Opinion
CV-22-00062-TUC-JCH-BGM
02-02-2023
Betty Stensrud, a single individual in her sole and separate right, Plaintiff, v. Thomas Friedberg, et al., Defendants.
REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION FOR LEAVE TO FILE NOTICE OF NON PARTIES AT FAULT (DOC. 42)
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendants' Notice of Motion and Motion for Leave to File Notice of Non-Parties at Fault Pursuant to Ariz.R.Civ.P. 26(b)(5) and/or for Apportionment of Fault at Trial (Doc. 42) (“Defendants' Motion for Leave”), Plaintiff filed a response (Doc. 53), and Defendants replied (Doc. 58).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court, after its independent review, deny Defendants' Motion for Leave (Doc. 42). The recommendation is based on the 150-day limitation set forth in Ariz.R.Civ.P. Rule 26(b)(5) and the caselaw-determined framework for its application to Federal courts sitting in diversity.
Rules of Practice of the United States District Court for the District of Arizona.
I. BACKGROUND
On February 9, 2022, Plaintiff filed a Complaint (Doc. 1-1) in the Superior Court of Pima County, based on a dog bite incident occurring on April 11, 2021. The parties concur Defendants' dog bit Plaintiff, on Plaintiff's lower left leg, in a public location at the Pima County Fair Grounds. Plaintiff's first claim alleges common law negligence, and the second, strict liability under A.R.S. §§ 11-1025(A), -1001, and -1020. Plaintiff resides in Arizona, and Defendants reside in California, and own additional property in California. Plaintiff's damages as alleged in state court, is classified as Tier 3, and reserved for those case with damages over $300,000.
On February 9, 2022, Defendants filed a Notice of Removal (Doc. 1) in the U.S. District Court for the District of Arizona along with their Answer (Doc. 5). Defendant, again, filed their Answer, in duplicate, on February 10, 2022, see Answer (Doc. 7), includes affirmative defenses numbered 1 through 9 and reserves the right to assert additional. No reply was filed.
Defendants' request to notice non-parties at fault, is the second attempt to seek application of the Arizona State statute, A.R.S. § 12-2506, in this action, now removed to federal court. On September 21, 2022, Defendants filed a Notice re: Non-Party at Fault (Doc. 25) to which Plaintiff filed a Motion to Strike on September 27, 2022 (Doc. 26). Pursuant to the Order filed September 28, 2022 (Doc. 27), the Court granted Plaintiff's Motion to Strike (Doc. 26) and Defendants' Notice of Non-Party at Fault (Doc. 25) was stricken from the record.
Defendants' pending Motion for Leave (Doc. 42) requests leave to file a notice of non-parties at fault based on alleged “newly discovered evidence” and submits the Court should, “in the interest of equity,” grant Defendants leave to allow the trier of fact to consider apportionment of fault among joint tortfeasors at trial. The yet to be named entities Defendants seek leave to identify as non-parties at fault are:
1) Pima County Animal Care Center (PACC); and
2) Havasu Regional Medical Center.
Defendants allege the non-parties at fault may be wholly or partially at fault for Plaintiff's damages under Arizona's version of the Uniform Contribution Among Tortfeasors Act (“UCATA”), A.R.S. § 12-2506(B).
II. LAW
Generally, federal courts sitting in diversity apply federal procedural rules and state substantive rules. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Seisinger v. Siebel, 220 Ariz. 85, 91, 203 P.3d 483, 489 (2009) (Congress has no more ability through legislation than does the Supreme Court of the United States through rulemaking to prescribe the substantive rules of decision in diversity cases.); see also Hanna v. Plumer, 380 U.S. 460, 471-72, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (“[N]either Congress nor the federal courts can ... fashion rules which are not supported by a grant of federal authority contained in Article I or some other section of the Constitution; in such areas state law must govern because there can be no other law.”).
A.R.S. § 12-2506, provides that a tort defendant may designate a non- party at fault and argue the non-party is responsible for all or part of the alleged negligence. In pertinent part, A.R.S. § 12-2506(B), provides:
B. In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury, death or damage to property, regardless of whether the person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice before trial, in accordance with requirements established by court rule , that a nonparty was wholly or partially at fault. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of the named parties. Assessment of fault against nonparties does not subject any nonparty to liability in this or any other action, and it may not be introduced as evidence of liability in any action.A.R.S. § 12-2506(B) (emphasis added). The accompanying state law procedural rule, Arizona Rules of Civil Procedure (Ariz.R.Civ.P.), Rule 26(b)(5), provides “[t]he trier of fact may not allocate any percentage of fault to a nonparty who is not disclosed in accordance with” Rule 26(b)(5) except on the parties' stipulation or “on motion showing good cause, reasonable diligence, and lack of unfair prejudice to all other parties.” Ariz.R.Civ.P., Rule 26(b)(5). Rule 26(b)(5) also includes a 150-day limitation, which provides, “[n]o later than 150 days after filing its answer, a party must serve on all other parties-and should file with the court-a notice disclosing any person: (A) not currently or formerly names as a party in the action; and (B) whom the parties alleges wholly or partly at fault under A.R.S. § 12-2506(B).
The procedural law found in Rule 26(b)(5) merely prescribes the method by which § 12-2506 is implemented and effectuated. See Roddy, 184 Ariz. at 627, 911 P.2d at 633. To find otherwise would allow the rule to affect substantive rights prescribed by statute. (citation omitted) The primary intent
of the statute is to allow the trier of fact, in most cases, the jury, to apportion fault among all tortfeasors based on the facts presented at trial. (citation omitted) The existence and involvement of nonparties at fault are questions of fact ultimately for the jury to decide.Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433, 937 P.2d 353, 355 (App. 1996).
Application of the state procedural rule, Ariz.R.Civ.P., Rule 26(b)(5), to a federal court sitting in diversity, was previously decided in the case of Wester v. Crown Controls Corp., wherein the court set forth the analysis and held:
A failure to apply Ariz. R. Civ. P. 26(b)(5) would upset th[e] balance by conferring a significant litigation advantage upon defendants: If the rule does not apply in federal court, a defendant who removes could sandbag a plaintiff by refusing to conduct discovery or disclose relevant information regarding non-parties at fault until the statute of limitations has run. This advantage indicates that nonapplication of the rule in federal court would encourage forum shopping and foster inequity.Wester v. Crown Controls Corp., 974 F.Supp. 1284, 1287 (D. Ariz. 1996). The court in the Wester case, provides additional guidance regarding the 150-day notice requirement:
The 150-day notice requirement is designed primarily to give a plaintiff sufficient time to add a non-party at fault before the statute of limitations runs. [citation omitted] Because the same statute of limitations applies regardless of whether the suit is in state or federal court, [citation omitted] the goal of affording early notice to the plaintiff is equally salient in state and federal court. Thus, applying the rule in federal court would not take the rule out of its intended ‘context.'Wester, 974 F.Supp. at 1287, citing Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1468-69 (1945) and LyphoMed, Inc. v. Superior Ct. In & For Cnty. of Maricopa, 172 Ariz. 423, 428837 P.2d 1158, 1163 (App. 1992). Lastly, Wester emphasizes that part of the analysis includes consideration of the fact that “[a] failure to apply the state rule could also affect the amount of damages awarded at trial, thereby altering the outcome of the litigation.” Wester, 974 F.Supp. at 1288.
III. ANALYSIS
Based on the foregoing, the Court finds application of the state civil procedural rule-Ariz.R.Civ.P. Rule 26(b)(5)-appropriate in this case under Wester, supra. See Wester v. Crown Controls Corp., 974 F.Supp. 1284 (D. Ariz. 1996) citing Olympic Sports Products, Inc. v. Universal Athletic Sales, 760 F.2d 910 (9th Cir.1985), cert. denied, 474 U.S. 1060, 106 S.Ct. 804, 88 L.Ed.2d 780 (1986) (synthesized three-step outcome determinative approach when both state and federal rules apply); see also Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (when no federal rule applies, a court need only consider whether the policies underlying Erie warrant application of the state rule, however, when both state rule and a federal rule apply a court must determine whether the federal rule is constitutional and within the scope of the Rules Enabling Act, 28 U.S.C. § 2072, and if so, apply the Erie doctrine to determine whether the state rule nevertheless should govern); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 1469-70, 89 L.Ed. 2079 (1945); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (held federal courts sitting in diversity must apply state substantive law and federal procedural rules).
Based on the case of Wester, supra, and application of Ariz.R.Civ.P., Rule 26(b)(5) to the case at bar, the Court finds Defendants' Motion for Leave (Doc. 42) is, procedurally, time barred. The 150-day limitation, set forth in Ariz.R.Civ.P., Rule 26(b)(5), elapsed on July 9, 2022 (Saturday), or July 11, 2022 (Monday), or if calculated based on the second filing of the Answer on February 10, 2022, elapsed on July 11, 2022 (2022) (Monday).
In addition, the parties' Scheduling Order (Doc. 19) in this case provides, “All parties are granted until July 15, 2022, to move to join additional parties or to amend their pleadings.” Under Wester, supra, if the Court extended Defendants' ability to notice nonparties at fault beyond the 150-day period set forth in Ariz.R.Civ.P., Rule 26(b)(5), Plaintiff would suffer prejudice because the deadline to move to join additional parties expired on July 15, 2022, and any direct claim for the Plaintiff against the newly identified non-parties at fault, would be lost, and Defendants would be insulated against liability and the delay in disclosing non-parties at fault would act as indemnification against Plaintiff.
The Court notes Defendants, on December 1, 2022, filed Defendants' Notice of Motion and Motion to Modify Scheduling Order (Doc. 46), to which Plaintiff responded on December 14, 2022 (Doc. 51). The Court addresses Defendants' Motion to Modify Scheduling Order under separate cover.
Assuming, arguendo, the Court reached the merits of Defendants' Motion for Leave, the Court finds Defendants have not made a showing of good cause or reasonable diligence, and as explained above, have not overcome the unfair prejudice threshold under Ariz.R.Civ.P., Rule 26(b)(5), sufficiently, to extend the 150-day limitation for noticing non-parties at fault.
Assuming arguendo, the Court were to reach the merits of Defendants' Motion for Leave, the Court reviews each of Defendant Friedberg's assertions set forth in Thomas Friedberg's Declaration accompanying Defendants' Motion for Leave, as follows.
Paragraph 6
Friedberg's Declaration at Paragraph 6 states, the dog's collar “was shown to Plaintiff at the time of the incident.” Friedberg Decl. (Doc. 42-2 at 2, ¶ 6) (emphasis added). The Court does not consider this statement as ‘new evidence' to support the required finding of good cause to extend the 150-day deadline for notice of non-parties at fault, as the party Defendants seek to notice as non-parties at fault, i.e., PACC, and or Girvin, was not at the scene of the incident when the dog was at the scene of the incident, in order for Girvin to observe the dog's collar as the proposed proof of rabies vaccination. Paragraph six (6) purports that Defendant Friedberg showed Plaintiff the dog collar, not Girvin the investigator. Any evidence of showing Plaintiff the dog collar is insufficient for the grounds needed as ‘new evidence' to extend the 150-day deadline for notice of nonparties at fault. When Girvin arrived on the scene, the dog had already left with Defendant Bunge, and Defendant Freidberg “was not willing to bring the dog back” based on the notion that “he was leav[ing] asap for California due to how the staff at the fairgrounds is acting[.]” (Doc. 42-10 at 4).
Despite Defendant Friedberg's reasoning for not bringing the dog back as described to Girvin at the time of the incident, i.e., “California” “asap,” Defendant Friedberg later called Girvin-not until after the quarantining period-and advised Girvin, “he took ‘Cooper' to Colorado after the bite. He advised he took Cooper for his health check today. He provided [Girvin] proof with a signed quarantine release form and a statement from a vet clinic[.]” (Doc. 42-10 at 4). The “proof” referred to the health check. And, the quarantine release form was from a vet clinic in “Chandler, Arizona,” according to the documents uploaded to the Bite Report. (Doc. 42-10 at 10-12).
Accordingly, the Court finds Defendants, in paragraph six (6), have not provided good cause, or reasonable diligence for this Court to extend 150-day limitation set forth in procedural Rule 26(b)(5) for noticing non-parties at fault, and the Court finds doing so, would result in unfair prejudice to the Plaintiff.
Paragraph 16
Defendants' Thomas Friedberg's Declaration in support of Defendants' Motion for Leave (“Friedberg's Declaration”) (Doc. 42-2) asserts, at paragraph 16, that during the deposition of PACC investigator Sarah Girvin, on July 29, 2022,in pertinent part,
The Court notes that Exhibit H, Sarah Girvin's Deposition was taken on July 29, 2022, despite Friedberg's Declaration, Paragraph 16's reference to July 29, 2021.
Prior to taking the deposition of PACC investigator Sarah Girvin on July 29, 2021 [ sic ], Defendants had no evidence or other information suggesting that PACC and Girvin had acted in a negligent manner that cause or contributed to the damages Plaintiff claims in this action.
* * *
[Defendants learned for the first time that Girvin had acted negligently by failing to take appropriate action to confirm that Defendants' dog had a current rabies vaccination at the time of the April 11, 2021 biting incident. In a phone call with a PACC dispatcher on April 11, 2021, I provided PACC the 2021 national rabies certificate number that is on the dog's collar at all times. When Girvin interviewed me at the scene I confirmed that Cooper had a current rabies vaccination and also provided Girvin with the dog's 2021 rabies vaccination certificate number. I was aware that Girvin recorded the number in her PACC Report of the incident.See Decl. of Thomas Friedberg in Support of Defendants' Motion for Leave to File Notice of Non-Parties at Fault Pursuant to Ariz. R. Civ. P. 26(b)(5) and / or for Apportionment of Fault at Trial, p. 3, ¶16 (Doc. 42-2).
In addition, Defendant's Exhibit G, Pima County Animal Care Center, Bite Report, Case Number B21-043834, date of incident, April 11, 2021, provides, in pertinent part, as follows:
I [Girvin] made contact with dog owner Tom Friedberg on scene. Who advised:
* * *
That his wife has already left with Pooper [ sic ] and they are heading back to San Diego where they live.
* * *
That Poopers license number is 8191533.
* * *
I asked him for proof of rabies information and a picture of Pooper [ sic ]. He stated he didn't have a picture of or any proof of rabies. I provided him with my cell phone number to send the rabies information over to. I the [ sic ] issued a home quarantine of which he refused to signed. He asked if he could leave and I stated he could do so. I spoke with Sgt Hinte who advised I would need to inform San Diego animal control of the biting dog being in their jurisdiction. Resetting call to reach out to San Diego animal control and to interview the victim.
Exhibit G (Doc. 42-10 at 2), Pima County Animal Care Center Bite Report (“PACC”), Case Number B21-043834, date of incident, April 11, 2021 (emphasis added).
I [Girvin] explained [to Plaintiff] per the owner the dog was current on a rabies vaccine but he was unable to show proof. I stated I would send the owners information to her via text. She stated she understood.Exhibit G, PACC Report (Doc. 42-10 at 6) (emphasis added).
Friedberg's Declaration, Paragraph 16, attempts to characterize Girvin's deposition on July 29, 2022, as “new evidence” or good cause to extend the 150-day limitation for notice of non-parties at fault which lapsed on July 11, 2022. Additionally, Friedberg's reasoning attempts to shift the burden of proving rabies vaccination-from himself-to the investigator. In addition, Friedberg attempts to use the dog “license” identification number, i.e., 8191533, interchangeably with his alluding to a “rabies” vaccination identification number. Defendant's own evidence, Exhibit G, provides Girvin, “asked him for proof of rabies information” and “he stated he didn't have . . . any proof of rabies.” Exhibit G (Doc. 42-10 at 2). Exhibit G further provides “that Poopers [sic] license number is 8191533.” Exhibit G (Doc. 42-10 at 5).
The Court finds that Girvin's deposition-taken post lapse of the 150-day limitation for notice non-parties at fault, and the alleged claim that Defendant Friedberg “learned for the first time” that neither the dispatcher or Girvin followed up on Defendant Friedberg's verbal identification of the dog's license number-is not sufficient for a finding of ‘new evidence,' or good cause, or due diligence, to extend the 150-day limitation on notice of non-parties at fault. Defendant Friedberg would have already been aware that he provided a verbal identification of the dog's license number over the phone to the dispatcher, and a verbal identification of the dog's license number to Girvin at the time of the incident- despite the dog's absence, and Girvin's inability to verify that the license number provided by Defendant Friedberg was the license number appearing on the dog's collar. The Court finds providing the dog's license number, alone-without the presence of the dog at the time Girvin arrived at the scene on April 11, 2021-and Girvin's deposition, are not ‘new evidence' sufficient to extend the 150-day limitation period of Ariz.R.Civ.P. Rule 26(b)(5).
In addition, Friedberg's Declaration, Paragraph 16, claims that he provided “[i]n a phone call with a PACC dispatcher on April 11, 2021, I provided PACC the 2021 national rabies certificate number that is on the dog's collar at all times[,]” however, without the presence of the dog, a verbal recitation of a dog license number over the phone is not proof that the dog in question, no longer at the scene of the incident, possesses a current rabies vaccination, and Defendants present no evidence in support of this assertion other than Friedberg's Declaration. Lastly, Friedberg's Declaration, Paragraph 16, attempts to shift the burden of verifying proof of rabies vaccination from Defendants, to Girvin, or PACC, based on verbal declarations of a dog's license number, without the presence of the dog, is not grounds to apportion fault.
Paragraph 17
Friedberg's Declaration at Paragraph 17 states:
At Girvin's deposition on July 29, 2022 Defendants learned for the first time that Girvin made no attempt to contact the national rabies vaccination registry to verify that our dog had a current vaccine and the information I provided to PACC was accurate. During her deposition I also learned for the first time that Girvin spoke to Plaintiff on April 12, 2021 and again on April 19, 2021. Girvin revealed that she did not provide Plaintiff with Cooper's national rabies vaccination certificate number in either of these calls.See Decl. of Thomas Friedberg in Support of Defendants' Motion for Leave to File Notice of Non-Parties at Fault Pursuant to Ariz. R. Civ. P. 26(b)(5) and/or for Apportionment of Fault at Trial, pp. 3-4, ¶17 (emphasis added).
Defendants submit, through the Declaration of Thomas Friedberg, ¶17, that there exists a national “rabies” vaccination certificate number, but the number in the PACC Report is identified as the dog's “license” number, i.e., 8191533. Defendants submit further that there is a “national rabies vaccination registry,” that Girvin should have consulted, to determine the status of the dog's rabies vaccination, however, Defendants provide no evidence in support of a national rabies vaccination registry and the burden shift from Defendants to Girvin is not ‘new evidence' in support of good cause, or due diligence, to extend the 150-day deadline for notice of non-party at fault. In addition, the Court does not consider the allegations in Paragraph 17 as good cause to apportion fault at trial.
Paragraph 18
The Declaration of Thomas Friedberg in Paragraph 18, provides:
Plaintiff was deposed on September 29, 2022. In her deposition Plaintiff revealed for the first time that she had made a number of attempts to contact Girvin but received no response until April 19, 2021, days after she had begun a series of rabies vaccinations. At her deposition Plaintiff disclosed that she had never received from Girvin or PACC the dog's rabies vaccination certificate number. She also revealed for the first time that Girvin and PACC never provided Plaintiff with the veterinary clearance and confirmation of rabies vaccine that I provided to Girvin on April 21, 2021.See Decl. of Thomas Friedberg in Support of Defendants' Motion for Leave to File Notice of Non-Parties at Fault Pursuant to Ariz. R. Civ. P. 26(b)(5) and/or for Apportionment of Fault at Trial, p. 4, ¶18 (emphasis added).
Exhibit G, Pima County Animal Care Center Bite Report, Case Number B21-043834, entry for April 21, 2021, Girvin, provides, in pertinent part,
Owner Tom Friedberg contact [ sic ] me on my county cell phone. He advised he took “Cooper” to Colorado after the bite. He advised he took Cooper for his health check today. He provided me proof with a signed quaratine [ sic ] release form and a statement from a vet clinic. I reviewed the records and advised I still needed a picture of Cooper with a time stamp. He stated he would send one over. I advised if this happens again he needs to bring the biter dog to address of which he provides.See Exhibit G, PACC Report at 8; see also Pima County Premises Quarantine Agreement, PACC Report at 11 (“Confinement” “Home”) (emphasis added). In addition, the Court notes an entry for April 21, 2021 at the beginning of the report which states the following, “Owner sent me proof of a health check. Dog appears free of rabies at this time.” Exhibit G at 2.
Here, again, Defendant attempts to use a “rabies” vaccination certificate number interchangeably with the dog's license number, as discussed, supra, Paragraph 17.
Paragraph 18 of Thomas Friedberg's Declaration submits he provided a “veterinary clearance” and “confirmation of rabies vaccine” to Girvin on April 21, 2021, however, the “health check” and “quarantine release form” Girvin uploaded to the PACC Report at 10 and 11 provide no indications regarding rabies, rather the Trilogy Veterinary Medical Center, in Chandler, Arizona, merely indicates an “office visit,” and the PACC Premises Quarantine Agreement, merely indicates, “home” “confinement,” that the “owner” “*refused*” signature, and that on April 21, 2021, the veterinarian signed off regarding “quarantine as described on this page and find it to be healthy and free from any signs of rabies.” Exhibit G (Doc. 42-10 at 11). A dog license number identifies the dog, it does not identify the date a vaccine is administered or the date the vaccine expires to determine if the dog is current on rabies vaccination.
The Court does not find Paragraph 18, or the allegation that the deposition of Plaintiff on September 29, 2022, is ‘new evidence,' in support of extending the 150-day limitation for notice of non-parties at fault based on an alleged ‘rabies' certification number used interchangeably with the dog's license number, and the allegation that a vet's statement of the dog ‘appearing free from any signs of rabies,' as the proof required at the time of the incident of a dog's current rabies vaccination. At the time of the incident, based on Defendant Friedberg's statement, that the reason he could not bring the dog back to the scene of the incident was because the Defendants and the dog would be going to San Diego “asap,” Girvin reported she would be in contact with animal control in San Diego to issue the quarantine there. (Doc. 42-10 at 6) The Court finds Paragraph 18 does not provide good cause, or the due diligence necessary to justify extending the 150-day deadline for notice of non-party at fault, nor does the Court find good cause to apportion fault at trial.
Paragraph 19
In Paragraph 19 of Thomas Friedberg's Declaration, Defendants submit:
On August 23, 2022 Defendants received the Rule 26 Report of their medical expert, Andrew James Lawson, M.D., F.A.C.E.P. Dr. Lawson's report revealed for the first time that Havasu Regional Medical Center acted below the standard of care when it began administering a series of rabies PEP vaccines to Plaintiff on April 16, 2021. In his August 23, 2022 Report Dr. Lawson provided his expert opinion that the rabies PEP vaccinations provided by Havasu Regional Medical Center were unnecessary and contrary to the standard of care set forth by the Arizona Department of Health Services and the Center for Disease Control (“CDC”). Dr. Lawson reports that the CDC and the Arizona Department of Health Services set forth the guidelines to be followed when considering whether to administer rabies PEP. The standard of care is that rabies PEP should not be administered in cases of a domestic dog bite within the first 10 days. If the dog appears healthy and can be quarantined for 10 days, the medical provider should not begin administration of rabies PEP.See Decl. of Thomas Friedberg in Support of Defendants' Motion for Leave to File Notice of Non-Parties at Fault Pursuant to Ariz. R. Civ. P. 26(b)(5) and/or for Apportionment of Fault at Trial, p. 4, ¶19 (Doc. 42-2) (emphasis added).
According to Exhibit G, on April 11, 2021, Grivin noted the following, “I the [ sic ] issued a home quarantine of which he [Defendant Friedberg] refused to signed [sic].” Exhibit G (Doc. 42-10 at 2). In addition, although this expert's opinion was obtained after the 150-day deadline for notice of non-party at fault, according to Exhibit G (Doc. 42-10 at 7), Plaintiff reported on April 15, 2021, “she has an appointment in two days 04/17/21 to receive rabies shots.” Exhibit G (Doc. 42-10 at 7). As of April 15, 2021, the only documentation available, was the notation that home quarantine was still in question because Defendant Friedberg had refused to bring the dog back for observation by Girvin, Defendant Friedberg refused to sign the quarantine paperwork, and no proof of current rabies vaccination had been provided by Defendants to PACC, or Plaintiff, contrary to verbal recitation of the dog's license number and contrary to Friedberg's Declaration at 2, ¶ 6, that the “dog's collar” “was shown to Plaintiff at the time of the incident.” Plaintiff, after being bit by a dog, was in no condition to view the dog's collar, the dates on the collar, or the dog's license number, particularly given the length of the dog's hair and the need to brush the hair aside to view the collar.
Despite Defendants receiving their expert report regarding the standard of care for administering rabies vaccination to Plaintiff on August 23, 2022, after the deadline for notice of non-parties at fault, the Court finds this is not sufficient support for good cause or due diligence to extend the deadline beyond the 150-days. The only documentation available for the Plaintiff, or Havasu Regional Medical Center, at the time of administering the rabies vaccination to Plaintiff, i.e., the Bite Report, indicated that Defendant refused to bring the dog back to the scene of the incident for observation, Defendant Friedberg refused to sign the “Conditions of Release” on the “Premises Quarantine Agreement” and although Defendant Friedberg provided the dog's license number, at the time of the incident, he did not identify the number as a ‘rabies' certification number, as he does now. And although, on April 21, 2021, Defendant Friedberg provided a picture of the dog with a time stamp, Defendant Friedberg's allegation that he previously provided the dog's license number to the dispatcher over the phone, and provided Girvin the dog's license number, this is not proof of current rabies vaccination. According to the Bite Report, Defendant Friedberg was not willing to sign the “Premises Quarantine Agreement,” the Synopsis & Memos therein provides, “Owner left scene with biter dog unable to quarantine. 3015 notified appropriate jurisdiction” and it wasn't until April 21, 2021 that “Owner sent [Girvin] proof of a health check. Dog appears free of rabies at this time.” (Doc. 42-10 at 1, 2, and 11.) Defendants “had left the County,” and the dog was not available for observation or quarantine. Plaintiff and Girvin were unable to determine if the dog would be quarantined for the 10 days.
Defendants' Exhibit M (Doc. 42-16), Fed.R.Civ.P. Rule 26(a)(2) Report of Andrew James Lawson, M.D., F.A.C.E.P. (“Lawson's Report”), references the Arizona Department of Health Services document entitled “Rabies Post Exposure Prophylaxis for Dog & Cat Bites” attached to Lawson's Report as Exhibit B (“Rabies Post Exposure Prophylaxis”). In pertinent part, the Rabies Post Exposure Prophylaxis provides the following:
(Image Omitted)
See Exhibit M (Doc. 42-16), Lawson's Report (Exhibit B). The Court notes, according to the chart above, the availability of the animal for quarantining, is a condition-as indicated in the first balloon, and whether or not the animal is located, as indicated by the dotted line-presumably for observation and the ability to observe any signs of rabies. According to Defendants' Exhibit F (Betty Stensrud's Deposition taken September 29, 2022) (Doc. 42-9) and Exhibit I (Northwest Emergency Center of Vail) (Doc. 42-12), Dr. Szczepanski made the following entry, “As this is an owned animal and animal control is involved in observing the animal, rabies prophylaxis was not initiated.” Exhibit I (Doc. 42-12 at 3). Exhibit I further states, “the vaccination of the dog that bit her is not fully confirmed although the owner said that the dog was vaccinated.” Exhibit I (Doc. 42-12 at 1).
At the time of incident, April 11, 2021, Defendant had indicated to Grivin, “That his wife has already left with Pooper [ sic ] and they are heading back to San Diego where they live.” See Exhibit G (Doc. 42-10 at 2) (emphasis added). On April 19, 2021, Plaintiff texted Girvin and Girvin called Plaintiff back and “[Plaintiff] wanted to know why the biter dog hadn't been quarantine.” Exhibit G (Doc. 42-10 at 8). Girvin responded, “I advised the case has been passed off to San Diego Humane Society.” Exhibit G (Doc. 42-10 at 8). “[Plaintiff] advised she called them and they had no record of her.” Exhibit G (Doc. 42-10 at 8). Plaintiff inquired about how the dog owner could leave the scene. Girvin advised Plaintiff, “I explained the dog had already left at that point and the owner was not willing to bring the dog back.” Exhibit G (Doc. 42-10 at 8) (emphasis added). On April 21, 2021, Defendant Friedberg had contacted Grivin and advised, “he took ‘Cooper' to Colorado after the bite.” Exhibit M (Doc. 42-10 at 8) (emphasis added). Girvin further reported, “I advised if this happens again he needs to bring the biter dog to address of which he provides.” Exhibit G (Doc. 42-10 at 8).
According to Exhibit G, during the period of so-called quarantining, the dog's whereabouts were inconclusive, making any observations of the dog's condition unknown, and contact with the owner did not occur until April 21, 2021. The Court notes, Exhibit A (Doc. 42-4), a Videotaped Videoconference Deposition of Thomas Friedberg, dated September 30, 2022, provides the following, in pertinent part:
[Mr. Thomson]: So around this time in - on April 21st, 2021, were you guys in Arizona?
[Mr. Friedberg]: Yes.
[Mr. Thomson]: Were you staying at your house in Tucson?
[Mr. Friedberg]: Yes
[Mr. Thomson]: And had you been staying at that house in Tucson continuously between April 11th, 2021 and April 21st, 2021?
[Mr. Friedberg]: The answer is yes. On April 11th, Sarah started to go back to San Diego and then turned around and came back to Tucson, but the evening of April 11th onwards to April 21, we were in Tucson.Exhibit A (Doc. 42-4 at 5). The Court finds Exhibits A (Doc. 42-4), Exhibit F (Doc. 429), and Exhibit I (Doc. 42-12), do not provide “new evidence” for a good cause determination, or due diligence analysis, for purposes of Defendants' request to extend the 150-day deadline for notice of non-parties at fault. The Court, in addition, does not consider Exhibits A, F, and I as grounds for apportionment of fault at trial.
Plaintiff's treatment providers were without the presence of the dog for quarantining, without evidence of the dog's condition, whether presenting signs of rabies, and without proof of rabies vaccination, i.e., the date the vaccine was administered, and or the date the vaccine expired, and without knowledge of whether the dog was under quarantine.
Exhibit M - Report of Andrew James Lawson, M.D., F.A.C.E.P.
Defendants submits Exhibit M, a Report of Andrew James Lawson, in support of the following statement in the Memorandum of Points and Authorities “The veterinary certificate confirming the valid rabies vaccination and no signs or symptoms of rabies at the end of the 10 day quarantine period was provided to PACC on April 21, 2021. (Fed.R.Civ.P. Rule 26(a)(2)(A-(C) Report of Andrew James Lawson, M.D., F.A.C.E.P. (“Lawson Report”), Exhibit M.” See Memorandum of Points and Authorities (Doc. 42-1 at 15).
Despite Defendants' Exhibit M, the Lawson Report received on August 23, 2022 (“Lawson Report”) (Doc. 42-16) occurring after the lapse of the 150-day limitation on July 11, 2022, the Court does not consider the Lawson Report, or the opinion therein, “new evidence” for purposes of granting any extensions for notice of nonparties at fault, because the Lawson Report is merely an opinion for the trier of fact to consider, and the Court declines to consider Defendants' Exhibit M, the Lawson Report, for purposes of the good cause or due diligence analysis to extend the 150-day deadline for notice of non-parties at fault. The Court further declines to apportion fault at trial based on Dr. Lawson's Report. Paragraph 20
According to Defendant Friedberg's Declaration, Paragraph 20:
Dr. Lawson provided his expert opinion that the rabies PEP was not warranted in this case because the dog's owner, Defendants, provided a national rabies number at the scene to the animal control officer and Defendants informed both Plaintiff and Girvin at the scene that the dog was vaccinated. Defendants also complied with the Pima County quarantine order by quarantining our dog for a period of ten days, we had the dog examined by a veterinarian on the tenth day and we provided proof of the
examination confirming that the dog was rabies free within ten days of the biting incident. Dr. Lawson opined that even if there was no verification of the dog's rabies vaccine, the standard of care and standard of practice is that there was no medical necessity to provide rabies PEP for this domestic dog bite. The veterinary certificate confirming the valid rabies vaccination and no signs or symptoms of rabies at the end of the 10 day quarantine period was provided to PACC on April 21, 2021.See Decl. of Thomas Friedberg in Support of Defendants' Motion for Leave to File Notice of Non-Parties at Fault Pursuant to Ariz. R. Civ. P. 26(b)(5) and/or for Apportionment of Fault at Trial, pp. 4-5, ¶ 20 (Doc. 42-2).
According to Exhibit G, on April 21, 2021, Girvin uploaded a “statement from a vet clinic” provided by Defendant Friedberg. Exhibit G (Doc. 42-10 at 8). The Trilogy Veterinary Medical Center “statement” appearing in Exhibit G (Doc. 42-10 at 10), indicates nothing about a valid rabies vaccination. Exhibit G (Doc. 42-10 at 10). In addition, the Premises Quarantine Agreement signed by the vet merely indicates “free of any signs of rabies” after the quarantining period. Exhibit G (Doc. 42-10 at 11) (emphasis added).
The Court declines to extend the 150-day deadline for notice of non-parties at fault based on Dr. Lawson's expert opinion that the rabies PEP was not warranted in this case because the dog's owner, Defendants, provided a national “rabies” number at the scene to the animal control officer and informed both Plaintiff and Girvin at the scene that the dog was vaccinated. Defendants' statement to Girvin and Plaintiff that the dog was vaccinated is not proof of current rabies vaccination and the dog's license number is not proof of whether the dog has a current rabies vaccination, and Dr. Lawson's expert opinion that the rabies PEP was not warranted based on this information, is merely an opinion for the Court's consideration, as at the time of administering the rabies vaccination there was uncertainty as to whether the dog was available for quarantining or the whereabouts of the dog, whether in California, Colorado or Arizona.
Exhibit D - Photograph of Cooper's collar with dog tag
Defendants' Exhibit D is a picture of a blue dog tag pictured as follows:
“2021”
“Rabies Vacc”
“National ID #”
“8191533”Exhibit D (Doc. 42-7).
Friedberg's Declaration provides the following, in pertinent part, “Attached as Exhibit D to the Exhibits-Apportionment is a true and correct copy of a photograph of the tag with the national rabies vaccine identification number that is on Cooper's collar at all times, was on the dog's collar at the time of the incident and was shown to Plaintiff at the time of the incident.” Friedberg's Decl. at 2, ¶ 6 (Doc. 42-2). It is not clear to this Court when this photograph was disclosed, however, regardless of the date of disclosure, the Court finds Exhibit D is not ‘new evidence' for purposes of the good cause and due diligence analysis necessary for the Court's consideration of extending the 150-day deadline for notice of non-parties at fault, as by Defendant Friedberg's own admission in his Declaration, the tag is “on Cooper's collar at all times, was on the dog's collar at the time of the incident and was shown to Plaintiff at the time of the incident.” Friedberg's Decl. at 2, ¶ 6 (Doc. 42-2).
Exhibit H, Girvin's deposition on July 29, 2022, provides the following:
[Mr. Thomson]: Could you read the date on it? The “Rabies Certificate.”
[Girvin]: Saturday, July 23, 2021.
[Mr. Thomson]: and can you look further down on “Vaccine Information” and then date of administration?
[Girvin]: It says administered July 1st - July - January 23rd, '21.
[Mr. Thomson]: That says January 23rd, '21?
[Girvin]: Yes, sir.
* * *
[Mr. Thomson]: Ms. Girvin did you read the date that the rabies vaccination was administered?
[Girvin]: It says January 23rd, 2021.
[Mr. Thomson]: And that rabies vaccine carries an ID number 8191533; true?
[Girvin]: Yes.
[Mr. Thomson]: And that's the number that Mr. Friedberg gave you on April 11th?
[Girvin]: Yes.
[Mr. Thomson]: Okay. The first day you met him, he gave you the rabies tag number? True?
[Girvin]: Yes.
***
[Mr. Mercaldo]: Ms. Girvin, he didn't give you the rabies tag, he gave you a - he gave you a - a license number of a - of a dog; true?
[Girvin]: Yes.
Exhibit H, Excerpts from Deposition of Sarah Girvin (Doc. 42-11 at pp. 10-11). The Court finds that Exhibit H is not “new evidence” for purposes of the good cause analysis needed to extend the 150-day limitation on notice of non-parties at fault or to apportion fault at trial.
Exhibit I - Excerpts of Emergency Documentation Vail Emergency Room 04/11/21
Defendants' Exhibit I, Emergency Documentation from Plaintiff's hospital admission date of April 11, 2021, provides, “The vaccination of the dog that bit her is not fully confirmed although the owner said that the dog was vaccinated.” Exhibit I (Doc. 4212 at 1). The Court finds that Exhibit I does not raise to the level of “new evidence” for purposes of Defendants' request to extend the 150-day deadline for notice of non-parties at fault and lacks the necessary good cause for apportionment of fault at trial.
Exhibit C - Photograph of the dog named “Cooper
Defendants' Exhibit C is a picture of the dog, “Cooper,” with perhaps a collar on, however, due to the length of the dog's hair, the Court is unable to fully see the dog tag or any engraving, or lack thereof. The Court finds that Exhibit C is not “new evidence” for purposes of Defendants' request to extend the 150-day limitation on the filing of any notice of non-parties at fault. The Courts lacks evidence to support a finding of good cause or due diligence to support Defendants' request for apportionment of fault at trial based on Exhibit C (Doc. 42-6).
Exhibit J - Excerpts of Plaintiff's TrueCare Urgent Care Lake Havasu City, AZ
Defendants' Exhibit J contains excerpts of Plaintiff's medical records from her visit, April 14, 2021, to TrueCare Urgent Care LLC in Havasu City, Arizona. In pertinent part, the notes indicate as follows, “Bitten by dog left lower leg while in Tucson 4-11-2021 here for recheck.” “Says Tucson is still trying to determine if dog has rabies. I highly recommend she get rabies vaccine if they cannot quarantine the dog.” “Recommend she go to Er for rabies ASAP And have warned rabies can be fatal if not treated early. So she needs to get started within next 3 days.” Exhibit J (Doc. 42-13 at 1) (emphasis added).
The Court declines to consider Exhibit J as “new evidence” for purposes of determining whether to extend the 150-day limitation for notice of nonparties at fault.
Exhibit K - Excerpts of Plaintiff's medical records at Havasu Regional Med. Ctr.
Defendants' Exhibit K is excerpts of Plaintiff's treatment records at Havasu Regional Medical Center in April of 2021. Exhibit K (Doc. 42-14). In pertinent part, the medical notes from April 16, 2021, reflect the following, “Pt states animal control and unable to obtain vaccine records or quarantine the dog. Pt states she was told to come to ED for rabies vaccine.” Exhibit K (Doc. 42-14 at 1). On April 19, 2021, notes indicate, in pertinent part, “Presenting complaint: Patient states: she was instructed to come in for a second set of Rabies vaccinations after being bit by a dog 1 week ago.” Exhibit K (Doc. 42-14 at 2) (emphasis added). On April 22, 2021, notes indicate in pertinent part, “Presenting complaint: Patient states: she is here for her 3rd rabies injections and to have sutures removed.” Exhibit K (Doc. 42-14 at 3) (emphasis added). On April 30, 2021, in pertinent part, “Pt arrives to the ED with c/o needing last rabies vaccine post dog bite sustained on 04/11/21 at the Pima county fair grounds.” Exhibit K (Doc. 42-14 at 4) (emphasis added).
The Court declines to consider Exhibit L as “new evidence” for purposes of determining whether to extend the 150-day limitation for notice of nonparties at fault. Exhibit L - Expert Report of Agnes Grogan, RN signed August 25, 2022
Defendants submit Exhibit L (Doc. 42-15) (“Grogan Expert Report”) in support of their request to extend the 150-day limitation for notice of non-parties at fault, as stated in their Memorandum of Points and Authorities as follows, “The medical provider billed $33,710.88 for the rabies vaccinations, and accepted $3,949.38 from Medicare as payment in full. (Agnes Grogan Expert Report at pp. 2, 4, Exh. L.)” See Memorandum of Points and Authorities (Doc. 42-1 at 14); see also Exhibit L (Doc. 42-15).
Defendants also submit Exhibit L, the Grogan Expert Report, in support of the Jimenez case, regarding the following proposition, “The Federal Court in Arizona, in a diversity case, determined that, notwithstanding the collateral source rule, under Arizona law, “reasonable expenses incurred for medical services” are those expenses which the healthcare providers agree to accept as payment in full. Jimenez v. Progressive Preferred Ins. Co., 2020 U.S. Dist. LEXIS 74264, *26 (Ariz. 2020).” See Memorandum of Points and Authorities (Doc. 42-1 at 14).
The Court declines to consider Exhibit L as “new evidence” for purposes of determining whether to extend the 150-day limitation for notice of nonparties at fault. Elapse of the 150-days occurred July 11, 2022 (2022), and although the report was signed August 25, 2022, Exhibit L, the Grogan Expert Report, is merely an opinion for the trier of fact to consider.
Exhibit E - “Cooper's” Rabies Certificate
Lastly, Defendants' Exhibit E (Doc. 42-8) is a Rabies Certificate dated January 23, 2021. The certificate provides as Cooper Bunge's “Rabies Tags” a prototype which reflects the following: “Banfield” “National Pet ID #” the number “8191533” and a “County and Tag #” “none.” Exhibit E (Doc. 42-8). Exhibit E further provides the following entries: “Vaccine Name: Rabies (Type: Killed)” “Producer: Zoetis Defensor 3” “Administered: 1/23/2021” “Due Dated: 1/23/2024” “Lot/Serial #: 419399” and Lot Serial Expires 10/12/2021” and “I hereby certify that this pet has been vaccinated in accordance with all state and Federal laws and regulations on this date” with the Veterinarian's signature for Dr. Julia Steinke and DVM License Number. Exhibit E (Doc. 42-8).
The Court finds, for purposes of Defendants' request to extend the 150-day limitation for notice of non-parties at fault, Exhibit E is not ‘new evidence' as a basis for the good cause finding necessary for the Court to consider extending the deadline. The Rabies Certificate, dated January 23, 2021, was within the control of Defendants, and is the document that would have provided the proof of the dog's current rabies vaccination, i.e., date administered and date due, and yet the Defendants did not provide a copy of this document to Girvin, the animal control investigator for purposes of the Bite Report (Doc. 42-10). The Court declines to extend the 150-day deadline for notice of non-parties at fault based on Defendants' presentation of Exhibit E, nor will the Court consider Exhibit E as a basis for apportioning fault at trial.
IV. CONCLUSION
Based upon the foregoing, the Court finds that Defendants' Motion for Leave to File Notice of Non-Parties at Fault (Doc. 42) is either procedurally time barred, or without merit, and should be denied.
V. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order denying Defendants' Motion for Leave to File Notice of Nonparties at Fault (Doc. 42).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-22-00062-TUC-JCH.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.