Sohler v. Benjo

• Court: District Court, D. Arizona
• Decided: September 27, 2022
• Docket: 2:20-cv-01991
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Donna Sohler, No. CV-20-01991-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Alexandre Benjo, et al.,

13 Defendants. 14 15 At issue is Defendants Alexandre Benjo, M.D. (“Dr. Benjo”) and Lakeside Heart 16 and Vascular Center, P.L.L.C.’s (“Lakeside”) Motion for Partial Summary Judgment (Doc. 17 99), to which Plaintiff Donna Sohler (“Ms. Sohler”) filed a Response (Doc. 104), and Mr. 18 Benjo and Lakeside filed a Reply (Doc. 110). Additionally, the Court considers Defendant 19 La Paz Regional Hospital’s (“La Paz”) Motion for Summary Judgment (Doc. 147), to 20 which Plaintiff filed a Response (Doc. 153, Resp.), and La Paz filed a Reply (Doc. 162, 21 Reply). Also at issue is Defendant La Paz’s Motion to Strike Plaintiff’s Untimely Disclosed 22 Expert Witness, William L. Nellis and Corresponding Related Materials (Doc. 149), to 23 which Plaintiff responded (Doc. 155), and La Paz replied (Doc. 161). Finally, the Court 24 considers Plaintiff’s Motion for Reconsideration of the Court’s Order Dismissing Counts 25 4, 7, and 8 of Plaintiff’s Third Amended Complaint (Doc. 116). The Court finds these 26 matters suitable for resolution without oral argument. See LRCiv 7.2(f). 27 28 1 I. BACKGROUND 2 This lawsuit arises from the events surrounding the death of Plaintiff’s husband, 3 Ronald Sohler (“Mr. Sohler”). On October 11, 2018, Defendant Dr. Benjo performed a 4 non-emergent cardiac catheterization procedure on Mr. Sohler at La Paz Regional Hospital, 5 which Plaintiff also names as a Defendant. (Plaintiff’s Statement of Facts, Doc. 105 ¶ 3.) 6 Monica Poehner, R.N. (“Ms. Poehner”) and Hanna Hoffman, R.N. (“Ms. Hoffman”) 7 assisted Dr. Benjo with the procedure.1 (Doc. 105 ¶ 3; Third Amended Complaint (“TAC”) 8 ¶ 17.) During the procedure, Dr. Benjo injected dye into the catheter to test its position, 9 and while doing so noticed an air embolus in the catheter. (Doc. 105 ¶ 4.) Dr. Benjo took 10 steps to try to remove the air embolus, but the air was released into Mr. Sohler’s heart, 11 causing him to go into cardiac arrest. (Doc. 105 ¶¶ 4-5; TAC ¶ 20.) Dr. Benjo called for 12 the code response team, who administered CPR but could not stabilize Mr. Sohler. (Doc. 13 105 ¶ 6.) Mr. Sohler died after 45 minutes of CPR failed. (Doc. 105 ¶ 6.) In his operative 14 note, Dr. Benjo recorded (1) the existence of the air embolus; (2) the steps he took to fix 15 it; (3) Mr. Sohler’s cardiac arrest; (4) the attempted CPR; and (5) the possibility that the 16 contrast injector device’s failure caused the air embolus, noting that the device “failed a 17 few times during the procedure and during the code.” (TAC ¶¶ 19-22; Doc. 105 ¶ 7.) 18 Dr. Benjo met with Plaintiff immediately following Mr. Sohler’s death, joined by 19 Ms. Poehner, Ms. Hoffman, and several other La Paz employees. (Doc. 105 ¶ 8.) Dr. Benjo 20 informed Plaintiff that Mr. Sohler had died during the catheterization procedure as the 21 result of a massive heart attack, but he did not inform her that he had inadvertently injected 22 air into her husband during the procedure, nor did he tell her that the contrast injector device 23 had allegedly failed. (Doc. 105 ¶ 8.) Based on this conversation with Dr. Benjo and the 24 body language of Ms. Poehner and Ms. Hoffman, which indicated their agreement with Dr. 25 Benjo’s assessment, Plaintiff believed that Mr. Sohler had died of natural causes. (Doc. 26 105 ¶ 8.) 27

28 1 Ms. Poehner and Ms. Hoffman were originally named as Defendants, but the parties have since stipulated to dismiss all claims against them with prejudice. (Doc. 145.) 1 Subsequently, Ronald Parker, M.D. (“Dr. Parker”) conducted a medical 2 examination of Mr. Sohler. (Doc. 105 ¶ 11.) Dr. Parker concluded that Mr. Sohler died of 3 natural causes attributed to cardiovascular collapse, and on the basis of what was disclosed 4 to him, determined that an autopsy was not necessary. (Doc. 105 ¶ 12.) On October 20, 5 2018, Plaintiff obtained a copy of Mr. Sohler’s death certificate containing Dr. Parker’s 6 findings, which confirmed her belief that her husband had died of natural causes. (Doc. 7 105 ¶ 13.) On January 27, 2020, over 15 months later, Plaintiff obtained a copy of Mr. 8 Sohler’s medical records, from which she learned that he had died because air was injected 9 into the catheter and the contrast injector device had allegedly failed. (Doc. 105 ¶ 14.) 10 On October 14, 2020, Plaintiff filed her initial complaint for wrongful death and 11 other related claims. (Doc. 1.) Plaintiff filed the operative Third Amended Complaint on 12 January 29, 2021. On September 23, 2021 the Court granted in part Defendants’ Motion to 13 Dismiss Plaintiff’s Third Amended Complaint (Doc. 43), and dismissed Counts 4, 7, and 14 8 against Defendants La Paz, Ms. Poehner, and Ms. Hoffman (Doc. 95). On October 26, 15 2021, Defendants Dr. Benjo and Lakeside moved for partial summary judgment on 16 Plaintiff’s Counts 1 and 6—wrongful death and loss of consortium. (Doc. 99.) On 17 November 12, 2021, Defendant La Paz and then Defendants Ms. Poehner and Ms. Hoffman 18 filed a Joinder (Doc. 108), to which Plaintiff filed a Response arguing that the document 19 was procedurally flawed (Doc. 113). Then, on November 24, 2021, Plaintiff filed a Motion 20 for Reconsideration on the Court’s Order dismissing Counts 4, 7, and 8. (Doc. 116.) On 21 May 13, 2022, the parties stipulated to dismiss all claims against Ms. Poehner and Ms. 22 Hoffman with prejudice. (Doc. 145.) On May 16, 2022, Defendant La Paz moved for 23 summary judgment on Plaintiff’s Counts 1 and 6 (Doc. 147), and on May 17 La Paz moved 24 to strike one of Plaintiff’s expert witnesses, William L. Nellis (Doc. 149). The Court now 25 resolves each motion. 26 II. MOTION FOR RECONSIDERATION 27 A. Legal Standard 28 Motions for reconsideration should be granted only in rare circumstances. 1 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 2 reconsideration is appropriate where the district court “(1) is presented with newly 3 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 4 or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah 5 Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Mere disagreement with a 6 previous order is an insufficient basis for reconsideration. See Leong v. Hilton Hotels 7 Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988). A motion for reconsideration “may not 8 be used to raise arguments or present evidence for the first time when they could reasonably 9 have been raised earlier in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 10 877, 890 (9th Cir. 2000). Nor may a motion for reconsideration repeat any argument 11 previously made in support of or in opposition to a motion. Motorola, Inc. v. J.B. Rodgers 12 Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003). 13 B. Analysis 14 Plaintiff moves the Court to reconsider its September 24, 2021 Order (Doc. 95), in 15 which it dismissed Counts 4 (fraud), 7 (aiding and abetting fraud), and 8 (fraudulent 16 concealment) (Doc. 116)2. Plaintiff claims that her Motion is premised on Defendants’ 17 disclosure of new facts that bear directly on her claims. (Doc. 116 at 1.) 18 According to Plaintiff, on November 18, 2021, Defendants Dr. Benjo and Lakeside 19 disclosed a Supplemental Disclosure Statement, disclosing a response to a subpoena they 20 had issued to Dr. Ronald Parker (“Dr. Parker”), the medical examiner for Mr. Sohler, in 21 which they requested that Dr. Parker produce all medical records in his possession 22 concerning Mr. Sohler. (Doc. 116 at 2, Ex. 1.) Subsequently, counsel for Dr. Benjo and 23 Lakeside received a notice from the document service seeking Dr. Parker’s records stating 24 that there were no records to be produced. (Doc. 116, Ex. 1.) Plaintiff contends that this 25 2 The Court dismissed Plaintiff’s Counts 4, 7, and 8 against Defendants La Paz Regional 26 Hospital, Ms. Poehner, and Ms. Hoffman, not Counts 3, 4, and 7, as Plaintiff writes in her Motion for Reconsideration. (See Doc. 95 at 12.) It appears that Plaintiff has misnumbered 27 the claims in her Motion, so the Court uses the numbering it used in its Order, which is the same as the numbering in the TAC. In the TAC, Plaintiff’s Count 4 is fraud, Count 7 is 28 aiding and abetting fraud, and Count 8 is fraudulent concealment. Hereinafter, the Court refers to the claims accordingly. 1 information directly contradicts Defendants’ claims that they had disclosed the hospital’s 2 medical records for Mr. Sohler to Dr. Parker. (Docs. 116 at 3; 43 at 8-9.) It follows, Plaintiff 3 alleges, that Defendants intentionally withheld Mr. Sohler’s hospital records from Dr. 4 Parker so that he would reach the “unwarranted conclusion” that Mr. Sohler died of natural 5 causes. (Doc. 116 at 3.) 6 The Court denies Plaintiff’s Motion for Reconsideration. The Court dismissed 7 Count 4 of Plaintiff’s TAC because it alleged the same cause of action as Count 8— 8 fraudulent concealment. (Doc. 95 at 9.) The newly discovered evidence Plaintiff cites does 9 not alter this aspect of the Court’s analysis. With respect to Count 7, the Court found that 10 Plaintiff failed to state a claim for aiding and abetting fraud because nurses do not owe 11 their patients a fiduciary duty. (Doc. 95 at 10.) Defendants’ new disclosure has no effect 12 on this aspect of the Court’s analysis either. Further, the parties have stipulated to dismiss 13 claims against Ms. Poehner and Ms. Hoffman. (Doc. 145.) Likewise, Count 8 of Plaintiff’s 14 TAC names only Ms. Poehner and Ms. Hoffman. (TAC ¶¶ 121-127.) Because the parties 15 have stipulated to dismiss Ms. Poehner and Ms. Hoffman as defendants, the Court will not 16 reinstate Count 8. 17 III. MOTION TO STRIKE 18 A. Legal Standard 19 Rule 12(f) permits a court to “strike from a pleading an insufficient defense or any 20 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The 21 purpose of a Rule 12(f) motion to strike is “to avoid the expenditure of time and money 22 that must arise from litigating spurious issues by dispensing with those issues prior to trial.” 23 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 24 B. Analysis 25 Defendant La Paz filed a Motion to Strike Plaintiff’s Untimely Disclosed Expert 26 Witness, William L. Nellis and Corresponding Related Materials. (Doc. 149.) Defendant 27 argues that Plaintiff’s disclosure of William Nellis (“Mr. Nellis”) as an expert was not 28 1 timely under Federal Rule of Civil Procedure 26(a), Mr. Nellis is not a true rebuttal witness, 2 and Plaintiff’s actions were not justified or harmless under Rule 37(c). 3 Pursuant to the Court’s Rule 16 Scheduling Order, Plaintiff was required to disclose 4 all expert witnesses by November 23, 2021, and all rebuttal experts by March 1, 2022, 5 however, Defendant acknowledges that the parties agreed by email to extend the March 1, 6 2022 deadline. (Doc. 61, Order; Doc. 149 at 2.) Plaintiff disclosed Mr. Nellis as an expert 7 on May 10, 2022, long after the March 1 deadline. (Doc. 149 at 2.) Purportedly, Mr. Nellis 8 is a rebuttal expert to La Paz’s disclosed employees, and he will opine as to the standard 9 of care of La Paz and whether the actions of La Paz and its employees played a causal role 10 in Mr. Sohler’s death. (Doc. 149 at 2.) Defendant asserts that Mr. Nellis does not rebut any 11 opinion offered by Kirsten Kirgan, R.N. (“Ms.Kirgan”), its standard of care expert, and 12 therefore is not a rebuttal expert. (Doc. 149 at 4-5, Exs. A and B.) Defendant points out 13 that Rule 26(a)(2) limits rebuttal expert witness testimony to addressing opinions proffered 14 by another party’s disclosed expert witness, and does not allow for a rebuttal expert witness 15 to offer rebuttal opinions to lay witness testimony, as Mr. Nellis does. (Doc. 161 at 5.) See 16 also Armer v. CSAA Gen. Ins. Co., No. CV-19-04402-PHX-DWL, 2020 WL 3078353, at 17 *6 (D. Ariz. June 10, 2020), reconsideration denied, No. CV-19-04402-PHX-DWL, 2020 18 WL 3574525 (D. Ariz. July 1, 2020). According to Defendant, Mr. Nellis’s testimony also 19 represents the first indication that Plaintiff intends to bring a “theory of independent 20 negligence, negligent credentialing or new expert on either of these issues.” (Doc. 149 21 at 5.) Defendant points out that discovery has closed, and it is now unable to defend new 22 allegations such as these. 23 In response, Plaintiff maintains that Mr. Nellis was timely disclosed. (Doc. 155 24 at 7.) The parties agreed that due to Defendant’s late disclosure of Ms. Kirgan and its 25 employee Sharon Bosler (“Ms. Bosler”), Plaintiff would have an extension for the 26 disclosure of rebuttal experts. (Doc. 155 at 7, Ex. 4.) Ms. Bolser was disclosed as a witness 27 for the first time on March 1, 2022 (the final day of fact discovery), deposed on April 21, 28 2022, and Mr. Nellis’s rebuttal opinion was disclosed on May 10, 2022, within the 30-day 1 time frame agreed upon by the parties. (Doc. 155 at 3, 8.) Plaintiff also challenges 2 Defendant’s position that Mr. Nellis is not a rebuttal witness because he does not rebut any 3 of Ms. Kirgan’s opinions, and claims that Mr. Nellis’s opinion serves to rebut the testimony 4 of the hospital employees generally, not just those of Ms. Kirgan. (Doc. 155 at 8.) 5 Additionally, Plaintiff argues that she did indeed plead independent claims of negligence 6 against Defendant. (Doc. 155 at 9.) For example, in Count 1, Plaintiff’s wrongful death 7 claim, she alleges that Defendant committed acts of negligence, by and through its 8 employees, that caused the death of Mr. Sohler. (TAC ¶¶ 52, 58.) 9 The Court agrees with Defendant that Mr. Nellis is not a rebuttal expert. Thus, his 10 opinion was untimely disclosed. Under Rule 37(c), a party who fails to provide information 11 or the identity of a witness is precluded from using that information or witness “unless the 12 failure was substantially justified or is harmless.” Here, Plaintiff’s untimely disclosure of 13 Mr. Nellis was not substantially justified, nor was it harmless. In his report, Mr. Nellis 14 describes his role as “a rebuttal expert to testimony provided by employees of La Paz 15 Regional Hospital, including CEO Kevin Brown, cath lab nurses Hanna Hoffman and 16 Monica Poehner, scrub tech/radiology technician Sharon Bosler, and Ms. Bolser’s 17 supervisor, Rick Graybeal.” (Doc. 149, Ex. 9 at 29.) None of these employees were 18 disclosed as experts, and to the extent that they may have proffered expert opinions, such 19 testimony will not be permitted at trial. (See, e.g., Doc. 149, Ex. 2.) Thus, Mr. Nellis’s 20 untimely disclosure is not justified. Further, as Defendant notes, discovery has closed, and 21 Defendant would be unable to address and respond to Mr. Nellis’s proffered opinions with 22 the witnesses that have given testimony. For these reasons, the Court will strike Mr. Nellis 23 and all corresponding materials. However, the Court will not order further sanctions against 24 Plaintiff. This is a discovery dispute masquerading as a Motion to Strike, and both parties’ 25 actions border on gamesman-like behaviors, which the Court will not tolerate. 26 27 28 1 IV. MOTIONS FOR SUMMARY JUDGMENT 2 A. Legal Standard 3 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 4 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 5 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 6 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 7 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th 8 Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome 9 of the suit under governing [substantive] law will properly preclude the entry of summary 10 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” 11 of material fact arises only “if the evidence is such that a reasonable jury could return a 12 verdict for the nonmoving party.” Id. 13 In considering a motion for summary judgment, the court must regard as true the 14 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 15 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party 16 may not merely rest on its pleadings; it must produce some significant probative evidence 17 tending to contradict the moving party’s allegations, thereby creating a material question 18 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative 19 evidence in order to defeat a properly supported motion for summary judgment); First Nat’l 20 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 21 “A summary judgment motion cannot be defeated by relying solely on conclusory 22 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 23 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 24 sufficient to establish the existence of an element essential to that party’s case, and on 25 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 26 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 27 28 1 B. Dr. Benjo and Lakeside’s Motion for Partial Summary Judgment 2 Dr. Benjo and Lakeside, joined by La Paz3, move for partial summary judgment on 3 Plaintiff’s Counts 1 and 6. (See generally Docs. 99, 108.) Defendants reason that summary 4 judgment is appropriate because Plaintiff’s claims are barred by the statute of limitations 5 set forth in A.R.S. § 12-542, which states that medical negligence and wrongful death 6 claims “shall be commenced and prosecuted within two years after the cause of action 7 accrues.” 8 In its September 23, 2021 Order, the Court held that the “discovery rule” applied to 9 toll the statute of limitations. (Doc. 95.) The discovery rule can be applied to toll the accrual 10 of an action where the “injury or the act causing the injury, or both, have been difficult for 11 the plaintiff to detect.” Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 898 12 P.2d 964, 967 (Ariz. 1995) (quoting April Enters. v. KTTV, 195 Cal. Rptr. 421, 436 (Ct. 13 App. 1983)). Under the discovery rule, “a cause of action ‘accrues’ when the plaintiff 14 discovers or by the exercise of reasonable diligence should have discovered that he or she 15 has been injured by a particular defendant’s conduct.” Lawhon v. L.B.J. Institutional 16 Supply, Inc., 765 P.2d 1003, 1007 (Ariz. Ct. App. 1988). 17 Now, citing excerpts of Plaintiff’s July 22, 2021 deposition, Defendants contend 18 that the discovery rule does not apply, because Plaintiff was on notice to investigate 19 potential claims against Defendants immediately upon Mr. Sohler’s death. (See generally 20 Doc. 99; Deposition of Donna Sohler (“Sohler Dep.”), Doc. 100, Ex. 1.) Defendants 21 acknowledge that Plaintiff did not know “all the facts” underlying her claim at the time of 22 Mr. Sohler’s death, but note that the discovery rule does not require the plaintiff to know 23 all the facts underlying a claim—she is simply charged with reasonable notice if she 24 possesses the minimum requisite knowledge sufficient to identify that a wrong occurred 25 and caused an injury. Doe v. Roe, 955 P.2d 951, 961 (Ariz. 1998). Defendants point out 26

27 3 Plaintiff filed a Response to La Paz’s Joinder, in part alleging that it is procedurally improper in that it is “styled as an independent motion for summary judgment.” (Doc. 113.) 28 However, because the Court denies Defendants’ Motion for the reasons set forth in this section, it does not reach the issues raised by Plaintiff or La Paz. 1 that Plaintiff conceded during her deposition that she had concerns about possible medical 2 negligence immediately following Mr. Sohler’s death. (Sohler Dep. 80:7-81:11.) 3 In response, Plaintiff argues that Defendants take the statements she made during 4 her deposition out of context. (See generally Doc. 104.) Plaintiff claims that in the portion 5 of her deposition Defendants cite, she was not referring to concerns about medical 6 negligence on the part of Dr. Benjo, but rather on the part of Dr. George Garcia (“Dr. 7 Garcia”), Mr. Sohler’s cardiologist, who Mr. Sohler had visited several days prior to his 8 death. (Doc. 104 at 5, 9-10.) However, after receiving Mr. Sohler’s hospital records on 9 May 20, 2020, Plaintiff discovered that Dr. Garcia had not acted negligently, and even if 10 he had, his negligence was superseded by the intervening negligence of Dr. Benjo. (Doc. 11 104 at 11-13; Doc. 105 ¶ 20.) Plaintiff bolsters her argument by pointing out that in 12 Arizona, questions about when statutes of limitations have tolled are typically for the jury. 13 See, e.g., Doe, 955 P.2d at 961. Further, Plaintiff contends that Defendants’ fraudulent 14 concealment of the true cause of Mr. Sohler’s death prevented the statute of limitations 15 from tolling. (Doc. 104 at 7-9.) See Acton v. Morrison, 155 P.2d 782, 784 (1945) (“Fraud 16 practiced to conceal a cause of action will prevent the running of the statue of limitations 17 until its discovery.”). Plaintiff claims that she relied on the affirmations of both Dr. Benjo 18 and Mr. Parker that her husband died of natural causes. (Doc. 104 at 7.) 19 The Court finds that there is, at the very least, a genuine issue of material fact as to 20 when Plaintiff was put on notice to investigate her husband’s death. As discussed supra, 21 new evidence suggests that La Paz may have intentionally withheld Mr. Sohler’s medical 22 records from Dr. Parker so that he would conclude that Mr. Sohler died of natural causes. 23 While the Court found the new evidence insufficient for it to reinstate Plaintiff’s Count 8 24 for fraudulent concealment because Ms. Poehner and Ms. Hoffman have been dismissed 25 as defendants, it may present a material issue of fact as to whether fraudulent concealment 26 took place for the purposes of tolling the statute of limitations. A jury could find that the 27 failure to provide Mr. Sohler’s medical records to Dr. Parker is an act of fraudulent 28 concealment that prevented her duty to investigate from arising. Likewise, even if a jury 1 finds that no fraudulent concealment took place, it could nonetheless find that the discovery 2 rule tolled the accrual of Plaintiff’s cause of action. In fact, in Walk v. Ring, which 3 Defendants cite, the Arizona Supreme Court recognized that there was a material issue of 4 fact as to whether that plaintiff was put on reasonable notice to investigate. 44 P.3d 990, 5 998 (Ariz. 2002). There, much like in the present case, the plaintiff’s doctor “assured her 6 he had done nothing wrong.” Id. The Walk Court reasoned that while the plaintiff’s failure 7 to question consulting doctors for information as to whether negligence could be involved 8 could be perceived as a lack of diligence, “we do not believe it can be said as a matter of 9 law that a reasonable person in this circumstance can be required to undertake such 10 questioning or be held accountable for not doing so.” Id. Such questions are appropriately 11 left to a jury. Accordingly, Defendants’ Motion for Partial Summary Judgment is denied. 12 C. La Paz’s Motion for Summary Judgment 13 The basis for Defendant La Paz’s Motion for Summary Judgment is not that Plaintiff 14 cannot meet the burden for her wrongful death and loss of consortium claims. Instead, 15 Defendant La Paz argues that with the dismissal of Ms. Poehner and Ms. Hoffman as 16 Defendants, Plaintiff’s claims against La Paz cannot survive, so she is improperly 17 attempting to bring new claims against it through her expert, Mr. Nellis.4 (See generally 18 Docs. 147, 162.) La Paz claims that Plaintiff never pled an independent claim of negligence 19 against it, and discovery has now closed. (Doc. 147 at 6.) La Paz also claims that Plaintiff 20 never provided a preliminary expert witness affidavit setting forth an independent claim of 21 medical negligence against La Paz, as required by A.R.S. § 12–2603, which requires an 22 expert affidavit stating specific claims against a hospital entity, because the entity is a 23 health provider defined by statute. (Doc. 147 at 6.) See Amor v. Arizona, No. CV-06-499-

24 4 Many of La Paz’s arguments in its Motion for Summary Judgment merely regurgitate those in its Motion to Strike (Doc. 149), which the Court ruled on supra. Namely, La Paz 25 asserts that Plaintiff disclosed Mr. Nellis as an expert “six months after the deadline and one month after discovery had closed.” (Doc. 147 at 8.) La Paz also claims that Mr. Nellis 26 is not a true rebuttal witness, is not qualified to testify on a new theory of causation, and any opinion he offers about a lack of protocols and procedures pertaining to the injector 27 equipment could not have caused or contributed to Mr. Sohler’s death because Plaintiff’s own causation expert opines that the equipment did not cause the air embolus or death. 28 (Doc. 147 at 7-9.) The Court grants La Paz’s Motion to Strike, so it does not repeat its analysis of Mr. Nellis here. Nor does it address Plaintiff’s arguments on the same. 1 TUC-CKJ, 2010 WL 960379, at *7 (D. Ariz. Mar. 15, 2010). Although Plaintiff provided 2 a preliminary expert witness affidavit regarding the nursing care, La Paz maintains that 3 Plaintiff’s nurse expert did not set forth any opinion supporting claims of independent 4 negligence. (Doc. 147 at 7.) La Paz also contends that Plaintiff failed to disclose an 5 independent theory of liability against the hospital for negligent credentialing of Dr. Benjo 6 in violation of Federal Rule of Civil Procedure 26(a)(1)(E). (Doc 147 at 7.) 7 In response, Plaintiff first asserts that Defendant’s motion is procedurally improper. 8 (Doc. 153 at 7.) Plaintiff contends that the Joinder Defendant previously filed was really a 9 motion for summary judgment, and the Court’s Scheduling Order explicitly states that 10 leave of Court is required for a party to file more than one motion for summary judgment. 11 (Doc. 153 at 7-8.) The Court denied the earlier motion for summary judgment, supra, and 12 did not need to reach the arguments presented in La Paz’s Joinder in doing so. As the Court 13 sees it, the present motion is Defendant La Paz’s first Motion for Summary Judgment, and 14 it will consider the substance of the motion. 15 Second, Plaintiff claims that she pled independent claims of negligence against 16 Defendant in the TAC. Count 1 of Plaintiff’s TAC, for example, alleges that Defendant La 17 Paz committed acts of negligence by and through its employees under the doctrine of 18 respondeat superior. (TAC ¶ 55; Doc. 153 at 8.) Count 1 further alleges that “Defendants, 19 and each of them, were negligent and careless in their medical care of Ronald Sohler,” who 20 died as a direct and proximate result of the Defendants’ negligence. (TAC ¶ 62-63.) 21 Plaintiff maintains that “[a] hospital can be held negligent “[i]f the medical staff [is] 22 negligent in…. supervising its members.” Tucson Med. Ctr. v. Misevch, 545 P.2d 958, 960 23 (1976). Plaintiff also maintains that she disclosed a preliminary affidavit as required by 24 A.R.S. § 12–2603 in her Second Supplemental Disclosure Statement dated June 29, 2021. 25 (Doc. 153 at 10.) While the affidavit set forth the negligence of the nurses who participated 26 in Mr. Sohler’s procedure, Plaintiff contends that their negligence is imputed to La Paz per 27 respondeat superior. (Doc. 153 at 10.) According to Plaintiff, had Ms. Bolser been 28 disclosed prior to the final day of fact discovery, Plaintiff’s expert Meg Welch, R.N. (“Ms. 1 Welch”) would have had an opportunity to further address Defendant La Paz’s liability on 2 that issue before the discovery deadline. (Doc. 153 at 11.) 3 In Kopp v Physician Grp. of Arizona, Inc., which Defendant cites in its Reply, the 4 Arizona Supreme Court reversed the lower courts, and held that the stipulated dismissal 5 with prejudice of the surgeon employed by the defendant hospital did not prevent the 6 plaintiffs from asserting claims for negligent hiring, credentialing, and supervision against 7 that hospital. 421 P.3d 149, 151-52 (Ariz. 2018). (See Doc. 161 at 8.) However, unlike in 8 Kopp, Plaintiff does not raise such claims in her TAC. On this issue, Friedna v. Evans, 9 which the Kopp Court cites for support, offers guidance. 622 P.2d 463, 466 (Ariz. 1980). 10 In Friedna the appellants took the position that because there were no allegations 11 concerning the hospital’s negligent supervision of the doctor who caused the plaintiffs 12 injury in their amended complaint, the theory was waived. Id. However, the court noted 13 that in the amended complaint, the plaintiffs pled that “the operation was performed at the 14 hospital with its knowledge, aid, and assistance, and that the negligence of the defendants 15 was the proximate cause of the patient’s injuries.” Id. The court held that “such general 16 allegations of negligence, along with the evidence produced at the trial of this case, are 17 sufficient to support the hospital’s liability based on the theory of negligent supervision.” 18 Id. at 467. 19 Here, Plaintiff has raised allegations of negligence much like those of the plaintiff 20 in Friedna. The “true issue,” in this case is not whether Defendant La Paz is vicariously 21 liable under a theory of respondent superior, but whether it should be held liable on a 22 theory of negligent supervision. Id. at 465; see also Kopp, 421 P.3d at 442. Arizona case 23 law directs the Court that it is immaterial that Plaintiff’s claims against the nurse defendants 24 have been dismissed— “if there is an independent ground for finding the principal liable, 25 judgment can be entered against him.” Kopp, 421 P.3d at 442 (citation omitted). However, 26 Plaintiff must nonetheless prove negligence on the part of the hospital employees to prevail 27 on the causation and damages elements of her claims against Defendant La Paz. See id. at 28 441 (“Plaintiffs must prove [dismissed surgeon’s] negligence to establish the causation and 1 || damages elements for their claims against the Hospital...”). The Court denies Defendant 2|| La Paz’s Motion for Summary Judgment. 3 IT IS THEREFORE ORDERED denying Plaintiffs Motion for Reconsideration 4|| (Doc. 116). 5 IT IS FURTHER ORDERED granting Defendant La Paz’s Motion to Strike (Doc. 149). 7 IT IS FURTHER ORDERED denying Defendants Dr. Benjo and Lakeside’s 8 || Motion for Partial Summary Judgment (Doc. 99). 9 IT IS FUTHER ORDERED denying Defendant La Paz’s Motion for Summary || Judgment (Doc. 147). 11 IT IS FURTHER ORDERED that Plaintiff's Counts 1 and 6 will proceed to trial. 12 || The Court will set a pretrial conference by separate Order. 13 Dated this 27th day of September, 2022. gop 1S rabl hn J. Tuchi 16 ted States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

-14-