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Scharf v. Trabucco

United States District Court, D. Arizona

June 2, 2016

HELEN SCHARF, et al., Plaintiffs,
v.
ARNALDO TRABUCCO, et al., Defendants,

         Prescott Division

          ORDER MOTION FOR PARTIAL SUMMARY JUDGMENT

          H. Russel Holland United States District Judge

         Defendant PHC-Fort Mohave, Inc. d/b/a Valley View Medical Center moves for partial summary judgment.[1] This motion is opposed.[2] Oral argument was not requested and is not deemed necessary.

         Facts

         Plaintiffs are Helen Scharf, the surviving spouse and personal representative of the estate of Gerald Scharf; and Karen Bright and Randall Scharf, the adult children of Gerald Scharf, deceased. Defendants are Arnaldo Trabucco, M.D.; the Institute of Urology, LLC; and PHC-Fort Mohave, Inc., dba Valley View Medical Center (VVMC). Also included as defendants in plaintiffs’ complaint are DOES I through X, the names of which plaintiffs were unaware at the time they filed their complaint.[3]

         On September 24, 2012, Dr. Trabucco performed a hand-assisted laparoscopic nephrectomy (removal of the kidney) on Gerald Scharf at VVMC. Mr. Scharf developed complications and was transferred to Sunrise Hospital, where a second surgery was performed, but on September 27, 2012, Mr. Scharf died. On September 23, 2014, plaintiffs commenced this action, in which they assert negligence and wrongful death claims against defendants.

         In their complaint, plaintiffs identify the DOES I through X as "persons who were present in the operating room, PACU or ICU who provided intraoperative care or advice and/or post-operative care to Gerald Scharf."[4] Plaintiffs allege that the care and treatment provided by Dr. Trabucco and DOES I through X fell below the applicable standards of care.[5]Plaintiffs further allege that VVMC is "vicariously liable for the negligence of ... Dr. Trabucco and DOES I through X."[6] Plaintiffs allege that VVMC is vicariously liable because it was the employer of these individuals.[7]

         VVMC now moves for summary judgment on plaintiffs’ vicarious liability claims.

         Discussion

         Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

         First, as to plaintiffs’ vicarious liability claim based on Dr. Trabucco’s alleged negligence, plaintiffs agree that VVMC is entitled to summary judgment on this claim because Dr. Trabucco was not an employee of VVMC nor under VVMC’s control.[8]

         Second, to the extent that plaintiffs have vicarious liability claims against health care providers other than the nurses involved in Mr. Scharf’s care while he was hospitalized at VVMC, VVMC is entitled to summary judgment on these claims. Plaintiffs did not respond to VVMC’s argument that it is entitled to summary judgment on these claims. Thus, plaintiffs are deemed to have abandoned any such claims. See Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (citations omitted) ("We have previously held that a plaintiff has abandoned ... claims by not raising them in opposition to [the defendant’s] motion for summary judgment").

         Finally, as to any vicarious liability claims plaintiffs might have based on the negligence of the nurses who provided care to Mr. Scharf while he was hospitalized at VVMC, VVMC argues that it is entitled to summary judgment on these claims because plaintiffs have not disclosed a nursing expert. Plaintiffs do not dispute that under the Arizona law that is applicable to this diversity case, they are required to "retain a nursing expert to show any actions by the nursing staff at Valley View Medical Center fell below the standard of care."[9] Plaintiffs also do not dispute that they have not yet retained a nursing expert. Rather, plaintiffs seek leave to obtain such an expert now. More specifically, plaintiffs request leave to depose the nurses who provided care to Mr. Scharf, "and then, based upon their testimony, hire the appropriate experts if the testimony evidenced a breach of the standard of care."[10]

         The deadline for plaintiffs’ expert witness disclosures was December 15, 2015.[11] The deadline for all discovery to be completed in this case was May 2, 2016.[12] Nonetheless, plaintiffs request that they be allowed to take the nurses’ depositions and retain a nursing expert at this time because their "original theory of liability did not focus on the nursing staff."[13] Plaintiffs’ counsel avers that during the April 22, 2016 deposition of plaintiffs’ expert, Dr. Danoff, Dr. Danoff "dramatically changed his testimony" as to what happened during Mr. Scharf’s procedure and that plaintiffs "now believe that one of [their] strongest claims is the nurses’ failure to meet the accepted standards of care post-operatively, if the nurses failed to notify Dr. Trabucco of Mr. Scharf’s progressively developing lower extremity paralysis."[14] Plaintiffs’ counsel avers that up until now plaintiffs "did not investigate the post-operative care because our experts advised us that the injury occurred during the procedure."[15] Thus, plaintiffs contend that they only recently learned that they would need a nursing expert. ...


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