IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON TERRENCE J. MULLAN, individually, and as Personal Representative ofthe Estate of DANA MULLAN, and for MATTHEW D. MULLAN, a minor, MICHAEL P. MULLAN, a minor, and CHRISTOPHER R. MULLAN, a minor, Appellants, No. 68513-9-1 DIVISION ONE c —-u

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NORTH CASCADE CARDIOLOGY, 

### PLLC, a Washington professional 

### limited liability company; ANDREWand JANE DOE COLETTI, a marital 

### community; and ST. JUDE MEDICAL, INC., a Minnesota corporation, Respondents. UNPUBLISHED OPINION

FILED: May 28. 2013 

### Spearman, A.C.J. — The Estate of Dana Mullan appeals the trial court's 

### dismissal of its claims against Ms. Mullan's health care providers and the company that manufactured her pacemaker. Finding no questions of fact existregarding proximate cause, we affirm the trial court. FACTS 

### Dana Mullan was diagnosed with a congenital heart condition in November 

### 1989. In May 1994, Ms. Mullan underwentsurgery andhad apacemakerimplanted. Thepacemakerwasmanufactured by St. JudeMedical, Inc. The usermanualforthe \
No. 68513-9-1/2 pacemaker includes a discussion of battery longevity and recommended replacement time. The recommended replacementtime for Ms. Mullan's pacemaker, which is shown on the device as "Elective Replacement Indicator" (ERI), occurs when the available battery voltage decreases from a maximum capacity of 2.8 volts to approximately 2.4 volts. By contrastthe "end of life" (EOL) for the battery is defined

as "the point in time when the device's pulse amplitude reduces to approximately 50 percent ofthe programmed value. EOL occurs when the available battery voltage has decreased to 2.2 volts." Clerk's Papers (CP) at 83. On September 11, 2008, Ms. Mullan's doctor, Andrew Coletti of North Cascade Cardiology, examined Ms. Mullan after a registered nurse, Maria Healey, 

### had "interrogated"1 Mullan's pacemaker. Healeyfaxed theinformation she obtained from the interrogation to a St. Jude representative who opined that, based on the 

### data provided by Healey, the pacemaker had approximately five to six months before itneeded to be replaced. Healey relayed this information to Ms. Mullan. About one month later, on October 12, 2008, Ms. Mullan died. An autopsy concluded thatthe cause ofdeath was cardiac arrhythmia. Ms. Mullan's pacemaker



### was "explanted," i.e. removed, during the autopsy and testing done at thattime put 

### the battery voltage at 2.14V, or below the level indicatingEOL. Thereafter, the pacemakerwas sentto St. Jude for further testing. St. Jude determined the pacemakerwas functioning normally and was not at the EOLstage. Itexplained that Interrogating a pacemakerrefers to wirelessly measuring readings from the pacemaker.No. 68513-9-1/3

because the initialtesting was "performed outside ofthe body at a colder temperature, [itwas] not reflective ofactual device performance at body temperature." CP at 268. Ms. Mullan's Estate, asked St. Jude for the test results, which St. Jude provided on August 17, 2009. InJuly 2011, about three years after Mullan died, the Estate filed a complaint 

### for wrongful death against St. Jude, Coletti, Healey, and North Cascade Cardiology (the healthcare defendants). St. Jude and the health care defendants moved for 

### summaryjudgment. The court granted both motions. The Estate appeals. DISCUSSION 

### Standard of Review. Ingeneral, the moving party on summaryjudgmentbears 

### the initial burden of showing the absence of an issue ofmaterial fact. Young v. Key Pharm.. Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Amoving defendant may 

### meetthe initial burden by "'showing'—that is, pointing out to the [trial] court—that there is an absence ofevidence to supportthe nonmoving party's case." Young. 112 

### Wn.2d at 225 n.1, (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986)). Where a plaintiffs response to the motion "'failsto make


### a showing sufficientto establish the existence of an element essential to that party's case, and on whichthat party will bearthe burden of proof at trial,'"the trial court 

### should grant the motion. ]d. at 225 (quoting Celotex Corp.. 477 U.S. at 322. This court reviews summaryjudgments de novo, Michael v. Mosouera-Lacv, 165 Wn.2d 595, 601, 200 P.3d 695 (2009), and must consider allfacts submitted andNo. 68513-9-1/4

all reasonable inferences from the facts inthe light mostfavorable to the nonmoving party. Yakima Fruit &Cold Storage Co. v. Central Heating &Plumbing Co.. 81 Wn.2d 528, 530, 503 P.2d 108 (1972) (citation omitted). Dismissal ofclaim against St. Jude. The Estate alleged St. Jude was negligent inthat it: "failed to exercise ordinary care in providing current, accurate, and timely technical assistance to Dana Mullan's health care providers with regard to the useful 

### safe life ofthe battery" for her pacemaker. CP at4. Negligence requires proof of four elements: (1) the existence of a duty to the person alleging negligence; (2) breach of 

### that duty; (3) resulting injury; and (4) proximate cause between the breach and the 

### injury. American Commerce Ins. Co. v. Enslev. 153 Wn. App. 31, 42, 220 P.3d 215 (2009) (citing Hutchinsv. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 

### 1360 (1991)). Among otherthings, St. Jude argues there is no evidence that any of its acts proximately caused Ms. Mullan's death. We agree. 

### St. Jude's motion to dismiss puts the Estate to its proof on the element of 

### proximate cause. Insupport of the motion to dismiss, St. Jude provided expert 

### testimony indicating that itspacemakerwas functioning properly, and that the pacemakerwas not the cause of Ms. Mullan's death: 

### 5. The analysis conclusion was: "ERI caused by a normal depletion ofthe battery. The implant duration was approximately 14.4 years." 6. Such a conclusion does not mean that the battery improperly 

### depleted, orthatthe battery was completely depleted and not working. Justthe contrary. The foregoing analysis shows 

### thatthe battery was continuing to deplete as it continued to workand age. The analysis also concluded thatthe batteryNo. 68513-9-1/5 (and the entire device) was working normally and as it would be expected to work at this stage of its cycle. 7. The conclusions and findings regarding the battery longevity ofthis device are also well within the standards and parameters setforth in the User Manual for this device that has been approved by the FDA. 8. According to the User Manual, this device, depending on its programming and on the patient's physiology, could have lasted additional months properly providing therapy beyond the point of ERI prior to being fullydepleted. 9. In short, the analysis ofthe device showed that the device continued to work and provide normal therapy even after its explant and return, and therefore, battery failure could not have been the cause ofdeath. CP at 44. 

### Inresponse to summaryjudgment, the Estate presented two expertwitness declarations: one from an electrical engineer, Louis Bilancia, and one from a 

### cardiologist, Dr. Mark Seifert. However, neither ofthose expert declarations opined that St. Jude breached a duty ofcare, orthat anything St. Jude did or failed to do 

### was the cause of Ms. Mullan's death.2 

### Bilancia, relying in part on the interrogation performedimmediately after 

### explant, opined thatMs. Mullan's pacemaker battery hadfailed, but he was unable to establish a causal link between the batteryfailure and Ms. Mullan's death. He 

### concluded that, "[s]everal reasonable hypotheses exist to explain whyMs. Mullan died that cannot be tested without access to the pacemaker itself." CP at 202. And 

### while Bilancia disputed the reliability of St. Jude's post-explanttesting of the

2In addition, at oral argument, counsel forthe Estate conceded thatin theabsence of a continuance to allow time for examination of the pacemaker, itwas "unable to provideevidence to establish causation."No. 68513-9-1/6 pacemaker battery, he nowhere asserts that these purportedly unreliable tests proximately caused Ms. Mullan's death. Nor does Seifert opine that any act or omission by St. Jude caused Ms. Mullan's death. Seifert stated that St. Jude provided Healey with an overly optimistic estimate ofthe pacemaker's battery life, but he attributes this to faulty information that Healey transmitted to St. Jude and upon which it relied. Like Bilancia, Seifert questioned the reliability of St. Jude's post-explanttesting on the pacemaker battery, 

### but he did not assertthat either battery failure or the inaccurate information that St. Jude provided to Healey was the proximate cause of Ms. Mullan's death. Inshort, St. Jude's motion to dismiss put the Estate to its proof on the issue of 

### proximate cause. Once St. Jude pointed to an "absence ofevidence" on this element, the burden shifted to the Estate to produce proof ofit. Young. 112 Wn.2d at 225 n. 1. Itfailed to do so. Proximate cause "must be based on more than mere conjecture or 

### speculation." Millerv. Likins. 109Wn. App. 140, 145, 34 P.3d 835 (2001); see also Marshall v. Ballv's Pacwest. Inc.. 94 Wn. App. 372, 972 P.2d 475 (1999). The trial court did not err is granting St. Jude's motion for summaryjudgment. Dismissal ofclaims against North Cascade Cardiology. Coletti. and Healey. 

### The Estate alleged the health care defendants were negligentin that they: failed to exercise ordinary care in interrogating Dana Mullan's 

### pacemakerto determine the useful safe life ofthe battery energizing her pacemakerwhen they concluded on or about 

### September 12, 2008, based on the information they had acquired on September 11, 2008, thatthe batteryfor Ms. Dana's 

### pacemakerwould last approximatelyanother six (6) months fromNo. 68513-9-1/7 the date itwas interrogated on September 11, 2008 proximately resulting in Ms. Mullan's death on October 12, 2008. CP at 3. When an injury occurs as a result ofhealth care, the action for damages for that injury is governed exclusively by RCW 7.70 et. seq. Bransom v. State. 94 Wn. App. 964, 968-69, 974 P.2d 335 (1999). Under that statute, to recover damages for

an injury occurring as a result ofhealth care, a plaintiffmust demonstrate one of three propositions, two ofwhich are relevant inthis case: (1) That injury resulted from the failure of a health care providerto follow the accepted standard ofcare; 

### (2) That a health care provider promised the patient or his or her representative that the injury suffered would not occur;... RCW 7.70.030. 

### Regarding the Estate's breach ofpromise claim under RCW7.70.030(2), the health care defendants argue itwas properly dismissed underthis court's decision in Hansen v. VirginiaMason Med. Ctr.. 113 Wn. App. 199, 53 P.3d 60 (2002). We 

### agree. In that case, inresponse to a spouse's concern that her husband's death was imminent, a doctortold the spouse that her husband was not going to die withinthe 

### year. Hansen. 113 Wn. App. at 202. We held thatthe statute "requires an express 

### undertaking or promise to obtain a specific result or cure through a procedure or a

course oftreatment." Id. at 200. As such, the doctor's assurance that the patient 

### would not die within a year did not amount to a legally enforceable promisewithin the meaning ofthe statute, jd. at 208-09. In this case, the evidence, when viewed in a lightmostfavorable to the Estate, 

### shows onlythat Healey toldMs. Mullan the results of the pacemakerbatteryNo. 68513-9-1/8

assessment: that it would last another five to six months. There is no evidence that 

### Healey or the health care providers expressly assured or promised Mullan any specific result or outcome through a course oftreatment, and as such the breach of promise claim was properly dismissed. Moreover, the Estate was required to establish causation for both the breach of promise claim and the claim for breach ofthe standard ofcare. The health care providers make the same arguments advanced by St. Jude regarding causation: that the Estate provided no expert testimony supporting a causal linkbetween any nursing malpractice and Ms. Mullan's death. They note that neitherexpert testified that Ms. Mullan's death was caused by the pacemaker's alleged failure. As is described above, Bilancia's declaration actually acknowledges thatthe Estate cannot link Ms. Mullan's death to pacemakerfailure, and at oral argument, counsel conceded the Estate had no evidence ofcausation. In sum, the trial court did not err 

### indismissing the claims againstthe health care providers. Continuance under CR 56(f). The Estate argues the trial court erred by 

### declining to permit a continuance under CR 56(f) for the purpose of the Estate obtaining and examining the pacemakeritself. We disagree. A trialcourt's denial of a CR 56(f) motion for a continuance is reviewed for an abuse of discretion. See Clarke v. Office ofthe Attorney General, 133 Wn. App. 767, 777, 138 P.3d 144 (2006); 

### Mossman v. Rowley. 154 Wn. App. 735, 742, 229 P.3d 812 (2009). "Acourt abuses its discretion when itbases its decision on unreasonable or untenable grounds."

8No. 68513-9-1/9


### Clarke. 133 Wn. App. at 777. Additionally, a trial court has the discretion to deny a 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." Janda v. BrierRealty. 97 Wn. App. 45, 54, 984 P.2d 412 (1999) (quoting Turnerv. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474(1989)). Here, the Estate never moved to compel production ofthe pacemaker, even though itreceived St. Jude's testing inAugust 2009. Nor did the Estate move for a continuance in its responses to summaryjudgment. Instead, the Estate waited until 

### the day of oral argument on the summaryjudgment motions in February 2012, thirty months after receiving St. Jude's results, to ask for a continuance to seek production ofthe pacemaker. The Estate has given no reason for the delay, nor does itstate that it could have determined through an examination ofthe pacemaker more than 

### three years after Ms. Mullan's death, thatthe pacemaker had stopped functioning, causing herdeath. Underthese circumstances, we conclude the trial court did not abuse its discretion indenying the motion.No. 68513-9-1/10

Affirmed.3

WE CONCUR: 

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### 3In lightofourdecision, we declinetoaddress St. Jude'sarguments regarding federal pre emption and the learned intermediarydoctrine. 10