Bae v. Arlington Spine Center, P.L.L.C,

• Decision Date: 22 October 2018
• Docket Number: 76928-6-1
• Parties: JONG HWAN BAE, Appellant, v. ARLINGTON SPINE CENTER, P.L.L.C, a Washington professional limited liability corporation; SCOTT PESEAU, D.C., individually; RHONDA PESEAU, D.C., individually, Respondents.
• Court: Washington Court of Appeals

JONG HWAN BAE, Appellant,
v.
ARLINGTON SPINE CENTER, P.L.L.C, a Washington professional limited liability corporation; SCOTT PESEAU, D.C., individually; RHONDA PESEAU, D.C., individually, Respondents.

No. 76928-6-1

Court of Appeals of Washington, Division 1

October 22, 2018

UNPUBLISHED OPINION

SMITH, J.

Jong Hwan Bae appeals the trial court's dismissal of her medical negligence and premises liability claims against Arlington Spine Center PLLC and Drs. Scott and Rhonda Peseau (collectively Arlington Spine). Ms. Bae argues that the trial court abused its discretion by denying her CR 56(f) request for a continuance with respect to Arlington Spine's motion for summary judgment on her medical negligence claim. Ms. Bae also argues that the trial court erred by summarily dismissing both of her claims and by denying her motion for reconsideration regarding the dismissal of her premises liability claim. Because Ms. Bae had neither retained an expert nor explained why one could not have been retained by the time she requested a continuance, the trial court did not abuse its discretion by denying Ms. Bae's continuance request. And because Ms. Bae could not establish essential elements of her medical negligence claim without an expert, summary judgment was proper on that claim. Summary judgment was also proper on Ms. Bae's premises liability claim because that claim is for damages for injuries resulting from health care, for which the exclusive remedy is found in chapter 7.70 RCW. Therefore, we affirm.

FACTS

On April 19, 2013, Ms. Bae visited Arlington Spine Center for treatment. There, Dr. Rhonda Peseau (Dr. Peseau) arranged Ms. Bae on an elevated decompression table for lumbar decompression treatment. After the lumbar decompression treatment was finished, the decompression table was adjusted for cervical decompression, and treatment began. What happened next is disputed. Ms. Bae alleges that the cervical decompression treatment ended and that she called out a couple of times because she was alone in the room when the treatment finished. She alleges that she then fell asleep and that the next thing she remembers is falling off the decompression table to the ground, landing on her hip, and screaming in pain. Arlington Spine, on the other hand, contends that Ms. Bae tried to get off the table herself before the cervical decompression ended, and Ms. Bae later admitted, in response to Arlington Spine's requests for admission, that she "tried to get off the decompression table by [herself] when [she] believed the cervical decompression treatment was over." Clerk's Papers at 299. Additionally, Dr. Peseau testified via declaration that when she entered the treatment room after hearing Ms. Bae cry out, the decompression table was still cycling, meaning that traction was still being administered. The parties do not dispute that Ms. Bae sustained injuries as a result of her fall.

Ms. Bae sued Arlington Spine on April 13, 2016, under theories of medical negligence and premises liability. In her complaint, Ms. Bae alleged, among other things, that Drs. Rhonda and Scott Peseau "had a duty to act within the standard of care regarding the treatment provided to [Ms. Bae, ]" and that they "breached their duty of care." Clerk's Papers at 325.

On June 2, 2016, Arlington Spine issued interrogatories and requests for production to Ms. Bae. Arlington Spine's interrogatories included a continuing request that Ms. Bae identify all experts that she intended to call at trial. Ms. Bae responded that the request was premature and that Ms. Bae had not yet decided which, if any, experts she would call at trial. Clerk's Papers at 287.

On February 24, 2017, after the parties conducted additional discovery, including the depositions of Ms. Bae and Dr. Peseau, Arlington Spine moved for summary judgment on Ms. Bae's medical negligence claim. Shortly thereafter, on March 2, 2017, Arlington Spine separately moved for summary judgment on Ms. Bae's premises liability claim. Ms. Bae did not file a substantive response to Arlington Spine's motion for summary judgment on the negligence claim. Instead, she filed a request for a 60-day continuance of the hearing to permit her to retain an expert. On March 24, 2017, the trial court denied Ms. Bae's continuance request and summarily dismissed Ms. Bae's medical negligence claim.

On April 7, 2017, the trial court granted Arlington Spine's motion for summary judgment on the premises liability claim, dismissing Ms. Bae's only remaining claim. The trial court denied Ms. Bae's motion for reconsideration on May 4, 2017. Ms. Bae appeals.

DISCUSSION

I. Request for Continuance

Ms. Bae argues that the trial court erred by not granting her CR 56(f) continuance request. We disagree.

CR 56(f) ^[1] provides a remedy for a party who knows of the existence of a material witness and shows good reason why she cannot obtain the witness's affidavits in time for the summary judgment proceeding. Turner v. Kohler. 54 Wn.App. 688, 693, 775 P.2d 474 (1989). "In such a case, the trial court has a duty to give the party a reasonable opportunity to complete the record before ruling on the motion." Id. iting Lewis v. Bell. 45 Wn.App. 192, 196, 724 P.2d 425 (1986); Cofer v. Pierce County. 8 Wn.App. 258, 262-63, 505 P.2d 476 (1973)). But, the trial court may deny a motion for continuance if "(1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact." Id. (citing Lewis. 45 Wn.App. at 196; Sternoff Metals Corp. v. Vertecs Corp.. 39 Wn.App. 333, 341-42, 693 P.2d 175 (1984)). We will not disturb a trial court's denial of a motion for continuance absent a showing of manifest abuse of discretion, Id. (citing Lewis, 45 Wn.App. at 196; 6 James Wm. Moore, Moore's Federal Practice ¶ 56.24, at 56-800 to -804 (2d ed. 1988)). Atrial court abuses its discretion "when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons," for example, where the trial court "relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law." State v. Lord. 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007).

Here, Ms. Bae argued in her continuance request that good reason existed for granting an extension because (1) she intended to retain an expert, (2) no trial date (or discovery cutoff) had been set, and (3) her investigations were ongoing. She also argued that a 60-day continuance would allow her to retain an expert to establish the applicable standard of care, and that establishing the standard of care would create a genuine issue of material fact as to whether that standard was breached.

The trial court did not abuse its discretion by denying Ms. Bae's continuance request. Vant Leven v. Kretzler. 56 Wn.App. 349, 783 P.2d 611 (1989), is instructive. In Vant Leven. also a medical negligence case, the plaintiff requested a CR 56(f) continuance to allow the plaintiff to obtain an expert opinion. Id. at 351-52. The trial court denied the request even though the defendant doctor's response to the plaintiffs interrogatories was still pending and even though the plaintiff had retained an expert, who stated via affidavit that he needed additional time to examine records and review the defendant's deposition testimony, Id. at 351-52, 354. Here, no discovery was pending, and Ms. Bae had not even retained an expert by the time she filed her continuance request. Furthermore, nothing in the record suggests that Ms. Bae had even identified or consulted with prospective experts, and Ms. Bae failed to explain why an expert could not have been retained during the 11 months the case had been pending. This is notable because, in light of the allegations in her complaint and Arlington Spine's expert-related interrogatory, it should not have been a surprise to Ms. Bae that she would need to retain an expert to establish the applicable standard of care and to establish that the standard had been breached.

Based on the absence of any explanation for Ms. Bae's failure even to retain an expert, we cannot say that the trial court abused its discretion by denying Ms. Bae's continuance request. See Lewis v. Bell. 45 Wn.App. 192 (1986) (denial of continuance request not abuse of discretion where no explanation given for not obtaining deposition during 16-month pendency of action).

At oral argument, counsel for Ms. Bae speculated that Ms. Bae's trial counsel may have...