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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jonathan Marshall, et al., 

Plaintiffs, 

v. 

La Mesa Rehabilitation and Care Center, et 

al., 

Defendants. 

No. CV-15-02082-PHX-DLR

ORDER 

 Plaintiff John Marshall, individually and on behalf of decedent Melissa Marshall, 

brings a medical negligence and wrongful death action against Defendants La Mesa 

Rehabilitation and Care Center and Five Star Senior Living.1

 At issue is Defendants' 

motion for summary judgment on Plaintiff's punitive damages claim (Doc. 86), which is 

fully briefed. For the following reasons, the Court grants Defendants' motion.2

I. Legal Standard 

 Summary judgment is appropriate when there is no genuine dispute as to any 

material fact and, viewing those facts in a light most favorable to the nonmoving party, 

the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is 

material if it might affect the outcome of the case, and a dispute is genuine if a reasonable 

 

1

 Plaintiff also brought this action on behalf of Nicholas Marshall and Ruth 

Juantilla, but the parties later stipulated to the dismissal of these plaintiffs. (Doc. 99.) 

2

 Defendants’ request for oral argument is denied because oral argument will not help the Court resolve the pending motion. Fed. R. Civ. P. 78(b); LRCiv 7.2(f). 
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jury could find for the nonmoving party based on the competing evidence. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 

F.3d 1054, 1061 (9th Cir. 2002). Summary judgment may also be entered "against a 

party who fails to make a showing sufficient to establish the existence of an element 

essential to that party's case, and on which that party will bear the burden of proof at 

trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary 

judgment "bears the initial responsibility of informing the district court of the basis for its 

motion, and identifying those portions of [the record] which it believes demonstrate the 

absence of a genuine issue of material fact." Id. at 323. The burden then shifts to the 

non-movant to establish the existence of a genuine and material factual dispute. Id. at 

324. 

 Additionally, this District's Local Rules of Practice impose specific requirements 

on the form and content of summary judgment motions. "Any party filing a motion for 

summary judgment must file a statement, separate from the motion and memorandum of 

law, setting forth each material fact on which the party relies in support of the motion." 

LRCiv 56.1(a). Each of these facts "must refer to a specific admissible portion of the 

record where the fact finds support (for example, affidavit, deposition, discovery 

response, etc.)." Id. Likewise: 

Any party opposing a motion for summary judgment must file a statement, separate from that party's memorandum of law, setting forth: 

(1) for each paragraph of the moving party's separate 

statement of facts, a correspondingly numbered paragraph 

indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific 

admissible portion of the record supporting the party's position if the fact is disputed; and 

(2) any additional facts that establish a genuine issue of 

material fact or otherwise preclude judgment in favor of the moving party. Each additional fact must be set forth in a 

separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support. 
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LRCiv 56.1(b). The court may deem a movant's separate statement of facts to be true if 

the nonmoving party does not comply with these rules. See Szaley v. Pima Cty., 371 Fed. 

App'x 734, 735 (9th Cir. 2010). 

II. Factual Background 

 Preliminarily, Defendants submitted a separate statement of facts setting forth 

each fact upon which they rely in their memorandum of law, along with corresponding 

citations to evidence in the record supporting those factual assertions. (Doc. 87.) In 

violation of LRCiv 56.1(b), however, Plaintiff did not submit a separate statement of 

correspondingly numbered paragraphs indicating whether he disputes or admits the facts 

asserted by Defendants, along with additional facts that he believes preclude summary 

judgment. Because Plaintiff failed to submit a separate statement of facts, his 

memorandum of law fails to "include citations to the specific paragraph in the statement 

of facts that supports assertions made in the memorand[um]." LRCiv. 56.1(e). The 

Court therefore may deem Defendants' separate statement of facts to be undisputed for 

purposes of this order.3

 Szaley., 371 Fed. App'x at 735. 

 Nevertheless, Defendants' motion is not premised on the Court adopting their 

version of the facts as undisputed. Defendants concede that there are genuine factual 

disputes touching on the merits of Plaintiff's negligence and wrongful death claims. They 

contend, however, that summary judgment may be entered on Plaintiff's request for 

punitive damages because such damages are not available even under Plaintiff's view of 

the facts. With that in mind, the following is the factual background material to 

resolution of this motion. 

 Melissa Marshall ("Marshall) was admitted as a patient at La Mesa Rehabilitation 

and Care Center ("La Mesa" or "the facility") on August 23, 2013. Upon admission, 

 

3

 Plaintiff’s response memorandum also violates LRCiv 7.1(b) by presenting footnotes in a font size smaller than 13 point. Defendants’ submissions are not without 

flaws, either. Of note, a number of Defendants’ separate statements of “fact” contain impermissible argument over the materiality of positions Defendants anticipate Plaintiff will take. (See, e.g., Doc. 87 ¶ 12.) The parties are encouraged to review this District’s Local Rules of Practice to ensure that future filings comply. 
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Marshall underwent an evaluation to assess her status as an elopement risk. Given 

Marshall's dementia and her history of exit seeking behavior, she was characterized as at 

risk. As a result, Marshall was fitted with a WanderGuard, a device which signals an 

alarm when the patient wearing it tries to exit the facility. 

 La Mesa's staff conducted periodic elopement assessments of Marshall, regularly 

characterizing her status as at risk. Plaintiff contends that in August 2014 Marshall's risk 

status improperly was downgraded. (Doc. 91 at 7, 8.) Nevertheless, the staff continued 

to have Marshall wear her WanderGuard device, regularly checked the WanderGuard to 

ensure that it was properly functioning, and stationed a staff member near the front door 

during regular business hours. 

 On October 23, 2014, Marshall eloped from the facility, exiting from the front 

entrance unnoticed by La Mesa's staff. Marshall subsequently fell in the parking lot 

adjacent to the facility. Based on La Mesa's internal investigation, it was determined that 

Marshall exited the facility when a vendor, utilizing a metal dolly, held the front door 

open for her. La Mesa determined that the metal dolly interfered with the signal emitted 

by the WanderGuard sensors attached to the door, preventing the alarm from sounding 

when Marshall exited the building. As part of the internal investigation, La Mesa staff 

also tested Marshall's WanderGuard device and found it functioning properly. Plaintiff 

contends, however, that Marshall's sock covered her WanderGuard, obstructing the 

sensor and contributing to its failure to trigger the alarm. (Doc. 91 at 7, 9.) Plaintiff also 

questions whether a La Mesa staff member was at the front desk at the precise moment 

she escaped. 

 After Marshall's fall, she was taken to Yuma Regional Medical Center. Although 

a CT scan of her brain was clear, an MRI showed bilateral subdural hematomas. As a 

result of her scans and decline in her mental status, Marshall was intubated and 

transferred to St. Joseph's Hospital in Phoenix for neurological intervention. Marshall 

remained at St. Joseph's from October 25, 2014 until November 4, 2014, with no 

improvement. Upon discharge, it was noted that Marshall "had never awoken from her 
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deep encephalopathy secondary to sepsis and underlying brain disease, compounded by 

the right subdural hematoma." Marshall was transported from St. Joseph's to hospice, 

and died the following day. 

III. Discussion 

 "In Arizona, punitive damages are awarded only in the most egregious of cases, 

where it is proved by clear and convincing evidence that the defendant engaged in 

reprehensible conduct and acted with an evil mind." Sec. Title Agency, Inc. v. Pope, 200 

P.3d 977, 995 (Ariz. Ct. App. 2008) (quotations, citations, and alterations omitted). "A 

defendant acts with the requisite evil mind when he intends to injure or defraud, or 

deliberately interferes with the rights of others, consciously disregarding the unjustifiable 

substantial risk of significant harm to them." Hyatt Regency Phx. Hotel Co. v. Winston & 

Strawn, 907 P.2d 506, 518 (Ariz. Ct. App. 1995) (quotations and citations omitted). 

Though a plaintiff may prove the requisite evil mind through circumstantial evidence, "a 

jury will not be permitted to consider an award of punitive damages if the evidence 

supporting such an award is only slight or inconclusive." White v. Mitchell, 759 P.2d 

1327, 1333 (Ariz. Ct. App. 1988). 

Here, there is no evidence that Defendants intended to injure Marshall, and 

Plaintiff does not argue otherwise. Instead, Plaintiff argues that punitive damages are 

recoverable because Defendants consciously disregarded a substantial and unjustifiable 

risk that Marshall would escape and injure herself. Given Marshall's dementia and 

history of exit seeking behavior, a jury reasonably could find that Defendants were aware 

of such a risk. But even under the most favorable reading of the evidence, a jury could 

not reasonably conclude that Defendants consciously disregarded that risk. 

To the contrary, undisputed evidence shows that Defendants responded to this risk 

by implementing a number of measures designed to reduce the likelihood that Marshall 

would escape. For example, Defendants conducted an initial assessment of Marshall's 

elopement risk, determined the reasons for her exit seeking behavior, adopted a care plan 

to reduce the risk of elopement, fitted Marshall with WanderGuard, regularly checked the 
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device's functionality, conducted periodic risk assessments to update her risk level, and 

stationed a staff member at the front desk during regular business hours. Given this 

evidence, no reasonable jury could find that Defendants consciously disregarded the risk 

that Marshall would escape. (Docs. 87 at 5; 87-1 at 9-13, 16, 63, 65-66, 70-82, 84-88, 

104-105; 91 at 7-9.) 

Plaintiff argues, among other things, that Defendants improperly downgraded 

Marshall's risk level and that they failed to take additional measures, like training nonnursing staff on elopement. (Doc. 91 at 8, 10.) Though a jury could find that Defendants' 

actions were inadequate and that they were negligent in not implementing more effective 

measures, punitive damages may not be awarded "based on gross negligence or mere 

reckless disregard of the circumstances." Volz v. Coleman Co., Inc., 748 P.2d 1191, 1194 

(Ariz. 1987). Instead, the relevant inquiry is whether Defendants' actions (or lack 

thereof) were motivated by spite, actual malice, or a "conscious and deliberate disregard 

of the interests and rights of others." Gurule v. Ill. Mut. Life and Cas. Co., 734 P.2d 85, 

87 (Ariz. 1987). That Defendants did not remove Marshall's WanderGuard or otherwise 

deviate from their security measures despite downgrading Marshall's elopement risk 

belies Plaintiff's claim that they acted with conscious and deliberated disregard. 

 To show otherwise, Plaintiff relies on two distinguishable cases. (Doc. 91 at 10-

11.) The first, Bickler v. Senior Lifestyle Corp., No. CV-09-00726-PHX-DGC, 2010 WL 

2292985 (D. Ariz. June 8, 2010), involved a care facility patient who was injured when 

another patient with a known history of combativeness pushed her down. The court 

denied the facility's summary judgment motion on punitive damages, finding that there 

was an issue of fact as to whether the facility consciously disregarded the risks posed by 

the assaultive patient because it stood to benefit financially from housing him. That is, 

the financial incentive served as circumstantial evidence that the facility consciously 

disregarded the risk of harm to the plaintiff. Id. at *7. Likewise, the second case, 

Edwards ex rel. James v. Manorcare, Inc., No. CV 03-018-TUC-FRZ, 2006 WL 

6255440 (D. Ariz. Oct. 19, 2006), involved a care facility patient who was injured in a 
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fall at an understaffed facility. The plaintiff presented evidence that the facility knew it 

was inadequately staffed, and the court denied summary judgment on punitive damages 

because a reasonable jury could infer that the facility deliberately understaffed to further 

its financial interest. Id. at *3-*4. Here, in contrast, Defendants responded to Marshall's 

elopement risk, and no evidence has been offered that Defendants' actions or omissions 

were motivated by financial self-interest. 

IV. Conclusion 

 Defendants do not seek summary judgment on Plaintiff's tort claims. Whether 

Defendants were negligent in their response to Marshall's elopement risk remains a 

question for the jury to decide. But even under the most generous reading of the facts, no 

reasonable jury could conclude by clear and convincing evidence that Defendants 

consciously and deliberately disregarded Marshall's elopement risk. Though this might be 

a case of gross negligence or reckless disregard of the circumstances, it simply does not 

present the type of egregious conduct or evil motives for which Arizona courts have 

specially reserved punitive damages. For these reasons, 

IT IS ORDERED that Defendants' motion for summary judgment (Doc. 86) is 

GRANTED. 

 Dated this 18th day of December, 2017. 

Douglas L. Rayes 

United States District Judge