs, caselaw, and record, the Court finds good cause 25 to grant Plaintiffs’ motions. 26 // 27 // 28 // 1 MOTIONS STANDARDS 2 Fed. R. Civ. P. 59(e) provides that a party may file to alter or amend a 3 judgment “no later than 28 days after the entry of judgment.” “Reconsideration is 4 appropriate if the district court (1) is presented with newly discovered evidence, (2) 5 committed clear error or the initial decision was manifestly unjust, or (3) if there is 6 an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cnty., Or. 7 v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A court can determine it made 8 a clear error when after reviewing the entire record it is “left with the definite and 9 firm conviction that a mistake has been committed. United States v. U.S. Gypsum 10 Co., 333 U.S. 364, 395 (1948). 11 Fed. R. Civ. P. 15(a) provides that a party may amend its pleading “once as a 12 matter of course,” and may do so in all other cases “only with the opposing party's 13 written consent or the court's leave. The court should freely give leave when justice 14 so requires.” Fed. R. Civ. P. 15(a). Amendments to pleadings are “applied with 15 extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 16 (9th Cir. 2001). 17 Courts consider five factors when deciding whether to grant leave to amend: 18 (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) previous 19 amendments, and (5) futility of the amendment. Forman v. Davis, 371 U.S. 178, 20 182 (1962); see also United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th 21 Cir. 2011). “[T]he court must grant all inferences in favor of allowing 22 amendment.” Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). 23 PLAINTIFFS’ MOTIONS TO ALTER JUDGMENT AND AMEND 24 This case was filed on December 1, 2023, in the Eastern District of 25 Washington. Against the United States pursuant to the Federal Tort Claims Act 26 (“FTCA”), Plaintiffs brought state-law claims of medical negligence, negligence, 27 and vicarious liability. Against Defendant Cerner, Plaintiffs bring claims for 28 product liability – design defect, product liability – manufacturing defect, product 1 liability – failure to warn, and negligence. The claims are based on negligent 2 actions leading to Plaintiff Mr. Bourg’s delayed diagnosis of terminal cancer in 3 January 2022. 4 On May 15, 2024, the Court granted the United States summary judgment, 5 did not give Plaintiffs leave to amend their claim, and terminated the government 6 from the case. ECF No. 44. Plaintiffs now move the Court to alter its judgment to 7 allow for leave to amend their complaint against the United States. 8 Pursuant to Fed. R. Civ. P. 59(e), the Court grants Plaintiffs’ motion to alter 9 judgment and amends its Order, ECF No. 44, to allow Plaintiffs leave to amend 10 their complaint against the United States. Failure to include leave to amend was 11 “clear error” on the part of the Court. ACandS, 5 F.3d at 1263. 12 Pursuant to Fed. R. Civ. P. 15(a), the Court grants Plaintiffs’ motion to 13 amend their complaint a second time. After considering the briefing, Court did not 14 find any of the Forman factors prevented amendment. 371 U.S. at 182. 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiffs’ Motion to Alter or Amend the Judgment Dismissing Their Complaint Against Defendant United States of America, ECF No. 47, is GRANTED. The Order, ECF No. 44, and judgment is amended as follows: 5 a. Defendant United States of America’s Motion to Dismiss, ECF No. 35, is GRANTED. Plaintiffs’ Complaint against the United States is DISMISSED with leave to amend. 8 2. Plaintiffs’ Motion for Leave to File Second Amended Complaint, EC 9)| No. 48, is GRANTED. Plaintiffs shall file the proposed complaint on or before 10| July 31, 2024. 11 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter this Order and provide copies to counsel, including counsel for the United States. 13 DATED this 19th day of July 2024. 14 15 16 17 18 byt Sectha 29 Stanley A. Bastian Chief United States District Judge 22 23 24 25 26 27 28 ORDER GRANTING MOTION TO ALTER JUDGMENT; GRANTING