[00:00:19] Speaker 06:
Next we have Hector Hernandez versus County of Alameda and California Forensic Medical Group.

[00:01:04] Speaker 04:
Good morning, counsel.

[00:01:06] Speaker 04:
Good morning, and may it please the court, Fulvio Kahina, appealing for plaintiffs.

[00:01:10] Speaker 04:
I'd like to reserve three minutes for rebuttal.

[00:01:15] Speaker 04:
This is a case about a 39-year-old man who was homeless, schizophrenic, suffering from chronic kidney disease, latent and chronic tuberculosis, who was in jail for two months and in that time period lost 8.7% of his body weight.

[00:01:33] Speaker 04:
During that time period, he requested medical assistance on three occasions, and he was never once seen or evaluated by a doctor.

[00:01:42] Speaker 04:
Within two months, he was found dead in his jail cell.

[00:01:47] Speaker 04:
Yes.

[00:01:47] Speaker 06:
Counsel, in Dr. Omari's expert report, does that create enough of a triable issue of fact?

[00:01:59] Speaker 06:
There, Dr. Omari testified that the autopsy confirms

[00:02:03] Speaker 06:
that if Hector was provided with adequate medical examination and basic laboratory testing of his blood, the cause of his weight loss would have been identified and treated, and his unexpected death at the age of 39 years old would have been avoided.

[00:02:23] Speaker 06:
Does that create enough of a triable issue of fact such that summary judgment was inappropriate?

[00:02:29] Speaker 06:
Absolutely, Your Honor.

[00:02:31] Speaker 06:
Why explain that?

[00:02:32] Speaker 06:
Because the judge seems to decide otherwise.

[00:02:37] Speaker 04:
Well, with all due respect to the trial court, the trial court found or held that

[00:02:45] Speaker 04:
Plaintiffs' experts could not pinpoint the sole cause of death for Mr. Hernandez.

[00:02:52] Speaker 04:
However, that's not the standard, especially in a medical context.

[00:02:56] Speaker 04:
Human beings aren't cars.

[00:02:57] Speaker 04:
You can't open the hood and say, the crankshaft is broken.

[00:03:00] Speaker 04:
That's why the engine doesn't work.

[00:03:01] Speaker 04:
We have many different things happening in our bodies at once.

[00:03:06] Speaker 04:
And so in Lemire and in Messick, the Ninth Circuit has held that

[00:03:13] Speaker 04:
A plaintiff is not required to eliminate all other causes of death.

[00:03:19] Speaker 04:
You just have to show that there is a more likely than not probability that what defendant's actions

[00:03:29] Speaker 04:
what defendant's actions were taken was a substantial factor in causing that death.

[00:03:35] Speaker 04:
And here, that's precisely what Dr. Amalu- Don't we need to have some idea as to what the cause of death was?

[00:03:41] Speaker 03:
Well, Dr. Amalu says- We have at least three things, two of which come from your experts, and they're different.

[00:03:47] Speaker 04:
Well, actually, we have many different causes of death.

[00:03:52] Speaker 04:
Dr. Ioko, the initial medical examiner, said that Mr. Hernandez died because he choked on his blood because of aspiration.

[00:04:03] Speaker 04:
We asked their experts, was this true?

[00:04:05] Speaker 04:
They said, no, that wasn't what caused his death.

[00:04:09] Speaker 04:
Dr. Amalu, who is the pathologist, who is the most

[00:04:13] Speaker 04:
person, the most qualified person to testify on this issue of medical causation.

[00:04:18] Speaker 04:
He testified that Mr. Hernandez died due to unaddressed and unevaluated, unintended chronic weight loss that arose from- He didn't say that he died from weight loss.

[00:04:34] Speaker 04:
No, that arose from the chronic kidney disease being not treated.

[00:04:38] Speaker 04:
That's what he said.

[00:04:39] Speaker 03:
He said he died of kidney disease.

[00:04:40] Speaker 03:
Right.

[00:04:41] Speaker 03:
And Dr. Swabie says he died of pneumonia.

[00:04:43] Speaker 04:
Right.

[00:04:45] Speaker 04:
Although Dr. Swabie does, again, he's not a pathologist.

[00:04:49] Speaker 04:
Dr. Swabie was there to testify.

[00:04:50] Speaker 03:
But you introduced his testimony.

[00:04:52] Speaker 03:
Are we supposed to credit him or not credit him?

[00:04:53] Speaker 03:
Did you want us not to credit him?

[00:04:55] Speaker 04:
Dr. Swabie's testimony is to set the standard of care for the treating physicians at the doctor.

[00:05:01] Speaker 03:
Right, but we're still trying to figure out what did he die of?

[00:05:05] Speaker 03:
And let me tell you what the problem is for me, is that

[00:05:12] Speaker 03:
You've suggested that they had to investigate his unintended weight loss.

[00:05:18] Speaker 03:
Dr. Omalu gives us this enormous list of things there on his 2ER 195.

[00:05:26] Speaker 03:
You know which list I'm talking about.

[00:05:29] Speaker 03:
It can be cancer.

[00:05:31] Speaker 03:
It can be dementia.

[00:05:32] Speaker 03:
It could be depression.

[00:05:33] Speaker 03:
It could be heart failure.

[00:05:34] Speaker 03:
It could be AIDS.

[00:05:36] Speaker 03:
It could be tuberculosis.

[00:05:38] Speaker 03:
It could be Parkinson's disease.

[00:05:40] Speaker 03:
And that's just a universe of problems.

[00:05:45] Speaker 03:
And without being able to identify anything or tie something to this, you've created an Eighth Amendment standard that says, well, if somebody loses weight, you're gonna have to work up a full medical and send them out to all kinds of specialists because it could be anything.

[00:06:00] Speaker 04:
Well, it's a Fourteenth Amendment standard in this case.

[00:06:03] Speaker 04:
But again, that's not what Dr. Amalu's declaration

[00:06:09] Speaker 04:
That's not exactly what it says.

[00:06:11] Speaker 04:
What it says is, unintended weight loss can arise from all of these things.

[00:06:17] Speaker 04:
In this case, he testified to a medical certainty that Mr. Hernandez died from chronic kidney disease.

[00:06:26] Speaker 04:
That was the underlying reason why he had this 8.7% weight loss.

[00:06:32] Speaker 04:
And in fact, when I actually deposed their experts,

[00:06:36] Speaker 04:
I believe it was Dr. Quircy who said that yes, Mr. Hernandez was suffering from stage 3 kidney disease.

[00:06:43] Speaker 04:
That he had very high creatinine levels and again, none of that was addressed.

[00:06:49] Speaker 06:
Now, Dr. Swabi said something different, right, in terms of the cause of death.

[00:06:54] Speaker 06:
So the question I guess I have for you is, do we then

[00:06:59] Speaker 06:
should that go in front of the jury and they make a determination of which expert they need to credit?

[00:07:10] Speaker 06:
But you see the problem though is you could have all of these different sort of causes, which is going to Judge Bybee's concern here.

[00:07:21] Speaker 06:
At what point do we say, hey, this is not enough?

[00:07:27] Speaker 06:
That's the issue.

[00:07:30] Speaker 04:
First of all, again, the case law says if there's multiple different opinions from experts, then guess what?

[00:07:37] Speaker 04:
It's a question for the trier of fact.

[00:07:39] Speaker 02:
Could you please do me a favor and point to me what expert testified that weight loss was a substantial cause of either kidney disease, heart failure, or any other cause of death?

[00:07:59] Speaker 04:
Yes, it was Dr. Omalu.

[00:08:01] Speaker 04:
Where?

[00:08:02] Speaker 04:
It's 2ER201.

[00:08:04] Speaker 04:
It says, if Hector Hernandez received a competent medical and clinical evaluation to determine the cause of his weight loss and kidney disease, he would have received the treatment he needed and more likely than not would not have died at the age of 39 years old.

[00:08:22] Speaker 02:
And what's the causative relation between weight loss and death?

[00:08:27] Speaker 04:
So it's not regular weight loss.

[00:08:32] Speaker 02:
Does he say that weight loss exacerbates the kidney disease?

[00:08:37] Speaker 04:
No, it's the opposite actually.

[00:08:39] Speaker 04:
He's not saying that you die because of weight loss.

[00:08:42] Speaker 04:
You die because of unintended weight loss.

[00:08:46] Speaker 02:
Give me some evidence that you've submitted that shows that the weight loss was considered by the expert witness as a substantial cause in part or in whole of causing the death.

[00:09:01] Speaker 02:
And you've cited ER 201.

[00:09:03] Speaker 02:
Is that it?

[00:09:03] Speaker 04:
No, there's ER 195 at the age of 39 years old.

[00:09:08] Speaker 04:
Most of the causes of unintentional unexplained weight loss can be managed, treated, or controlled.

[00:09:14] Speaker 04:
to significantly reduce the progressive decline of health.

[00:09:16] Speaker 04:
Basically what he's saying is, if you have unintentional- You're going too fast, I'm not catching you.

[00:09:20] Speaker 02:
Maybe you- Sorry.

[00:09:24] Speaker 02:
Slow down.

[00:09:26] Speaker 04:
Is 2ER 195?

[00:09:27] Speaker 04:
195.

[00:09:27] Speaker 02:
And what does it say there?

[00:09:29] Speaker 04:
At the age of 39 years old, most of the causes of unintentional unexplained weight loss can be managed, treated, or controlled.

[00:09:37] Speaker 02:
That's a statistical question.

[00:09:39] Speaker 04:
No, that's Dr. Omalu saying.

[00:09:42] Speaker 04:
He gave a list of all the things that can cause unintentional weight loss, which includes chronic kidney disease.

[00:09:48] Speaker 04:
He says all of these things can be treated if they're properly evaluated.

[00:09:52] Speaker 04:
If you catch it in time, if you do something about it, you can treat it and prevent this continued loss of weight that will lead to death.

[00:10:01] Speaker 02:
How does it lead to death?

[00:10:03] Speaker 02:
What is the cause of death?

[00:10:05] Speaker 02:
Kidney disease or heart disease?

[00:10:06] Speaker 02:
My question to you is what does weight loss have to do with kidney disease or congestive heart failure?

[00:10:14] Speaker 02:
And who says that the weight loss was a substantial factor in either of those causes of death?

[00:10:22] Speaker 04:
So, again, the unintended weight loss is a red flag.

[00:10:26] Speaker 04:
That's what it is.

[00:10:27] Speaker 04:
It's a red flag that there's something wrong with the person.

[00:10:30] Speaker 04:
And in fact, their own physician assistant, Mr. Cooper, testified to that.

[00:10:40] Speaker 02:
Where's the evidence that weight loss exacerbates or causes kidney disease or congestive heart failure, which were the two causes that I saw of causes of death?

[00:10:54] Speaker 04:
It's the opposite, Your Honor.

[00:10:55] Speaker 04:
It's that unintended weight loss is a symptom of the chronic kidney disease.

[00:11:01] Speaker 04:
And their own expert testified that if you have untreated chronic kidney disease, you can have a sudden cardiac

[00:11:09] Speaker 02:
The negligence was in not recognizing that unintended weight loss was, as you call it, a red flag, and a reasonable medical provider would have then recognized that this would exacerbate kidney disease or heart congestion.

[00:11:27] Speaker 02:
Is that your point?

[00:11:28] Speaker 02:
Okay.

[00:11:29] Speaker 02:
Yes.

[00:11:30] Speaker 06:
Well, that's what I understood your point to be, that it was a lack of treatment that would identify the weight loss that then would have resulted in getting the blood work, that would have resulted in doing the proper exams, that would have resulted in all of these things.

[00:11:46] Speaker 06:
That's what I understood your point to be.

[00:11:47] Speaker 04:
Absolutely.

[00:11:48] Speaker 04:
And here we're kind of put in this tough situation where

[00:11:53] Speaker 04:
Because they failed to do anything, because there are no labs, because they didn't even take his vitals, they wouldn't even check to see if he had a fever, they wouldn't check what his blood pressure was, because they didn't do any of that, there is a dearth of evidence as to why he was dying.

[00:12:13] Speaker 04:
However, our expert says, Dr. Amalu, and again, this is a question of fact for the jury, look, he had this,

[00:12:21] Speaker 04:
huge weight loss, and he's begging for help.

[00:12:23] Speaker 04:
He's saying, please help me.

[00:12:25] Speaker 04:
He actually says, please help me in one of the notes.

[00:12:30] Speaker 04:
It goes unaddressed.

[00:12:32] Speaker 04:
Dr. Amalo's saying, had it been addressed, they would have seen that he had a chronic kidney disease, and they would have addressed that, he wouldn't have died.

[00:12:40] Speaker 04:
And here, their own expert, Dr. Corsi, testified that if you have chronic kidney disease,

[00:12:47] Speaker 04:
That's a risk factor for sudden cardiac arrest.

[00:12:51] Speaker 06:
Counsel, I didn't ask you whether you wanted to reserve any time.

[00:12:55] Speaker 06:
Did you want to reserve any time?

[00:12:56] Speaker 06:
Yes, I was going to reserve three minutes, Your Honor.

[00:12:58] Speaker 06:
All right, so you've got it.

[00:13:00] Speaker 06:
Why don't you have a seat and we'll hear from the other side.

[00:13:02] Speaker 06:
All right, thank you.

[00:13:17] Speaker 01:
May it please the court?

[00:13:19] Speaker 01:
My name is Lindsay Romano.

[00:13:21] Speaker 01:
I represent the Appalee's Well Path, Inc., CFMG, and employees Casey Laban, Corey Levin, and Jeffrey Koop.

[00:13:32] Speaker 01:
I think that Your Honors identified and crystallized the issue.

[00:13:37] Speaker 01:
But before I talk about causation, I want to be sure that we're

[00:13:43] Speaker 01:
utilizing the correct standard.

[00:13:47] Speaker 01:
So when plaintiff was arguing, he was asking the court to, both in his papers and just now during his oral argument, to use the substantial factor causation test.

[00:13:59] Speaker 01:
This is not a medical malpractice claim.

[00:14:02] Speaker 01:
The medical malpractice claim is currently pending in state court.

[00:14:07] Speaker 01:
That is a live case that we are currently litigating.

[00:14:11] Speaker 01:
For deliberate indifference, the district court made very clear what the correct standard is, and we also confirm that in our papers.

[00:14:24] Speaker 01:
It is on.

[00:14:25] Speaker 06:
And that standard is?

[00:14:27] Speaker 01:
On a 1983 claim under a deliberate indifference theory,

[00:14:32] Speaker 01:
plaintiff must prove the official's actions for both the actual and proximate cause of the plaintiff's injuries.

[00:14:40] Speaker 01:
So we're using the traditional but for test and foreseeability test when we're talking about whether or not this failure to evaluate the weight loss caused his death.

[00:14:55] Speaker 01:
So it can just be a factor.

[00:14:56] Speaker 06:
Let's talk about that.

[00:14:58] Speaker 06:
Sure.

[00:14:59] Speaker 06:
Why can't we interpret the experts that have been provided as saying, this man should have been treated.

[00:15:10] Speaker 06:
Had this man been treated in any way, then they would have been able to run the blood test.

[00:15:18] Speaker 06:
They would have been able to do all the things that would determine how to treat the individual.

[00:15:25] Speaker 06:
Why don't we treat those experts in that way?

[00:15:29] Speaker 01:
Well, so I guess looking at each of plaintiff's experts, so we'll take the... Omalu.

[00:15:37] Speaker 01:
We'll take Omalu.

[00:15:38] Speaker 01:
So what Omalu actually says is there was a failure to provide and evaluate for the weight loss.

[00:15:48] Speaker 01:
That resulted in the failure to determine the underlying cause of the weight loss.

[00:15:54] Speaker 01:
That underlying cause could be one of 25 different things.

[00:15:57] Speaker 01:
I don't know which one.

[00:16:00] Speaker 01:
I don't know what was causing the kidney failure and whether that kidney failure was treatable or not.

[00:16:06] Speaker 06:
I think he's saying something different.

[00:16:08] Speaker 06:
I think he's saying that it's the failure to treat that caused the death.

[00:16:13] Speaker 06:
In other words, he's saying specifically the autopsy confirms

[00:16:18] Speaker 06:
that if Hector was provided with adequate medical examinations and basic laboratory testing of his blood, the cause of his weight loss would have been identified and treated and his unexpected death at the age of 39 years old would have been avoided.

[00:16:38] Speaker 06:
That's at 2ER195.

[00:16:40] Speaker 06:
He said that.

[00:16:42] Speaker 06:
That's what the doctor said.

[00:16:44] Speaker 01:
He doesn't know what's causing the chronic kidney failure, so how can he opine as to what treatment they should or should not have done?

[00:16:54] Speaker 01:
That's what's missing.

[00:16:56] Speaker 01:
That's the piece.

[00:16:57] Speaker 01:
That's the dot.

[00:17:00] Speaker 01:
plaintiff's expert needs to connect.

[00:17:02] Speaker 01:
And without that, that is why the lower court was focused on without any evidence that says that the unidentified weight loss was related to chronic kidney failure and without any evidence from plaintiff's experts to say that kidney failure could have been treated.

[00:17:24] Speaker 01:
There's not enough to get to

[00:17:28] Speaker 01:
a triable issue effect.

[00:17:29] Speaker 06:
Well, and the sort of ridiculous thing about the whole thing is the fact that had we had the blood work, we would have known that.

[00:17:35] Speaker 06:
But your client didn't do that.

[00:17:39] Speaker 01:
Well, what he's actually, I think what he's, this is part of the problem.

[00:17:43] Speaker 01:
We're really trying to build in a lot of assumptions to plaintiff's expert's testimony.

[00:17:50] Speaker 01:
And that was the issue that the lower court had, because there's all of these different puzzle pieces.

[00:17:56] Speaker 01:
myself, the court, the lower court, the county, we're all trying to figure it out for plaintiff because he never actually made any of the arguments that you're making.

[00:18:04] Speaker 01:
So putting that aside, to answer your question directly, the problem is with that theory is we're talking about a alleged misdiagnosis.

[00:18:19] Speaker 01:
Misdiagnosis or failure to diagnose is not deliberate indifference.

[00:18:25] Speaker 01:
That's a medical malpractice claim that we're litigating in the lower court.

[00:18:30] Speaker 01:
The deliberate indifference here is failure to evaluate the weight loss.

[00:18:37] Speaker 01:
Then we get into a very murky area, which is, well, maybe then it would have been kidney failure.

[00:18:47] Speaker 01:
And maybe the kidney failure could have been treated.

[00:18:50] Speaker 01:
And then maybe if it was treated, it maybe would have stopped his death.

[00:18:56] Speaker 01:
It's not enough.

[00:18:59] Speaker 02:
Do you have a case that tells us that failure to evaluate is a deliberate indifference?

[00:19:07] Speaker 02:
That draws the distinction between but for your actual cause and substantial factor?

[00:19:16] Speaker 01:
The plaintiff didn't plead that there was a failure to... Pardon me, could you answer my question?

[00:19:21] Speaker 02:
No.

[00:19:21] Speaker 02:
Okay, thank you.

[00:19:31] Speaker 06:
Counsel, you still have two minutes.

[00:19:34] Speaker 01:
Does the panel have any further questions?

[00:19:38] Speaker 01:
On the issue of moving to the issue of the motion for leave to amend, I would like just to say that we agree with the lower court's finding that it would be futile.

[00:19:51] Speaker 01:
Curing the deficiencies in the allegation does not cure the deficiencies of the evidence.

[00:19:57] Speaker 01:
The plaintiff agreed.

[00:19:58] Speaker 01:
during the hearing at the motion for summary judgment that the factual record would be the same regardless of the proposed amendments.

[00:20:07] Speaker 01:
What we believe would happen was that it would just reopen discovery and would allow for plaintiff to do what it should have done, which is just go forward with the argument that there was deliberate indifference in treating the

[00:20:28] Speaker 01:
right-sided hydronephrosis of the kidney and the failure to do so was the direct cause of his death.

[00:20:35] Speaker 01:
He didn't do that.

[00:20:36] Speaker 01:
Instead, we're going this roundabout way to say, oh, it's the weight loss that led to the kidney that led to maybe it would have been diagnosed and so on and so forth.

[00:20:48] Speaker 01:
And so our position is that the plaintiff isn't allowed nor do the rules to amend

[00:20:58] Speaker 01:
his complaint, give him the opportunity to take a third bite at the apple.

[00:21:06] Speaker 06:
Thank you.

[00:21:07] Speaker 06:
Any other questions?

[00:21:08] Speaker 06:
No.

[00:21:09] Speaker 06:
Any other questions?

[00:21:10] Speaker 06:
No.

[00:21:11] Speaker 01:
All right.

[00:21:11] Speaker 01:
We'll submit.

[00:21:11] Speaker 01:
Thank you.

[00:21:12] Speaker 06:
Thank you.

[00:21:19] Speaker 06:
Good morning.

[00:21:20] Speaker 05:
Good morning, Your Honours.

[00:21:32] Speaker 05:
public entity and defendant for Alameda.

[00:21:36] Speaker 05:
Let me just simplify a few things for the court here.

[00:21:38] Speaker 05:
As the court's aware, for a 1983 action under each of these two causes of action, it's delivered in difference, but for a 1983, you have to have a person named.

[00:21:50] Speaker 05:
They don't have a person named, so that's their first fault with regard to that issue.

[00:21:56] Speaker 05:
The other way to do it, as the court is aware,

[00:21:58] Speaker 05:
that a public entity can be deemed a, quote, person if you are making allegations under Monell for a custom practice or policy.

[00:22:07] Speaker 05:
The plaintiffs have conceded on the motion for summary judgment.

[00:22:11] Speaker 05:
They're abandoning their Monell claim, and they don't argue otherwise as part of their appeal.

[00:22:16] Speaker 05:
So as we stand now, there is no viable constitutional claim, 1983, for deliberate indifference that they can make against the county of Alameda.

[00:22:28] Speaker 05:
So how they're trying to save that claim, it appears, is simply going to the branch about whether or not they should be granted leave to amend at this late time in the case to add Officer Hahn, a correctional officer.

[00:22:44] Speaker 05:
So I would like to go to that point now.

[00:22:47] Speaker 05:
I believe the standard is abuse of discretion, and we believe that Judge Gilliam did not make any clear error of judgment with regard to his evaluation on those issues.

[00:23:00] Speaker 05:
If the court is going to do a de novo review, then we can look at, I think, all the foaming factors, and I'd like to press upon the court.

[00:23:09] Speaker 05:
There are certainly more issues with regard to the

[00:23:13] Speaker 02:
On denial of motion to amend, is our standard to do it an over review or abuse of discretion?

[00:23:21] Speaker 05:
It's a little unclear, Your Honor.

[00:23:23] Speaker 05:
I think the way the plaintiffs are arguing it, because Judge Gilliam found that it was futile for the second amended complaint because they couldn't make a constitutional claim against Deputy Hahn, there is case law that says if the court rules on that issue, it's a de novo review of that point.

[00:23:43] Speaker 05:
We did argue all the foam and factors.

[00:23:46] Speaker 05:
Judge Gilliam did consider several of them.

[00:23:49] Speaker 05:
But if the court's doing a de novo review, then I think all the foam and factors are in play.

[00:23:54] Speaker 05:
Clearly, there's been a significant delay with regard to Deputy Hahn.

[00:24:00] Speaker 05:
They knew about Deputy Hahn in February of 2021 as part of a mediation.

[00:24:04] Speaker 05:
They actually deposed him in June of 2021, but they did not file and seek leave to add him to the case

[00:24:12] Speaker 05:
until September of 2021.

[00:24:15] Speaker 05:
So this is seven months after they knew about him, three months after they deposed him, and only a few weeks before our dispositive motion filing deadline.

[00:24:24] Speaker 05:
Clearly, there's also significant prejudice there would be to the county, and specifically to Deputy Hahn, if leave to amend would be granted.

[00:24:33] Speaker 05:
He'll be coming into this case after experts have been disclosed, after some experts deposed, rebuttal experts,

[00:24:42] Speaker 05:
after the deadline for summary judgment.

[00:24:45] Speaker 05:
And then finally, well obviously they've already gotten a chance, they've already gotten a bite at the apple with their prior filing of a first amended complaint, that's a consideration.

[00:24:56] Speaker 05:
But as to futility, the court found that Deputy Hahn

[00:25:01] Speaker 05:
in no way had any knowledge about any medical needs of this inmate, and Deputy Hahn certainly in a little bit different position than medical personnel.

[00:25:13] Speaker 02:
Upon what basis of fact did the court so find?

[00:25:17] Speaker 05:
The court looked at

[00:25:19] Speaker 05:
the evidence with regard to Deputy Hahn.

[00:25:21] Speaker 05:
Deputy Hahn is just a correctional deputy.

[00:25:24] Speaker 05:
He's doing checks.

[00:25:25] Speaker 05:
There's no evidence in the record.

[00:25:27] Speaker 05:
He knew about any mental health conditions, any medical conditions.

[00:25:32] Speaker 06:
He did know, I believe.

[00:25:33] Speaker 06:
Isn't this the case, the officer that was required to check on him every 15 minutes and didn't?

[00:25:40] Speaker 06:
That's correct, Your Honor.

[00:25:41] Speaker 05:
He was on a sort of suicide watch.

[00:25:44] Speaker 05:
That's how he ended up there.

[00:25:45] Speaker 06:
So he was required to check on him every 15 minutes and he didn't do that.

[00:25:49] Speaker 05:
There was a period of time from 305 was the last check when Mr. Hernandez was breathing, he was laying in bed, that type of thing, and then the next check, yes, was at 420.

[00:26:04] Speaker 05:
But this would be a different case.

[00:26:05] Speaker 05:
He was on suicide watch, so I agree this would be a different potential case against Deputy Hahn if Mr. Hernandez had committed suicide during that period of time.

[00:26:16] Speaker 05:
But that's not the issue.

[00:26:18] Speaker 05:
The issue is whether he had some medical needs that, you know, Deputy Hahn was deliberately indifferent to.

[00:26:24] Speaker 05:
The last point I want to make on that, and I shared some time with Ms.

[00:26:28] Speaker 05:
Sloan.

[00:26:29] Speaker 05:
She's, Bill Sloan, she's dealing with any of the medical issues for the county.

[00:26:34] Speaker 05:
But the last point is, if Deputy Hahn, another prejudicial issue here, if he was in the case, certainly he would have had qualified immunity arguments at this point in time.

[00:26:45] Speaker 05:
Judge Gilliam essentially found that on the first prong, the constitutional claim, there was significantly insufficient evidence against Deputy Hahn under the Castro-Gordon elements, essentially elements two, three, and four about objective, deliberate indifference.

[00:27:06] Speaker 05:
So that's another significant consideration for the court.

[00:27:10] Speaker 05:
He didn't get the opportunity to make those qualified immunity arguments.

[00:27:14] Speaker 06:
And he wouldn't?

[00:27:16] Speaker 06:
If we allowed the amendment, he wouldn't have those opportunities?

[00:27:19] Speaker 05:
No, he would certainly have those arguments.

[00:27:21] Speaker 05:
But at this point in the time, post-dispositive motion up on appeal here, it's tough to talk about in a vacuum, but he certainly had those rights preserved.

[00:27:32] Speaker 05:
He's brought in.

[00:27:33] Speaker 06:
Council, I see you're sharing your time, and you're over your time.

[00:27:36] Speaker 06:
So unless there are any questions, thank you.

[00:27:41] Speaker 06:
Thank you.

[00:27:47] Speaker 00:
Good morning, Your Honors.

[00:27:48] Speaker 00:
May it please the Court, my name is Denise Billups Sloan, and I'm here with Mr. Bleckman representing the County of Alameda.

[00:27:56] Speaker 00:
And I want to address the issue of the burden of proving

[00:28:01] Speaker 00:
to a reasonable degree of medical probability that there was actual approximate causation of Mr. Hernandez's death.

[00:28:10] Speaker 00:
at the hands of the county by actions or inactions of the county.

[00:28:17] Speaker 00:
I believe that Judge Gilliam got it right in his ruling when he said, in short, plaintiffs expert witnesses failure to explain how defendant-specific conduct caused Mr. Hernandez's death

[00:28:33] Speaker 00:
is required by the deliberate, indifferent, and wrongful death claim.

[00:28:38] Speaker 00:
And it wasn't done in this case.

[00:28:42] Speaker 00:
This court and the US Supreme Court require vigorous standards of proof of culpability and causation by a defendant governmental entity.

[00:28:54] Speaker 00:
And those vigorous standards of proof were obviously not met by the plaintiff's counsel here.

[00:29:01] Speaker 00:
Plaintiff's Council did submit Rule 26 statements from forensic pathologist Dr. Bennett Amalhu and osteopathic Dr. Swabe in opposition to the motion for summary judgment.

[00:29:17] Speaker 00:
Those Rule 26 statements were not submitted under penalty of perjury.

[00:29:22] Speaker 00:
However,

[00:29:23] Speaker 00:
even if the court deemed them admissible, which Judge Gilliam did consider them, they did not state anything in terms of the actual reason Mr. Hernandez died, other than Dr. Amalo stated, and this is at 2ER 197, Mr. Amalo died of sudden cardiogenic death.

[00:29:50] Speaker 00:
He then also said later on page 2, ER 196, that he found evidence in his pathologic examination that the histomorphology of the heart was consistent with a type 3 myocardial injury, which will result in sudden and unexpected death.

[00:30:18] Speaker 00:
He then goes on at the same page to say that his evaluation of the lungs, which he confirmed were heavy and enlarged due to them filling up with fluid, he said his analysis revealed diffuse, acute, and severe pulmonary congestion and edema, typically seen in fulminant cardiogenic pulmonary edema.

[00:30:44] Speaker 00:
Again, he says at page 196 in a different spot that his findings were consistent with terminal, meaning death, terminal cardiogenic, vasogenic, diffuse brain injury due to sudden cardiogenic death.

[00:31:01] Speaker 00:
Time and time again, Dr. Omalu, the plaintiff's expert, says this was a sudden and unexpected death.

[00:31:11] Speaker 00:
Yes, he goes on to speculate.

[00:31:13] Speaker 06:
As a result of non-treatment.

[00:31:16] Speaker 00:
No, he goes on to speculate.

[00:31:18] Speaker 00:
Well, this patient seemed to have lost weight.

[00:31:21] Speaker 00:
There's many causes of weight loss.

[00:31:23] Speaker 06:
No, I'm sorry.

[00:31:24] Speaker 06:
I disagree with your answer.

[00:31:27] Speaker 06:
Because I'm quoting Dr. Amalu's exam.

[00:31:32] Speaker 06:
And his exam at 195 says,

[00:31:36] Speaker 06:
that with adequate medical examination, you could have found out all of these things and all of these conditions and the different options of possible death that could have occurred here.

[00:31:49] Speaker 00:
And my response to that, that's purely speculative.

[00:31:53] Speaker 00:
Number one, the county is not vicariously liable for the health care provided by CFMG, and I'm not contending that they provided inadequate care.

[00:32:02] Speaker 00:
But even if they did, the county's not responsible for that.

[00:32:05] Speaker 06:
Number two, Dr. Omolo's opinion that you do- Well, your first point, I thought that you were here to talk about the medical.

[00:32:13] Speaker 00:
I am.

[00:32:13] Speaker 06:
I think council addressed that issue and the Monell concerns.

[00:32:16] Speaker 06:
I am.

[00:32:17] Speaker 06:
Which are, I understand very well.

[00:32:20] Speaker 00:
You're right.

[00:32:20] Speaker 00:
And so going to your point, Your Honor,

[00:32:22] Speaker 00:
that Dr. Romolo says, well, if he had been examined appropriately, these things would have been found.

[00:32:31] Speaker 00:
What things?

[00:32:32] Speaker 00:
He's listed 26 different possible causes for weight loss.

[00:32:36] Speaker 00:
What if we found that Mr. Hernandez had a terminal brain tumor?

[00:32:42] Speaker 00:
What if we found he just hadn't eaten enough?

[00:32:44] Speaker 00:
We don't know.

[00:32:45] Speaker 00:
It's purely speculative.

[00:32:47] Speaker 00:
And it certainly doesn't rise to the,

[00:32:51] Speaker 00:
the probability standard that's required to prove actual and proximate causation.

[00:32:57] Speaker 06:
Council, I don't have any other questions, but I don't know if my colleagues have any questions.

[00:33:02] Speaker 06:
Thank you.

[00:33:03] Speaker 00:
OK.

[00:33:03] Speaker 00:
Thank you, Your Honor.

[00:33:05] Speaker 00:
If you have no other questions for the county, the county submits and asks that Your Honors affirm the ruling of Judge Gilliam.

[00:33:12] Speaker 06:
Thank you.

[00:33:17] Speaker 04:
Thank you, Your Honors.

[00:33:19] Speaker 04:
I do want to address a couple of things first.

[00:33:22] Speaker 04:
As to this notion that there's a live case in state court, the case was remanded to state court.

[00:33:30] Speaker 04:
However, the parties have agreed to stay that case pending resolution of this.

[00:33:35] Speaker 04:
So no one is litigating actively in state court.

[00:33:38] Speaker 04:
We're waiting to see what you all decide before taking next steps.

[00:33:42] Speaker 04:
So I wanted to address that.

[00:33:43] Speaker 04:
As to whether Dr. Amalu and Dr. Swabbi testified or provided declarations under

[00:33:50] Speaker 04:
The reports under penalty of perjury cite 2ER186 and 2ER206.

[00:33:59] Speaker 04:
Those are their declarations signed under penalty of perjury attaching their reports as exhibits.

[00:34:04] Speaker 03:
Okay, counsel, I want to take you back to the list that Dr. Omalo provides.

[00:34:08] Speaker 03:
Yes.

[00:34:08] Speaker 03:
He does it first at page 195 and does it in the subsequent.

[00:34:12] Speaker 03:
So this is where he lists all of the various things that might be associated with unintended weight loss.

[00:34:20] Speaker 03:
Because we don't know what the cause was, it's very difficult to know whether we could have identified and prevented the death of your client.

[00:34:33] Speaker 03:
So let me give you an example.

[00:34:35] Speaker 03:
Unexplained weight loss has many causes, medical and non-medical, I'm reading from this report.

[00:34:40] Speaker 03:
These causes generally result in progressive decline of health and critical weight loss.

[00:34:45] Speaker 03:
The commonly encountered causes of critical weight loss may include but are not limited to the following.

[00:34:50] Speaker 03:
Well, one of those is changes in diet or appetite.

[00:34:54] Speaker 03:
So had we evaluated your client, we might have decided that he had had a change in his diet or appetite.

[00:35:02] Speaker 03:
That's not a cause of his death.

[00:35:04] Speaker 03:
Well, his death has resulted from something else.

[00:35:08] Speaker 03:
So if we'd said, gee, you've had a change in your diet, then there's no causation here.

[00:35:18] Speaker 03:
There's no liability.

[00:35:19] Speaker 03:
And this is all speculation.

[00:35:21] Speaker 03:
This feels more like you've got a medical malpractice claim than you've got a deliberate indifference claim.

[00:35:28] Speaker 03:
He was seen by medical professionals of one time or another on multiple occasions.

[00:35:38] Speaker 04:
He was seen by a nurse.

[00:35:40] Speaker 04:
A dietician also came, but no one with diagnostic powers ever saw him.

[00:35:46] Speaker 04:
No one that actually evaluate and assess and say, this is what you're suffering from, ever saw him.

[00:35:52] Speaker 04:
And they admitted to that in requests for admissions.

[00:35:54] Speaker 04:
He was never seen by a doctor.

[00:35:56] Speaker 04:
So a nurse can't diagnose him, a nurse can't say what's wrong.

[00:36:01] Speaker 04:
Again, going back to the list, yes, there's a list at 2ER195 that explains all the things that can cause,

[00:36:09] Speaker 04:
Yes, cause of unintended weight loss.

[00:36:11] Speaker 04:
However, on 2ER 197, there Dr. Amali specifically states to a reasonable degree of medical certainty what the cause of death was in this case.

[00:36:22] Speaker 04:
He's the pathologist.

[00:36:24] Speaker 04:
He says preventable and avoidable critical weight loss, the underlying cause of which was advanced kidney disease that was not

[00:36:34] Speaker 04:
clinically investigated.

[00:36:35] Speaker 03:
Well, we don't know that the kidney disease was causing his unintended weight loss.

[00:36:41] Speaker 03:
I mean, there's a connection running both directions there that is just not at all clear.

[00:36:46] Speaker 04:
Well, again, the standard here is our expert says that that's what it was.

[00:36:52] Speaker 04:
I understand that there are other experts saying that that's not what it was.

[00:36:55] Speaker 03:
He never saw the patient.

[00:36:57] Speaker 03:
This is all speculation on his part.

[00:37:00] Speaker 04:
He's a pathologist.

[00:37:01] Speaker 04:
That's what he does.

[00:37:02] Speaker 04:
He looks at a dead body and tries to figure out what was the cause of death.

[00:37:06] Speaker 04:
That's what he does.

[00:37:06] Speaker 04:
And again, Lemire is very clear.

[00:37:10] Speaker 04:
It says, if reasonable persons could differ on the question of causation, then summary judgment is inappropriate and the question should be left to the jury.

[00:37:18] Speaker 04:
Here, the trial court invaded the providence of the jury.

[00:37:22] Speaker 04:
A jury could have reached the inference that our experts are correct.

[00:37:27] Speaker 04:
And that's all we had to do to overcome summary judgment.

[00:37:30] Speaker 04:
And I do want to raise one last issue that was raised in our papers as well.

[00:37:35] Speaker 04:
We're talking about death here, but that wasn't the only injury.

[00:37:39] Speaker 04:
Mr. Hernandez was in jail for two months suffering from this chronic weight loss.

[00:37:44] Speaker 04:
Two months sending notes saying, hey, I'm concerned.

[00:37:48] Speaker 04:
I'm losing a lot of weight.

[00:37:50] Speaker 04:
For two months, he was never evaluated.

[00:37:52] Speaker 04:
That's deliberate indifference under Castro, even though we're not talking about death.

[00:37:59] Speaker 02:
And the damages you claim from that is emotional and physical pain?

[00:38:04] Speaker 04:
Even if it's nominal damages, Your Honor, it goes back to the jury.

[00:38:09] Speaker 02:
Would you answer my question?

[00:38:10] Speaker 02:
And you're asking for emotional and physical pain during the weight loss?

[00:38:15] Speaker 02:
Yes, Your Honor.

[00:38:16] Speaker 02:
And that survives his death?

[00:38:19] Speaker 04:
Yes.

[00:38:20] Speaker 04:
And then on the leave to amend,

[00:38:24] Speaker 04:
The case law is pretty clear that if leave amend is not granted on futility grounds, then it is a de novo review.

[00:38:32] Speaker 04:
And I do hope that you all see 2ER268, that's my declaration on the motion for leave to amend, showing all of the efforts that we took to get discovery.

[00:38:46] Speaker 04:
submit discovery letter brief to be able to get the records.

[00:38:50] Speaker 04:
Then we had to wait many, many months to be able to get the histological slides so that our expert could review it.

[00:38:58] Speaker 04:
But even despite all those efforts, we submitted our motion for leave to amend weeks before the motion for summary judgment was due.

[00:39:05] Speaker 04:
We gave them notice.

[00:39:06] Speaker 04:
We actually asked them to stipulate to it so that way they could address it.

[00:39:10] Speaker 04:
And they did address it in their motion paper.

[00:39:12] Speaker 04:
So there is no prejudice here, Your Honors.

[00:39:14] Speaker 06:
All right.

[00:39:16] Speaker 06:
Are there any other questions?

[00:39:18] Speaker 06:
Any other questions?

[00:39:19] Speaker 06:
All right.

[00:39:20] Speaker 06:
Thank you, Council.

[00:39:20] Speaker 06:
Thank you to all Council for your presentations.

[00:39:24] Speaker 06:
The matter of Hector Hernandez versus Canada Alameda and California Forensics Medical Group is submitted at this point.

[00:39:33] Speaker 06:
And with that, we conclude today's proceedings.

[00:39:36] Speaker 06:
Thank you very much.