                                                                           FILED
                                                                            MAR 03 2010
                             NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS
                      UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT

DONNA J. ROOT; et al.,                           No. 08-17644

               Plaintiffs - Appellants,          D.C. No. 2:05-cv-02834-SRB
 v.

TEMPE ST. LUKE’S HOSPITAL; et al.,               MEMORANDUM *

               Defendants - Appellees.

                      Appeal from the United States District Court
                               for the District of Arizona
                       Susan R. Bolton, District Judge, Presiding

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

      Donna J. Root appeals pro se from the district court’s summary judgment for

defendants in her action under the Emergency Medical Treatment and Active Labor

Act (“EMTALA”) and Arizona’s wrongful death statute. We have jurisdiction under



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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28 U.S.C. § 1291. We review summary judgment de novo, Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004), and review for an abuse of discretion challenges to

evidentiary decisions, ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th

Cir. 2003). We may affirm on any grounds supported by the record. ACLU of Nev.,

333 F.3d at 1097. We affirm.

      Summary judgment for defendants on Root’s EMTALA claim was proper

because Root presented no evidence raising a triable issue as to whether the

assessment that Root’s son received in the emergency room before he voluntarily left

the hospital against medical advice differed from that received by other patients

presenting similar symptoms or as to whether the assessment was designed to detect

acute and severe symptoms. See Jackson v. East Bay Hosp., 246 F.3d 1248, 1255-56

(9th Cir. 2001) (recognizing EMTALA imposes no standard of care for screening

patients; “the touchstone is whether . . . the procedure is designed to identify an

emergency medical condition . . . manifested by acute and severe symptoms[,]” which

is determined by whether it is comparable to that “offered to other patients presenting

similar symptoms[.]”) (citations and internal quotation marks omitted).

      Summary judgment for defendants on Root’s wrongful death claim was also

proper. The district court properly (1) required expert testimony as to causation, see


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Seisinger v. Siebel, 203 P.3d 483, 493 (Ariz. 2009) (“We . . . conclude that the

requirement of expert testimony in a medical malpractice action is a substantive

component of the common law governing this tort action.”), and (2) rejected as lacking

foundation the testimony of Root’s proffered causation expert, see Domingo ex rel.

Domingo v. T.K., 289 F.3d 600, 607 (9th Cir. 2002) (affirming rejection of proffered

medical expert as insufficient on causation). Because Root bore, and failed to carry, the

burden of establishing a genuine issue of material fact as to whether or not defendants

caused her son’s death, summary judgment for defendants on her wrongful death claim

was proper. See Lake Nacimiento Ranch Co. v. San Luis Obipso County, 841 F.2d 872,

876 (9th Cir. 1987) (“Under Celotex the . . . nonmoving party, may avoid summary

judgment against it only by” showing a genuine issue of material fact as to an element

essential to its case and on which it will bear the burden of proof at trial; the moving

party “was not required to support its motion with affidavits or other similar materials

negating the opponent’s claim.”) (emphasis in original) (citations and internal quotation

marks omitted).

      Root forfeited her remaining contentions, which were raised for the first time on

appeal. See Man-Seok Choe v. Torres, 525 F.3d 733, 740 n.9 (9th Cir. 2008).

      AFFIRMED.


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