United States District Court, D. Colorado
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 ...