nur/ibrahim v. Scottsdale

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IBITSAM NUR and her mother and next friend, FAHMO IBRAHIM, in
her capacity as mother of the minor and individually,
Plaintiffs/Appellants,

v.

SCOTTSDALE HEALTHCARE CORPORATION, an Arizona corporation;
SCOTTSDALE HEALTHCARE OSBORN; SCOTTSDALE HEALTHCARE
HOSPITALS, an Arizona corporation, Defendants/Appellees.

No. 1 CA-CV 13-0021
FILED 3-18-2014

Appeal from the Superior Court in Maricopa County
No. CV2010-051114
The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

The Nathanson Law Firm, Scottsdale
By Philip J. Nathanson
Counsel for Plaintiffs/Appellants

Kent & Wittekind, PC, Phoenix
By Richard A. Kent, James A. Frisbie
Counsel for Defendants/Appellees
 NUR/IBRAHIM v. SCOTTSDALE HEALTHCARE
Decision of the Court

MEMORANDUM DECISION

Chief Judge Diane M. Johnsen authored the decision of the Court, in
which Judge Margaret H. Downie and Judge Michael J. Brown joined.

J O H N S E N, Judge:

¶1 Ibitsam Nur and Fahmo Ibrahim (collectively, "Appellants")
appeal the superior court’s entry of summary judgment in favor of
Scottsdale Healthcare Corporation on their negligence claim. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Ibrahim was in labor when she arrived at Scottsdale
Healthcare Osborn. Complications occurred as labor progressed, and
both Ibrahim and her newborn daughter, Nur, were injured during the
delivery. Ibrahim suffered a prolapsed uterus, cystocele and rectocele,
and Nur suffered a broken clavicle and a brachial plexus injury.

¶3 Ibrahim and Nur filed a negligence suit against the hospital
and its parent company, Scottsdale Healthcare Corporation (collectively,
"SHC"), and other defendants not relevant to this appeal. SHC moved for
summary judgment, arguing Appellants could not meet their burden of
proof on causation. After Appellants did not respond to the motion, the
superior court entered summary judgment in favor of SHC. Appellants
then moved to vacate the summary judgment and for a new trial. In their
motion, Appellants offered deposition testimony by Ibrahim that SHC
nurses applied manual fundal pressure (i.e. they pressed on her abdomen)
during delivery. Appellants also offered deposition testimony by their
causation expert witness, Dr. Fred DuBoe, which they argued was
evidence that fundal pressure was a factor in causing Nur’s injuries. 1 The
superior court denied Appellants' motion and entered judgment pursuant
to Arizona Rule of Civil Procedure 54(b).

1 In their complaint, Appellants alleged SHC caused injuries both to
Ibrahim and to Nur. On appeal, however, they argue that SHC
contributed only to Nur's injuries.

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¶4 Appellants timely appealed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes ("A.R.S.") section 12-2101(A) (2014). 2

DISCUSSION

¶5 Summary judgment is appropriate 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). We review the grant
of a motion for summary judgment de novo, viewing the facts and
inferences drawn therefrom in the light most favorable to the party
against whom judgment was entered. Corbett v. Manorcare of Amer., Inc.,
213 Ariz. 618, 621-22, ¶ 2, 146 P.3d 1027, 1030-31 (App. 2006).

¶6 Appellants argue the superior court erred by granting SHC’s
motion for summary judgment solely based on their failure to respond to
the motion. They argue a response was unnecessary because SHC’s
motion failed to "present a threshold showing or prima facie case."

¶7 Generally, the non-moving party must submit a written
response to a motion for summary judgment, or the superior court may, in
its discretion, enter judgment in favor of the moving party. Ariz. R. Civ.
P. 56(e)(4); Schwab v. Ames Constr., 207 Ariz. 56, 59, ¶ 14, 83 P.3d 56, 59
(App. 2004). But a non-moving party's failure to respond does not by
itself entitle the moving party to summary judgment. Id. ¶ 15. Summary
judgment is proper only if the moving party presents evidence which, if
uncontroverted, establishes that it is entitled to judgment as a matter of
law. Id. at 59-60, ¶ 15, 83 P.3d at 59-60. Once a proper motion for
summary judgment has been made, "an opposing party may not rely
merely on allegations or denials of its own pleading; rather, its response
must . . . set forth specific facts showing a genuine issue for trial. If the
opposing party does not so respond, summary judgment, if appropriate,
shall be entered against that party." Ariz. R. Civ. P. 56(e)(4). Under the
rule, if the non-moving party does not respond to the motion, it does so at
its own peril because the court will presume the facts presented in the
motion are true and uncontroverted, and will draw inferences
accordingly. Schwab, 207 Ariz. at 60, ¶ 16, 83 P.3d at 60.

2 Absent material revision after the relevant date, we cite a statute's
current version.

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Decision of the Court

¶8 Contrary to Appellants’ assertion, the superior court did not
grant summary judgment solely because they failed to respond to the
motion. In its order granting the motion, the court noted that pursuant to
Arizona Rule of Civil Procedure 7.1(b), the failure to respond may be
deemed consent to a motion. But the court also stated it found "no
genuine issues of material fact and that Defendant Scottsdale Healthcare
Corp. is entitled to judgment as a matter of law."

¶9 Summary judgment was appropriate because SHC
presented evidence showing there was no causal connection between
Appellants' injuries and the actions of SHC employees. SHC's motion
cited the deposition testimony of Appellants' causation expert, DuBoe,
who opined that SHC’s employees "to a reasonable degree of medical
probability, did not cause or contribute [to] any injury to [Ibrahim]."
Concerning Nur's injuries, SHC cited DuBoe's deposition testimony that
"to a reasonable degree of medical probability . . . nothing [SHC
employees] did or failed to do caused or contributed to this patient's
fractured clavicle" and "to a reasonable degree of medical probability the
cause of the [brachial plexus injury] was excessive traction" by the
delivering physician (who was not a SHC employee).

¶10 Under A.R.S. § 12-563 (2014), a "necessary element[] of
proof" of Appellants' negligence claim against SHC was that its actions
were a proximate cause of their injuries. The evidence cited above, if
uncontroverted, established that SHC did not cause Appellants' injuries.
Accordingly, Appellants had the burden of responding with controverting
evidence sufficient to raise a genuine issue of material fact. Because
Appellants failed to do so, summary judgment was proper.

¶11 Appellants argue that before granting the motion, the
superior court was obligated to search the entire court record for
controverting facts. In Schwab, we held the superior court must "consider"
the entire record before entering summary judgment. 207 Ariz. at 59, ¶ 15,
83 P.3d at 59. But our supreme court has held that "neither we, the trial
court, nor the court of appeals should be required to perform counsel's
work by searching the record to attempt to discover facts which establish
or defeat the motion. These are tasks which must be left to counsel." Mast
v. Standard Oil Co. of Cal., 140 Ariz. 1, 2, 680 P.2d 137, 138 (1984). See Tilley
v. Delci, 220 Ariz. 233, 237 n.4, 204 P.3d 1082, 1086 n.4 (App. 2009)
("whether such a search is required, either by the trial court or on appeal,

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Decision of the Court

depends on 'the volume and complexity' of the specific litigation in which
the motion for summary judgment is filed"). 3

¶12 In any event, in reviewing the superior court’s grant of
summary judgment, we consider only the evidence that was before the
court when it ruled on the motion. Phoenix Baptist Hosp. & Med. Ctr., Inc.,
v. Aiken, 179 Ariz. 289, 292, 877 P.2d 1345, 1348 (App. 1994); see also Cella
Barr Assocs., Inc. v. Cohen, 177 Ariz. 480, 487 n.1, 868 P.2d 1063, 1070 n.1
(App. 1994) (refusing to consider transcripts attached to motion for
reconsideration because they were not before the trial court when it ruled
on the underlying motion); GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165
Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990) (“[U]nless the deposition
transcripts were part of the record before the trial court at the time it
considered the motion for partial summary judgment, we cannot consider
them on appeal.”).

¶13 Appellants point to no evidence in the record before the
superior court at the time it ruled on SHC’s motion that would have
created a genuine issue of material fact. Instead, Appellants cite evidence
they submitted with their motion for new trial: Deposition testimony by
Ibrahim that SHC nurses applied fundal pressure during the delivery and
testimony by DuBoe that Appellants claim demonstrates "any fundal
pressure that was applied 'would have played a role' [i]n the child's
brachial plexus injury." The superior court was not required to consider
the evidence submitted with Appellants' motion for new trial. See Tilley,
220 Ariz. at 238, ¶ 17, 204 P.3d at 1087; Phil W. Morris Co. v. Schwartz, 138
Ariz. 90, 94, 673 P.2d 28, 32 (App. 1983) ("better policy" to disallow
affidavits submitted after a decision on a motion for summary judgment
that do not include newly discovered material and could have been
produced earlier through reasonable diligence). Because Appellants have
not challenged the denial of their motion for new trial, we need not
evaluate the merits of the evidence Appellants presented with the motion.

3 Contrary to Appellants' contention, Schwab did not hold that the
superior court must examine every document in the record for evidence
that might controvert a motion for summary judgment. Instead, we
reversed in that case because the motions at issue did not demonstrate the
defendants' entitlement to summary judgment. 207 Ariz. at 61, ¶ 20, 83
P.3d at 61.

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Decision of the Court

CONCLUSION

¶14 For the foregoing reasons, we affirm the entry of summary
judgment in favor of SHC. 4

:mjt

4 Although this court initially granted SHC's request for oral
argument, it cancelled the argument after SHC waived its request.

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