Opinion
No. 1 CA-CV13-0523
11-25-2014
RHONDA K. CHICHARELLO, surviving parent of Eugene R. Chicharello, deceased, individually, and for and on behalf of Brody Chicharello and Silas Chicharello, surviving minor children of deceased; Jose Hernandez and Timothy Chicharello, surviving children of deceased, and The Estate of Eugene R. Chicharello, Plaintiff/Appellant, v. STATE OF ARIZONA, Defendant/Appellee.
COUNSEL Branham Law Offices, P.C., Mesa By Marlon E. Branham Counsel for Plaintiff/Appellant Dickinson Wright PLLC, Phoenix By Denise H. Troy Counsel for Defendant/Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CV2011-099100
The Honorable Mark F. Aceto, Judge
AFFIRMED
COUNSEL Branham Law Offices, P.C., Mesa
By Marlon E. Branham
Counsel for Plaintiff/Appellant
Dickinson Wright PLLC, Phoenix
By Denise H. Troy
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined. PORTLEY, Judge:
¶1 Rhonda K. Chicharello, surviving parent of Eugene R. Chicharello, deceased, individually, and for and on behalf of Brody Chicharello and Silas Chicharello, surviving minor children of deceased; Jose Hernandez and Timothy Chicharello, surviving children of deceased, and The Estate of Eugene R. Chicharello (collectively "Plaintiffs") appeal the summary judgment granted to the State. Plaintiffs argue that the trial court wrongly granted judgment because they presented evidence demonstrating a genuine dispute of material fact. Because we find no genuine dispute of material fact, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Eugene Chicharello ("Chicharello") was sentenced to ten years in prison in 2007 and was incarcerated at the Kingman/Hualapai State Prison. Early in October 2010, inmate Tim Haight-Gyuro ("Gyuro"), noticed that Chicharello was having trouble standing in the bathroom. Gyuro helped Chicharello to his bunk, and Gyuro then returned to his bunk. A few seconds later "[a]nother inmate . . . told [Gyuro, he] thought [Chicharello] was dying. [Gyuro] went back over[,] checked for a pulse [and] got nothing . . . ." The inmates began cardio pulmonary resuscitation on Chicharello, and within moments staff took over the resuscitation attempts. When the inmates told the staff that Chicharello may have used illegal drugs, they administered Narcan to attempt to counteract the drugs. The resuscitation efforts were unsuccessful.
¶3 Plaintiffs sued the State for wrongful death, and subsequently disclosed that their sole expert would opine that Chicharello's cause of death was "Narcotic Lung due to Intravenous Narcotic Use." The State moved for summary judgment arguing that Plaintiffs produced no evidence that the State was negligent in failing to treat Chicharello or that the failure caused his death. After briefing, the trial court granted the motion. Specifically, the court adopted Plaintiffs' key events in their statement of facts, but found that there was no evidence that stated or suggested a breach of the standard of care or that earlier treatment would have led to a different outcome.
The court also found that Plaintiffs failed to show a genuine dispute of material fact that the State negligently failed to timely react on October 6, but Plaintiffs have not challenged that ruling on appeal.
DISCUSSION
¶4 In reviewing a motion for summary judgment, we determine de novo whether any genuine disputes of material fact exist and whether the trial court properly applied the law. See Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App. 2000). We view the facts and the inferences to be drawn from those facts in the light most favorable to the party against whom judgment was entered. AROK Constr. Co. v. Indian Constr. Svcs., 174 Ariz. 291, 293, 848 P.2d 870, 872 (App. 1993). Summary judgment will be granted when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a).
¶5 When the party seeking summary judgment has established that no genuine dispute of material fact exists to preclude summary judgment, the party opposing the motion may not rest on the pleadings but must file a statement identifying those disputed facts and specifying facts showing a genuine dispute for trial. Ariz. R. Civ. P. 56(c), (e); see Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 287, ¶ 15, 17 P.3d 790, 793 (App. 2000). Moreover, the party opposing the motion must produce competent evidence showing a disputed fact exists to justify a trial on the issue. Ariz. R. Civ. P. 56(e); Doe v. Roe, 191 Ariz. 313, 323, ¶ 33, 955 P.2d 951, 961 (1998).
¶6 A wrongful death action is based in statute, which provides:
When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages,
notwithstanding the death of the person injured . . . .Ariz. Rev. Stat. ("A.R.S.") section 12-611.
We cite to the current version of the statute unless otherwise noted.
¶7 A plaintiff seeking to recover damages for wrongful death must prove: (1) the defendant had a duty to conform to a certain standard of care; (2) a breach of the standard of care by the defendant; and (3) a causal connection between defendant's conduct and the death. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). But, unlike negligence claims, damages in a wrongful death action are limited to injuries "resulting from death," A.R.S. § 12-613, but are not an essential element of the claim. Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 196, ¶ 9, 273 P.3d 645, 648 (2012). Consequently, the trial court has to determine whether there is a duty as a matter of law, but the remaining elements are usually factual issues that the jury decides. Id.; Gipson, 214 Ariz. at 143, ¶ 9, 150 P.3d at 230.
¶8 Here, there is no question about the State's duty to provide medical services to inmates. See A.R.S. § 31-201.01(D). The dispute is whether Plaintiffs presented sufficient evidence to demonstrate that the State "failed to provide medical treatment," and "[Chicharello] died as a result of [the State's] negligence in failing to reasonably provide adequate medical treatment." Stated differently, did Plaintiffs provide some evidence that the State breached its duty of care and that the State's negligence caused Chicharello's death?
¶9 The State sought summary judgment arguing the only evidence presented was that Chicharello died of an intravenous drug overdose, and there was no evidence that the State breached its duty or that any breach caused Chicharello's death. In response, Plaintiffs submitted an affidavit from Sonny Steele, an inmate, contending that the affidavit demonstrated a genuine dispute of material fact. Moreover, Plaintiffs argued that expert testimony was unnecessary because the jury could use their common sense to find both breach and causation by finding that the State failed to treat Chicharello's pneumonia for two weeks.
¶10 The Steele affidavit does not create a genuine dispute of material fact. First, the Steele affidavit never said that Chicharello had pneumonia, and the record has no information that would support such an inference. The affidavit only stated that Chicharello "seemed to be sick with pneumonia" and "his temperature was running high." Furthermore, the affidavit is completely devoid of information that suggests Steele knew the symptoms or could diagnose pneumonia. See Ariz. R. Civ. P. 56(e)(1) (an affidavit used to oppose a motion for summary judgment must set out facts that would be admissible in evidence and show "that the affiant is competent to testify on the matters stated"). And there is no expert evidence in the record that suggests that Chicharello had pneumonia when he passed away, that intravenous drug use can mask pneumonia, or that pneumonia was the cause of death.
¶11 The Steele affidavit also states that Steele submitted a medical request form for Chicharello about a week before he passed away. The affidavit, however, does not describe what was in the request, what he did with the request or how such requests are processed, whether directly from an inmate or from a concerned inmate. Moreover, the trial court noted that the request form was not attached to the affidavit or in the pleadings.
¶12 The Steele affidavit also states that the correctional officers noted that Chicharello was ill. Although the affidavit contains the conclusory statement, it does not state how Steele knew this information, and it does not identify when the officers noticed any illness or which officer noticed that Chicharello was ill. See Ariz. R. Civ. P. 56(e)(1) (affidavit must be based on personal knowledge). Consequently, Steele's affidavit lacks foundation, is inadmissible, and did not create any genuine dispute of material fact. See GM Dev. Corp. v. Community Am. Mortgage Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App. 1990) (discussing that a party must present competent evidence to show a genuine dispute of material fact).
¶13 Plaintiffs also argue that the State failed to disclose documents which prevented them from developing their case. Specifically, they contend that the State "failed to produce" the request Steele submitted for Chicharello and "failed to produce parts of the file that show the fact that several [correctional officers] had gone in and out of Mr. Chicharello's living area where he was sick enough to be bedridden for two weeks."
¶14 If a plaintiff has to respond to a summary judgment motion before discovery is complete, the plaintiff has options. If a defendant has been tardy or noncompliant in responding to discovery or disclosure, the plaintiff can move to compel discovery or disclosure, seek sanctions, and seek additional time to respond to the motion. See Ariz. R. Civ. P. 37, 6(b). A plaintiff can also request additional time to respond to the motion under Arizona Rules of Civil Procedure 56(f). Specifically, a party can file an affidavit showing that it cannot present evidence essential to justify its opposition, and the court may grant additional time to obtain affidavits or take discovery. Ariz. R. Civ. P. 56(f)(1).
¶15 Here, nothing in the record indicates that the State had not provided its discovery pursuant to the joint schedule order, that Plaintiffs sought additional discovery, or sought additional time from the trial court for specific discovery before responding to the summary judgment motion. See National Advertising Co. v. Arizona Dep't of Transp., 126 Ariz. 542, 544, 617 P.2d 50, 52 (App. 1980).
¶16 Finally, Plaintiffs argue that the evidence demonstrates a genuine dispute of material fact because Chicharello died of pneumonia. The record, however, indicates otherwise. Although the autopsy report lists "bacterial pneumonia, NOS" as one of the ten items found during the pathologic examination of the body, the Mohave County Medical Examiner, Rexene Worrell, M.D., provided the medical opinion that Chicharello's death was caused by "bacterial vasculitis due to multiple bacterial emboli from intravenous drug abuse" and classifies the manner of death as natural. Philip E. Keen, M.D., Plaintiffs' expert, had a similar opinion. He noted that Chicharello's cause of death was from "Narcotic Lung due to Intravenous Narcotic Abuse," but stated that the cause of death should have been listed as an accident.
Arizona Administrative Code R9-19-303(A) requires the medical examiner to describe the condition leading to the immediate cause of death and the cause of death. The medical examiner is also required to state the manner of death; that is whether death was natural, an accident, suicide, homicide or undetermined. See Ariz. Admin. Code R9-19-303 (B).
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¶17 Although the reports differ on exact cause and "manner of death," both recognize that Chicharello died because of intravenous drug use. Moreover, neither report suggests that Chicharello died of untreated pneumonia. The reports, more importantly, do not address how the State breached its duty nor do they address how the State's breach of that duty caused Chicharello's death. See, e.g., Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990) (explaining that summary judgment is proper "if the facts produced in support of the claim . . . have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim"). Because there is nothing in the record indicating that Chicharello died because of untreated pneumonia and there is no genuine dispute of material fact, the seasoned trial court properly granted summary judgment.
ATTORNEYS' FEES AND COSTS
¶18 Plaintiffs request an award of attorneys' fees. Because they have not prevailed, we deny the request.
CONCLUSION
¶19 Based on the foregoing, we affirm the judgment.