JSH Reporter Summer 2016 - Page 26

CASESOFNOTE 026 JONES, SKELTON & HOCHULI CASES OF NOTE June 6, 2016 Donn Alexander DONN ALEXANDER OBTAINS DEFENSE VERDICT IN MEDICAL MALPRACTICE CASE Esquivel v. City of Yuma May 3, 2016 Michele Molinario, Jon Barnes, and Amelia Esber MICHELE MOLINARIO, JON BARNES, AND AMELIA ESBER PREVAIL ON SUMMARY JUDGMENT Esquivel v . City of Yuma This medical malpractice and wrongful death case involved the death of a 16 month-old child. The child, who had previously been healthy, was admitted to the Pediatric Intensive Care Unit at a local Phoenix hospital after developing croup and respiratory distress. Plaintiffs alleged that Mr. Alexander’s client, a pediatric critical care specialist, fell below the standard of care by failing to timely and properly intubate the child. The child ultimately coded and could not be resuscitated. The trial lasted five weeks. In closing Plaintiffs’ counsel asked the jury to award the child’s parents $15 - $20 million in damages. The jury returned a defense verdict. Michele Molinario, Jon Barnes, and Amelia Esber prevailed by summary judgment in a 42 U.S.C. § 1983 civil rights action against the City of Yuma and one of its law enforcement officers. This case involved the use of a taser in dart-mode to seize Plaintiff Gavino Esquivel, who was actively fleeing the scene of a dispute at a local restaurant that reportedly turned physical. Mr. Esquivel also brought claims of false arrest, malicious prosecution, and assault. The U.S. District Court for the District of Arizona found that there was no liability on the part of the City of Yuma or its officer. The central issue to the Motion for Summary Judgment concerned whether the officer used excessive force in his apprehension of the Plaintiff, and whether the officer was entitled to qualified immunity for his use of force irrespective of whether said force was excessive. Judge Neil V. Wake declined to determine whether the use of force was reasonable under the circumstances, but instead ruled in favor of the defense based on qualified immunity. Judge Wake agreed with the defendants that at the time of this incident in March of 2014, there was no clearly established law that would have put the officer on notice that the use of a taser and similar devices on a fleeing suspect would constitute excessive force. In the words of Judge Wake, “the law was not clearly established in 2012 – and it is not now – that a single tasing of a fleeing suspect, who reportedly was involved in a physical disturbance and may have displayed a gun, after ordering him to stop, violates the Fourth Amendment.”