1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICKIE L. CHIPMAN, No. 2:11-cv-02770-TLN-EFB 12 Plaintiff, 13 v. ORDER 14 MARCIA F. NELSON, et al., 15 Defendants. 16 17 This matter is before the Court on Defendants Enloe Medical Center (“EMC”) and Dr. 18 Joseph M. Matthews’s (“Dr. Matthews”) (collectively, “Defendants”) Motions to Dismiss.1 (ECF 19 Nos. 642, 643.) Plaintiff Rickie L. Chipman (“Plaintiff”) filed an opposition. (ECF No. 644.) 20 Defendant EMC filed a reply. (ECF No. 647.) For the reasons set forth below, the Court 21 DENIES Defendants’ motions. 22 /// 23 /// 24 /// 25 /// 26 /// 27 1 Because the motions to dismiss filed by both Defendants are nearly identical, the Court 28 will only refer to EMC’s motion to dismiss. 1 This case concerns the death of Plaintiff’s mother, Mary A. Martin (“Ms. Martin”). (ECF 2 No. 336.) Plaintiff initiated this action on October 20, 2011. (ECF No. 1.) In the operative 3 complaint, Plaintiff asserts twelve claims against various Defendants related to the care and 4 treatment of her now deceased mother. (ECF No. 336.) On May 26, 2021, the United States 5 Court of Appeals for the Ninth Circuit affirmed this Court’s grant of summary judgment as to all 6 claims against Defendants except Plaintiff’s wrongful death claim against EMC and Dr. 7 Matthews, finding there is a genuine dispute of material fact as to whether Dr. Matthews’s 8 treatment of Ms. Martin was a cause in fact of her death. (ECF No. 606.) 9 On October 27, 2021, the Court entered a scheduling order whereby Plaintiff was to serve 10 her expert disclosures by February 1, 2022, and Defendants were to serve their expert disclosures 11 by February 15, 2022, with rebuttal disclosures due by March 4, 2022. (ECF No. 615.) The 12 Court ultimately granted Plaintiff an extension to file her expert disclosures by March 8, 2022. 13 (ECF No. 621.) On February 15, 2022, Defendants served their expert disclosures. On March 4, 14 2022, Plaintiff filed her rebuttal disclosure but did not serve any expert disclosures on 15 Defendants. (ECF No. 622.) On July 20, 2023, Defendants brought the instant motion to dismiss 16 for failure to prosecute, arguing Plaintiff does not have a necessary expert2 to support her 17 wrongful death claim against Defendants and cannot use Dr. Mazzarella’s declaration at trial to 18 support her claim. (ECF No. 642.) 19 Plaintiff’s decision to not call an expert to support her wrongful death claim does not 20 constitute a failure “to prosecute or comply with [the federal] rules or a court order.” Fed. R. Civ.

(b). While Federal Rule of Civil Procedure (“Rule”) 26(a)(2)(B) requires each party to 22 identify any expert witness that it may call during trial, it does not require a party to call an expert 23 witness. Fed R. Civ. P. 26(a)(2)(B). The Ninth Circuit found Dr. Mazzarella’s declaration 24 created a genuine dispute of material fact as to Plaintiff’s wrongful death claim against

25 2 EMC contends, relying on Lattimore v. Dickey,

(2015), “[i]n California, the standard of care for medical professionals must be demonstrated with expert 26 testimony.” This is a misstatement of California law. Lattimore states, “standard of care [] is the 27 key issue in a malpractice action and can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson’s common knowledge.” 28

1 | Defendants and thus precluded summary judgment. (ECF No. 606 at 4.) Despite Dr. 2 | Mazzarella’s passing, Dr. Mazzarella’s declaration remains in the record. As previously made 3 | clear to Defendants, any issues regarding the admissibility of Dr. Mazzarella’s declaration may be 4 | raised in a properly briefed motion in limine. (See ECF No. 628 at 2.) The Court will not resolve 5 | evidentiary issues through a motion to dismiss. 6 Accordingly, the Court DENIES Defendants’ motions to dismiss for failure to prosecute. 7 | (ECF Nos. 642, 643.) 8 IT IS SO ORDERED. 9 | Date: August 14, 2023 10 /) /) ul “ ! Lu 12 Troy L. Nuhlep> 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28