Cutler v. Pima, County of

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Robert Steven Cutler, No. CV-18-00383-TUC-JCH 10 Plaintiff, ORDER 11 v. 12 County of Pima, et al., 13 Defendants. — 14 — 15 Before the Court is Plaintiffs' "Motion to Modify Joint Pretrial Order" ("Motion") 16 (Doc. 251). The Motion seeks to add a claim for punitive damages to the Joint Pretrial 17 Order (Doc. 188). For the reasons below, the Court denies the Motion. 18 I. Background 19 On September 30, 2022, Defendants moved in limine to preclude Plaintiffs from 20 asserting an untimely punitive damages claim. (Doc. 226 at 2.) On October 28, at oral 21 argument, the Court denied Defendants' motion as moot because no punitive damages 22 claim appeared in the Pretrial Order. (Doc. 252; Doc. 188.) 23 On November 1, Plaintiffs filed the Motion to amend the Pretrial Order and add a 24 punitive damages claim. (Doc. 251.) The Court ordered supplemental briefing (Doc. 254); 25 Plaintiffs filed a Supplement (Doc. 256); Defendants filed a Response (Doc. 258); and 26 Plaintiffs filed a Reply (Doc. 264). Trial begins November 29. 27 II. Legal Standard 28 The Court may modify a final pretrial conference order "only to prevent manifest 1 injustice." Fed. R. Civ. P. 16(e). The Ninth Circuit instructs its district courts generally to 2 "allow amendments of pretrial orders when no substantial injury will be occasioned to the 3 opposing party, the refusal to allow the amendment might result in injustice to the movant, 4 and the inconvenience to the court is slight." Campbell Industries v. M/V Gemini, 619 F.2d 5 24 , 27–28 (9th Cir. 1980). A district judge has "broad discretion in supervising the pre-trial 6 phase of litigation, with a view toward sifting the issues in order that the suit will go to trial 7 only on questions involving honest disputes of fact or law." (Id. (quoting FDIC v. 8 Glickman, 450 F.2d 416, 419 (9th Cir. 1971)). 9 III. Analysis 10 a. The punitive damages claim is futile. 11 A punitive damages claim should go to the jury "when the evidence supports such 12 a claim." (Doc. 251 at 2 (citing Preayer v. Ryan, 2017 WL 2351601 , *6 (D. Ariz. May 31, 13 2017).) In Arizona, the evidence may support punitive damages claim where a defendant 14 acts with an "evil mind." Swift Transportation Co. v. Carman, 253 Ariz. 499 , ¶ 23 (Ariz. 15 Aug. 23, 2022). Establishing "an evil mind requires clear and convincing evidence that the 16 defendant's actions . . . were outrageous, creating a 'substantial risk of tremendous harm to 17 others.'" See id. at ¶¶ 22–23 (citation omitted). An evil mind requires "something more" 18 than negligence or even gross negligence. Id. at ¶ 30. It requires "outrageous, oppressive 19 or intolerable" conduct evidencing a "conscious and deliberate disregard of the interest[s] 20 and rights of others." Id. at ¶ 24 (emphasis in original). 21 Here, the evidence is insufficient as a matter of law to establish by clear and 22 convincing evidence that Defendant Reed's actions were "outrageous." Plaintiffs 23 emphasize several items of evidence to try to bolster their case. (Doc. 256 at 1–3). For 24 example, Plaintiffs allege Reed went up the hill to David Cutler with a syringe of Ketamine, 25 having decided in advance its use was warranted. (Id. at 3.) Plaintiffs also allege David 26 Cutler's appearance when Reed arrived indicated hyperthermia rather than a need for 27 Ketamine, but Reed nevertheless ignored the hyperthermia and proceeded to administer 28 Ketamine. (Id.) Plaintiffs also allege Reed administered Ketamine without certain required 1 resuscitative equipment, and may have injected more than the established limit. (Id. at 2.) 2 Plaintiffs also allege David Cutler's respiratory arrest was "the exact risk identified" for 3 Ketamine administration, and Reed could not adequately treat it for lack of proper 4 equipment on hand. (Id.) Finally, Plaintiffs allege that Reed's statement that he "would do 5 it the exact same way" again indicates Reed "has not learned his lesson," and poses a threat 6 to future patients. (Id. at 3–4.) 7 These allegations do not amount to "outrageous" conduct for several reasons. First, 8 Plaintiffs' evidence, even if proved, likely establishes Reed's behavior created only a risk 9 of harm, not a "substantial" risk of harm. Plaintiffs refer to respiratory depression as "an 10 adverse effect" of Ketamine, and to excessive salivation as "a potential adverse effect" of 11 Ketamine, but do not allege these effects are highly likely or substantially certain. (See 12 Doc. 256 at 1–2.) Second, Plaintiffs' evidence, even if proved, cannot establish "conscious" 13 and "deliberate" disregard of David Cutler's interests. Any course of emergency treatment 14 involves risk. Healthcare providers must act with incomplete information in highly 15 uncertain environments. They do not disregard a person's interests merely by making a 16 judgment call under difficult, emergency circumstances. Failing to act or acting differently 17 would involve other risks. In hindsight, the balance may be clearer. But liability does not 18 follow armchair clarity. Plaintiffs' evidence arguably tends to show that Reed consciously 19 chose a course of treatment with certain risks over other courses of treatment with other 20 risks. That is not enough for conscious or deliberate disregard. Third, Plaintiffs' evidence 21 does not establish "something more" than gross negligence. In Swift, a driver's knowing 22 breach of a truck driving safety protocol that caused several deaths was "at most . . . 23 negligence." 253 Ariz. at ¶ 34. Here, Reed's alleged breach of Ketamine protocol, even 24 when combined with other evidence and viewed most charitably for Plaintiffs, may 25 establish gross negligence, but cannot establish that Reed acted with an "evil mind." 26 Finally, Plaintiffs' evidence does not indicate "outrageous" conduct because Reed's 27 statements—viewed in context—do not suggest a threat to future patients. Reed's reference 28 to doing things "the exact same way" occurred in testimony where he discussed the 1 || judgment calls paramedics often make with limited information. (Doc. 258 at 6—7.) In 2 || context, Reed means he would approach the situation the same way again, trying to "figure || out the 3,000 possibilities" that might contribute to David Cutler's symptoms and making ajudgment call in "just a snap second." (/d. at 7.) Moreover, Reed repeats that he became 5 || a paramedic to help people, that he wanted to help David Cutler, and that he feels "awful 6|| for the family." (/d.) And he repeats that he would "do it again to try to help [David]." (Ud. (emphasis added).) These statements undermine any claim that Reed acted with an "evil 8 || mind" when he said he would do things the same way again. 9 For these reasons, Plaintiffs should not be permitted to submit a punitive damages || to the jury. The evidence does not sufficiently support a punitive damages claim or present 11 || an "honest dispute of fact or law." And because a punitive damages claim is futile, the 12 || Court's refusal to add the claim cannot result in injustice to Plaintiffs. 13 b. The punitive damages claim is prejudicial. 14 Even if Plaintiffs’ evidence could support a punitive damages claim, amending the 15 || Pretrial Order now to include punitive damages would prejudice Defendants. Trial is in 16 || twelve days. Plaintiffs’ Motion is just too late. IV. Order 18 Accordingly, 19 IT IS ORDERED DENYING Plaintiffs’ Motion (Doc. 251). 20 Dated this 17th day of November, 2022. — 21 — — 22 — 23 WS herb onorable John C. Hinderaker 24 United States District Judge — 25 — — 26 — — 27 — — 28 — -4-