[00:00:00] Speaker 01: Court of Appeals for the Ninth Circuit will now draw near. Give your attention, you will be heard. God save these United States and this honorable court. [00:00:13] Speaker 01: Please be seated. [00:00:18] Speaker 02: Good morning. [00:00:20] Speaker 02: We have two cases on the calendar that are being submitted on the briefs. Those are 25-1689, Ravinder Kumar versus Pamela Bondi. [00:00:35] Speaker 02: And 25-337, Justin Bliss versus Frank Bisignano. In accordance with the respective orders previously entered on the dockets of those two cases, those two cases are hereby submitted on the briefs. We'll now proceed to hear argument in the first case on calendar for argument this morning. which is 24-4000, Anthony Brown versus County of Lane. And we'll hear first from Mr. Berman. [00:01:11] Speaker 02: Can you please come up to the lectern? [00:01:17] Speaker 00: 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. It's et al. In dismissing all of plaintiff's 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 J.D., an attorney, in creating a question of fact for a jury in dismissing Dr. Velez. [00:01:48] Speaker 02: Well, but what the district court said was that the doctor had not read the entire medical file and, therefore... [00:01:56] Speaker 02: was not qualified under the rules to offer an opinion. 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 00: Because, Your Honor, the factual data as to the condition and injuries and medical misconduct was a narrow slice of his file, and Dr... [00:02:25] Speaker 00: Baskerville reviewed the file, reviewed the medical charts and the timeline, and was able to give a medical opinion that was completely unrefuted by counsel, the court, or any medical doctor. [00:02:37] Speaker 01: I thought he only reviewed a report about medications, prescription medications. [00:02:42] Speaker 00: Excuse me? [00:02:42] Speaker 01: Didn't he only review a report about prescription medications? [00:02:46] Speaker 00: He reviewed the report about prescription medications, and he also reviewed emails and information regarding the injuries and the timeline and what happened to him. [00:02:57] Speaker 01: Of course, that's not part of the medical record, the emails about the events. [00:03:00] Speaker 00: Right, I understand that. [00:03:01] Speaker 01: So from the medical record, the only thing he reviewed was a report about prescription medications. [00:03:06] Speaker 00: Prescription medications, and I believe he also reviewed the medical incidents of the patient in the jail. [00:03:17] Speaker 00: May I continue? [00:03:18] Speaker 02: Yes. [00:03:20] Speaker 00: Furthermore, the court also failed to recognize the declaration testimony of Mr. Browne in disputing the location of his injuries and incident with Officer Gent and his falling in the day room. [00:03:36] Speaker 02: 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 00: I believe so, yes. [00:03:51] Speaker 02: And then that was changed after the video came out and showed that that wasn't true, and then he said it was in a place where the video didn't capture. Do I have that correct? [00:03:59] Speaker 00: That is correct, Your Honor. [00:04:01] Speaker 00: At any rate, there are questions about the treatment. There is testimony and the actual reports from Officer Gent and his colleagues, which indicated that he was nonresponsive, which ties into his medical claim of being wrongfully prescribed. and that they used force on him, and he put his knee on his back or neck or what have you, there was a question of fact whether the force used for a nonresponsive patient, or how should we say here, inmate, crossed the line into excessive force or Eighth Amendment criminal punishment, and that there is a dispute from what the plaintiff says and what defendants say and their own reports that create a genuine issue, a material fact that precludes summary judgment [00:04:50] Speaker 02: Let me ask you a question about the Oregon battery claim. 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? [00:05:11] Speaker 00: 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 02: But battery is broadly defined as any kind of offensive touching. And you're going to have to in the orderly administration of a prison 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 00: Your Honor, respectfully, absolutely not. And we are not in any way alleging a benign touching down the hallway. We're talking about a non-responsive, medically sedated, wrongfully patient inmate who is a punching bag and who they acknowledge is not responsive. [00:06:04] Speaker 02: What do you think is the line? [00:06:08] Speaker 02: between the regular battery and the battery of the guard in the prison? What is the line? What's the extra ingredient you have to show in order, you know, to establish that a guard has engaged in a tort of battery? [00:06:25] Speaker 00: We believe, Your Honor, that it should be a factual determination based on the totality of the circumstances. [00:06:31] Speaker 02: Right, but what's the legal standard that you're trying to hit with the totality of the circumstances? [00:06:37] Speaker 00: Your Honor, we would argue that under the totality of the circumstances, that excessive force not necessary to move or deal with a non-responsive medically sedated patient crosses the line beyond, to use your example, shoving an inmate down the hall and tell them to hurry up. Those are distinct differences in treatment of inmates and patients and people that are clearly non-responsive. [00:07:08] Speaker 00: 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 03: To get back to Judge Collins' question, are you placing a Fourth Amendment overlay on the standard? [00:07:25] Speaker 00: Yes. [00:07:26] Speaker 03: All right. [00:07:28] Speaker 00: And cruel and unusual, and it's also Eighth Amendment as a sentenced prisoner, 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 until he got out of prison. [00:07:51] Speaker 03: Let's assume for a moment that there was error in the district court. Why wasn't that harmless error? [00:07:56] Speaker 00: Why was it not harmless error to find the battery benign and de minimis versus egregious Fourth Amendment or Eighth Amendment violations? [00:08:04] Speaker 02: But the district court's ruling was that you hadn't proved anything about intent. That was the ruling. [00:08:14] Speaker 02: And suppose we were to find, just hypothetically, that there was a triable issue as to intent, 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 02: In other words, it would end up tying up with the Fourth Amendment claim. So even if you're right on the intent, it stands or falls with the Fourth Amendment claim on the excessiveness issue. That's my question. [00:08:47] Speaker 00: Yes, it would be Fourth Amendment excessive issue, and on cruel and unusual punishment, it would be an issue of what kind of force should a patient, an inmate, non-responsive receive, and we would also argue that there is such a thing as negligent battery, and you can hit somebody and be responsible for it, mistaking them for somebody else, or you know, what have you, in the sense, but furthermore, there is intent here. The implication is if he was not 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 and pharmaceutically related, that any injury or use of force is by definition excessive and a cruel, unusual punishment because he's essentially a punch and Judy punching bag. [00:09:43] Speaker 00: And he's not posing a throat to him, threat to himself or anybody else by what, by being completely non-responsive and drugged out of his mind and never having taken these medications. [00:09:53] Speaker 02: Want to save any time for rebuttal? [00:09:56] Speaker 00: Do you think I'm going to save any time for rebuttal? [00:09:58] Speaker 02: Okay. [00:09:59] Speaker 00: So, all right. Thank you. All right. [00:10:01] Speaker 02: Thank you. So we'll hear first from Mr. Vihar. Did I pronounce that correctly? Vehar. Vehar. [00:10:10] Speaker 02: Okay. [00:10:12] Speaker 04: Good morning. My name is Marcus Vehar, and I represent Lane County, Oregon. I would like to reserve five minutes for my time, and I appreciate that time being so reserved. [00:10:20] Speaker 04: 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 02: 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. And certainly if somebody on the street takes someone and slams them on the ground and dislocates their shoulder and grinds their knee into the back, that's a battery. I mean, it's just not even contestable. 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. [00:10:59] Speaker 02: But You definitely lose under that standard, so I'm very confused. [00:11:02] Speaker 04: And so, Your Honor, I did want to address the panel's questions regarding the Fourth Amendment and how that would apply to battery. I do believe in the case of Geigler v. City of Klamath Falls, which is 21 ORAP 753, page 763. 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 to finding a battery against an individual. [00:11:26] Speaker 01: Chancellor, 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 01: So that would make sense that the Fourth Amendment is applicable. We're not in that context here, so why are we even talking about the Fourth Amendment at all? Wouldn't we be under the Eighth Amendment, if anything? [00:11:47] Speaker 04: 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 01: My question is, why are we talking about the Fourth Amendment? Why do you think it applies at all? [00:11:58] Speaker 04: 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 01: 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 04: No, I should not say I have a case that directly applies to 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. [00:12:23] Speaker 01: Okay, 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 04: That would be correct, Your Honor. 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 01: So just an oral argument, not in your briefs. [00:12:41] Speaker 04: Yes, that is correct. [00:12:42] Speaker 01: Okay. [00:12:43] Speaker 04: 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 02: It's not necessarily that there was... But the district court found a triable issue as to intent. So if someone on the street comes up to you and 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? [00:13:17] Speaker 04: 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. [00:13:27] Speaker 02: The custodial setting affects the offensive contact. [00:13:32] Speaker 02: contact part of the case? I'm just not seeing how it fits in. [00:13:36] Speaker 04: No, so I would argue it's not necessarily the fact that they're in a custodial setting that then invalidates the intent. It's more so that what the custodial setting and the facts of the matter around Deputy Gantt providing medical transport was that that was Mr. Gantt's intent, or Deputy Gantt's 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 Deputy Gant's intent. [00:14:01] Speaker 02: It wasn't necessarily that there was conclusory arguments made that he had harmful... 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 triable issue of intent if the acts are what happened. [00:14:20] Speaker 04: And I would say that while I would agree 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 did find that there was no actually finding of intent or there wasn't actual discussion from intent from plaintiff's counsel. 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. But I would argue that, again, the issue of intent, which was never actually raised by a plaintiff, means that this is ripe for summary judgment. [00:14:52] Speaker 04: It's not necessarily that he argued correctly intent or that there's an inclusory statement. It's that there was no intent argued. And for that reason, Intent should 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 of emotional distress, which plaintiff had also accounted for in their brief. I might see them out of time. [00:15:16] Speaker 02: All right. Thank you, counsel. So we'll hear now from Mr. Ballard. [00:15:32] Speaker 05: Good morning, Your Honors. May it please the Court, Jonathan Ballard, on behalf of Appellee Dr. Alfredo Velez. I present today to request that this Court affirm the trial court's orders granting dismissal of the medical case against Dr. Velez. [00:15:49] Speaker 05: As we heard today, the thrust of Appellant's argument asserts that his expert declaration prepared by 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 03: 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 05: I know. I think the correct standard on review is de novo. [00:16:19] Speaker 05: Here, the trial court correctly concluded that Dr. Baskerville's declaration was defective for several reasons. [00:16:28] Speaker 05: 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. 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. And it's exactly why Dr. Baskerville was unable to opine on exactly which medications were wrong, why the dosing was inappropriate, and he couldn't even state what the dosing should have been. [00:17:06] Speaker 02: Is it your position that on the question of whether or not 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 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 summary judgment, which we've reviewed de novo. [00:17:57] Speaker 02: Do we review that de novo, or do we review that for abuse of discretion? [00:18:03] Speaker 05: I believe that, like you said, this court can affirm for any reason. It reviews all the evidence independent de novo. There is an abuse of discretion component, certainly, Getting back to Dr. Baskerville's opinions within his declaration, counsel cited to the fact that he reviewed the medical chart and timelines, alluding to the fact that these may have been included in emails. The emails were never disclosed together with his expert declaration. [00:18:34] Speaker 05: 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. And this is important, too, because going to causation, Dr. Baskerville 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. [00:19:11] Speaker 05: I think what is also important On scrutiny, the medical record itself shows that there's no evidence that Dr. Velez violated the standard of care. In reviewing the medical record, it actually shows that he appropriately evaluated appellant on multiple occasions for his mental health conditions and prescribed medications to treat those conditions. [00:19:42] Speaker 05: Your Honor, even putting the expert declaration issue aside, there's a larger issue that's looming too, which was pointed out in our brief, in that there's an independent basis to affirm notwithstanding the expert declaration. [00:19:59] Speaker 05: Appellant failed to respond to requests for admissions in this case, thereby admitting that there was no negligence, causation, or harm. [00:20:08] Speaker 02: The district court... Did not rely on that ground. [00:20:10] Speaker 05: Am I correct? That is correct, Your Honor. [00:20:15] Speaker 05: My point being is that for this reason alone, the summary judgment can be affirmed as a matter of law. [00:20:24] Speaker 05: It's unclear from the briefing of appellant if the constitutional claims are at issue that were dismissed on 12B6. I see that I'm out of time. I'll just assert that. the order dismissing the constitutional claims on 12B6 should also be affirmed. All right. Thank you. All right. [00:20:41] Speaker 02: Thank you, counsel. We'll hear a rebuttal now. [00:20:50] Speaker 00: Thank you, Your 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 00: Baskerville, stated on ER40 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. Ville has intended to prescribe those medications, divalpro-X, doxepine, escitalopram, trazodone, at those doses without a surveillance system to promptly recognize foreseeable adverse effects. [00:21:30] Speaker 02: I want to ask you a follow-up question to a question that Judge Forrest asked, which is, 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. [00:21:46] Speaker 02: But Judge Forrest pointed out that this is an Eighth Amendment case and not a Fourth Amendment case because he's a convicted inmate. So would that mean that when you were referring to excessive force, the overlay would really be an Eighth Amendment overlay, or are you saying it's still a Fourth Amendment overlay on the state law claim? [00:22:03] Speaker 00: It would be both, Your Honor. 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 02: Okay. All right. Thank you, Counsel. [00:22:17] Speaker 00: Thank you, Your Honor.