Estate of Nunez by and through Nunez v. County of San Diego

381 F.Supp.3d 1251

The ESTATE OF Ruben NUNEZ BY AND THROUGH its successor-in-interest Lydia NUNEZ, Albert Nunez, and Lydia Nunez, Plaintiffs,

v.COUNTY OF SAN DIEGO, et al., Defendants.

Case No.: 3:16-cv-01412-BEN-MDD

United States District Court, S.D. California.

Signed May 17, 2019

Eugene G. Iredale, Julia Yoo, Grace S. Jun, Iredale & Yoo, APC, San Diego, CA, for Plaintiffs.

Juan Fernando Kish, Robert A. Ortiz, Office of County Counsel, Douglas E. Baxter, State of California, Office of the Attorney General, Clark Ray Hudson, Elizabeth Ann Harris, Neil Dymott Frank McFall Trexler McCabe & Hudson, APLC, San Diego, CA, Daniel G. Eskue, California Department of Justice, Los Angeles, CA, Terrence Joseph Schafer, Doyle & Schafer, LLP, Irvine, CA, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION TO RECONSIDER

HON. ROGER T. BENITEZ, United States District Judge Pending before the Court is Plaintiffs' motion to reconsider the Court's summary judgment order as to Defendant Correctional Physicians Medical Group ("CPMG") in light of newly discovered evidence. Because Plaintiffs' newly discovered evidence raises genuine issues of material fact, the motion is GRANTED, and Plaintiffs' claims for failure to train and failure to supervise under 42 U.S.C. § 1983, as well as Plaintiffs' prayer for punitive damages, are hereby reinstated against CPMG.

BACKGROUND

On January 2, 2019, through pleadings and exhibits filed in another case, Nishimoto v. County of San Diego, et al. , 16-cv-01974-BEN-LL, Plaintiffs became aware of various documents that Defendants had not produced, including correspondence between the County of San Diego and CPMG regarding Mr. Nunez. In response, on January 7, 2019, Plaintiffs moved the Court to vacate under Federal Rule of Civil Procedure 54(b) the portions of its November 5, 2018 summary judgment order, [Doc. 322], which granted CPMG's motion for summary judgment on Counts 5 and 6 and Plaintiffs' prayer for punitive damages. Plaintiffs further requested that the Court refer the motion to the Magistrate Judge for an evidentiary hearing to determine the scope of withheld evidence and to determine what sanctions, if any, were appropriate. Subsequently, Defendant CPMG produced approximately 100 pages of inadvertently withheld discovery.

The Court denied Plaintiffs' motion to vacate but ordered that "Plaintiffs may seek leave to re-assert a motion to vacate later, if substantial relevant evidence is newly discovered." [Doc. 343.] The Court did, however, grant Plaintiffs' request for a referral to the Magistrate Judge, who found the late-produced documents were not withheld willfully or in bad faith. [Doc. 374.] Nonetheless, the Magistrate Judge determined there was time for corrective action and permitted Plaintiffs to depose Dr. Mannis, Dr. Rao, and Dr. Badre about the contents of the newly discovered evidence. [Doc. 374.] Following those depositions, Plaintiffs again move to vacate the Court's summary judgment order as to CPMG, arguing that substantial newly discovered evidence regarding CPMG's failure to train and supervise creates genuine issues of material fact as to Counts 5 and 6 and Plaintiffs' prayer for punitive damages.

DISCUSSION

In its November 5, 2018 order, the Court granted summary judgment in favor of CPMG on Count 5 for Failure to Train because of a lack of evidence, finding "the connection between CPMG's alleged failure to train and the alleged constitutional violations are both unsupported and are far too tenuous to satisfy the high Monell standard." [Doc. 322, p. 31.] As to Count 6 for Failure to Supervise and Discipline, the Court again found Plaintiffs' evidence was "virtually nonexistent" and that Plaintiffs "ma[d]e a variety of unsupported arguments based on assumptions, rather than facts." [Id. at 31.] For example, "Plaintiffs rel[ied] on an alleged ‘prior incident in which Naranjo failed to enter information in JIMS and failed to coordinate a patient's care with the nursing staff," but Plaintiffs failed to support that allegation with any evidence. [Id. ] Regarding Count 10's prayer for punitive damages as to the state law negligence claim, the Court held that based on the minimal evidence offered, no reasonable jury could find CPMG's conduct, "however negligent, rose to a level of sufficient deliberate disregard ... that their conduct may be called willful or wanton." [Id. at 37.] At present, Plaintiffs' Count 10 for negligence is the only remaining claim against CPMG, which is set for a jury trial on June 4, 2019.

A. Reconsideration Is Warranted

Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enterprises, Inc. v. Estate of Bishop , 229 F.3d 877, 890 (9th Cir. 2000). Indeed, "a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Id. "A motion for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Life Techs. Corp. v. Illumina, Inc. , 2012 WL 10933209, at *1 (S.D. Cal. June 11, 2012) (quoting Kona Enters. , 229 F.3d at 890 ). Moreover, motions to reconsider are not a platform to relitigate arguments and facts previously considered and rejected. See Harrison v. Sofamor/Danek Grp., Inc. , 1998 WL 1166044, at *3 (S.D. Cal. Sept. 15, 1998).

This is one of those unusual cases. Here, the Court is satisfied that the evidence proffered by Plaintiffs is newly discovered and could not reasonably have been discovered earlier. CPMG does not argue otherwise. Indeed, Plaintiffs properly requested the late-produced evidence, which was both discoverable and inadvertently withheld until after the Court issued its summary judgment order. The record reflects that Plaintiffs relied upon CPMG's discovery responses that all such evidence had been produced. Thus, the Court cannot find that Plaintiffs reasonably could have known of the evidence earlier.

B. The Newly Discovered Evidence Raises Genuine Issues of Material Fact

The Court next evaluates whether Plaintiffs' newly discovered evidence warrants vacating the Court's summary judgment order in favor of CPMG.

1. Evidentiary Objections ¹

The Court considers the parties' evidentiary objections before turning to the undisputed facts. CPMG objects to Dr. Gage's supplemental expert report, arguing (1) it has not been properly authenticated through an affidavit and (2) Dr. Gage's opinion relies upon inadmissible evidence in the form of CPMG's subsequent remedial measures. In response to CPMG's first argument, Plaintiffs submitted Dr. Gage's affidavit to authenticate his supplemental expert report, which is sworn under penalty of perjury and offers information reflecting his competence to offer his expert opinions. [Doc. 401-2.] The Court is satisfied that Plaintiffs' subsequently filed sworn statements adequately remedy the procedural deficiencies of Dr. Gage's report. See, e.g., Liebling v. Novartis Pharm. Corp. , 2014 WL 12576619, at *2 (C.D. Cal. Mar. 24, 2014) ("Courts have held, however, that a party can ‘cure’ the defect of an unsworn expert's report by proffering the sworn deposition or declaration of the expert."). In addition, the Court finds Dr. Gage timely supplemented his expert report, having done so more than 30 days before trial.

Next, CPMG argues Dr. Gage's opinions are inadmissible because they rely upon "subsequent remedial measures," as prohibited by Federal Rule of Evidence 407. In a related argument, CPMG additionally objects to "the majority of" Plaintiffs' newly discovered evidence as constituting inadmissible subsequent remedial measures. [Doc. 398, p. 21.] It is true that "[w]hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove" either "negligence" or "culpable conduct." Fed. R. Evid. 407. Contrary to CPMG's argument, however, internal quality assurance discussions and peer review used to determine the necessity of implementing subsequent remedial measures are not, themselves, "subsequent remedial measures" excluded by Fed. R. Evid. 407. Put another way, a defendant's internal investigations and reviews might constitute the initial step toward identifying the need for particular remedial action, but "they are not themselves excluded under Rule 407." Aranda v. City of McMinnville , 942 F.Supp.2d 1096, 1103 (D. Or. 2013) ("By its terms, this rule is limited to measures that would have made the harm less likely to occur; it does not extend to post-incident investigations into what did occur.").² Id. Accordingly, CPMG's objections on these grounds are OVERRULED.³

2. Factual Background ⁴

The Court assumes familiarity with the facts of this case. On September 4, 2014, CPMG contracted with the County to "provide psychiatric clinical services which include but [were] not limited to initial psychiatric/medical evaluation, diagnosis, treatment, emergency medication orders, medication evaluation and prescription." [Ex. 1 at p. 22.] Dr. Steven Mannis is the sole owner of CPMG. Dr. Nicholas Badre became the "Lead Physician" at the Central Jail one day after completing his residency. Dr. Sanjay Rao was named the Medical Director of Psychiatry for all CPMG providers. According to CPMG and the County's contract, neither party would supervise the other party's employees, and thus, CPMG was responsible for supervising and training its own employees. [Ex. 1 at 21.] The contract further required CPMG to designate a "Lead Psychiatrist" to "[p]erform Quality Assurance/Quality Inspections (QA/QI) on new residents' charts, as well as performing a quarterly review of charts of all assigned physicians; keep the Sheriff's CMO and/or his designee apprised of QA/QI results." [...