Free Order on Motion for Partial Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Rubecca Mikkelsen, surviving spouse of) Kelly Mikkelsen, deceased, individually) and on behalf of Miles Mikkelsen, Jerret) Mikkelsen, and Allison Mikkelsen, the) minor children of Kelly Mikkelsen,) deceased, and on behalf of Dennis ) Mikkelsen, natural father of Kelly) Mikkelsen, deceased, ) ) Plaintiffs, ) ) ) vs. ) ) ) Yuma County, et al., ) ) Defendants. _________________________________ ) Taylor R. Fox, a minor, by her next friend) ) and natural mother, Tracy Fox-Tanga, ) ) Plaintiff, ) ) vs. ) ) Yuma County, et al. ) ) Defendants. ) )

No. CV 02-2252-PHX-JAT ORDER

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Pending before the Court are: (1) Plaintiffs' "Motion for Partial Summary Judgment Regarding the Negligence of CHR 1 Employees Diaz, Brag[a]n 2 and Kinsley" (Doc. #172); (2) Plaintiffs' "Motion for Partial Summary Judgment Regarding CHR's Failure to Provide Adequate and/or Competent Medical Personnel" (Doc. #173); (3) Defendants CHR, Kenneth Faiver, and Dr. Joseph Rich's "Consolidated Motions for Summary Judgment" (Doc. #175); and (4) Plaintiffs' "Objections to, and Motion to Strike, Inadmissible Evidence Submitted by CHR, Including Undisclosed and Contradictory Testimony by Gottula, Horn, Diaz and Brass" (Doc. #202). The Court now rules as follows. I. Background This case centers around the death of Kelly Mikkelsen ("Mr. Mikkelsen") on October 11, 2001, at the Yuma County Adult Detention Center ("the Detention Center"). Mr. Mikkelsen was an inmate in the custody of the Detention Center from June 20, 2001, through the time of his death. (Doc. #172 at ¶4.) Plaintiff Rubecca M ikkelsen is Mr. Mikkelsen's surviving spouse, and is suing in her individual capacity and on behalf of Mr. Mikkelsen's minor children and father. At the time of M r. Mikkelsen's death, Defendant CHR was under contract with the Yuma County Jail District to provide medical care to inmates at the Detention Center, and was the Detention Center's exclusive health care provider. (Doc. #191 "Plaintiffs' Statement of Facts " at ¶52; Doc. #204 "Defendant's Objections and Controverting Statement of Facts [12/30/04]" ("DOSOF") at ¶52.) Except as otherwise indicated, the following facts are undisputed.3 In October 2001, Mr. Mikkelsen was an inmate on work furlough status at the Detention Center. (Doc. #172 at 4; Doc. #176 "Defendants' Consolidated Statement of Facts" ("DCSOF") at ¶3.)

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Correctional Health Resources ("CHR").

There is a discrepancy in the parties' respective spellings of Kelly Bragan's name. For consistently, the Court has adopted the "Bragan" spelling. Unless otherwise noted, Defendants' objections to the Plaintiffs' Statements of Fact are overruled. -2Filed 09/09/2005
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Accordingly, Mr. Mikkelsen was permitted to temporarily leave the Detention Center five days a week beginning at 6:00 a.m., for up to twelve hours a day. (Doc. #197 at 2.) On the night of October 10, 2001, Mr. Mikkelsen was experiencing difficulty getting out of bed and walking to the restroom. (PSOF at ¶1.) As a result, a detention officer instructed another inmate to assist Mr. Mikkelsen with getting to and from the urinals. (PSOF at ¶1.) CHR disputes that this occurred. At approximately 6 a.m. on October 11, 2001, Mr. Mikkelsen left the Detention Center, and arrived at his family's house approximately a half hour later. (Id. at ¶5; DCSOF at ¶5.) At this time, Mr. Mikkelsen spoke to his wife, telling her that he had taken several pills of Valium. (PSOF at ¶6.) According to M s. Mikkelsen's testimony, Mr. Mikkelsen was slurring his speech, stumbling, foaming and drooling at the mouth, and, at one point, fell down the stairs. (PSOF at ¶6; DOSOF at ¶7; DCSOF at ¶¶ 5, 7.) When Mr. Mikkelsen spoke to his wife, he initially told her that he had taken 49 pills of Valium. (PSOF ¶6; DOSOF ¶6; DCSOF at ¶9.) According to M s. Mikkelsen, he later said that he had taken either 4 or 40 pills, and that she would never know because she had not seen him take them. (PSOF at ¶6.) In response to M r. Mikkelsen's statements and behavior, Ms. Mikkelsen called a friend and asked her to call 911 for assistance. (PSOF at ¶7.) The friend did so; however, Mr. Mikkelsen left the house in his vehicle before help could arrive. (Id.) Ms. Mikkelsen testified that she then followed Mr. Mikkelsen on the freeway and saw him turn onto a Mexico exit and walk across the border. (DCSOF at ¶8.) Thereafter, Ms. Mikkelsen drove to the Detention Center and spent over an hour and a half in the Sheriff's Office. (PSOF at ¶8; DOSOF at ¶8; DCSOF at ¶ 9.) During this time she relayed her concern to Lieutenant Penny Anders that Mr. Mikkelsen was suicidal and had possibly taken as many as 49 pills of Valium. (PSOF at ¶8; DCSOF at ¶¶ 9, 10.) At about 11:00 a.m., a detention officer informed Nurse Art Rodriguez ("Nurse Rodriguez") that Mr. Mikkelsen may have overdosed while on work furlough. (PSOF at ¶9;

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DOSOF at ¶9.) Based on this information, Nurse Rodriguez made the following notation in Mr. Mikkelsen's chart: Approx. 1100 S[enior] O[fficer] Graham informed Med. Dept; pt had apparently overdosed on meds while out on work release; pt's wife had called the facility to inform re: pt's overdose on pills; S.O. Graham unsure if pt[] coming back this evening or where pt works; Plan - assess pt coming back this evening & PRN[.] (PSOF at ¶10, ex. H; DOSOF at ¶10; DCSOF at ¶46.) Nurse Rodriguez also red-flagged M r. Mikkelsen's chart with a note to, " T[check] pt this evening [when] he returns to facility if he does. see N[urse's] N[otes]: 10.11.01." (PSOF at ¶11; DOSOF at ¶11; DCSOF at ¶46.) At a shift change at 2:00 p.m., Nurse Rodriguez informed Licensed Practical Nurse Cheryl Kinsley ("Nurse Kinsley") of Mr. Mikkelsen's possible overdose and the need to assess him immediately upon his return to the Detention Center.4 (PSOF at ¶12; DOSOF at ¶12.) At approximately 6:00 p.m., Joseph Nimmo 5 dropped Mr. Mikkelsen off at the Detention Center. (PSOF at ¶15; DCSOF at ¶18.) After some initial processing, and based on Mr. Mikkelsen's demeanor and statement that he had taken two to three Valium, the detention officers placed M r. Mikkelsen on a 15 to 30 minute interval suicide watch. (PSOF at ¶¶15-16; DCSOF at ¶30.) Officer Fernando Pichardo then completed a Risk Assessment Notice, indicating that Mr. Mikkelsen was suicidal, experiencing drug withdrawal, and had stated that he had taken Valium. (Id. at ¶¶15-16; DCSOF at ¶30.) At approximately 6:30 p.m., Sergeant Miguel Caudillo placed Mr. Mikkelsen in a wheelchair and transported him to the Detention Center's Medical Department for evaluation. (PSOF at ¶17; DCSOF at ¶33.) At that time, Ofel Diaz ("Ms. Diaz"), who was working as a Certified Nursing

CHR does not dispute that this briefing occurred, but contends that it "was based on the question of whether or not [Mr. Mikkelsen] returned." (DOSOF at ¶12.) Although it is unclear from the record, according to Plaintiffs, Mr. Nimmo was one of M r. Mikkelsen's co-workers. (See PSOF at ¶15.) According to CHR, Mr. Nimmo was an employee of Anderson Ford. (Doc. #175 at 5.) -4Filed 09/09/2005
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Assistant6 , was the only member of the nursing staff in the M edical Department. (DCSOF at ¶¶34, 35.) Nurse Kelly Bragan ("Nurse Bragan"), the Registered Nurse on duty, was distributing medications in the Red Unit. (DCSOF at ¶35.) The only other nurse on duty, Nurse Kinsley, was distributing medications to inmates in the Dormitory Unit. (Id.) Sergeant Caudillo told Ms. Diaz that Mr. Mikkelsen had taken two to three Valium and that she should look at the cuts on his hand.7 (PSOF at ¶21; DCSOF at ¶36.) Ms. Diaz took Mr. Mikkelsen's pulse and blood pressure. (PSOF at ¶21; DCSOF at ¶34.) Soon thereafter, Officer Pichardo arrived in the Medical Department. (PSOF at ¶24; DCSOF at ¶34.) Officer Pichardo filled out a move slip for Mr. Mikkelsen, and gave it to Sergeant Caudillo, who then took Mr. Mikkelsen to a solitary confinement cell in the Red Unit.8 (PSOF at ¶23; DSOF at ¶34.) Officer Pichardo also filled out a Risk Assessment form indicating that Mr. Mikkelsen was suicidal and had taken two to three Valium, and gave a copy of the form to Ms. Diaz. (PSOF at ¶24; DCSOF at ¶34.) At about the same time, Ms. Mikkelsen testified that she called the Detention Center three times between 6:00 and 9:00 p.m., to explain that Mr. Mikkelsen had possibly overdosed and needed medical attention. (PSOF at ¶26.) She also testified that each of the three detention officers who fielded the calls indicated that Mr. Mikkelsen was at the

Plaintiffs contend that although Ms. Diaz signed a contract to work as a CNA, she was not qualified for this position. (PSOF at ¶18.) CHR does not dispute this, but contends that it is irrelevant because Ms. Diaz was not responsible for making medical assessments. (DCSOF at ¶18.) Apparently, while on work release Mr. Mikkelsen damaged his car with a tire iron, which resulted in cuts to his hands. (DCSOF at ¶¶ 16-17.) Plaintiffs and CHR present differing accounts of what information was exchanged between the detention officers and M s. Diaz. Specifically, CHR proffers that Officer Pichardo "told [Ms.] Diaz a medical professional nurse needed to see [Mr. Mikkelsen] as son as possible," and to "go ahead and make sure, when the nurse comes back, that she sees him." (DCSOF at ¶34.) Plaintiffs' proffer M s. Diaz's testimony that "she told a detention officer to have the nurse in the Red [U]nit where Mr. Mikkelsen was being taken (that would have been Nurse Bragan) check him out." (PSOF at ¶22.) -5Filed 09/09/2005
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Detention Center and was fine. (Id. at 27.) When Ms. Mikkelsen called the Detention Center the third time between 7:00 and 7:30 p.m., she asked to speak to someone in the Medical Department, and claims that her call was transferred to Ms. Diaz. (Id. at ¶28.) CHR denies that Ms. Diaz spoke to Ms. Mikkelsen. (DOSOF at ¶28.) Additionally, Ms. Mikkelsen testified that she had various friends and relatives call the Detention Center during this time to check on Mr. Mikkelsen. (PSOF at ¶29.) At the time Officer Caudillo transferred Mr. Mikkelsen to the Red Unit cell, Nurse Bragan was in Red Unit #2 distributing medication to inmates, and was on a walkway directly above the cell in which Officer Caudillo placed Mr. Mikkelsen. (PSOF at ¶30; DCSOF at ¶38.) It is undisputed that Nurse Bragan observed Mr. Mikkelsen being placed into the cell via a reflection in a window directly across from his cell, and watched M r. Mikkelsen change into the paper suicide uniform. (PSOF at ¶31; DCSOF at ¶39.) Officer Gilberto Herrera, who was with Nurse Bragan while she was passing out medication, went down to assist the officers. (DCSOF at ¶¶ 40-41.) After placing Mr. Mikkelsen in the cell and assisting him with changing into the suicide uniform, Officer Herrera went back up to the second level, where he and Nurse Bragan resumed distributing medication. (DCSOF at ¶43.) When Nurse Bragan finished her rounds, she returned to the Medical Department at approximately 8:00 p.m. (DCSOF at ¶44.) At that time, Ms. Diaz asked Nurse Bragan if she had seen Mr. Mikkelsen's chart. (Id.) Nurse Bragan responded that she had not seen the chart because Nurse Kinsley had it. (Id.) Nurse Bragan thereafter left for the night. (PSOF at ¶32.) It is undisputed that from 6:30 p.m. until approximately 9:00 p.m., Nurse Kinsley was in the Dormitory Unit distributing medication to inmates. (PSOF at ¶ 33; DOSOF at ¶33; DCSOF at ¶46.) During this time Nurse Kinsley had Mr. Mikkelsen's medical chart, which Nurse Rodriguez had red-flagged earlier that day. (PSOF at ¶34; DOSOF at ¶34; DCSOF at ¶46.) When Nurse Kinsley returned to the Medical Department at about 9:00 p.m., Ms. Diaz informed her that M r. Mikkelsen had taken a couple pills of Valium, was very sleepy,

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and had cuts on his hand. (PSOF at ¶35; DCSOF at ¶45, ex. 11 at 60.) Nurse Kinsley then went to see Mr. Mikkelsen. (PSOF at ¶36; DCSOF at ¶45.) When she arrived at his cell, she observed that Mr. Mikkelsen was not breathing. (PSOF at ¶37; DCSOF at ¶45.) After a detention officer arrived, Nurse Kinsley entered Mr. Mikkelsen's cell. (PSOF at ¶¶ 37-38; DCSOF at ¶45.) At that point, she determined that Mr. Mikkelsen had no vital signs and was unable to revive him. (PSOF at ¶38; DCSOF at ¶45.) An autopsy revealed that Mr. Mikkelsen died of an overdose of a combination of Darvon and Valium. (PSOF at ¶39; DOSOF at ¶39.) In February 2002, Plaintiffs filed the instant lawsuit in Maricopa County Superior Court, which Defendants subsequently removed to this Court. (Doc. #1.) On October 16, 2003, Plaintiffs filed their Second Amended Complaint (Doc. #84), asserting claims for: (1) negligence (Count One); (2) medical negligence (Count Two); (3) vulnerable adult neglect/abuse (Count Three); and (4) violation of civil rights under 42 U.S.C. § 1983 (Count Four). Plaintiffs now move for partial summary judgment "regarding the negligence of CHR employees Ofel Diaz, Kelly Bragan and Cheryl Kinsley," and "regarding the negligence of CHR through [its] agents Faiver and Rich . . . in fail[ing] to provide sufficient and/or competent medical staff to operate the facility in a manner consistent with the applicable standard of care." (Docs ## 172, 173.) CHR has moved for summary judgment on Plaintiffs' non-medical negligence claim; vulnerable adult abuse/neglect claim; § 1983 claim; and on Plaintiffs' request for punitive damages. (Doc. #175.) Additionally, Plaintiffs have filed "Objections to and M otion to Strike, Inadmissible Evidence Submitted by CHR, Including Undisclosed and Contradictory Testimony by Gottula, Horn, Diaz and Brass." (Doc. #202 "M otion to Strike".) Because Plaintiffs' Motion to Strike challenges evidence CHR has submitted in opposition to Plaintiffs' summary judgment motions, and in support of CHR's Motion, the Court turns to it first. II. Plaintiffs' Motion to Strike

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In their Motion, Plaintiffs object to, and move to strike the affidavits of: (1) Dr. Gottula; (2) Dr. Horn; (3) Ofel Diaz; and (4) Gloria Brass. Plaintiffs claim that, "[b]ecause the testimony included in these affidavits submitted in opposition to Plaintiffs' pending motions for partial summary judgment was not disclosed in a timely manner and contradicts previous sworn deposition testimony, the new testimony is inadmissible and should be stricken." (Motion at 1.) The Court will evaluate each of Plaintiffs' objections individually. A. Affidavit of Dr. Roderic D. Gottula, M.D. First, Plaintiffs move to strike Dr. Gottula's Affidavit dated November 23, 2004, and attached as Exhibit O to CHR's Supplement to its Consolidated Statement of Facts (Doc. #176). In his affidavit, Dr. Gottula opines: (1) that it is more likely than not that Mr. Mikkelsen did not ingest the quantity of pills that he told his wife he took on October 11, 2001; (2) that Ms. Diaz, Nurse Kinsley, and Nurse Bragan each met the applicable standards of care; (3) that, based on "new information brought to his attention" that Mr. Nimmo and his son observed Mr. Mikkelsen take 20 to 35 pills prior to being dropped off at the Center, Mr. Mikkelsen "was intent on committing suicide"; (4) that it was the duty of the detention officer to notify the medical staff that Mr. Mikkelsen was unable to talk when he was placed in the cell, so that the medical staff could immediately evaluate him; (5) that if the officer would have alerted the medical staff, Nurse Kinsley would have sent Mr. Mikkelsen immediately to the hospital; (6) that the officer's failure to notify Nurse Kinsely of Mr. Mikkelsen's deterioration exhibited deliberate indifference toward Mr. Mikkelsen's serious health care needs; and (7) that CHR was not deliberately indifferent to Mr. Mikkelsen's serious medical needs. (Gottula Aff. ¶¶1-8.) Plaintiffs urge the Court to strike the Affidavit for two reasons. First, Plaintiffs assert that CHR untimely disclosed Dr. Gottula's supplemental report, dated September 24, 2004, on which his Affidavit is based.9 Second, Plaintiffs argue that the Affidavit contradicts Dr.

Dr. Gottula's affidavit "tracks" his September 23, 2004 supplemental report. (Gottula Aff. at ¶1.) -8Filed 09/09/2005

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Gottula's previous deposition testimony, and is therefore a sham and subject to exclusion. The Court will evaluate each basis, in turn. Plaintiffs first urge the Court to strike Dr. Gottula's Affidavit pursuant to Federal Rule of Civil Procedure 37(c)(1)10 because CHR failed to timely disclose Dr. Gottula's September 24, 2004 supplemental report by the March 19, 2004 expert disclosure deadline. CHR, however, argues that because Dr. Gottula's report was a supplement to his prior expert opinion report, CHR timely disclosed it before the close of discovery and in compliance in with the Court's January 5, 2004 Supplemental Rule 16 Scheduling Order. The Court, however, disagrees with CHR. Although CHR characterizes Dr. Gottula's September 2004 Report as a "supplemental report," the content of the second report undermines CHR's characterization. In his initial expert report that CHR disclosed in June 2003, Dr. Gottula unequivocally opined that Ms. Diaz, Nurse Kinsley, and Nurse Bragan each failed to comply with their respective standard of care. (Motion, ex. C.) In his September 2004 supplemental report, as summarized in his Affidavit, Dr. Gottula completely abandons these opinions and, instead, opines that Ms. Diaz, Nurse Bragan, and Nurse Kinsley each met the applicable standard of care. To characterize Dr. Gottula's September 2004 report as a "supplement" to his initial June 2003 report would completely ignore the fact that nothing in the latter report adds to, expands upon, or clarifies the opinions expressed in his initial report. To the contrary, Dr. Gottula produced a new report that wholly abandons the opinions he previously expressed without explanation for the change. Thus, the September 2004 report is not supplementary in nature. Moreover, while CHR is correct that Rule 26(e) requires parties to supplement the testimony of their expert witnesses to inform the opposing party of any changes or

Rule 37(c)(1) provides in pertinent part: "A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) or amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." -9Filed 09/09/2005

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alterations, "[t]his is not an invitation to hold back material items and disclose them at the last moment." 8 Charles Alan Wright & Arthur R. M iller, Federal Practice & Procedure Civ. § 2049.1 (2d ed. 1994). Here, the timing of CHR's disclosure of D r. Gottula's new expert report severely prejudiced Plaintiffs. Specifically, because Plaintiffs received the September 2004 report on the date discovery closed, Plaintiffs were precluded from redeposing Dr. Gottula to question him about his changed opinions, and from retaining a rebuttal expert. The Court therefore cannot say that CHR's failure to timely disclose Dr. Gottula's new expert opinions was harmless. Consequently, the Court agrees with Plaintiffs that because CHR failed to timely disclose Dr. Gottula's report before the expert disclosure deadline, it should be precluded from relying on any opinions presented in the September 2004 report pursuant to Rule 37(c)(1). Accordingly, because Dr. Gottula's Affidavit is wholly based on the September 2004 report, the Court will grant Plaintiffs' Motion to Strike Dr. Gottula's Affidavit. Alternatively, Plaintiffs argue that because Dr. Gottula's Affidavit directly contradicts his prior deposition testimony, it is a sham and is subject to exclusion under the sham affidavit rule. Plaintiffs' argument is well-taken. The Ninth Circuit has recognized that, in opposing a motion for summary judgment, a party may not create its own issue of fact by an affidavit contradicting its prior deposition testimony. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 265 (9 th Cir. 1991);

Radobenko v. Automated Equip Corp., 520 F.2d 540, 543-44 (9 th Cir. 1975). As the Ninth Circuit explained, "[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening our sham issues of fact.'" Foster v. Arcata Assocs., Inc. 772 F.2d 1453, 1462 (9 th Cir. 1985). To avoid this result, "a court may disregard a `sham' affidavit that a party files to create an issue of fact by contradicting the party's prior deposition testimony." Leslie v. Grupo ICA, Inc., 198 F.3d 1152, 1157 (9 th Cir. 1999). The Court, however, must be cautious in applying

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this rule. Particularly, even under the sham affidavit rule, "the non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition[.]" Messick v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9 th Cir. 1995). Likewise, "minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit." Id. Accordingly, before disregarding an affidavit that contradicts earlier testimony, "the district court must make a factual determination that the contradiction was actually a `sham.'" Kennedy, 952 F.2d at 267. Here, Plaintiffs argue that because Dr. Gottula's Affidavit flatly contradicts his initial expert report and deposition testimony, wherein he opined that Ms. Diaz, Nurse Bragan, and Nurse Kinsley were negligent, it amounts to a sham affidavit. CHR, however, asserts that Dr. Gottula's Affidavit is not a sham, and explains that the changes in Dr. Gottula's opinions "were the result of an honest discrepancy, a mistake, . . . and newly discovered evidence." (Resp. at 5, quoting Kennedy, 952 F.2d at 267.) Particularly, CHR argues that when Plaintiffs' counsel took Dr. Gottula's deposition, Dr. Gottula "only had the benefit of the depositions of Ofel Diaz, Cheryl Kinsley, Rubecca Mikkelsen, Kelly Bragan, Ruben Amaya, Miguel Caudillo, David Rangel, and defendant Faiver." (Resp. at 5.) CHR then explains that "CHR's consolidated statement of facts [], in addition to these depositions, refers to the depositions of Penny Anders, Josephine Ayon, Alaaedin Babiker, M.D., Robert Gonzales, Gilbert Herrera, Carl Johnson, Steven Linde, Robert Mitchell, Jeremy Nimmo, Joseph Nimmo, Fernando Pichardo, David Reyes, Joseph E. Rich, M.D., Ronald Lee Sawyer and Gary Urquhart." (Id.) Despite this list, CHR fails to point to anything in Dr. Gottula's Affidavit corroborating its assertion that, after considering this additional testimony, Dr. Gottula revised his opinions regarding CHR's employees' negligence. In fact, at no point does CHR even state that Dr. Gottula considered this additional testimony. Rather, as Plaintiffs correctly highlight, in its Response to Plaintiffs' Summary Judgment Motion, CHR claims

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that Dr. Gottula reached his new opinions "based upon deposition testimony of the three ladies whose conduct is at issue in [P]laintiff's motion." (Doc. # 190 at 3.) Assuming that the "three ladies" CHR is referring to are Ms. Diaz, Nurse Kinlsey, and Nurse Bragan, their deposition testimony does not amount to new evidence. Specifically, in his initial June 2003 expert report, Dr. Gottula indicated that he had reviewed the depositions of Ms. Diaz, Nurse Bragan, and Nurse Kinsley before preparing his report. Thus, CHR's proffered basis for the change in Dr. Gottula's opinions lacks merit. Further, in his Affidavit, Dr. Gottula specifically identified what new evidence he considered in rendering his supplemental opinions. Notably, in paragraph 6 of his Affidavit, he expressly states that, "[n]ew information has been brought to his attention," regarding Mr. Nimmo and his son's statements that Mr. Mikkelsen ingested 20 to 35 pills before they dropped him off at the Detention Center. This is the only point in his Affidavit where Dr. Gottula identifies any newly-provided evidence which shaped his opinions. The fact that Dr. Gottula did not similarly identify any newly-provided evidence affecting his opinions concerning Ms. Diaz, Nurse Kinsley, and Nurse Bragan's negligence, despite the fact that he had completely recanted his prior opinions, supports Plaintiffs' theory that Dr. Gottula's about-face did not stem from his consideration of additional witness depositions. In the same vein, CHR has failed to demonstrate that the contradictions in Dr. Gottula's Affidavit resulted from an honest mistake or discrepancy at the time of his deposition. Likewise, because Dr. Gottula completely abandoned his prior opinions, CHR cannot reasonably argue that Dr. Gottula was elaborating on, explaining, or clarifying his prior deposition testimony that CHR's employees were negligent. Nor can CHR argue that the differences between Dr. Gottula's deposition testimony that the nurses were negligent and his Affidavit stating that they were not is merely a "minor inconsistency." Nevertheless, CHR contends that the Ninth Circuit's practice of excluding affidavits that contradict deposition testimony is inapplicable because "the changes to Dr. Gottula's deposition were before the parties filed their respective motions for summary judgment on

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October 22, 2004." (Resp. at 3-4.) In support, CHR argues that Kennedy, Foster, and Radobenko each addressed situations where a party filed an affidavit contradicting deposition testimony after the other party had moved for summary judgment. The Court, however, is unpersuaded by this argument. The chief concern of Kennedy, Foster, and Radobenko was preventing a party from thwarting the function of summary judgment by submitting an affidavit that directly contradicted prior deposition testimony in an attempt to create an illusory issue of fact. Here, CHR's conduct raises the same concern. By disclosing a new report from Dr. Gottula unequivocally recanting his prior opinions on the issue of CHR's employees' negligence months after the expert disclosure deadline and on the cusp of the discovery deadline, and subsequently proffering an affidavit from Dr. Gottula based on his new expert report, CHR has attempted to manufacture a last-minute factual dispute on the issue of negligence. Such tactics are ineffective to defeat summary judgment and support application of the sham affidavit rule.11 In sum, the Court find the circumstances in this case support application of the sham affidavit rule. Dr. Gottula's Affidavit directly contradicts his prior deposition testimony that Ms. Diaz, Nurse Kinsley, and Nurse Bragan were negligent in their treatment of M r. Mikkelsen. CHR has failed to proffer any grounds indicating that the contradictions between Dr. Gottula's deposition testimony and his Affidavit were based on mistake, discrepancies, or newly-discovered facts. Further, the Affidavit does not elaborate upon, explain, or clarify

Although Plaintiffs have not cited any Ninth Circuit case law applying the sham affidavit sanction in the context of a non-party affidavit, the Court finds that the rationale behind the sanction supports application in this case. See Adelman-Tremblay v. Jewel Companies, Inc., 859 F.2d 517, 521 (7 th Cir. 1988) (applying sham affidavit rule to strike affidavit of plaintiff's sole expert witness); Garnac Grain Co., Inc. v. Blackley, 932 F.2d 1563, 1568 (8 th Cir. 1991) (holding that sham affidavit rule applies to non-party witnesses); Maddy v. Vulcan M aterials Co., 737 F. Supp. 1528, 1532 (D. Kan. 1990) (striking expert's affidavit that contradicted expert's deposition testimony pursuant to sham affidavit rule); Ramos v. Geddes, 137 F.R.D. 11-12 (S.D. Tex. 1991) (finding that expert's affidavit attempted to clarify confusion that existed in deposition testimony and was therefore not a sham). - 13 Filed 09/09/2005

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Dr. Gottula's prior deposition testimony, but rather completely abandons his prior opinions on the issue of CHR's employees' negligence in favor of new opinions. Consequently, the Court finds that Dr. Gottula's Affidavit is a sham and is subject to the Ninth Circuit's rule excluding sham affidavits at the summary judgment stage. Taken together, because Dr. Gottula's Affidavit is based on new expert opinions that CHR did not disclose before the expert disclosure deadline, and because Dr. Gottula's Affidavit directly contradicts his prior deposition testimony without any reasonable explanation, the Court will grant Plaintiffs' Motion to Strike Dr. Gottula's Affidavit. B. Dr. Kevin D. Horn's Affidavit CHR has submitted an Affidavit from Dr. Horn, the medical examiner who preformed an autopsy on Mr. Mikkelsen. (DCSOF, ex. A.) Dr. Horn's Affidavit contains opinions concerning the time of Mr. Mikkelsen's death and opinions regarding causation, including his opinion that Mr. Mikkelsen could not have been saved if he had been transported to an emergency facility. Plaintiffs urge the Court to strike Dr. Horn's Affidavit because CHR failed to timely disclose certain opinions contained in the Affidavit. Specifically, Plaintiffs claim: In all of [CHR's] disclosures, the only anticipated testimony from Dr. Horn was exactly was contained in Dr. Horn's autopsy report . . . [which] concluded that Mr. Mikkelsen died from a fatally intoxicating mixture of two ingested drugs (propoxyphene and diazepam). The report contained no opinions regarding the time of Mr. Mikkelsen's death or whether Mr. Mikkelsen could have been saved if he had been taken to a hospital emergency room between 6 and 8 p.m. on October 11, 2001. (Doc. #202 at 6-7.) Plaintiffs argue that Dr. Horn's Affidavit "goes far beyond his autopsy

22 report and includes opinions regarding the time of death and detailed opinions regarding 23 causation[.]" (Id. at 7.) Plaintiffs also argue that they disclosed their expert, Dr. Stephen 24 Pike's opinions, including his opinion that Mr. Mikkelsen could have survived if he had been 25 transported to an emergency medical facility, but that "CHR did not ever disclose any expert 26 to rebut Dr. Pike's clearly-disclosed opinion testimony that Mr. Mikkelsen's life could have 27 been saved within a matter of minutes at any point before 8:00 p.m. on October 11, 2001." 28 - 14 Filed 09/09/2005

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(Id. (emphasis in original).) With respect to Dr. Horn's Affidavit, Plaintiffs contend that, "nothing in his affidavit was disclosed by CHR prior to the deadline for disclosure of all information and the close of discovery, and certainly not within the deadline for expert disclosures of the 30-day deadline for expert rebuttal testimony." Accordingly, Plaintiffs urge the Court to strike Dr. Horn's Affidavit pursuant to Rule 37(c). CHR, however, argues that, "CHR's supplemental disclosure statement dated and mailed on September 3, 2004, listed Dr. Horn as an expert who would testify in accordance with his report (autopsy) produced by then defendant Yuma County in their initial Rule 26.1 disclosure statement dated July 5, 2002, and Dr. Horn will also testify consistent with his memory in any deposition that he may give." (Doc. #207 at 9.) CHR explains that its "clarification of this disclosure dated September 10, 2004, explained that the reason that the additional experts and witnesses were identified by CHR, was CHR had been relying upon their use by co-defendant Yuma County, who later settled with Plaintiffs. (Id.) CHR wished to avoid any argument that they could not use these witnesses disclosed by Yuma, because [CHR] had not disclosed them." (Id.) Nevertheless, as Plaintiffs correctly point out, CHR failed to disclose the opinions contained in Dr. Horn's Affidavit prior to the expert disclosure deadline or by CHR's expert rebuttal deadline. The fact that CHR's co-defendant may have disclosed Dr. Horn did not relieve CHR of the requirement that CHR disclose him as an expert witness if it intended to rely on his opinions. Accordingly, to the extent that the opinions in Dr. Horn's Affidavit exceed the scope of his autopsy report, they are stricken. C. Ofel Diaz and Gloria Brass Finally, Plaintiffs seek to strike the affidavits of Ms. Diaz and Gloria Brass.12 As to Ms. Diaz's Affidavit, Plaintiffs assert that, "Ms. Diaz's [A]ffidavit testimony was not disclosed in any of CHR's disclosures, despite the fact that the subject matter should have

Ms. Brass is a registered nurse and was working the night shift at the Detention Center on the night of October 10, 2001. (DOSOF at ¶1.) - 15 Filed 09/09/2005

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been well-known to CHR, since [Ms.] Mikkelsen clearly testified in her deposition that she talked with a female who spoke with an accent on the night of Mr. Mikkelsen's death and that this female told her that they were not a hospital and that if Mr. Mikkelsen was going to die, then he would just die." (Id. at 8-9.) In opposition, CHR argues that M s. Diaz's Affidavit "disputes the hearsay and speculative [P]laintiffs' statement of fact 28 that it was [Ms. Diaz] that told [M s.] Mikkelsen that CHR was not a hospital and Mr. Mikkelsen was going to die." (Resp. at 15.) CHR further contends that "Ms. Diaz's [A]ffidavit denying she made such a statement is completely consistent with her deposition testimony and reports about which she was examined that are summarized in DCSF's 34-38. [] Since [Ms. Diaz] was not asked about this seemingly callous statement in her deposition, her denial of it by affidavit does not contradict her deposition, and there is no law cited by [P]laintiffs, because there is none, that would prevent her from contradicting a statement attributed to her that she did not admit was made when she was deposed." (Id.) In their Reply, Plaintiffs maintain that the basis for their request to strike is not that Ms. Diaz's Affidavit is contradictory to her deposition testimony, but that CHR never disclosed such testimony during discovery. According to Plaintiffs, "[b]ecause that

testimony was not disclosed, Plaintiffs' counsel had no reason to examine Ms. Diaz on the subject at her deposition." (Doc. #210 at 10.) Plaintiffs' argument, however, is unavailing. Plaintiffs do not claim that CHR failed to disclose Ms. Diaz as a witness, but only claim that it failed to disclose her testimony denying that she made certain statements over the phone on October 11, 2001. However, Ms. Diaz was not an expert witness, and CHR was not required to disclose the subject of her testimony with the same precision required for experts. Further, Plaintiffs ignore the fact that they were equally well-aware of Ms. Mikkelsen's testimony that she spoke with Ms. Diaz on October 11, 2001, and thus could have questioned her regarding that alleged conversation during Ms. Diaz's deposition. Accordingly, the Court will deny Plaintiffs' Motion to Strike with respect to M s. Diaz's Affidavit.

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As to Ms. Brass's Affidavit, Plaintiffs claim that "not only did CHR fail to disclose her testimony, but when [P]laintiffs were conducting discovery, CHR told Plaintiffs' counsel that Ms. Brass was `unavailable.'" (Doc. #202 at 9.) Thus, Plaintiffs assert that "Ms. Brass's undisclosed [A]ffidavit testimony is also inadmissible and should be excluded." CHR, however, contends that it disclosed Ms. Brass's testimony in its "clarification of the September 3, 2004 supplemental disclosure statement,[] dated and mailed on September 10, 2004." (Doc. #207 at 14.) Specifically, CHR submits that the supplemental disclosure states: Ms. Brass will testify that she had no recall of seeing Kelly Mikkelsen early in the morning of October 11, 2001, that she would herself have charted any comments about Mr. Mikkelsen if she had seen him having any unexpected problems, instead of asking another nurse to make an entry on the chart, and, to the best of her knowledge, any information attributed to her on the chart that morning was the result of some comment made to her by a detention officer, and which she would have passed on to another nurse. (Id. at 14.) CHR also asserts that "[t]here was no request by [P]laintiffs' attorney to take her

14 deposition, instead, [P]laintiffs' attorneys, with no basis, seek to exclude her testimony." 15 (Id.) Further, according to CHR's attorney's Declaration, "it was only by continued diligence 16 and happenstance, that [CHR's attorney] was able to locate Ms. Brass, after having been told 17 her whereabouts were not known." (Doc. #207 at 15.) 18 In their Reply, Plaintiffs contend that, "[t]his `diligence' consisted of one phone call 19 by CHR to the medical department it once operated at the Yuma County Jail, which revealed 20 that Ms. Brass still works there!" (Doc. #210 at 11.) Plaintiffs' position is that, "[o]nce CHR 21 obtained this information, it should have shared it with Plaintiffs' counsel and offered to 22 make her available for deposition." (Id.) Rather than do this, Plaintiffs charge that CHR 23 allowed "the time for discovery [to] pass without advising Plaintiff[s'] counsel that they had 24 located Ms. Brass." (Id. at 11.) 25 Considering the parties' arguments, the Court finds Plaintiffs' proffered justifications 26 for excluding Ms. Brass's Affidavit unconvincing. Particularly, as CHR points out, it 27 disclosed Ms. Brass as a witness and the nature of her testimony in its supplemental 28 - 17 Filed 09/09/2005

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disclosure statement. Further, although Plaintiffs claims that CHR did not assist them in locating Ms. Brass so that they could depose her, Plaintiffs have not claimed that they formally noticed her for deposition. The Court will therefore deny Plaintiffs' Motion with respect to Ms. Brass's Affidavit.13 Having resolved these evidentiary issues, the Court next turn to the merits of the parties' motions for summary judgment. III. Motion for Summary Judgment - Legal Standard Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of demonstrating the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file that establish the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this initial burden, the burden then shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Anderson, 477 U.S. at 247-48. Rather, the non-movant's

In their Reply, Plaintiffs proffer the following: In the unlikely event that the Court permits CHR to introduce undisclosed and contradictory testimony after the close of discovery and just before trial, Plaintiffs should be awarded their fees and costs associated with the pending motions for partial summary judgment and this motion to strike, discovery should be re-opened solely for the purpose of allowing Plaintiffs to rebut CHR's undisclosed evidence, defendant CHR should be required to make Dr. Gottula, Dr. Horn, Ms. Diaz and M s. Brass available for deposition at CHR's expense, and this Court should postpone the trial of this matter as may be necessary. (Doc. #210 at 12 n.5.) The Court has considered Plaintiffs' list of requests, and denies them in full. - 18 Filed 09/09/2005

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response must set forth specific facts by affidavits or by other admissible evidence as provided in Rule 56, showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 256. An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute might affect the case's outcome. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved in favor of either party." Id. at 250. Thus, a genuine issue for trial exists if the non-movant presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to the nonmovant, could resolve the material issue in its favor. Id. However, "[i]f the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). IV. Plaintiffs' Motion for Partial Summary Judgment on CHR's Employees' Negligence In their Motion, Plaintiffs contend that because there is no dispute as to CHR's medical negligence, particularly, that Ms. Diaz, Nurse Bragan, and Nurse Kinsley were negligent in their failure to treat Mr. Mikkelsen, the Court should enter partial summary judgment in their favor. In support, Plaintiffs contend that CHR's own expert, Dr. Gottula, opined that the standard of care required an immediate medical assessment of Mr. Mikkelsen's condition by qualified nursing staff on October 10 and 11, when Mr. Mikkelsen was displaying signs of intoxication. Plaintiffs proffer that Dr. Gottula opined that all three employees were negligent in failing to act in accordance with this standard. Specifically, he opined that Nurse Kinsely was negligent in not asking the Detention Center staff to contact her immediately when M r. Mikkelsen returned. He further testified that Nurse Bragan was negligent because she observed that Mr. Mikkelsen was intoxicated, but failed to immediately assess his condition, or make sure that Nurse Kinsley assessed him. Dr. Gottula also testified that Ms. Diaz was negligent in entering into a contract to act as a certified nursing assistant, although she was not a CNA. He further opined that the standard of care required Ms. Diaz to report Mr. Mikkelsen's condition to a qualified nurse and request an immediate nursing assessment. Plaintiffs contend that, "[h]ad the CHR nurses done what the

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standard of care required, Mr. Mikkelsen would have been evaluated by a qualified nurse and transferred to an E.R., where his life could have been saved in a matter of minutes." (Mot. at 9.) Based on this evidence from Dr. Gottula, Plaintiffs assert no genuine issue of fact exists as to CHR's employees' negligence, and that they are entitled to summary judgment on the issue of negligence.14 In response, CHR argues that there are factual disputes on the issue of negligence precluding summary judgment. With respect to Dr. Gottula's testimony, CHR argues that pursuant to the Ninth Circuit's model jury instruction 3.7, the jury may reject expert testimony, particularly in light of the testimony from Ms. Diaz, Nurse Bragan, and Nurse Kinsley. In support of its argument, CHR cites several cases from various jurisdictions for the proposition that a trier of fact can reject the uncontradicted testimony of an expert witness. Considering the parties' positions, even accepting Dr. Gottula's opinions that Ms. Diaz, Nurse Bragan, and Nurse Kinsley were negligent, Plaintiffs have failed to adequately demonstrate that they are entitled to summary judgment. As detailed above, as the moving party, Plaintiffs bear the initial burden of demonstrating the basis for their motion and of identifying the portions of the pleadings, depositions, answers to interrogatories, affidavits, and admissions that establish the absence of a triable issue of material fact. Celotex, 477 U.S. at 323. The Court finds Plaintiffs' Motion deficient in two respects. First, Plaintiffs have asserted two claims for negligence in their Amended Complaint: count one, which Plaintiffs describe as a "non-medical negligence claim"; and count two, which is entitled "medical negligence." At no point do Plaintiffs identify whether they are seeking summary judgment on count one, count two, or both. Second, and more importantly, Plaintiffs have failed to come forward with evidence establishing each of the elements of their negligence claim(s). To establish a cause of action

Plaintiffs have also proffered Dr. Robert B. Greifinger, M.D.'s expert report, wherein he opines that the nurses were negligent. (PSOF, ex. R.) - 20 Filed 09/09/2005

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for negligence, a plaintiff must show a duty, a breach of that duty, causation, and injury or damages. Saucedo v. Salvation Army, 24 P.3d 1274, 1278 (Ariz. App. 2001). Here, Plaintiffs merely proffer that because CHR's expert opined that CHR's employees were negligent, they are entitled to partial summary judgment. While Plaintiffs point to excerpts from Dr. Gottula's deposition in support, they have failed to go through each of the elements of a negligence claim as to each of the three employees. While Dr. Gottula's testimony, in conjunction with Plaintiffs' other evidence, including Plaintiffs' expert's testimony,15 may establish each of the necessary elements of Plaintiffs' negligence claims, it is not the Court's responsibility to compile the necessary evidence for Plaintiffs. See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9 th Cir. 2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9 th Cir. 1988); Keenan v. Allan, 91 F.3d 1275, 1278-79 (9 th Cir. 1996). The Court will therefore deny Plaintiffs' "Motion for Partial Summary Judgment Regarding the Negligence of CHR Employees Diaz, Bragan and Kinsley." V. Plaintiffs' Motion for Partial Summary Judgment Regarding CHR's Failure to Provide Adequate and/or Competent Medical Personnel Plaintiffs have moved for partial summary judgment on its claim that ,"CHR, through

16 its agents [Dr. Joseph] Rich and [Ken] Faiver, was [] negligent n failing to provide sufficient 17 18 In support, Plaintiffs argue that CHR fell below the standard of care in the following 19 ways. First, Plaintiffs claim that although CHR agreed that Dr. Rich would devote his "full 20 21 22 23 24 25 26 27 28 In a footnote in their Reply, Plaintiffs state: "As CHR is aware, Plaintiffs' experts also testified and will testify that Bragan, Kinsley and Diaz were negligent and caused Mr. Mikkelsen's death. That testimony was not set forth in detail, since it is irrelevant and unnecessary - the point of this motion is that CHR's own expert agrees that CHR's employees were negligent and caused Mr. Mikkelsen's death." (Reply at 8 n.2.) Mr. Faiver and Dr. Rich were co-owners of CHR. (Motion at 4.) Mr. Faiver was CHR's president/CEO, and, according to Plaintiffs, was "responsible for contracting with Yuma County and for hiring and staffing the Medical Department in compliance with its obligations to provide medical services pursuant to contract and common-law standards of care." (Id.) Dr. Rich was CHR's vice-president and corporate medical director. (Id.) - 21 Filed 09/09/2005
16 15

and/or competent medical personnel to adequately staff the facility." 16 (Motion at 4.)

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attention" to the operation of the Detention Center's Medical Department, "Dr. Rich devoted less than 10 hours per month to supervising the Yuma County Detention Center's medical needs, and failed to participate in credentialing healthcare providers, enacting policies and procedures, and/or a mortality review following Mr. Mikkelsen's death." (Motion at 4.) Second, Plaintiffs claim that Mr. Faiver failed to hire adequate or competent staff to meet the needs of the medical unit. Plaintiffs assert that "[a]s a result, there were many periods of time when no doctor was present, no physician's assistant was present, and not even a registered nurse was present at the jail to care for the medical needs of more than 400 inmates with no ability to seek medical care elsewhere." (Id.) According to Plaintiffs, on the night of Mr. Mikkelsen's death, there was no doctor or physician's assistant at the facility, and the only registered nurse on duty that night, Nurse Bragan, was on site for two hours to distribute medication to inmates. Third, Plaintiffs assert that CHR insufficiently staffed the Detention Center's medical unit. Particularly, they claim that CHR hired a physician to work at the Detention Center for only six to seven hours per week, but the physician actually worked only three to five hours per week. Similarly, Plaintiffs claim that CHR hired a physician's assistant to work 30 hours per week, but the physician's assistant worked only 10 to 15 hours per week. Plaintiffs also assert that, "despite an obligation to provide round-the-clock coverage (168 hours per week) by at least a registered nurse, CHR obviously failed to provide even an R.N. many hours of the day, and staffed the medical unit with a registered nurse less than 85% of the time, even after Mr. Mikkelsen's death." (Motion at 5 (emphasis in original).) Plaintiffs contend there is no dispute that the above actions amount to negligence on the part of CHR. In support, Plaintiffs proffer that both their expert, Dr. Greifinger, and CHR's expert, Dr. Gottula, agree that CHR was negligent in its staffing, supervision, training, and hiring of its medical personnel. Plaintiffs cite to testimony from Dr. Greifinger indicating that CHR's negligence included: (1) insufficient presence by and inadequate round-the-clock supervision by a registered nurse; (2) insufficient staffing by the physician;

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(3) inadequate coverage by a physician's assistant; (4) failure to provide clinical oversight of CHR's only physician and physician's assistant; (5) failure to train its medical staff in detention center policies; (6) failure to have the detention center's physician conduct a mortality review after Mr. Mikkelsen's death; (7) knowingly retaining Ofel Diaz who was unqualified to act as a certified nursing assistant; (8) failure to enact adequate policies and procedures; and (9) failure to properly train its medical staff. (Motion at 5.) Plaintiffs also submit that Dr. Gottula's testimony supports their claims. Particularly, Plaintiffs point out that Dr. Gottula testified that CHR had a responsibility to provide appropriate staff to address the health care needs of the inmates, including emergent medical conditions, like drug overdoses or intoxication. Plaintiffs proffer that Dr. Gottula agreed CHR negligently failed to provide such care to Mr. Mikkelsen on October 11, 2001. Plaintiffs also submit that Dr. Gottula testified that CHR breached the standard of care in hiring Ms. Diaz and holding her out as a CNA when she was not. In response, CHR argues that Plaintiffs' Motion "fails because of a host of testimony that CHR employees, Nurse Cheryl Kinsley and RN Kelly Bragan, were at the detention facility between the time that decedent Kelly Mikkelsen arrived there at approximately 6:00 p.m. on 10/11/01, and the time of his death at 8:00 p.m. on that date." (Resp. at 2.) Thus, CHR maintains that "[w]hile at other times, CHR's staffing may have been inadequate, it was adequate at the proximate time." (Id.) CHR therefore asserts that its purported failure to provide adequate staffing at other times was not the proximate cause of M r. Mikkelsen's death. Additionally, CHR argues that Plaintiffs have failed to point to any document requiring CHR to have more than one LPN or RN available at any time. Rather, CHR argues that its contract with Yuma County required a registered nurse to be on duty at the detention center at all times, and, in compliance, Nurse Bragan was at the center when Mr. Mikkelsen arrived and when he died. CHR also argues that Plaintiffs have failed to point to any

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evidence demonstrating that Nurse Kinsley, Nurse Bragan or Ms. Diaz were improperly trained.17 Reviewing the parties' briefs and statements of fact, the Court finds that although Plaintiffs have presented expert testimony that CHR fell below the standard of care in various ways relating to its staffing and implementation of policies at the Detention Center's medical unit, Plaintiffs have neglected to proffer sufficient facts establishing the causation element of their negligence claim. Specifically, in their Reply, where Plaintiffs first address the causation element, Plaintiffs cite the Court to paragraphs 50, 51, and 74 in their Statement of Facts, which provide as follows: 50. If LPN Kinsley had received that information [from Ms. Diaz], she would have immediately found and evaluated Mr. Mikkelsen and taken steps to get him to a hospital for emergency treatment. 51. Had the CHR nurses done what the standard of care required, Mr. Mikkelsen would have been evaluated by a qualified nurse and transferred to the hospital emergency room, where his life could have been saved in a matter of minutes. 74. Dr. Gottula agrees that CHR negligently failed to provide appropriate nursing assessment and appropriate care for patients with emergent medical conditions, and failed to provide such care to Mr. Mikkelsen on October 11, 2001. None of these paragraphs present sufficient facts linking CHR's purported failure to provide an adequate staffing, supervision, or training to Mr. Mikkelsen's death. Because Plaintiffs have failed to identify such evidence, summary judgment with respect to CHR's failure to

CHR also argues that Plaintiffs are asserting a breach of contract action that is subsumed in their medical negligence/medical malpractice claim. Plaintiffs, however, maintain that it has not asserted a breach of contract action. The Court agrees with Plaintiffs. It is true that Plaintiffs' negligence claims and evidence refer to the contract between CHR and Yuma County with respect to medical staffing CHR was required to provide in an effort to establish the standard of care applicable to CHR. However, Plaintiffs are not suing on the contract, but have asserted a tort claim for negligence. Thus, CHR's argument is unsupported by the record. - 24 Filed 09/09/2005

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provide adequate and/or competent medical personnel is inappropriate.18 The Court will therefore deny Plaintiffs' Motion on this issue. VI. Defendants'19 Consolidated Motions for Summary Judgment CHR has moved for summary judgment on all of Plaintiffs' claims, except their claim for medical malpractice. A. Count One - Negligence Counts One and Two of Plaintiffs' Complaint are for "negligence" and "medical negligence", respectively. CHR argues that it is entitled to summary judgment on Count One because Plaintiffs' claims under Count One are subsumed in the medical malpractice claim asserted in Count Two. In support, CHR cites Arizona Revised Statutes ("A.R.S.") § 12561(2), which provides, in pertinent part: "Medical malpractice action" or "cause of action for medical malpractice" means and action for injury or death against a licensed health care provider based upon such provider's alleged negligence, misconduct, errors or omissions, or breach of contract in the rendering of health care, medical services, nursing services or other health-related services or for the rendering of such health-related services, without express of implied consent[.] In response, Plaintiffs contend that "[t]he CHR defendants incorrectly argue that Plaintiffs' Count One alleging non-medical negligence in the form of negligent hiring, training, supervision and/or retention of CHR's personnel merely duplicates Plaintiffs' Count Two, alleging negligent breach of the applicable medical standards of care." (Resp. at 9.) Thus, Plaintiffs argue that because Count One and Two seek relief for different types of conduct, namely medical and non-medical negligence, and because Plaintiffs have adduced

As is the case with Plaintiffs' companion Motion, Plaintiffs merely cite to a successive list of facts without linking these facts to the legal theory on which their claim is based. Consequently, Plaintiffs have failed to carry their burden of establishing that they are entitled to judgment as a matter of law.
19

18

The Court will refer to Defendants CHR, Dr. Rich, and M r. Faiver collectively

as "CHR." - 25 Filed 09/09/2005

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evidence to support each Count, the Court should deny CHR's Motion with respect to Count One. The Court agrees with Plaintiffs. Reviewing Plaintiffs' Second Amended Complaint, Count One and Count Two assert negligence claims based on two distinct theories. Count One is based on CHR's hiring, staffing, and training of its employees, while Count Two is premised on the medical treatment that CHR's employees provided to Mr. Mikkelsen. While there is some overlap between the claims, particularly, with respect to the CHR's employees' conduct, this similarity does not make one of the Counts duplicative. Moreover, as previously discussed, while Plaintiffs refer to the contract between CHR and Yuma County in reference to the applicable standard of care, this does not transform Plaintiffs' negligence claims into claims for breach of contract. Accordingly, the Court will deny CHR's Motion with respect to Count One. B. Count Three - "Vulnerable Adult Abuse/Neglect" Next, CHR moves for summary judgment on Count Three of Plaintiffs' Complaint for violation of Arizona's Adult Protective Services Act ("APSA"), A.R.S. § 46-451, et seq. In Count Three, Plaintiffs allege that M r. Mikkelsen was an incapacitated and/or vulnerable adult under A.R.S. § 46-451, and entitled to the protection afforded incapacitated and/or vulnerable adults under the APSA. Plaintiffs claim that "the life and health of [Mr.] Mikkelsen was [sic] being endangered and injured by the neglect and abuse of Defendants and by Defendants' failure and refusal to provide proper medical care and treatment to decedent while incarcerated in Defendants' jail." They thus assert that CHR is liable under A.R.S. § 46-455. CHR, however, argues that the APSA is inapplicable in this case. Particularly, it argues that there is nothing in the statute indicating that the civil cause of action under the APSA was intended to apply in situations concerning care of an inmate by prison medical staff. The Court agrees with CHR.

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The section of the APSA creating a civil cause of action for abuse or neglect, A.R.S. § 46-455(B), provides in pertinent part: B. An incapacitated or vulnerable adult whose life is being or has been endangered or injured by neglect, abuse or exploitation may file an action in superior court against any person or enterprise that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed, by a court to provide care to such incapacitated or vulnerable adult for having caused or permitted such conduct. The APSA defines "incapacitated adults" as those suffering from: an impairment by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication or other cause to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions concerning his person. A.R.S. § 46-451(A)(5). Additionally, A.R.S. § 46-451(A)(10) defines "vulnerable adult" as: "an individual who is eighteen years of age or older who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment." Although Plaintiffs contend that Mr. Mikkelsen meets the definition of an "incapacitated or vulnerable adult", and CHR qualifies as a "person or enterprise that has been employed to provide care," Plaintiffs have failed to cite any authority, and the Court has found none, recognizing that a claim under § 46-455 may be brought against a detention center, as is the case here. Rather, the legislative history, as articulated by the Arizona Supreme Court, suggests that the statute was intended to provide protection for elderly adults in assisted care-type facilities. First, in Matter of Guardianship/Conservatorship of Denton, 945 P.2d 1283, 1286 (Ariz. 1997), the Arizona Supreme Court offered the following explanation: In 1998, the legislature enacted A.R.S. § 46-455 which criminalized abuse of an incapacitated or vulnerable adult. The legislature clearly perceived elder abuse as a very serious problem, justifying legislative intervention and designated elder abuse a class 5 felony. The next year, the legislature expanded the elder abuse statute by creating a statutory civil cause of action for elder abuse . [] This statutory cause of action is set forth in subsection B of A.R.S. § 46-455[.]

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Five years later, in Estate of McGill v. Albrecht, 57 P.3d 384, 387 (Ariz. 2002), the Arizona Supreme Court again examined the object of the APSA, and elaborated on its analysis set forth in Denton, stating: We have previously alluded to legislative purpose with respect to protection of the elderly; `Arizona has a substantial population of elderly people, and the legislature was concerned about elder abuse.' Denton v. Superior Court, 945 P.2d 1283, 1285 (Ariz. 1997). We continue to believe it clear from the text of the statute, the conditions prevalent in this state, and the sparse legislative history that the statute was intended to increase the remedies available to and for elderly people who had been harmed by their caregivers. Id. Based on the Arizona Supreme Court's language, the Court agrees with CHR that Plaintiffs'

9 claim does not fall within the purview of A.R.S. § 46-455(B), specifically, or Arizona's 10 11 C. Count Four - Violation of Civil Rights 12 In Count Four, Plaintiffs assert a claim pursuant to 42 U.S.C. § 1983 for violation of 13 Mr. Mikkelsen's Eighth Amendment right to be free from cruel and unusual punishment. 14 Plaintiffs allege that, "[a]cting with deliberate, reckless and/o