[00:00:00] Speaker 03:
Good morning and welcome to the Ninth Circuit.

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Thank you both for joining us on Zoom.

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We really appreciate it.

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We have just one case on calendar for today.

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That's Hedrington versus United States 23-15191.

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Each side will have 10 minutes.

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And Mr. Hedrington, you may begin whenever you're ready.

[00:00:22] Speaker 00:
Good morning.

[00:00:24] Speaker 00:
Thank you for allowing me a little time when I was hospitalized.

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I want to thank you for that.

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Give it on to our diety and to our justice and to attorney free.

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The questions, whether California law, federal law,

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preclusive effect on the federal.

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It is here that, number one, the federal law governs the preclusive effect of federal and not the state.

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And when the federal law is sitting in diversity, here's a case to render a judgment.

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The preclusive effect of that judgment is in the federal, not the state.

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However, but the state law is used to determine liability

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under the Federal Tort Claim Act.

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Federal law governs the reclusive effect of the prior judgment determined.

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Number three, the state law governs when the federal district court adopts state law and their judgments.

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As in Solano, September 13th of 21,

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My lawsuit at Solano, I was first in the federal court on August 24, 2018.

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I filed a lawsuit in Solano because I was feeling I was being untreated by my attorney.

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And also I felt that there was some things going on that hindered me from getting my case across.

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So I filed there.

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The defendants at that time did not respond to my summons and complaint over a whole year and didn't answer none of my summons or complaint.

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And therefore, by this time, October, by October 31st, I filed a default and Solana County gave me, or granted to me, all of the defendant's defaults on them.

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the Federal Court or the Ninth Circuit Court to award complainants what was rightfully his.

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They did not apply themselves with an answer to the complaint at all at that particular time.

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Now, in regard to complainants of federal judgment in the Hedgington versus 21-414, the district court totally

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misapplied a preclusion on that, on that judgment.

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December the 15th, I think it was December the 15th, 21, they adopted the judgment there too.

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But what happened was there is Mr. Free, Mr. Free or attorney Free made false statements concerning that

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Concerning that TARC claim, there was only one lawsuit, and that lawsuit was in 2018-02-33.

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He took my TARC claim from that case and made it 21-4-1-4.

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Let me read it from here.

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2 was fabricated, attorney-free deception in 21-4 against 18-333 as a tort claim to gain statute limitation.

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Attorney-free deprived the plaintiff out of winning his case, saying he had six months to file the lawsuit, but he did not until March the 8th.

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Well, that wasn't true because

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I was ordered by the company to file within six months by federary...

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27-18.

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I filed August 24 of 2018, which is six months.

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The case on 21-414 didn't have no tort claim.

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I didn't pay no lawsuit for that claim at all.

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The deception was trying to get statute of limitation because on that case, it was remanded from Solano

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And they took my amendment complaint and my proof of service, and they dismissed the federal defendants for lack of jurisdiction.

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It was not on the statute of limitation.

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So therefore, that case should have been reversed because it was not on the statute of limitation.

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The federal defendant was in Solano for nearly a whole year and did not apply to my Somerset complaint in Solano.

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I asked the court to take jurisdiction notice and a mandate forcing compliance to me from the defendants.

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A proof of service was good.

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My proof of service was good, and the statute of limitations was not applied for the defendants were dismissed by the lack of jurisdiction.

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Therefore, the proof of service was good, and the case must be overturned over or set aside.

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The case of 21 defaults of defendants filed in that case as well.

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In other words, I filed defaults in that case also.

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Now, whether the case be distinguished from Moran.

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Moran and Hedgington simply are similar but different.

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I filed a lot of cases.

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I had to.

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Moran wasn't prosecuted by attorney free for filing a tort claim

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while I'm talking, not following in the bankruptcy.

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Trying to help my sister who died left me four kids house in pre-foreclosure.

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I had, excuse me, I had to put my name to save my sister house with no bad intentions, literally a shame, a publication as a father and as a pastor.

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I didn't want my name in there or someone seeing that

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I was sexually assaulted.

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Attorney Fee exported my situation to cover up the federal defendant's TARC claim.

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I filed for 2017.

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I was prosecuted for that TARC claim on October 24, 2019 and made agreement to save my TARC claim.

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Then, November 11, 22, I was prosecuted by the district court office again for the same tort claim when I started another lawsuit for another injury, a violation of my rights.

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But it was during this time I was prosecuted for a new case and discovery, double jeopardy order,

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Judge Moeller in the Barnes and Attorney Free sentenced me to cover up my evidence and cover up the wickedness of the federal defendants.

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Moering had many cases, so did I. Moering did two cases in federal, and the second was dismissed by pressure of Reggie Tuticata that was applied.

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Hetchington number one case was

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August 8, 2014.

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And that case was only for negligence, nothing else but negligence, and that my attorney was attorney Bruce Nelson.

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And because I came from the federal and went to the state, the federal lost jurisdiction by my complaint.

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And then when I got to the federal from Solano, the state

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defendants re-amended my complaint.

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And then the district court misstate or lied.

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The court declined to exercise supplement jurisdiction over the amendment complaint.

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State law falls of action.

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Mr. Hedrington, would you like to save some time for rebuttal after the government speaks?

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Okay.

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I could still give you a few minutes, but I think maybe if you want to save some time, we should stop now and hear from the government.

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Does that sound OK?

[00:10:09] Speaker 00:
OK.

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I'll get two more minutes.

[00:10:19] Speaker 03:
I'll give you two minutes, but let's, let's let the government argue because you might have some responses to what the government says.

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So I'll even give you three minutes, but let's, let's have you talk after the government talks for the rest of your time.

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Thank you.

[00:10:40] Speaker 02:
Hello and may it please the court Joseph free on behalf of the United States.

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Like Mr. Hedrington, I plan to walk through the issues that the court identified in its February 26th order, starting with res judicata.

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Here, the district court correctly applied federal res judicata law to determine the preclusive effect of a federal judgment applying a federal statute of limitations.

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And the California state court, under analogous circumstances with a private party defendant, would do the exact same thing.

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Would you agree that

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whether we apply California law, applying federal law, or apply federal law, that basically both have some variant of a fundamental unfairness or manifest injustice exception to claim preclusion.

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No, Your Honor, with respect to federal law, I'd refer to the Supreme Court's decision and federated department stores versus Maotier, which is 452 US 394.

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And I'd also refer to this court's decision in Owens versus Kaiser Foundation health plans.

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Both of those decisions make clear that there's no ad hoc equitable exception to raise judicata.

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I believe this court in Marin versus HEW pointed out and said that although the application of res judicata in that case might appear to be harsh, it is not unfair.

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If there's no exception, why would that be relevant, whether it's unfair or not?

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Well, I believe the relevance is because, well, I have two responses.

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The first is in Marin, when the court referenced unfairness, it was relying on the federal circuits decision and young engineers and their unfairness was a very referred to a very specific circumstance.

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And that circumstance is where

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A plaintiff, because of jurisdictional rules, is required to file two lawsuits containing different claims that both arise from the same transactional nucleus of facts.

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And under that circumstance, where formal jurisdictional rules require the plaintiff to file two separate lawsuits, there it would be unfair or the, to- Well, are you familiar with the Zhang case?

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Yes, your honor, I am.

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And I'm also- And in the Zhang case, the court said, additionally, we have recognized that race judicata should not apply to a previous dismissal that was based on the statute of limitations.

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If the effect would be unfair, and then the bottom line on these facts, we conclude that belated application of race judicata to bar litigation would have an unfair effect and thus reverse the district court.

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Doesn't that suggest that there is such an exception?

[00:13:45] Speaker 02:
No, and I'd refer the court to, there is such an exception, but that exception does not allow unbridled equitable application of res judicata in one case or another.

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It's not an ad hoc equitable exception, depending on the nature of the case.

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I think this court's decision in Forsyth versus United States,

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It's an unpublished case, but it helpfully summarizes Zhang as well as Inrei Marino.

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And it explains what that unfairness exception really means in the context of a final judgment based on statute of limitations and when such a judgment can have preclusive effect.

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And there it explained that unfairness exception only applies where the case that's being precluded

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has a different and more generous statute of limitations.

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That's how this court has explained the holdings in In re Marino and in Jang.

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And here, that exception- Here the first action was not time barred.

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It was filed in enough time.

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So why isn't that equivalent to having a longer section of limitations?

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It basically isn't the point just the one that would be precluded isn't untimely.

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Well, that's the same scenario that was the case in Marin.

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Marin is different for other reasons.

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Like in Marin, there was a local rule that the plaintiff had violated about informing the court of the other action.

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And here I don't see any additional problems that Mr. Hedrington walked into beyond this idea that the later case was time barred, but the earlier one wasn't.

[00:15:23] Speaker 02:
Well, I think that in Enre and Moreno, the issue was that the plaintiff had the opportunity to apprise the court of the earlier filed timely action and request that the duplicative action be dismissed without prejudice so that it would not have preclusive effect.

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But here the district court was aware of the two actions and of the timeliness of the first action.

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So that's another distinction from Marin that I noted.

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was that it seemed in Moran there were two different proceedings happening and the district court was not aware of one and had not been informed of it.

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But here you have cases that were related themselves.

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And so the district court, knowing about the first filed action, proceeded with the second action, resolved it as being time barred, and then moved to the first.

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and didn't do so with any kind of a discussion of what Judge Bennett was talking about with, you know, the unfairness exception in our case law or anything related to that.

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Was that a problem in your view?

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Was that a problem that the court did not discuss the unfairness exception?

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I believe that the elements of Registrative Cata

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were established, and if there was an exception that was to be raised, I believe it was on Mr. Hedrington's counsel, who was representing Mr. Hedrington and the bankruptcy estate in the first case, when we argued res judicata applied, they made their argument as to why it should not apply.

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And that argument was not based on the unfairness exception of Marin.

[00:17:07] Speaker 01:
Council, I'm going to switch gears here a minute and I'm going to apologize in advance if my question is a little lengthy.

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If you need me to clarify it, please let me know.

[00:17:20] Speaker 01:
Essentially, in every FTCA case, failing to satisfy any of the requirements is jurisdictional on the part of a plaintiff.

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Like, for example, if a plaintiff files late, the government routinely argues the court lacks jurisdiction because either the administrative claim wasn't filed within six months or the lawsuit wasn't filed with either the six-month bar or the two-year bar, and the government routinely argues that the court lacks jurisdiction, right?

[00:17:59] Speaker 02:
That was the routine argument before this court's en banc decision in Long.

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The statute of limitations is no longer jurisdictional.

[00:18:07] Speaker 01:
Okay, so because there's equitable tolling?

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Now there is equitable tolling with respect to the statute of limitations.

[00:18:16] Speaker 01:
Okay, so if there's no equitable tolling, does the court lack jurisdiction of a late filed claim?

[00:18:23] Speaker 02:
No, you're right.

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If there's no equitable tolling, the claim should be dismissed, but it's not because the court lacks jurisdiction.

[00:18:33] Speaker 01:
Okay, so are you familiar with the Supreme Court Brownback case?

[00:18:41] Speaker 01:
Yes, yes.

[00:18:42] Speaker 01:
All right, so are you aware of any case where a FTCA claim was dismissed on statute of limitations grounds, either the sixth month or the two years,

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ground, and that dismissal was later used to bar on claim preclusion grounds a different lawsuit.

[00:19:10] Speaker 01:
There's an FTCA lawsuit that's dismissed on statute of limitations grounds, and a court finds that that dismissal precludes on claim preclusion grounds a different lawsuit.

[00:19:25] Speaker 02:
I can't name a specific case to your honor, but I would say that you can imagine a scenario where if an FTCA lawsuit is brought and it's dismissed or summary judgment is granted on statute of limitations grounds, and then four years later, that same plaintiff brings another lawsuit,

[00:19:45] Speaker 02:
I don't see why that lawsuit that was brought four years later would not be barred by Res Judicata based on that earlier case.

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I agree that the oddity of this case is that Mr. Hedrington did have a timely filed FTCA lawsuit that was filed first.

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I understand that's the oddity and that's the oddity that was recognized in Marin v. HEW, but I don't think that oddity

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precludes the application of registry to CACADA in this case.

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The only

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The only failsafe would be this unfairness principle, but I don't think this unfairness principle is an ad hoc, equitable exception.

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I think it's much narrower than that.

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And again, the court in Forsyth explained that the unfairness is when the case that is going to be precluded has a different and more generous statute of limitations.

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And I don't think that's the case here.

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It's the same statute of limitations.

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I see that my time has expired.

[00:20:48] Speaker 03:
If we're still asking questions, you should keep talking.

[00:20:52] Speaker 03:
So I know I have one more, but Judge Bennett looked like he might have had a follow-up question first.

[00:20:56] Speaker 01:
Well, I have a different area, Judge Friedland, so if you want to go first.

[00:20:59] Speaker 03:
No, go ahead.

[00:21:00] Speaker 03:
Mine was different, too.

[00:21:01] Speaker 03:
You go ahead.

[00:21:02] Speaker 01:
OK.

[00:21:03] Speaker 01:
So let me move to Ray Sipsa, low quitter.

[00:21:09] Speaker 01:
One of the government's arguments in its supplemental brief is that, well, you can tell me if I'm, if I'm characterizing this correctly, race, it's a local or can't be met here because basically a,

[00:21:33] Speaker 01:
a rape by a government employee would be precluded under the FTCA from basing a claim on that by the intentional tort bar and that

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on that the basis that there had to be negligence here as opposed to just an intentional tort is not the type of obviousness that would lead you to raise slips a low quarter because in one scenario that's being advanced, the claim would be barred entirely by the intentional tort bar.

[00:22:18] Speaker 01:
So is that partly the government's argument?

[00:22:22] Speaker 01:
If it is, I have a follow-up question.

[00:22:24] Speaker 02:
Well, I would say that in this case, the instrumentality of the harm is not known.

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We don't know if this was a federal employee, if this was some outsider.

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And I think that is problematic because if it were

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Even if we were going to infer negligence in general, we don't know whether that negligence claim would be one that's even actionable against the United States.

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It's similar to the situation in Brown versus Poway School District, California Supreme Court case, where it was a slip and fall.

[00:23:05] Speaker 02:
And the California Supreme Court held that, and there they were applying California's analog of the Government Claims Act.

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And they said that under the California Government Claims Act, you can't, the California government can't be held liable for a dangerous condition that was not created by a California employee.

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And so they said that Rez Ipsiloquitor would not save the plaintiff's case from summary judgment because even if we infer negligence, we don't know whether that negligence claim is even gonna be actionable.

[00:23:40] Speaker 01:
And so here, the way it-

[00:23:43] Speaker 01:
wouldn't you get to the jury on this couldn't happen no matter who did it?

[00:23:53] Speaker 01:
This couldn't happen in a government hospital without negligence, whether the rape was by a government employee, as I think one can infer from Mr. Hedrickton's declaration in the light most favorable to him, but regardless, whether being taken somewhere, given a shot, and then raped.

[00:24:15] Speaker 01:
Wouldn't this be the type of thing where this normally couldn't occur without negligence that someone couldn't be left alone for long enough in a government facility to be raped?

[00:24:32] Speaker 01:
Whether the rapist is a government employee or a third party,

[00:24:36] Speaker 01:
It seems to me that this would be a very normal racist circumstance with this type of action being committed in a closed government hospital facility.

[00:24:50] Speaker 02:
I would say no, Your Honor.

[00:24:51] Speaker 02:
I mean, even in controlled environments like a hospital or a prison, sexual assaults unfortunately do and can happen.

[00:25:01] Speaker 02:
And in certain cases, it may well be that the prison or the hospital itself

[00:25:07] Speaker 02:
breached some duty of care or was negligence, but I don't think that is necessarily or even ordinarily the case, especially in these circumstances where you have a prison employee or a hospital employee who is able to surreptitiously commit the assault.

[00:25:25] Speaker 01:
I just see a prison totally different in this regard than a hospital.

[00:25:30] Speaker 01:
I mean, maybe it would be the same or similar to the hospital ward,

[00:25:35] Speaker 01:
of a prison.

[00:25:36] Speaker 01:
But I don't see this as the same as a cell with two cellmates, where it would be a race ipsa type of thing.

[00:25:43] Speaker 01:
But here, it just seems like under California law, you meet, at least in the light most favorable to the plaintiff, the standards for this couldn't normally happen without negligence.

[00:25:57] Speaker 01:
And just the fact that

[00:26:01] Speaker 01:
these things do happen doesn't seem to me to take it out of race ipsa.

[00:26:07] Speaker 02:
Certainly, your honor.

[00:26:08] Speaker 02:
It's whether they ordinarily happen.

[00:26:10] Speaker 02:
And here where Mr. Hedrington has alleged that it was essentially a conspiracy, a cabal of his physical therapist and his surgeon who surreptitiously took him down to the basement and committed these acts.

[00:26:23] Speaker 02:
Well, I think that, I mean, that's a horrific

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thing that he alleges.

[00:26:29] Speaker 02:
But again, the negligence theories that come to mind are one of negligently hiring or supervising your employees.

[00:26:38] Speaker 02:
I don't think there's anything negligent about leaving Mr. Hedrington with his physical therapist for an extended period of time.

[00:26:44] Speaker 02:
And if he was sexually assaulted during that period of time, as horrific as that is, I don't think that ordinarily suggests that the hospital was negligent.

[00:26:54] Speaker 02:
In general, I'm not familiar with any case that holds that an intentional criminal sexual assault ordinarily doesn't happen without the negligence of some third party.

[00:27:08] Speaker 01:
You asked Mr. Hedrick and during his depo,

[00:27:10] Speaker 01:
And it is your contention it's your belief that the assault happened while you are unconscious and the answer is yes, that was a question and answer right.

[00:27:20] Speaker 02:
That sounds like something I would have asked your honor.

[00:27:24] Speaker 01:
Yeah, and.

[00:27:25] Speaker 01:
page 7 of 86 of the depot.

[00:27:29] Speaker 01:
And so in the light, well, again, since this happened while he was unconscious, I think that in his allegations, I think that changes it.

[00:27:39] Speaker 01:
But you've answered my question.

[00:27:40] Speaker 01:
Thank you, Judge Friedland.

[00:27:43] Speaker 03:
I had a question about the, so you mentioned hiring and training a moment ago.

[00:27:50] Speaker 03:
And I think in conjunction with that, you made an argument about the discretionary function exemption.

[00:27:57] Speaker 03:
And I just wondered, my understanding is that the first time you mentioned the discretionary function exemption was in your supplemental brief.

[00:28:05] Speaker 03:
I wanted to confirm that I'm right about that, because I think you also made an argument that we shouldn't be considering things that weren't raised in the district court.

[00:28:11] Speaker 03:
And so there seemed to be a bit of tension.

[00:28:13] Speaker 03:
between raising it now for the first time and that argument that we shouldn't consider new things.

[00:28:17] Speaker 03:
I wondered if you could address that.

[00:28:19] Speaker 02:
Yes, Your Honor.

[00:28:20] Speaker 02:
We did raise the discretionary function exception as well as the intentional tort exception in our motion for summary judgment.

[00:28:27] Speaker 02:
I believe Judge Mueller's decision even addresses that she was not going to address it.

[00:28:39] Speaker 03:
It wasn't in your first brief to us.

[00:28:42] Speaker 03:
Maybe that's where I'm getting confused.

[00:28:44] Speaker 02:
Yes, so we we so it was raised in our motion for summary judgment below it.

[00:28:53] Speaker 02:
The arguments that Mr Hedrington presented in his opening brief did not appear to warrant bringing them back because I believe his opening brief just addressed raised judicata.

[00:29:04] Speaker 02:
It didn't even address the sufficiency of the of the evidence argument that

[00:29:09] Speaker 02:
have been sustained below.

[00:29:11] Speaker 02:
So we didn't bring it back up again, but in the context of res ipsa loquitur, I think the intentional tort exception and the discretionary function exception rear their heads once more, because going back to an earlier point is that if res ipsa loquitur permits the inference of negligence or some negligence theory, well,

[00:29:36] Speaker 02:
even assuming that's the case, the theories that are inferred have to at least be actionable against the United States in order to overcome summary judgment.

[00:29:45] Speaker 02:
The record as it stands leaves many open questions as to the nature of the assault and who perpetrated it.

[00:29:56] Speaker 02:
It would

[00:29:57] Speaker 02:
it would be anyone's guess if this is a federal employee, a non-federal actor, or whether the assault even happened.

[00:30:04] Speaker 02:
I have to note that the piece of evidence here that would completely exonerate the United States was spoliated intentionally by Mr. Hedrington.

[00:30:16] Speaker 02:
So if we're going to sua sponte raise evidentiary presumptions for the first time on appeal, there's also the spoliation point, which would have clearly

[00:30:24] Speaker 02:
I would have argued, would have precluded the assertion that the sexual assault happened in the first place.

[00:30:31] Speaker 02:
But more to your point, Judge Freeland, it was raised below in our motion for summary judgment.

[00:30:36] Speaker 02:
It reared its head once more to make our point with respect to res ipsa loquitur, that without more, many of the theories that would be inferred would not even be actionable against the United States.

[00:30:52] Speaker 03:
Okay.

[00:30:52] Speaker 03:
So if it's preserved, then I think your argument is that this would have to be negligent hiring or training.

[00:31:00] Speaker 03:
And those things are within the exemption.

[00:31:03] Speaker 03:
But I'm wondering why some of his other allegations wouldn't be outside the exemption.

[00:31:10] Speaker 03:
So I think he alleges that a nurse named Mendoza failed to obey a discharge order.

[00:31:17] Speaker 03:
Why wouldn't that be outside of the exemption?

[00:31:23] Speaker 03:
It doesn't seem discretionary.

[00:31:25] Speaker 03:
So if this whole thing happened because he wasn't discharged when he should have been, why would Nurse Mendoza have had discretion to not discharge him?

[00:31:40] Speaker 02:
I'm sorry, Judge Friedland.

[00:31:41] Speaker 02:
So the negligence theory is that Nurse Mendoza

[00:31:46] Speaker 02:
negligently failed to discharge him on time.

[00:31:51] Speaker 03:
I guess and that kept him here for this whole thing to happen.

[00:31:54] Speaker 03:
That could be one of the steps of the chain or other duties like having someone watching, someone who's unconscious.

[00:32:03] Speaker 03:
I mean some of these other things might not be discretionary that could be part of the causal chain here.

[00:32:08] Speaker 02:
Well, and I don't think the presumption that is provided by res ipsa loquitur to basically allow all of these theories of negligence to go forward without any evidence to support them.

[00:32:21] Speaker 02:
I think that's stretching res ipsa loquitur too far.

[00:32:24] Speaker 02:
For example, I mean, if this was raised below, I don't think that the failure to discharge a patient on time

[00:32:33] Speaker 02:
approximately causes a sexual assault.

[00:32:35] Speaker 02:
I don't think that is within the zone of foreseeability that when a nurse is 30 minutes late with discharging a patient and that patient is horrifically assaulted, that the 30 minute failure of that nurse to discharge the patient on time, approximately causes the sexual assault to occur.

[00:32:57] Speaker 02:
And again,

[00:32:59] Speaker 02:
Res ipsa locutor, it's an evidentiary presumption.

[00:33:03] Speaker 02:
The defendant can make that presumption completely disappear if they produce evidence from which a jury or a fire near a fact could find that they weren't negligent or that the negligence did not proximately cause the injury.

[00:33:16] Speaker 02:
And here, res ipsa locutor is being raised for the first time right now in certain respects.

[00:33:22] Speaker 02:
And

[00:33:23] Speaker 02:
Frankly, it's unfair that the United States wouldn't have had the opportunity to develop its summary judgment record in light of these points.

[00:33:35] Speaker 04:
Judge, did you want to follow up?

[00:33:36] Speaker 04:
No, go ahead.

[00:33:37] Speaker 04:
I wanted to circle back, Mr. Free, with whether state or federal law should apply to the preclusive impact.

[00:33:46] Speaker 04:
The most recent Ninth Circuit decision is not that recent.

[00:33:50] Speaker 04:
It's from its police from 1959.

[00:33:53] Speaker 04:
and it applied California state law to a claim preclusion analysis.

[00:34:01] Speaker 04:
And I know the government has argued that it should be whatever a state court, the analog is if this were filed in state court, what law would the state court apply?

[00:34:10] Speaker 04:
And the only thing that I could find on that score was there was a, I don't know if you're familiar with an unpublished California appellate decision called Walker.

[00:34:19] Speaker 04:
which also applied, it's Walker versus Andrews, which also applied the California primary rights analysis to determine the preclusive impact of a federal judgment.

[00:34:32] Speaker 04:
So why isn't it state law that should actually govern our analysis of this issue in your view, as opposed to the federal law?

[00:34:41] Speaker 02:
I think that it has to be federal law because of the Supreme Court's holding in Semtec.

[00:34:47] Speaker 02:
And SEMTECH is a fairly recent decision.

[00:34:50] Speaker 02:
And I'm not aware of cases applying the Federal Tort Claims Act and whether or not a prior federal judgment is going to have a preclusive effect after SEMTECH.

[00:35:05] Speaker 02:
And I think the SEMTECH decision makes very clear about how Residue Dekat is supposed to apply in the context of federal judgments.

[00:35:15] Speaker 04:
Well, but I mean, just to follow up, you know, Semtech talks about for federal question issues.

[00:35:22] Speaker 04:
But here the statute, the FTCA statute talks about adopting, and this is the conundrum that different circuits are dealing with, but where the US of a private person would be liable to a claim in accordance with the law of the place where the act or omission occurred.

[00:35:39] Speaker 04:
And so that was the basis for Felice's determination that it should be state law that should apply, including its rules on preclusion.

[00:35:50] Speaker 04:
Really, Semtech, if it were clear for federal questions, sure, but when the FTCA in particular applies, it tells us to apply the law where the occasion occurred.

[00:36:03] Speaker 04:
That's what muddles it.

[00:36:05] Speaker 04:
Here we have a Ninth Circuit decision that didn't get into an analysis of it, but are we not bound to follow that case?

[00:36:15] Speaker 02:
Two points, maybe three points.

[00:36:16] Speaker 02:
So the first is that I think the missing link between Felice and Semtek is the Richards decision, 1961 decision, two years after Felice.

[00:36:26] Speaker 02:
And in Richards, it rejected what's called the internal law model of the Federal Tort Claims Act, which is this reflexive application of state law to all the issues that come before it.

[00:36:38] Speaker 02:
And I believe the Ninth Circuit

[00:36:40] Speaker 02:
before Richards was in that camp, the internal law paradigm.

[00:36:45] Speaker 02:
And that's what arguably Felice applied.

[00:36:49] Speaker 02:
After Richards, the Supreme Court said, no, it's not an internal law application.

[00:36:54] Speaker 02:
It's a whole law application, which means when a California or other state court would apply another state's law or even federal law,

[00:37:04] Speaker 02:
That is what the federal court is supposed to do under the FTCA.

[00:37:08] Speaker 02:
So if this, for example, was an Oregon judgment and the California court would have applied Oregon residue to Cotillot to determine its preclusive effect.

[00:37:19] Speaker 02:
Well, then the federal court sitting in California needs to do what the California court would do, which is apply Oregon law.

[00:37:26] Speaker 02:
And here it's not Oregon law, it's federal law.

[00:37:30] Speaker 02:
What would the California court do?

[00:37:32] Speaker 02:
I submit that it would have to, under Semtech, apply federal law.

[00:37:37] Speaker 02:
Now, the second point that the court, I think, either referenced specifically or alluded to is this conundrum where the Federal Tort Claims Act is kind of analogous to diversity jurisdiction.

[00:37:52] Speaker 02:
In that, like a diversity judgment, the Federal Tort Claims Act incorporates state law to provide the elements of a cause of action.

[00:38:03] Speaker 02:
So one could contend

[00:38:05] Speaker 02:
Shouldn't, in Semtec, the Supreme Court held that a federal diversity judgment, the preclusive effect of a federal diversity judgment will turn on the state law of preclusion where that federal court was sitting.

[00:38:20] Speaker 02:
Shouldn't that same reasoning apply to a federal tort claims act judgment?

[00:38:25] Speaker 02:
I think it's a difficult argument, but it's fortunately one that the court doesn't have to wrestle with here because

[00:38:33] Speaker 02:
The Federal Tort Claims Act judgment here turned on a matter of federal law, a federal statute of limitations.

[00:38:40] Speaker 02:
And in Semtech, the court made clear that even a diversity judgment, where we would typically apply state preclusion law to determine whether that diversity judgment is preclusive, if that diversity judgment turns on a matter of federal law, if, for example, the case was dismissed under Rule 41 for failure to prosecute or failure to obey a court order,

[00:39:02] Speaker 02:
then we apply federal res judicata law.

[00:39:06] Speaker 02:
So here, because this, the preclusive FTCA judgment turns on a matter of federal law, a federal statute of limitations, I would say it's almost, it's clearly governed by federal res judicata law.

[00:39:25] Speaker 03:
Thank you for answering our questions.

[00:39:27] Speaker 03:
Mr. Hedrington, we took the government over its time.

[00:39:30] Speaker 03:
So I'm happy to give you, let's give you five minutes.

[00:39:33] Speaker 03:
I know you had two minutes more.

[00:39:34] Speaker 03:
And then if you have responses to the government also, you all hopefully have time to address them.

[00:39:39] Speaker 00:
I just have a little bit.

[00:39:41] Speaker 00:
What I want to talk about is I was taken out of ACE ICU.

[00:39:47] Speaker 00:
So with that discretion of function,

[00:39:52] Speaker 00:
Everything was lied upon the government I have no control over anything I was there with over crack chest wide open.

[00:40:00] Speaker 00:
I had no power to struggle to fight or do anything so I was taken out and

[00:40:08] Speaker 00:
Mendoza was my RN ICU nurse.

[00:40:14] Speaker 00:
He said in the 24-hour notice that Ms.

[00:40:17] Speaker 00:
Hedgen was preparing to discharge Ms.

[00:40:20] Speaker 00:
Hedgen at 0300.

[00:40:21] Speaker 00:
0300 had the tools removed out of my body, and they gave me incentives.

[00:40:27] Speaker 00:
So I was really, you know, and Dr. Skye says while he was being,

[00:40:34] Speaker 00:
interviewed by a OSI, he said that the sedatives linger on the patient.

[00:40:45] Speaker 00:
So I was really still yet drugged.

[00:40:48] Speaker 00:
But I miss my discharge time and that I had seven to nine discharge times on the same day.

[00:41:00] Speaker 00:
And that's factual, because it's in the records.

[00:41:04] Speaker 00:
I've showed that.

[00:41:05] Speaker 00:
That's factual, and then I have two shots.

[00:41:10] Speaker 00:
So, you know, I understand, Mr. Free, but there is a lot of evidence that a recipe for lacquer would bring.

[00:41:22] Speaker 00:
And that is has brought in and it has been talked about.

[00:41:27] Speaker 00:
I brought it up in a different way in my briefs.

[00:41:31] Speaker 00:
as a pro-per, but, you know, but there's so much evidence there that it's almost impossible to not to see something happen.

[00:41:40] Speaker 00:
You know, why I missed, why there was a lawsuit filed against the Grand River Center because Ms.

[00:41:46] Speaker 00:
Henshwin wasn't there four to five hours, they was trying to find me.

[00:41:51] Speaker 00:
And, you know, there's just so much going on there that I just believe that everything rests upon the government here.

[00:41:59] Speaker 00:
And then I also believe, too, that the statement has some type of jurisdiction here.

[00:42:08] Speaker 00:
Going back to the defaults here, which is not a part of everything, but it is a part of it.

[00:42:14] Speaker 00:
Mr. Freeh and the federal defendants were in Solano.

[00:42:20] Speaker 00:
And they did not respond at all.

[00:42:23] Speaker 00:
And therefore, and upon that, I feel that Mr. Hibenton ought to be awarded some type of justification here.

[00:42:34] Speaker 00:
So I'm not trying to be greedy, but something happened to me.

[00:42:38] Speaker 00:
I wasn't aware of who did it, how they did it.

[00:42:45] Speaker 00:
I wasn't aware of all that.

[00:42:50] Speaker 00:
All I know that when I came alive, I came back, there was something was inside me.

[00:42:56] Speaker 00:
And so when that happened, I knew something.

[00:43:04] Speaker 00:
I died that day to live today to tell the story.

[00:43:08] Speaker 00:
And so I felt like my life was in jeopardy.

[00:43:11] Speaker 00:
I had to protect myself and be careful.

[00:43:13] Speaker 00:
And especially when I came down there and when I saw all the white men down there with white coats,

[00:43:19] Speaker 00:
And at the time, I didn't understand because I was sitting on the drugs, on the sedative and all the drugs that week.

[00:43:28] Speaker 00:
And then, and now I'm down here and I see all these people and they're all white.

[00:43:33] Speaker 00:
And I ain't saying I'm racist because my son's very white women.

[00:43:38] Speaker 00:
So I'm not, but when I saw that, I didn't know what was going on until later on.

[00:43:47] Speaker 00:
my body was telling me danger danger danger and I was having chest pain and so I needed something so I'm just saying you know it and if I was if the order was taken in the order was simply was Mr. Hedgerton is accepted to Fresno VA.

[00:44:06] Speaker 00:
it's a program down there, 401-2216, he needs to arrive there no later than 10 o'clock, which means he needs to leave at, they have a grand medical center at six o'clock.

[00:44:18] Speaker 00:
I didn't leave there until 10.25.

[00:44:22] Speaker 00:
Now, how can you explain that?

[00:44:27] Speaker 00:
And I got proof of that.

[00:44:29] Speaker 00:
God bless you, I'm done.

[00:44:32] Speaker 03:
Thank you both sides for the helpful arguments.

[00:44:35] Speaker 03:
This case is submitted and we are adjourned.

[00:44:37] Speaker 00:
Thank you.

[00:44:41] Speaker ?:
Thank you.