Workman v. Chinchinian

• Decision Date: 06 March 1992
• Docket Number: No. CS-91-0152-AAM.,CS-91-0152-AAM.
• Citation: 807 F. Supp. 634
• Court: U.S. District Court — District of Washington
• Parties: Mary Ann WORKMAN and Mark D. Workman, husband and wife, Plaintiffs, v. Harry CHINCHINIAN and Jane Doe Chinchinian, husband and wife, Defendants.

807 F. Supp. 634

Mary Ann WORKMAN and Mark D. Workman, husband and wife, Plaintiffs, v. Harry CHINCHINIAN and Jane Doe Chinchinian, husband and wife, Defendants.

No. CS-91-0152-AAM.

United States District Court, E.D. Washington.

March 6, 1992.

COPYRIGHT MATERIAL OMITTED

Frederic G. Fancher, Richter-Wimberley, P.S., Spokane, WA, for plaintiffs.

Michael E. Ramsden, Quane, Smith, Howard & Hull, Coeur d'Alene, ID, for defendants.

ORDER RE: CHOICE OF LAW & OTHER PRETRIAL MOTIONS

McDONALD, District Judge.

The following motions are before the court for resolution without oral argument: (1) Plaintiffs' Motion to Determine Choice of Law (Ct.Rec. 34); (2) Plaintiffs' Motion in Limine (Ct.Rec. 22); (3) Plaintiffs' Motion to Strike Dr. Chinchinian's Deposition Correction Sheet as Untimely (Ct.Rec. 26); (4) Plaintiffs' Motion to Compel Completion of Answers to Interrogatories (Ct.Rec. 30); (5) Defendants' Alternative Motion to Compel Completion of Answers to Interrogatories (In the Event the Court Grants Plaintiffs' Motion to Compel Completion of Answers to Interrogatories); (6) Plaintiffs' Motion to Determine Sufficiency of Defendants' Objections and Answers to Plaintiffs' Requests for Admission (Ct.Rec. 39); and (7) Plaintiffs' Motion for Preservation Depositions of Drs. Middleton and Sasser (Ct.Rec. 62). Michael E. Ramsden represents the defendants. The plaintiffs are represented by F.G. Fancher.

STATEMENT OF FACTS

This is a medical malpractice action against a pathologist where jurisdiction is based on diversity of citizenship. The plaintiffs are residents of Moscow, Idaho. The defendants are residents of Clarkston, Washington. The facts of this case are fully set forth in this Court's Order Denying Abstention (Ct.Rec. 78) and will not be repeated here except as necessary to facilitate the discussion of the issues now under review.

DISCUSSION

I. Plaintiffs' Motion to Determine Choice of Law.

A federal court sitting in diversity must apply the choice-of-law principles of the forum state. Federal Ins. Co. v. Scarsella Bros., Inc., 931 F.2d 599, 602 (9th Cir.1991); Martinez v. Asarco, Inc., 918 F.2d 1467, 1470 (9th Cir.1990). Thus, this court will look to Washington's conflict-of-law rules to determine the applicable state substantive law.

Following the approach developed in the Restatement (Second) of Conflict of Laws § 6 (1971), Washington has adopted the most significant relationship rule for choice-of-law problems in cases sounding in tort. Johnson v. Spider Staging Corp., 87 Wash.2d 577, 555 P.2d 997 (1976). Under this approach, the rights and liabilities of the parties are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties. Id. at 580, 555 P.2d 997.

The Johnson court enunciated a two-step analysis to be employed in making this determination. First, the court must evaluate the contacts with each potentially interested state. Id. at 581, 555 P.2d 997. The following contacts should be considered:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

Id. at 581, 555 P.2d 997 (citing Restatement (Second) of Conflict of Laws §§ 145). The above-listed contacts are to be evaluated according to their relative importance with respect to the particular issue. Id. "The approach is not merely to count contacts, but rather to consider which contacts are most significant and to determine where these contacts are found." Southwell v. Widing Transportation, 101 Wash.2d 200, 204, 676 P.2d 477 (1984).

The second step of the analysis involves an evaluation of the interests and public policies of the concerned states. "The extent of the interest of each potentially interested state should be determined on the basis, among other things, of the purpose sought to be achieved by their relevant local law rules and the particular issue involved." Southwell, 101 Wash.2d at 204, 676 P.2d 477 (citing Johnson, 87 Wash.2d at 582, 555 P.2d 997.)

1. Step One: Evaluation of the Contacts with Each State

An evaluation of the contacts enunciated in Johnson reveals that both Washington and Idaho have a distinct relationship with this case.

(a) The place where the injury occurred.

In their complaint, the plaintiffs allege that as a direct result of Dr. Chinchinian's failure to identify the tissue as a phylloides-type tumor, Mary Ann Workman suffered severe injuries including "a mastectomy of the right breast, failed additional surgeries to reconstruct the right breast, additional medical bills, lost wages, severe emotional distress, pain and suffering," and Mark D. Workman has "suffered losses with respect to his marital and family relationships, all of which fall under the heading of lost consortium, including, but not limited to, losses of society, association, companionship, comfort, economic contribution, support and household services." (Complaint, p. 5). The plaintiffs claim that the mastectomy and subsequent attempts to reconstruct the breast constitute the major physical loss suffered by Mary Ann and that it is this "injury" that caused the damage to the marital community. Because the mastectomy surgery and three of the four reconstruction surgeries were performed in Washington, the plaintiffs contend that this contact has the most significant relationship with Washington. (Plaintiffs' Reply Memorandum, Ct.Rec. 67, p. 2).

In contrast, the defendants argue that Idaho is the state where the plaintiffs' injuries occurred, because the mastectomy only constitutes a part of the "damages" resulting from Ms. Workman's alleged injury.¹ The "injury," according to the defendants, is the reoccurrence of the tumor. There is some plausibility to the defendants' attempt to distinguish between injury and damages. However, under certain circumstances, such as those involved in the present case, making this distinction can be difficult, if not impossible.² Furthermore, the defendants fail to cite any authority which would guide the court in determining whether a loss constitutes an injury or merely represents the damages recoverable for an injury.

Certainly, a more practical approach in a medical malpractice case such as this, where the injury is caused by delayed diagnosis, would be to find the residence of the plaintiff as the place of the injury. To base the determination regarding place of the injury on such adventitious circumstances as the place where the plaintiff undergoes subsequent treatment would frustrate any hope of predictability in determining choice of law problems.

Even if the court were to assume that the mastectomy and reconstruction surgeries performed in Washington constituted part of the plaintiffs' injuries in this case, these injuries are counterbalanced by the injuries occurring in Idaho. The two breast biopsies occurred in Idaho as well as one of the reconstruction surgeries. Furthermore, any injury to the marital relation necessarily occurred in Idaho since the plaintiffs' marital domicile is in Idaho. Since the plaintiffs are residents of Idaho, any emotional pain and suffering endured by Ms. Workman must be centered in Idaho.

Under the particular facts of this case, the place of injury does not tip the scale in favor of either state — at least not at this stage of the Johnson analysis. This contact will carry more weight in the second step of the analysis, when viewed in light of the states' conflicting local laws. (See discussion under Section I-2, infra.)

(b) The place where the conduct causing the injury occurred.

The parties agree that the tissue sample was sent to Clarkston, Washington. The parties also agree that the slides were prepared and the report was eventually transcribed in Clarkston. However, there is no allegation of negligence with respect to these specific activities. The conduct causing the injury in the present case is Dr. Chinchinian's failure to diagnose and report the tissue as a phylloides tumor. As to the location where this activity occurred, the parties sharply disagree.

During the early phases of discovery, Dr. Chinchinian stated that he was simply unable to recall where he was when he interpreted the slides and dictated the report. Dr. Chinchinian now recalls that he read the slides in Lewiston, Idaho and he is willing to testify to this effect.

The plaintiffs believe that Dr. Chinchinian's "sudden and belated alleged recollection" is a recent fabrication to aid the defendants' position with respect to the choice of law issue. It does seem illogical that the tissue would be sent to the Clarkston lab and prepared in that facility and then removed to the Lewiston lab for analysis. Dr. Chinchinian's belated recollection becomes even more suspect when one considers that the report supposedly dictated by the doctor in Lewiston was transcribed in Clarkston. Dr. Chinchinian has offered no explanation for his recent recollection. The court finds it unnecessary to make a factual determination regarding the place where the alleged negligent conduct occurred since the choice of law issue can be resolved on the basis of other factors, as will be discussed infra.

(c) The domicil, residence, nationality, place of incorporation and place of business of the parties.

The plaintiffs are residents and domiciliaries of Idaho and, thus, have a substantial relationship with Idaho. Notwithstanding this relationship, the plaintiffs seek application of Washington law.

The defendants, on the other hand, are residents of Washington. Yet, Dr. Chinchinian is licensed to practice pathology in both Washington and Idaho. Dr. Chinchinian is employed as a pathologist by Pathology Regional Laboratory, P.A., an Idaho corporation with laboratory facilities in Clarkston and Pullman,...