Stricklin v. Bordelon

          ORDER DENYING PLAINTIFF'S MOTION TO AMEND THE COMPLAINT

          William J. Martínez United States District Judge

         This matter is before the Court on Plaintiff Walter Stricklin's November 27, 2019 Motion to Amend the Complaint (the “Motion”) (ECF No. 42). Defendant Brock Bordelon (“Bordelon”) filed a Response to the Motion (the “Response”) on December 11, 2019 (ECF No. 45), and Plaintiff filed a Reply on December 16, 2019 (ECF No. 46). For the reasons that follow, the Motion is denied.

         I. BACKGROUND

         A. Plaintiff's Original Complaint

         On April 29, 2019, Plaintiff filed a Complaint against the above-captioned Defendants (ECF No. 1). Plaintiff's claims arise from an incident that occurred during a surgery performed on January 17, 2018 at Defendant Penrose Hospital (“Penrose”), during which all individual Defendants were present in the operating room (“OR”). (Id.)

         In the Complaint, Plaintiff alleges as follows: On January 17, 2018, Plaintiff was admitted to Penrose for a planned outpatient laparoscopic hernia surgery. (Id. ¶ 17.) Plaintiff was 63 years old at the time of this surgery, is a retired firefighter, and currently works as an Occupational Health and Safety Administration safety officer. (Id. ¶ 18.)

         Bordelon is a surgeon licensed to practice medicine in the state of Colorado, and was the “primary surgeon” for Plaintiff's hernia surgery. (Id. ¶¶ 3, 19.) Defendant Burkholder (“Burkholder”) is a physician assistant certified to practice medicine in the state of Colorado, and was the “assisting surgeon” for Plaintiff's surgery. (Id. ¶¶ 4, 19.) Defendant Williams (“Williams”) is an anesthesiologist licensed to practice medicine in the state of Colorado, and was the anesthesiologist for Plaintiff's surgery. (Id. ¶¶ 5, 19.) Defendants Mason (“Mason”) and Carris (“Carris”) are registered nurses certified to practice nursing in the state of Colorado, are employees of Penrose, and were the nurse circulators for Plaintiff's surgery. (Id. ¶¶ 5-6, 20-21.) Defendant Meyer (“Meyer”), also an employee of Penrose, was the OR technician for Plaintiff's surgery. (Id. ¶¶ 3, 20-21.) At all times relevant to this action, Defendants “held [themselves] out as and warranted [themselves] to the public as . . . competent, careful, and experienced” in their respective fields. (Id. ¶¶ 3-8.)

         Plaintiff was positioned on the operating table by Bordelon, Williams, Carris, and Mason. (Id. ¶ 22.) Plaintiff was initially positioned “supine” (i.e., on his back) on the operating table. (Id. ¶ 24.) Plaintiff's position was “verified by Bordelon and Williams.” (Id. ¶ 22.) Plaintiff was placed under general anesthesia and thereby rendered unconscious for his surgery. (Id. ¶ 23.)

         Bordelon then commenced surgery. (Id. ¶ 24.) Bordelon inserted multiple trocars (i.e., “sharp-pointed surgical instrument[s] . . . used to puncture the wall of a body cavity and withdraw fluid”)^[1] into Plaintiff's abdomen, insufflated the abdomen with carbon dioxide, and began attempting to repair Plaintiff's hernia. (Id. ¶ 25.) At some point during the surgery, Plaintiff was rolled to his right and placed into “a slight Trendelenburg position, a position in which the body is laid supine and the head lower than the feet by 15 to 30 degrees.” (Id. ¶ 26.) From the Trendelenburg position, Plaintiff fell off of the operating table to his right, with a needle and a piece of mesh still in his abdomen. (Id. ¶ 27.) Plaintiff fell face-first onto the floor and into the IV stand. (Id. ¶ 28.) At this point, Plaintiff's surgery was aborted and he was taken by stretcher to receive CT scans in order to assess his injuries. (Id. ¶ 30.) The CT scans showed left and right maxillary sinus fractures. (Id. ¶ 30.) Thereafter, Plaintiff was returned to the OR in order for the needle and mesh, which at that point were still in his abdomen, to be removed. (Id. ¶ 31.)

         On January 18, 2018, Plaintiff returned to the OR and successfully underwent the hernia surgery. (Id. ¶ 34.) The following day, January 19, Plaintiff received a traumatic brain injury evaluation, which revealed that Plaintiff had post-concussive symptoms, facial pain, headaches, and difficulty with full-sentence recall. (Id. ¶ 36.) Plaintiff was discharged from Penrose later that day. (Id. ¶ 37.)

         Plaintiff subsequently developed chronic pain in his shoulder, face, jaw, and neck. (Id. ¶ 38.) In February 2018, he was put on a 12-week physical therapy plan in order to mitigate this pain. (Id. ¶ 39.) In March 2018, Plaintiff was diagnosed with swelling in the extremities and a sinus infection, the latter of which occurs frequently after maxillary sinus fractures such as those suffered by Plaintiff. (Id. ¶ 40.) In April 2018, Plaintiff had his physical therapy regimen increased to two times per-week. (Id. ¶ 41.)

         In May 2018, Plaintiff received an MRI on his right shoulder, due to increasing pain and limited mobility. (Id. ¶ 42.) That MRI showed “partial articular surface tearing, acromioclavicular joint arthrosis, and a small amount of additional fluid in the subacromial subdeltoid bursa.” (Id. ¶ 43.)

         As a result of Plaintiff's fall from the operating table, Plaintiff to date “has difficulty with normal functions, including inability to sleep and eat adequately.” (Id. ¶ 44.) Also as a result of Plaintiff's fall, Plaintiff “was forced to miss a substantial amount of work, ” and at least for a time was “incapable of performing work around his house.” (Id. ¶¶ 45-46.)

         Plaintiff brings medical negligence claims against Bordelon, Burkholder, and Williams; negligence claims against Mason, Carris, Meyer; and a corporate negligence claim against Penrose. (ECF No. 1 ¶¶ 51-91.) At some point during the pendency of this litigation, however, Plaintiff settled with Penrose, Mason, Carris, and Meyer. (ECF No. 45 at 7.)

         B. Plaintiff's Motion

         In Plaintiff's Motion, he seeks to allege an additional claim against Bordelon. Through what is commonly referred to as the “captain of the ship” (“COS”) doctrine, Plaintiff now seeks to impose vicarious liability on Bordelon for the alleged negligence of the other individual Defendants present in the OR during Plaintiff's surgery. (Id. at 9-13.)

         The Scheduling Order entered by United States Magistrate Judge Kathleen M. Tafoya prescribed a Deadline for Joinder of Parties and Amendment of Pleadings of August 28, 2019. (ECF No. 24.) Plaintiff filed his Motion to Amend the Complaint on November 27, 2019, nearly three full months after the deadline to do so. (ECF No. 42).

         II. ANALYSIS

         Because Plaintiff's Motion was filed after the Scheduling Order deadline, Plaintiff must show “good cause” for seeking modification of the Scheduling Order under Federal Rule of Civil Procedure 16(b)(4). Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014). Plaintiff also must satisfy Federal Rule of Civil Procedure 15. Id. The Court finds that Plaintiff has failed to demonstrate good cause under Rule 16(b)(4) for amending his Complaint, and as such, his Motion to Amend the Complaint will be denied.

         As Plaintiff recognizes, Rule 16(b)(4) “requires [Plaintiff] to show the scheduling deadlines cannot be met despite [Plaintiff's] diligent efforts.” Id. “Rule 16's good cause requirement may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed.” Id.

         Plaintiff argues that information recently learned through discovery excuses the lateness of the amendment he seeks. (ECF No. 42 at 7.) In particular, Plaintiff points to 1) information obtained from Bordelon's November 13, 2019 deposition (id. at 2); 2) information obtained from Williams' November 15, 2019 deposition (id. at 3); and 3) a “Surgical Preference Card” (“SPC”) disclosed by Penrose, Mason, Carris, and Meyer on October 23, 2019 (id. at 4).

         Plaintiff argues that this newly discovered evidence revealed the previously unknown facts (or bases for the legal conclusion) that Bordelon “had the right to control the nursing staff with respect to [Plaintiff's] positioning and security, . . . had assumed control and direction of the operating room when [Plaintiff] fell, ” and therefore that he was the “captain of the ship, ” and “is vicariously liable for the acts and omissions of the surgical team.” (Id. at 5.) Plaintiff argues that because this information was discovered past the deadline set out in the Scheduling Order, there is good cause for his untimely attempt to amend the Complaint. (Id. at 6-7.) The Court disagrees.

         A. Plaintiff's Newly Discovered Evidence

         1. Bordelon's Deposition Testimony At his November 13, 2019 deposition, Bordelon testified in relevant part as follows:

Q: With your preference card, you have the ability to control what the nurses do to some extent before surgery; is that true?

A: I do have the ability to control some of what they do but, again, I do not have ...