[00:00:00] Speaker 04:
This Court of Appeals for the Ninth Circuit will now draw near.

[00:00:03] Speaker 04:
Give your attention, you will be heard.

[00:00:07] Speaker 04:
God save these United States and this honorable court.

[00:00:13] Speaker 04:
Please be seated.

[00:00:18] Speaker 03:
Good morning.

[00:00:20] Speaker 03:
We have two cases on the calendar that are being submitted on the briefs.

[00:00:28] Speaker 03:
25-1689, Ravinder Kumar versus Pamela Bondi, and 25-337, Justin Bliss versus Frank Bisignano.

[00:00:41] Speaker 03:
In accordance with the respective orders previously entered on the dockets of those two cases, those two cases are hereby submitted on the briefs.

[00:00:51] Speaker 03:
We'll now proceed to hear argument in the first case on calendar for argument this morning.

[00:00:57] Speaker 03:
which is 24-4000, Anthony Brown versus County of Lane, and we'll hear first from Mr. Berman.

[00:01:11] Speaker 03:
Can you please come up to the lectern?

[00:01:17] Speaker 05:
May it please the court and counsel, my name is Leonard Berman, and I represent the plaintiff-appellant Anthony Brown versus the County of Lane, Dr. Villas, and Agent Gent,

[00:01:27] Speaker 05:
It's at all in dismissing all of plaintiffs claims the district court applied the wrong legal and factual standards The court failed to recognize the declaration expert testimony of dr. Mark Baskerville who is also a JD an attorney

[00:01:44] Speaker 05:
in creating a question of fact for a jury in dismissing Dr. Velez.

[00:01:48] Speaker 03:
Well, but what the district court said was that the doctor had not read the entire medical file and therefore was not qualified under the rules to offer an opinion.

[00:02:01] Speaker 03:
If someone who hasn't reviewed the entire medical file isn't in a position to opine, why was that ruling an abuse of discretion?

[00:02:09] Speaker 05:
Because, Your Honor, the factual

[00:02:13] Speaker 05:
data as to the condition and injuries and medical misconduct was a narrow slice of his file and Dr. Baskerville reviewed the file, reviewed the medical charts and the timeline

[00:02:30] Speaker 05:
and was able to give a medical opinion that was completely unrefuted by counsel, the court, or any medical doctor.

[00:02:38] Speaker 04:
I thought he only reviewed a report about medications, prescription medications.

[00:02:42] Speaker 05:
Excuse me?

[00:02:42] Speaker 04:
Didn't he only review a report about prescription medications?

[00:02:46] Speaker 05:
He reviewed the report about prescription medications, and he also reviewed emails and information regarding

[00:02:55] Speaker 05:
the injuries and the timeline and what happened to him.

[00:02:57] Speaker 04:
Of course, that's not part of the medical record, the emails about the events.

[00:03:00] Speaker 05:
Right, I understand that.

[00:03:01] Speaker 04:
So from the medical record, the only thing he reviewed was a report about prescription medications.

[00:03:06] Speaker 05:
Prescription medications, and I believe he also reviewed the medical incidents of the patient in the jail.

[00:03:17] Speaker 05:
May I continue?

[00:03:18] Speaker 05:
Yes.

[00:03:20] Speaker 05:
Furthermore, the court also failed to recognize the declaration testimony of Mr. Brown

[00:03:24] Speaker 05:
in disputing the location of his injuries and incident with Officer Gent and his falling in the day room.

[00:03:36] Speaker 03:
Also, the his... Didn't the original complaint say that that, you know, that alleged battery occurred in the medical, the med seg room?

[00:03:50] Speaker 05:
I believe so, yes.

[00:03:51] Speaker 03:
And then that was changed after the video came out and showed that that wasn't true.

[00:03:55] Speaker 03:
And then he said it was in a place where the video didn't capture.

[00:03:58] Speaker 03:
Do I have that correct?

[00:03:59] Speaker 05:
That is correct, Your Honor.

[00:04:01] Speaker 05:
At any rate, there are questions about the treatment.

[00:04:05] Speaker 05:
There is testimony.

[00:04:06] Speaker 05:
And the actual reports from Officer Gent and his colleagues

[00:04:12] Speaker 05:
which indicated that he was non-responsive, which ties into his medical claim of being wrongfully prescribed, and that they used force on him, and he put a knee on his back or neck or what have you.

[00:04:25] Speaker 05:
There was a question of fact whether the force used for a non-responsive patient, or how should we say here, an inmate, crossed the line into excessive force or Eighth Amendment criminal and emotional punishment, and that there is a dispute

[00:04:41] Speaker 05:
from what the plaintiff says and what defendants say and their own reports that create a genuine issue of material fact that precludes summary judgment based on the factual record.

[00:04:51] Speaker 03:
Let me ask you a question about the Oregon battery claim.

[00:04:55] Speaker 03:
Is it your view that the standards for the tort of battery are exactly the same for a private citizen on the street as they are for a guard in a prison?

[00:05:10] Speaker 05:
Your Honor, we would argue that there is no, as far as I know, statutory or case law exception whereby you have to consent to battery if you're in custody that there's a difference.

[00:05:22] Speaker 03:
Oh, but battery is broadly defined as any kind of offensive touching.

[00:05:26] Speaker 03:
Correct.

[00:05:26] Speaker 03:
And you're going to have to in the orderly administration of a prison

[00:05:30] Speaker 03:
sometimes you know have to move people along and touch them in ways that they may find to be offensive and is every single touching you know you're being slow going down the hallway and I give you a little push toward a battery I go to a jury over that

[00:05:46] Speaker 05:
Your Honor, respectfully, absolutely not.

[00:05:48] Speaker 05:
And we are not in any way alleging a benign touching down the hallway.

[00:05:55] Speaker 05:
We're talking about a non-responsive, medically sedated, wrongfully patient inmate who is a punching bag and who they acknowledge is not responsible.

[00:06:04] Speaker 03:
What do you think is the line?

[00:06:08] Speaker 03:
between the regular battery and the battery of the guard in the prison.

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What is the line?

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What's the extra ingredient you have to show in order to establish that a guard has engaged in a tort of battery?

[00:06:25] Speaker 05:
We believe, Your Honor, that it should be a factual determination based on the totality of the circumstances.

[00:06:31] Speaker 03:
Right, but what's the legal standard that you're trying to hit with the totality of the circumstances?

[00:06:37] Speaker 05:
Your honor we would argue that the under the totality the circumstances that excessive force not necessary to move or deal with a non-responsive medically sedated patient Crosses the line beyond a to use your example shoving a paper inmate down the hall and tell him to hurry up and

[00:06:59] Speaker 05:
Those are distinct differences in treatment of inmates and patients and people that are clearly non-responsive.

[00:07:08] Speaker 05:
Presumably, the inmate or civilian down the hall is not medically sedated and non-responsive or he wouldn't be walking down the hall.

[00:07:19] Speaker 02:
To get back to Judge Collins' question, are you placing a Fourth Amendment overlay on the standard?

[00:07:25] Speaker 05:
Yes.

[00:07:26] Speaker 02:
All right.

[00:07:27] Speaker 05:
And cruel and unusual, and it's also 8th Amendment as a sentenced prison.

[00:07:31] Speaker 05:
It was cruel and unusual punishment for a sedated, non-responsive, and medically mistreated inmate to be subjected to this level of force and to suffer a dislocated shoulder, which he did not have treated inside or until he got out of prison.

[00:07:51] Speaker 02:
Let's assume for a moment that there was error in the district court.

[00:07:54] Speaker 02:
Why wasn't that harmless error?

[00:07:56] Speaker 05:
Why was it not harmless error to find the battery benign and de minimis versus egregious Fourth Amendment or Eighth Amendment violation?

[00:08:04] Speaker 03:
But the district court's ruling was that you hadn't proved anything about intent.

[00:08:11] Speaker 03:
That was the ruling.

[00:08:13] Speaker 03:
And suppose we were to find, just hypothetically, that there was a tribal issue as to intent.

[00:08:21] Speaker 03:
then would it be alternatively harmless error because if the force was ultimately not excessive, even if there was intent to use that force?

[00:08:37] Speaker 03:
In other words, it would end up tying up with the Fourth Amendment claim.

[00:08:40] Speaker 03:
So even if you're right on the intent, it stands or falls with the Fourth Amendment claim on the excessiveness issue.

[00:08:46] Speaker 03:
That's my question.

[00:08:47] Speaker 05:
Yes, it would be fourth minute excessive issue.

[00:08:49] Speaker 05:
And on cruel and unusual punishment, it would be an issue of what kind of force should a patient, an inmate non-responsive receive.

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And we would also argue that there is such a thing as negligent battery.

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And you can hit somebody and be responsible for it, mistaking them for somebody else or what have you in the sense.

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But furthermore, there is intent here.

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The implication is if he was not

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violent if there is nothing in the record it should go your honor to take judicial notice that if a medically sedated non-responsive documented inmate is not cooperating and it's obvious to the officers that it is medically in and pharmaceutically related that any any injury or use of force

[00:09:34] Speaker 05:
is, by definition, excessive and a cruel unusual punishment because he's essentially a Punch and Judy punching bag and he's not posing a threat to himself or anybody else by being completely non-responsive and drugged out of his mind and never having taken these medications before.

[00:09:54] Speaker 03:
Want to save any time for rebuttal?

[00:09:56] Speaker 05:
Excuse me?

[00:09:57] Speaker 03:
Want to save any time for rebuttal?

[00:09:59] Speaker 05:
Yes.

[00:10:00] Speaker 05:
Okay.

[00:10:00] Speaker 05:
Thank you, Your Honor.

[00:10:01] Speaker 03:
Thank you.

[00:10:02] Speaker 03:
So we'll hear first from Mr. Vihar.

[00:10:06] Speaker 03:
Did I pronounce that correctly?

[00:10:08] Speaker 03:
Vihar.

[00:10:09] Speaker 03:
Okay.

[00:10:12] Speaker 00:
Good morning.

[00:10:12] Speaker 00:
My name is Marcus Vihar and I represent Lane County, Oregon.

[00:10:15] Speaker 00:
I would like to reserve five minutes for my time and I appreciate that time being so reserved.

[00:10:20] Speaker 00:
I do believe that what the district court did in its ruling on both battery and on the intentional infliction of emotional distress were both appropriate rulings.

[00:10:27] Speaker 03:
I will note that within the briefing... Well now, from what I could tell from both the briefing below and the briefing in this court, you basically applied the same battery standards that would apply to somebody on the street.

[00:10:39] Speaker 03:
And certainly if somebody on the street takes someone and slams them on the ground and dislocates their

[00:10:45] Speaker 03:
shoulder and grinds their knee into the back, that's a battery.

[00:10:48] Speaker 03:
I mean, it's just not even contestable.

[00:10:50] Speaker 03:
So that's what I'm kind of flummoxed because you seem to concede the legal standard was that it's the same as anyone on the street, but you definitely lose under that standard.

[00:11:01] Speaker 03:
So I'm very confused.

[00:11:02] Speaker 00:
And so, Your Honor, I did want to address the panel's questions regarding the Fourth Amendment and how that would apply to battery.

[00:11:08] Speaker 00:
I do believe in the case of Geigler versus City of Klamath Falls, which is 21 ORAP 753, page 763.

[00:11:14] Speaker 00:
It goes over the standards for law enforcement when they're involved in these kinds of situations, and it does actually discuss the excessive standard Application and how that would be able to in certain circumstances prevent defining a battery against an individual I have two questions here Yes first of all the case that you just cited to us and other cases that I've read that talk about a fourth amendment analysis are pre conviction

[00:11:38] Speaker 04:
So that would make sense that the Fourth Amendment is applicable.

[00:11:40] Speaker 04:
We're not in that context here, so why are we even talking about the Fourth Amendment at all?

[00:11:44] Speaker 04:
Wouldn't we be under the Eighth Amendment, if anything?

[00:11:47] Speaker 00:
I do believe that the Eighth Amendment claims that have been made as well, too, were appropriately raised by... That's not my question.

[00:11:53] Speaker 04:
My question is why are we talking about the Fourth Amendment?

[00:11:55] Speaker 04:
Why do you think it applies at all?

[00:11:58] Speaker 00:
Because I do believe that when you're in custodial settings, you do need to look at the actual conduct from law enforcement officers and for custodial agents.

[00:12:05] Speaker 04:
Do you have any case that talks about applying the Fourth Amendment in a prison context where somebody has already been convicted?

[00:12:12] Speaker 00:
No, I should not say I have a case that directly applies the fourth amendment the case I did cite discusses again excessive force in those contexts when they're involving and I will agree that was a non-custodial setting and that was pre Arrest as well, too, okay.

[00:12:23] Speaker 04:
I have another question Shifting gears slightly and that is I don't see anywhere in your briefs that you argue this issue So I'm wondering if it's preserved

[00:12:34] Speaker 00:
That would be correct, Your Honor.

[00:12:35] Speaker 00:
I have not raised this issue outside of response to what Mr. Berman is saying here that that standard may apply.

[00:12:39] Speaker 04:
So just an oral argument, not in your briefs.

[00:12:41] Speaker 00:
Yes, that is correct.

[00:12:42] Speaker 00:
And I will note that when it comes to the briefing I do think that the panel is correct in terms of the discussion around intent as well I do believe that one of our key arguments that we've raised and that the district court agreed with was that Intent was not actually argued by mr. Berman.

[00:12:56] Speaker 03:
It's not necessarily that there was a tribal issue as to intent so if someone on the street comes up to you and

[00:13:05] Speaker 03:
Takes you and slams you on the ground and grinds their knee in your back there's a tribal issue of whether or not there was an intent to Cause offensive contact in that situation yes, however I would not agree in this situation that we have with Mr.. Brown given that he was a custodial setting and that both sides agree that this was in the performance of a medical transport the custodial setting affects the offensive

[00:13:32] Speaker 03:
Contact part of the case.

[00:13:34] Speaker 00:
I'm just not seeing how it fits in no, so I would argue It's not necessarily the fact that they're in the custodial setting that then invalidates the intent It's more so that what the custodial setting and the facts of the matter around mr. Garrett deputy against providing medical Transport was that that was mr. Ghent's intent or deputy against intent at the time was to transport and to provide that transport our Argument is that plaintiff at no point in time during any of the briefings or argument actually discussed?

[00:14:00] Speaker 00:
Deputy against intent it wasn't necessarily that there was conclusory arguments made that he had harmful.

[00:14:05] Speaker 03:
I mean the action itself gives rise to an inference of intent so it's hard to say as the district court said that there isn't a tribal issue of intent if the acts are what happened and I would say that while that I would agree that if that there can be a Discussion around intent I would argue that because plaintiff did not raise it and there were no arguments, and I would also argue that the district court

[00:14:30] Speaker 00:
did find that there was no actually finding of intent or there was an actual discussion from intent from plaintiff's counsel.

[00:14:35] Speaker 00:
And they also discussed the actual offensive contact, which as Your Honor had mentioned, there is a dispute as to where it happened and the exact degree of what had happened, which was also discussed at the district court level as well.

[00:14:46] Speaker 00:
But I would argue that, again, the issue of intent, which was never actually raised by plaintiff, means that this is right for summary judgment.

[00:14:52] Speaker 00:
It's not necessarily that he argued correctly intent or that there was an inclusory statement.

[00:14:56] Speaker 00:
It's that there was no intent argued.

[00:14:58] Speaker 00:
And for that reason,

[00:14:59] Speaker 00:
Intention not be presumed it should have to be argued and then the fact should support it and that's not what happened here And so for that reason I would argue that that is conclusory both for battery and for intentional infliction most emotional distress Which plaintiff had also accounted for in their brief I might see them out of time all right.

[00:15:16] Speaker 03:
Thank you counsel, so we're here now from mr.. Ballard

[00:15:32] Speaker 01:
Good morning, Your Honors.

[00:15:33] Speaker 01:
May it please the court, Jonathan Ballard, on behalf of appellee Dr. Alfredo Velez.

[00:15:38] Speaker 01:
I present today to request that this court affirm the trial court's orders granting dismissal of the... against Dr. Velez.

[00:15:49] Speaker 01:
As we heard today, the thrust of appellant's argument asserts that his expert declaration prepared by

[00:15:56] Speaker 01:
Dr. Baskerville created a sufficient genuine issue of material fact to defeat summary judgment on his state tort medical malpractice claim.

[00:16:06] Speaker 02:
If we hold that the exclusion of Dr. Baskerville was not an abuse of discretion, does that end the case against your client?

[00:16:13] Speaker 01:
I know, I think the correct standard on review is de novo.

[00:16:19] Speaker 01:
Here, the trial court correctly concluded that Dr. Baskerville's declaration was defective for several reasons.

[00:16:28] Speaker 01:
First, the opinions lacked any factual basis and were wholly unreliable, where the expert only reviewed a partial medical log and didn't even review the complete medical record.

[00:16:41] Speaker 01:
This means that the expert opinions were developed without any understanding of the underlying clinical evaluations that were completed by Dr. Velez with appellant at the jail.

[00:16:55] Speaker 01:
And it's exactly why Dr. Baskerville was unable to opine on exactly which medications were wrong.

[00:17:02] Speaker 01:
why the dosing was inappropriate, and he couldn't even state what the dosing should have been.

[00:17:07] Speaker 03:
Is it your position that on the question of whether or not the Dr. Baskerville was qualified as an expert under 702 such that his testimony could be considered for purposes of summary judgment that we review that determination de novo?

[00:17:30] Speaker 03:
That yes the this this court can affirm for for any reason On its own and that's exactly what we review whether or not the evidence creates a triable issue We review that de novo, but the predicate issue whether or not this item of evidence clears 702 and goes into the balance for

[00:17:55] Speaker 03:
summary judgment, which we've reviewed de novo.

[00:17:57] Speaker 03:
Do we review that de novo, or do we review that for abusive discretion?

[00:18:02] Speaker 01:
I believe that, like you said, this court can affirm for any reason.

[00:18:08] Speaker 01:
It reviews all the evidence independent de novo.

[00:18:12] Speaker 01:
There is an abusive discretion component, certainly.

[00:18:16] Speaker 01:
Getting back to Dr. Baskerville's opinions within his declaration,

[00:18:21] Speaker 01:
Council cited to the fact that he reviewed the medical chart and timelines alluding to the fact that these may have been included in emails.

[00:18:30] Speaker 01:
The emails were never disclosed together with his expert declaration.

[00:18:34] Speaker 01:
There's quoting in his declaration from the emails, but that doesn't substantiate any of his reliability or show that he had any factual basis to offer the opinions that he did.

[00:18:45] Speaker 01:
And this is important too because going to causation,

[00:18:49] Speaker 01:
Dr.. Baskerville fight failed to provide any opinions to connect the alleged standard of care violation With the appellant's harm that was alleged of prescription poisoning instead He only offers the medication side effects, but he doesn't state exactly what medication actually caused any harm to appellant I think what is also important

[00:19:13] Speaker 01:
On scrutiny, the medical record itself shows that there's no evidence that Dr. Velez violated the standard of care.

[00:19:26] Speaker 01:
In reviewing the medical record, it actually shows that he appropriately evaluated a pellet on multiple occasions for his mental health conditions and prescribed medications to treat those conditions.

[00:19:41] Speaker 01:
Your honors even putting the expert declaration issue aside There's a larger issue that's looming to which was pointed out in our brief in that There's an independent independent basis to affirm notwithstanding the expert declaration Appellant failed to respond to requests for admissions in this case there by admitting that there was no negligence causation or harm and

[00:20:08] Speaker 03:
The district court did not rely on that ground.

[00:20:10] Speaker 01:
Am I correct?

[00:20:11] Speaker 01:
That is correct, Your Honor.

[00:20:14] Speaker 01:
My point being is that for this reason alone, the summary judgment can be affirmed as a matter of law.

[00:20:23] Speaker 01:
It's unclear from the briefing of appellant if the constitutional claims are an issue that were dismissed on 12b6.

[00:20:33] Speaker 01:
I see that I'm out of time.

[00:20:34] Speaker 01:
I'll just assert that

[00:20:36] Speaker 01:
The the order dismissing the constitutional claims on 12b6 should also be affirmed all right.

[00:20:41] Speaker 01:
Thank you.

[00:20:41] Speaker 01:
All right.

[00:20:41] Speaker 03:
Thank you counsel.

[00:20:42] Speaker 05:
We'll hear rebuttal now Thank you honor, I want to state that the court cites that there was no medical evidence in the record however the declaration of Dr. Mark

[00:21:06] Speaker 05:
Baskerville stated on ER-40, to a reasonable degree of medical probability, one, prescribing the wrong medication to Mr. Brown clearly fell below the community standard of care, and two, if Dr. Villes intended to prescribe those medications, divalprox, docsapine, esketelopram, tarsadone, at those doses without a surveillance system to promptly recognize foreseeable adverse effects.

[00:21:30] Speaker 03:
I want to ask you a follow-up question to a question that Judge Forrest asked, which is,

[00:21:35] Speaker 03:
You know, in the conversation I had with you before about the battery claim and the overlay, you were talking in terms of excessive force, but Judge Forrest

[00:21:47] Speaker 03:
pointed out that this is an Eighth Amendment case and not a Fourth Amendment case because he's a convicted inmate.

[00:21:54] Speaker 03:
So would that mean that when you were referring to excessive force, the overlay would really be an Eighth Amendment overlay?

[00:22:00] Speaker 03:
Or are you saying it's still a Fourth Amendment overlay on the state law claim?

[00:22:03] Speaker 05:
It would be both, Your Honor.

[00:22:04] Speaker 05:
I believe there's case law suggesting that there is comity and some parallel issues between Fourth and Eighth Amendment claims in prison and that he would qualify under those circumstances, Your Honor.

[00:22:15] Speaker 03:
OK.

[00:22:15] Speaker 03:
All right.

[00:22:16] Speaker 03:
Thank you, Council.

[00:22:17] Speaker 03:
Thank you, Your Honor.