NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE TRUJILLO, Jr., No. 18-15680
Plaintiff-Appellant, D.C. No. 3:16-cv-08205-DLR
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted November 6, 2019
Pasadena, California
Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,** District
Judge.
Steve R. Trujillo, a member of the Navajo Nation, appeals the district court’s
grant of summary judgment in favor of the United States in his medical
malpractice claim under the Federal Tort Claims Act (“FTCA”). Trujillo alleges
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Louis Guirola, Jr., United States District Judge for the
Southern District of Mississippi, sitting by designation.
that a physician’s assistant (“PA”) at the Chinle Comprehensive HealthCare
Facility (“CCHCF”) in Chinle, Arizona, breached the applicable standard of care
when he removed Trujillo’s entire toenail, causing an infection that led to the
amputation of more than half of Trujillo’s right foot. The district court excluded
Trujillo’s only medical experts—an infectious diseases specialist and a podiatrist—
because they are not qualified to testify as to the standard of care applicable to a
PA under Arizona Revised Statutes (“A.R.S.”) Section 12-2604. The district court
also granted the United States summary judgment because Trujillo did not present
medical expert testimony from a licensed PA (or a PA instructor) qualified to opine
on the applicable standard. We have jurisdiction over Trujillo’s appeal under 28
U.S.C. § 1291. We affirm.
1. The district court did not err in identifying Section 12-2604, nor did it abuse
its discretion in applying this statute to exclude Trujillo’s standard-of-care expert
reports. See City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1065 (9th Cir.
2017) (“[T]he first step of our abuse of discretion test is to determine de novo
whether the trial court identified the correct legal rule to apply to the relief
requested. [T]he second step of our abuse of discretion test is to determine
whether the trial court’s application of the correct legal standard was (1) illogical,
(2) implausible, or (3) without support in inferences that may be drawn from the
facts in the record.” (citations omitted)). Under Arizona law, medical-malpractice
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experts testifying as to the standard of care must devote a majority of their
professional time to either “[t]he active clinical practice of the same health
profession as the defendant,” or “[t]he instruction of students . . . in the same
health profession as the defendant,” or both. ARIZ. REV. STAT. ANN. § 12–
2604(A)(2) (2019) (emphases added). This clinical practice or instruction must
take place “[d]uring the year immediately preceding the occurrence giving rise to
the lawsuit.” Id. Physicians, podiatrists, and PAs are members of different health
professions in Arizona. See id. §§ 32-1401 to 32-1407 (medical physicians), 32-
801 to 32-871 (podiatrists), 32-2501 to 32-2558 (PAs). Accordingly, Trujillo’s
experts were not qualified to testify as to the standard of care applicable to PAs.
See St. George v. Plimpton, 384 P.3d 1243, 1248 (Ariz. Ct. App. 2016) (holding
that a board-certified obstetrician/gynecologist is not qualified to opine on the
standard of care applicable to a licensed registered nurse); see also Rasor v. Nw.
Hosp., LLC, 403 P.3d 572, 578 (Ariz. 2017) (holding that a nurse specializing in
wound care is not qualified to opine on the standard of care applicable to intensive
care unit nurses); Baker v. Univ. Physicians Healthcare, 296 P.3d 42, 50 (Ariz.
2013) (holding that a medical doctor who specialized in internal medicine,
hematology, and oncology is not qualified to opine on the standard of care
applicable to a medical doctor specializing in pediatric hematology); Kuckuck v.
Burchfield, No. 1 CA-CV 07-0107, 2007 WL 5471707, at *3 (Ariz. Ct. App. Dec.
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24, 2007) (unpublished) (holding that an infectious disease specialist is not
qualified to opine on the standard of care applicable to an orthopedic surgeon).
2. The district court did not err in granting the United States summary
judgment because, under Arizona law, Trujillo cannot establish his medical
malpractice claim without an expert witness qualified under Section 12-2604 to
opine on a PA’s standard of care. Rasor, 403 P.3d at 575 (“Unless malpractice is
grossly apparent, the standard of care must be established by expert medical
testimony.” (citing Siesinger v. Siebel, 203 P.3d 483, 492 (Ariz. 2009))).
AFFIRMED.
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