Estate of Torres v. Kennewick School District No 17

Opinion

1 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Mar 28, 2024 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ESTATE OF JONNY TORRES, by and No. 4:19-CV-05038-MKD through his Personal Representative 8 Manuel Banda; JAMIE VALENCIA, ORDER DENYING DEFENDANT parent of Jonny Torres; MARIA M. KSD’S MOTION TO CERTIFY 9 TORRES, parent of Jonny Torres, ECF No. 435 10 Plaintiffs, 11 v. 12 KENNEWICK SCHOOL DISTRICT NO. 17, a quasi-government agency 13 and agents thereof with knowledge and responsibility; TAMARA VASQUEZ, 14 individually and in her capacity as nurse at Highland Middle School; 15 Defendants. 16

17 Before the Court is Defendant Kennewick School District No. 17 (“KSD’s”) 18 Motion to Certify, ECF No. 435. On August 31, 2023, the Court held a hearing on 19 the motion, ECF No. 495. Marshall Casey, Marcus Sweetser, and Isaiah Peterson 20 appeared on behalf of Plaintiffs the Estate of Jonny Torres, Jamie Valencia, and 1 Maria M. Torres (collectively “the Estate”). Michael McFarland and Rachel Platin 2 appeared on behalf of KSD and Defendant Tamara Brun (“Nurse Brun”)

3 (collectively “the KSD Defendants”). 4 This case concerns the death of Jonny Torres (“Torres”), a KSD student who 5 visited Nurse Brun’s office and later that day suffered a severe medical emergency

6 resulting in his death. See ECF No. 117. The Estate brings state law negligence 7 claims against the KSD Defendants. ECF No. 117 at 20-21. The KSD Defendants 8 assert several affirmative defenses in their Answer. ECF No. 120 at 25-26. On 9 April 3, 2023, the Estate moved for partial summary judgment on certain

10 affirmative defenses (“Affirmative Defenses Motion”). ECF No. 382. KSD 11 moves to certify legal questions raised in the motion to the Washington Supreme 12 Court. ECF No. 435. For the reasons stated herein, KSD’s motion is denied.

13 BACKGROUND 14 The factual circumstances underlying this litigation, disputed and 15 undisputed, have been thoroughly briefed in prior motions and orders. The Court 16 refers to its orders at ECF Nos. 421, 543, for the factual basis underlying the

17 instant order. 18 LEGAL STANDARD 19 A federal court applying state law must “approximate state law as closely as

20 possible in order to make sure that the vindication of the state right is without 1 discrimination because of the federal forum.” Murray v. BEJ Minerals, LLC, 924 2 F.3d 1070, 1071 (9th Cir. 2019) (quoting Ticknor v. Choice Hotels Int’l Inc., 265

3 F.3d 931, 939 (9th Cir. 2001)) (quotation marks omitted). “If the state’s highest 4 appellate court has not decided the question presented, then [the federal court] 5 must predict how the state’s highest court would decide the question.” Id.

6 “However, if state law permits it,” the federal court has “discretion to certify 7 a question to the state’s highest court” to ascertain the state’s highest court’s 8 interpretation of the state’s laws. Id. (citing Lehman Bros. v. Schein, 416 U.S. 386, 9 391 (1974)). The certification process should be invoked “only after careful

10 consideration,” and a federal court should not do so “lightly.” Id. at 1072 (quoting 11 Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003)) (quotation marks omitted). 12 To decide whether to exercise discretion, a court should consider:

13 (1) whether the question presents “important public policy ramifications” yet unresolved by the state court; 14 (2) whether the issue is new, substantial, and of broad application; 15 (3) the state court’s caseload; and (4) “the spirit of comity and federalism.” 16 Id. (quoting Kremen, 325 F.3d at 1037-38). 17 Washington law permits certification “[w]hen in the opinion of any federal 18 court before whom a proceeding is pending, it is necessary to ascertain the local 19 law of this state in order to dispose of such proceeding and the local law has not 20 been clearly determined.” RCW 2.60.020; see also Nwauzor v. GEO Grp., Inc., 62 1 F.4th 509, 513 (9th Cir. 2023). Certification is appropriate where a federal court 2 “believe[s] that the Washington Supreme Court is better qualified to answer [the

3 question] in the first instance[,]” the question “has not been clearly determined by 4 the Washington courts, and the answer . . . is outcome determinative.” Potter v. 5 City of Lacey, 46 F.4th 787, 791 (9th Cir. 2022) (citations, quotation marks and

6 alterations omitted). 7 DISCUSSION 8 In its Affirmative Defenses Motion, the Estate asks the Court to dismiss 9 three affirmative defenses. ECF No. 382. Substantively, the challenged

10 affirmative defenses are: (1) that a non-party, the City of Kennewick, is at fault,1 11 (2) that the City is solely at fault, and (3) that the City’s actions or inactions were a 12 superseding cause of Torres’s injury. Id. at 2.

13 KSD identifies a question of state law concerning the interplay between 14 Washington’s apportionment of fault statute, RCW 4.22.070, and the “original 15 tortfeasor rule,” as described in the Restatement (Second) of Torts § 457 (Am. L. 16 Inst. 1965) and adopted by the Washington Supreme Court in Lindquist v. Dengel,

18 1 The City of Kennewick and four of its employees were joined as defendants in 19 the Second Amended Complaint, ECF No. 117, but were dismissed from this case 20 on June 2, 2023, ECF No. 421. 1 595 P.2d 934, 936-37 (Wash. 1979). ECF No. 435 at 2. KSD requests that the 2 Court certify the following question to the Washington Supreme Court: “In a case

3 involving successive tortfeasors, does Lindquist v. Dengel preclude allocation of 4 fault under RCW 4.22.070 to the subsequent tortfeasor?” Id. at 11. 5 A. The Question Presented

6 The Washington Supreme Court decided Lindquist in 1979. 595 P.2d 934. 7 In Lindquist, a patient sought treatment from a doctor for a lung problem, the 8 doctor examined the patient and ran tests, but took no action. Id. at 935. Time 9 passed, and the patient returned with tuberculosis. Id. The doctor referred the

10 patient to a surgeon, who removed a substantial portion of the patient’s lung. Id. at 11 936. The patient was left with a partial disability. Id. The patient brought a 12 negligence action against the doctor for failing to diagnose the tuberculosis. Id.

13 The doctor introduced evidence that the surgeon should not have performed the 14 surgery, and to do so was negligent. Id. At trial, the court instructed the jury that 15 “physicians acting independently of one another” are not liable for the other’s 16 negligence. Id. The jury found the doctor and the surgeon each 50 percent

17 responsible and found $5,000 in damages. Id. Judgment was entered against the 18 doctor for $2,500. Id. 19

20 1 On appeal, the Washington Supreme Court expressly adopted the rule stated 2 in Restatement (Second) of Torts § 457, recognizing that the rule had long been the

3 law in Washington. Id. at 936-37. The rule is: 4 If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm 5 resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, 6 irrespective of whether such acts are done in a proper or a negligent manner. 7 Id. (quoting Restatement (Second) of Torts § 457). The court reversed and 8 remanded for a new trial because the jury instructions contradicted this rule. Id. at 9 938. 10 In the years since, Washington courts and federal courts alike continue to 11 cite Lindquist as good law. See, e.g., Daly v. United States, 946 F.2d 1467, 1471 12 (9th Cir. 1991); Sudre v. Port of Seattle, No. C15-0928, 2016 WL 7035062, at *14- 13 15 (W.D. Wash. Dec. 2, 2016); Henderson v. Tyrrell, 910 P.2d 522, 542 n.17 14 (Wash. Ct. App. 1996); Swager v. CCM Holdings, LLC, No. 38438-1-III, 2023 WL 15 3116665, at *27-28 (Wash. Ct. App. Apr. 27, 2023), review denied, 536 P.3d 183 16 (2023); Crane v. Swedish Health Servs., No. 17-2-27430-5, 2019 Wash. Super. 17 LEXIS 12299, at *2 (Wash. Super. Ct. Nov. 12, 2019). 18 Lindquist was decided at a time when Washington courts applied joint and 19 several liability, meaning each contributing tortfeasor to an indivisible injury “was 20 liable for the entire harm and the injured party could sue one or all of the 1 tortfeasors to obtain a full recovery.” Washburn v. Beatt Equip. Co., 840 P.2d 860, 2 885 (Wash. 1992). Washington’s Tort Reform Act of 1986 “abolished joint and

3 several liability for most causes of action in favor of proportionate damages,” 4 Coulter v. Asten Group, Inc., 146 P.3d 444, 446-47 (Wash. Ct. App. 2006). This 5 principle is also called “several liability[,]” Washburn, 840 P.2d at 886, and

6 “comparative fault[.]” Dep’t of Transp. v. Mullen Trucking 2005, Ltd., 451 P.3d 7 312, 314 (Wash. 2019). 8 The proportionate damages rule is codified at RCW 4.22.070(1), which 9 provides in relevant part that in “actions involving fault of more than one entity,”

10 the fact finder shall “determine the percentage of the total fault which is 11 attributable to every entity which caused the claimant’s damages[.]” These 12 “entities” may include claimants, non-parties, third parties, and certain entities

13 immune from liability to the claimant. Id. Then, “[j]udgment shall be entered 14 against each defendant . . . in an amount which represents that party’s 15 proportionate share of the claimant’s total damages.” RCW 4.22.070(1). In short, 16 “when multiple tortfeasors cause a plaintiff’s injuries, each tortfeasor is liable only

17 for damages corresponding to its proportionate share of fault as determined by the 18 trier of fact.” Barton v. Dep’t of Transp., 308 P.3d 597, 602 (Wash. 2013). 19 A question arises from the interplay of these two principles of law, as KSD

20 identifies. ECF No. 435 at 7-11. Assuming that a tortfeasor negligently causes an 1 injury, and a third party negligently renders aid for that injury, causing further 2 injury, should the tortfeasor be held liable for all of the resulting damages? Or

3 should liability be apportioned between the tortfeasor and the third party? KSD 4 contends that Lindquist and RCW 4.22.070 seem to offer contradictory answers. 5 B. Whether Washington Courts Have Answered the Question

6 Certification is appropriate only where “state law issues are unclear[.]” 7 Potter, 46 F.4th at 791. The Washington Supreme Court has not commented on 8 the relationship between Lindquist and RCW 4.22.070, but there is guidance from 9 other Washington courts. The Washington Supreme Court has commented

10 extensively on the common law of foreseeability, duty, and causation, and on 11 RCW 4.22.070. 12 In a 1992 case in federal court, the plaintiffs moved to exclude evidence of

13 medical negligence that occurred during treatment of the injury defendant 14 allegedly caused. Workman v. Chinchinian, 807 F. Supp. 634, 643 (E.D. Wash. 15 1992). The movant argued that, because the Lindquist rule would impose liability 16 for any subsequent negligence on the original tortfeasor, evidence of the

17 subsequent negligence was irrelevant. Id. The court disagreed and found the 18 evidence relevant and admissible, suggesting that RCW 4.22.070 superseded the 19 Lindquist rule. Id.

20 1 Four years later, the Washington Court of Appeals upheld a jury instruction 2 based upon Lindquist, explaining that “[w]e are aware of, but disagree with, a

3 federal district court’s conclusion that RCW 4.22.070 abrogated the common law 4 Lindquist rule.” Henderson, 910 P.2d at 542 n.17 (citing Workman, 807 F. Supp. 5 at 643). The Henderson court found that the Lindquist instruction was “a correct

6 statement of the law.” Id. at 542. The Superior Court of King County discussed 7 this exchange in 2019, and concluded that “Lindquist and RCW 4.22.070 can 8 coexist[.]” Crane, 2019 Wash. Super. LEXIS 12299, at *2-3. 9 Although silent on the instant question, the Washington Supreme Court has

10 made clear that “[p]rinciples of common law survive RCW 4.22.070[.]” Afoa v. 11 Port of Seattle, 421 P.3d 903, 910 (Wash. 2018). Indeed, the Washington Supreme 12 Court has considered the interplay of common law rules and tort reform statutes,

13 including RCW 4.22.070, on several occasions. See, e.g., Mullen Trucking 2005, 14 451 P.3d at 315-17; Afoa, 421 P.3d at 910; Smelser v. Paul, 398 P.3d 1086, 1089- 15 91 (Wash. 2016); Kim v. Budget Rent A Car Sys., Inc., 15 P.3d 1283, 1289-90 16 (Wash. 2001). These cases provide precedent for reconciling the common law

17 with tort reform statutes. Although there is no precise answer to the instant 18 question, those principles may be reliably applied in this case. See Syngenta Seeds, 19 Inc. v. Cnty. of Kauai, 842 F.3d 669, 681 (9th Cir. 2016) (affirming the district

20 court’s denial of certification because, “while the Hawaii Supreme Court has not 1 applied its preemption test to the specific laws at issue, certification is unnecessary 2 because the State’s test for implied state preemption is ‘rather well-defined.’”);

3 Flores v. Wells Fargo Bank, N.A., No. C21-6, 2023 WL 1967262, at *3 (W.D. 4 Wash. Feb. 13, 2023) (“Where there is sufficient state law to enable this court to 5 make an informed decision on the issues, certification is inappropriate.”) (quoting

6 Richardson v. City & Cnty. of Honolulu, 802 F. Supp. 326, 344 n.30 (D. Haw. 7 1992), aff’d, 124 F.3d 1150 (9th Cir. 1997)) (quotation marks and alterations 8 omitted). 9 The decisions from Washington’s lower courts on this issue, and the

10 decisions from the Washington Supreme Court on analogous issues, provide 11 guidance. Because the Court is sufficiently equipped to “approximate state law” 12 on the question certification is not appropriate at this time. Murray, 924 F.3d at

13 1071. 14 C. Whether the Question Is New, Substantial, and of Broad Application 15 Certification is appropriate where “the issue is new, substantial, and of broad 16 application.” Murray, 924 F.3d at 1072. The Lindquist/RCW 4.22.070 question

17 does not require interpretation of a new law, or application of an old law in new 18 circumstances. See, e.g., Potter, 46 F.4th at 789 (certifying a question on the 19 validity of a recently enacted ordinance under an alleged state-law right to travel);

20 Murray, 924 F.3d at 1072-73 (certifying a question about the retroactivity of a state 1 bill enacted one month prior); Kremen, 325 F.3d at 1042-43 (certifying questions 2 about the application of existing state law to new technology). Lindquist is not

3 new, RCW 4.22.070 is not new, and the purported contradiction in the law has 4 existed for nearly four decades. 5 The Lindquist/RCW 4.22.070 question is arguably “substantial” in this case,

6 because the KSD Defendants may attempt to apportion damages to a statutorily 7 immune non-party. See ECF No. 390; ECF No. 421. Presumably, any defendant 8 that causes an injury requiring medical treatment through negligence would be 9 interested in whether he may reduce an award due to the negligence of the

10 treatment provider. However, the instant question appears less “substantial” or of 11 “broad application” than other questions that have been certified. See, e.g., Potter, 12 46 F.4th at 789 (certifying a question clarifying whether the Washington

13 Constitution or other state law protects a right to intrastate travel); Murray, 924 14 F.3d at 1072 (certifying a question about whether Montana law considers dinosaur 15 fossils “minerals,” given that Montana “possesses vast deposits of valuable 16 vertebrate fossil specimens”).

17 In sum, the question is not “new,” it is of relatively limited application, and, 18 although a significant issue in this case, is not “substantial” as a matter of sweeping 19 policy. Murray, 924 F.3d at 1071.

20 1 D. Whether the Question Is Outcome Determinative 2 Generally, the proper time to certify a question is when the case cannot

3 proceed without an answer; the stage and posture of litigation is relevant. See, e.g., 4 McCarthy v. Amazon.com, Inc., No. C23-0263, 2023 WL 5509258, at *8-9 (W.D. 5 Wash. Aug. 25, 2023) (denying certification after entry of final judgment); Brown

6 v. Old Navy, LLC, No. 23-cv-781, 2023 U.S. Dist. LEXIS 212509, at *3-4 (W.D. 7 Wash. Nov. 29, 2023) (certifying a question dispositive of a pending motion to 8 dismiss); Nwauzor, 62 F.4th at 516-17 (certifying questions on appeal); Murray, 9 924 F.3d at 1072 (same); Kremen, 325 F.3d at 1040-42 (same).

10 The instant question largely concerns damages, which are only relevant if 11 the Estate establishes liability. The Western District of Washington recently 12 denied certification of a question concerning damages, finding that certification

13 was “premature as it would necessarily require the Court to assume facts regarding 14 the substantive claims that have not yet been established.” Flores, 2023 WL 15 1967262, at *2 (quoting YWS Architects, LLC v. Alon Las Vegas Resort, LLC, No. 16 C17-1417, 2018 WL 4615983, at *5 (D. Nev. Sept. 26, 2018)) (quotation marks

17 omitted). Similarly, when considering whether to permit interlocutory appeal 18 before liability was established, the Central District of California concluded that 19 “[d]elaying the case now to determine a question about damages is putting the cart

20 before the horse.” San Bernardino Cnty. v. Ins. Co. of State of Pa., No. CV 21- 1 01978, 2023 WL 4681621, at *3 (C.D. Cal. July 12, 2023) (citing Cortez v. 2 Chipotle Mexican Grill, Inc., No. CV 17-4787, 2018 WL 6071091, at *6 (C.D.

3 Cal. Oct. 11, 2018)); but see Paddock v. Peacehealth, Inc., No. 21-cv-639, 2024 4 WL 197366, at *2-3 (W.D. Wash. Jan. 18, 2024) (certifying a question concerning 5 affirmative defenses based on comparative negligence, although the defendants’

6 own negligence remained to be proven). 7 Here, the question becomes outcome determinative only after the Estate 8 proves breach and causation. It would be premature to certify the question at this 9 time, as the question may be made moot at trial. See Flores, 2023 WL 1967262, at

10 *2. 11 Federal courts regularly interpret state law, and where there is no 12 interpretation from the state’s highest appellate court, a federal court must “predict

13 how the state’s highest court would decide the question.” Murray, 924 F.3d at 14 1071. The Court is equipped with sufficient guidance from Washington courts to 15 make an informed decision on the issue presented, therefore certification is 16 inappropriate. See Syngenta Seeds, 842 F.3d at 681 (citation omitted). There is no

17 need to delay the case further or to burden the Washington Supreme Court with 18 this issue, when it may become moot. 19

20 1 CONCLUSION 2 For the reasons stated above, KSD’s Motion to Certify is denied.

3 Accordingly, IT IS HEREBY ORDERED: 4 1. KSD’s Motion to Certify, ECF No. 435, is DENIED. 5 IT IS SO ORDERED. The District Court Executive is directed to file this

6 Order and provide copies to the parties. 7 DATED March 28, 2024. 8 s/Mary K. Dimke MARY K. DIMKE 9 UNITED STATES DISTRICT JUDGE

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