Verdicts

New Theory of Liability Cannot Defeat Summary Judgment Motion

Summary dismissal of a suit against a hospital was proper where the plaintiff presented no evidence to back her pleaded theory of liability, but instead produced an expert opinion concerning a second theory of which the defendant hospital had not been informed. Tam v. Garfield Medical Center Inc., 2014 Cal. App. Unpub. LEXIS 5149 (Cal.App.2d, 7/22/14).

The plaintiff's father, Hung Sun Tam (Mr. Tam), suffered abdominal and shoulder injuries in a car accident. Prior to undergoing emergency surgery to address these issues, Mr. Tam, who was then alert, stable and able to communicate, was given a dose of Morphine. According to his daughter's complaint for wrongful death and medical malpractice, the Morphine caused his blood pressure to drop immediately, causing him to go into cardiac respiratory arrest. Mr. Tam was then intubated and sent to the operating room with instructions to resuscitate, and his planned surgeries were completed. According to the plaintiff, following surgery Mr. Tam was sent to the intensive care unit, where a “pulmonary consultation revealed that Mr. Tam was in a deep coma” and he “died shortly thereafter, on the same day he was admitted.” In her suit brought in Superior Court, Los Angeles County, the plaintiff alleged that the doctor responsible for administering Morphine to her father and the hospital at which her father was treated, Garfield Medical Center Inc., thereby caused his death.

After the plaintiff failed to submit evidence concerning the advisability of administering Morphine to the deceased, Garfield Medical Center moved for summary judgment. Instead of such evidence, plaintiff Tam offered the declaration of Dr. Paul Bronston, a surgeon and emergency physician. He did not discuss the Morphine issue, only what he saw as an unreasonably long delay between Mr. Tam's arrival in the emergency room and his surgery, which delayed action he opined might have been below the standard of care and could have led to a worse outcome for the injured patient. The hospital explained that the plaintiff's allegations, written discovery responses, and deposition testimony, had “always maintained that [Mr. Tam's] death was due to the allegedly improper administration of Morphine,” but that the plaintiff had never previously brought up a delay in surgery as a possible cause of death.

“[E]ither out of a deceitful attempt to surprise [Garfield] in order to get past summary judgment, or out of a realization that her theory has been faulty all along, [Tam] has sprung a brand new theory upon [Garfield] and the Court, contradicting her Complaint, her written discovery responses, and her deposition testimony,” stated the hospital. The trial court granted the hospital's motion for summary judgment, agreeing with Garfield that the plaintiff failed to present evidence that the administration of Morphine to Mr. Tam was contrary to accepted practice, and that her new allegations about delay in treatment were not brought to the attention of the hospital until too late in the proceedings.

The appeals court affirmed, despite conceding that “Tam correctly argue[d] that, in order to state a cause of action, a complaint may allege negligence in general terms.” The issue in this case, however, was not whether Tam stated causes of action, “but whether she can defeat Garfield's motion for summary judgment by relying on a theory that did not appear in her causes of action.” The answer, said the court, was no.

Med-Mal Settlement Information Not Relevant To Suit Against Drug Manufacturer

Because information about a previous medical malpractice settlement concerning administration of a drug to a patient was not relevant to the product liability action against the drug's manufacturer, the court in the products liability action granted the plaintiff's motion to quash subpoenas seeking information from counsel for the plaintiff and defendants in the previous med-mal matter. Shipley v. Forest Laboratories, 2014 U.S. Dist. LEXIS 98204 (D. Utah 7/18/14).

A woman brought suit against her husband's medical care providers alleging medical malpractice after her husband, to whom the defendants had prescribed the antidepressant Lexapro, committed suicide. She and the medical provider defendants reached a confidential settlement in the Utah state court action, titled Shipley v. Julien. That settlement was approved by the court and the record sealed.

The plaintiffs then brought a second lawsuit against Forest Laboratories, the manufacturer of Lexapro, alleging that Forest Laboratories was strictly liable for designing, manufacturing, and marketing the defective product Lexapro, which the defendant failed to label with adequate warnings about the risk of suicide.

The drug company attorneys issued a subpoena duces tecum to the law firm that had represented the plaintiff in the medical malpractice action, and two similar subpoenas to those who represented the defendants in that matter, asking for “[a]ll documents evidencing settlement of the litigation captioned Elaine Shipley, individually and as personal representative of heirs of Kurt Shipley v. Craig K. Julien, M.D., et al., Case No. 06070028, filed in the Second Judicial District, Davis County, Utah, including any executed settlement agreements, executed release of claims, and probate court approval of same.” The plaintiff filed a motion to quash the subpoenas, claiming the information sought by Forest Laboratories was irrelevant to the products liability litigation. Relying on Tanner v. Johnston, 2013 U.S. Dist. LEXIS 3512 (D. Utah 1/8/13), the defendant countered that the plaintiff's claims in Julien were based on the same events as the claims in the federal products liability action, so the Julien settlement was relevant because it might lead to information about damages that could be brought into evidence in the federal trial.

The court found defendant's reliance on Tanner was misplaced, because Tanner involved a single lawsuit in which plaintiffs brought overlapping claims against two sets of defendants who carried joint and several liability on the overlapping claims. Thus, the settlement agreement between the plaintiffs and the settling defendants was relevant to determine the non-settling defendant's liability. However, unlike Tanner, this case involved two lawsuits with different defendants, different causes of action and no joint or several liability. “Under these circumstances,” the court concluded, “the Julien settlement agreement is not obviously relevant to calculating Defendant's damages. The Julien defendants presumably settled Plaintiff's damages for medical malpractice[,] whereas here Plaintiff seeks damages from Defendant for products liability. Moreover, as Plaintiff notes, '[w]hatever [] [P]laintiff and the Julien defendants thought about [] [P]laintiff's damages and the Julien defendants' relative share of fault is not evidence; it is just the opinion of two parties or their counsel, expressed in settlement negotiations.' (Dkt. No. 43 at 4.)”

Because Forest Laboratories could not establish the relevance of the Julien settlement to this product liability claim, the court granted the plaintiff's motion to quash.

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New Theory of Liability Cannot Defeat Summary Judgment Motion

Summary dismissal of a suit against a hospital was proper where the plaintiff presented no evidence to back her pleaded theory of liability, but instead produced an expert opinion concerning a second theory of which the defendant hospital had not been informed. Tam v. Garfield Medical Center Inc., 2014 Cal. App. Unpub. LEXIS 5149 (Cal.App.2d, 7/22/14).

The plaintiff's father, Hung Sun Tam (Mr. Tam), suffered abdominal and shoulder injuries in a car accident. Prior to undergoing emergency surgery to address these issues, Mr. Tam, who was then alert, stable and able to communicate, was given a dose of Morphine. According to his daughter's complaint for wrongful death and medical malpractice, the Morphine caused his blood pressure to drop immediately, causing him to go into cardiac respiratory arrest. Mr. Tam was then intubated and sent to the operating room with instructions to resuscitate, and his planned surgeries were completed. According to the plaintiff, following surgery Mr. Tam was sent to the intensive care unit, where a “pulmonary consultation revealed that Mr. Tam was in a deep coma” and he “died shortly thereafter, on the same day he was admitted.” In her suit brought in Superior Court, Los Angeles County, the plaintiff alleged that the doctor responsible for administering Morphine to her father and the hospital at which her father was treated, Garfield Medical Center Inc., thereby caused his death.

After the plaintiff failed to submit evidence concerning the advisability of administering Morphine to the deceased, Garfield Medical Center moved for summary judgment. Instead of such evidence, plaintiff Tam offered the declaration of Dr. Paul Bronston, a surgeon and emergency physician. He did not discuss the Morphine issue, only what he saw as an unreasonably long delay between Mr. Tam's arrival in the emergency room and his surgery, which delayed action he opined might have been below the standard of care and could have led to a worse outcome for the injured patient. The hospital explained that the plaintiff's allegations, written discovery responses, and deposition testimony, had “always maintained that [Mr. Tam's] death was due to the allegedly improper administration of Morphine,” but that the plaintiff had never previously brought up a delay in surgery as a possible cause of death.

“[E]ither out of a deceitful attempt to surprise [Garfield] in order to get past summary judgment, or out of a realization that her theory has been faulty all along, [Tam] has sprung a brand new theory upon [Garfield] and the Court, contradicting her Complaint, her written discovery responses, and her deposition testimony,” stated the hospital. The trial court granted the hospital's motion for summary judgment, agreeing with Garfield that the plaintiff failed to present evidence that the administration of Morphine to Mr. Tam was contrary to accepted practice, and that her new allegations about delay in treatment were not brought to the attention of the hospital until too late in the proceedings.

The appeals court affirmed, despite conceding that “Tam correctly argue[d] that, in order to state a cause of action, a complaint may allege negligence in general terms.” The issue in this case, however, was not whether Tam stated causes of action, “but whether she can defeat Garfield's motion for summary judgment by relying on a theory that did not appear in her causes of action.” The answer, said the court, was no.

Med-Mal Settlement Information Not Relevant To Suit Against Drug Manufacturer

Because information about a previous medical malpractice settlement concerning administration of a drug to a patient was not relevant to the product liability action against the drug's manufacturer, the court in the products liability action granted the plaintiff's motion to quash subpoenas seeking information from counsel for the plaintiff and defendants in the previous med-mal matter. Shipley v. Forest Laboratories, 2014 U.S. Dist. LEXIS 98204 (D. Utah 7/18/14).

A woman brought suit against her husband's medical care providers alleging medical malpractice after her husband, to whom the defendants had prescribed the antidepressant Lexapro, committed suicide. She and the medical provider defendants reached a confidential settlement in the Utah state court action, titled Shipley v. Julien. That settlement was approved by the court and the record sealed.

The plaintiffs then brought a second lawsuit against Forest Laboratories, the manufacturer of Lexapro, alleging that Forest Laboratories was strictly liable for designing, manufacturing, and marketing the defective product Lexapro, which the defendant failed to label with adequate warnings about the risk of suicide.

The drug company attorneys issued a subpoena duces tecum to the law firm that had represented the plaintiff in the medical malpractice action, and two similar subpoenas to those who represented the defendants in that matter, asking for “[a]ll documents evidencing settlement of the litigation captioned Elaine Shipley, individually and as personal representative of heirs of Kurt Shipley v. Craig K. Julien, M.D., et al., Case No. 06070028, filed in the Second Judicial District, Davis County, Utah, including any executed settlement agreements, executed release of claims, and probate court approval of same.” The plaintiff filed a motion to quash the subpoenas, claiming the information sought by Forest Laboratories was irrelevant to the products liability litigation. Relying on Tanner v. Johnston, 2013 U.S. Dist. LEXIS 3512 (D. Utah 1/8/13), the defendant countered that the plaintiff's claims in Julien were based on the same events as the claims in the federal products liability action, so the Julien settlement was relevant because it might lead to information about damages that could be brought into evidence in the federal trial.

The court found defendant's reliance on Tanner was misplaced, because Tanner involved a single lawsuit in which plaintiffs brought overlapping claims against two sets of defendants who carried joint and several liability on the overlapping claims. Thus, the settlement agreement between the plaintiffs and the settling defendants was relevant to determine the non-settling defendant's liability. However, unlike Tanner, this case involved two lawsuits with different defendants, different causes of action and no joint or several liability. “Under these circumstances,” the court concluded, “the Julien settlement agreement is not obviously relevant to calculating Defendant's damages. The Julien defendants presumably settled Plaintiff's damages for medical malpractice[,] whereas here Plaintiff seeks damages from Defendant for products liability. Moreover, as Plaintiff notes, '[w]hatever [] [P]laintiff and the Julien defendants thought about [] [P]laintiff's damages and the Julien defendants' relative share of fault is not evidence; it is just the opinion of two parties or their counsel, expressed in settlement negotiations.' (Dkt. No. 43 at 4.)”

Because Forest Laboratories could not establish the relevance of the Julien settlement to this product liability claim, the court granted the plaintiff's motion to quash.

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