Preview
Superion Court
of Califonria
County of Butte
4/16/2024
David Edward May, Esq. (Bar No. 083734)
LAW OFFICES OF BRUCE S. OSTERMAN
2300 Contra Costa Blvd., Suite 320 na Ged atk
Pleasant Hill, CA 94523-3952 Deputy
Tel: (415) 399-3900 Electronically FILED
Fax: (415) 399-3920
Attorneys for Plaintiffs
Saulo Ortega, et familia
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF BUTTE
RUBEN ORTEGA, FERMIN ORETGA, Case No: 20CV01510
CRYSTAL ORTEGA, RUBEN ORTEGA,
JR., CHRISTIAN ORTEGA; SAULO
10
ORTEGA,
DECLARATION OF DAVID EDWARD
11
Plaintiffs, MAY IN SUPPORT OF MOTION TO
vs. COMPEL FURTHER RESPONSE
12
ENLOE MEDICAL CENTER; MIGUEL
13
PUIG-PALOMAR, M.D.; GANSEVOORT Date: May 15, 2024
H. DUNNINGTON, M.D.; MICHAEL L. Time: 9:00 am
14
HIEB, M.D.; and DOES | to 50, Dept: Six (6)
15
Defendants,
16
and consolidated case. Case No. 22CV00944
17
18
I, David Edward May, state:
19 1 lam an attorney duly admitted to the Bar of the above entitled court and
20
am in good standing. I represent plaintiffs in the above entitled action. I have
21 personal knowledge of the matters set forth and am competent, willing and able to
22 testify to the same, if called upon to do so.
23 2 I met and conferred with opposing counsel in a good faith effort to
24 resolve the issues set forth in this Motion, but we were unable to settle the matter.
25 My attempts to meet and confer are set forth in the letters attached hereto as Exhibits
26
5 & 6. Those letters are dated March 20, 2024 and April 5, 2024, respectively.
27
Decl. of David Edward May in Support of Motion to Compel
3 Attached hereto are true and accurate copies of the following documents
which are labeled with Exhibits numbers as follows:
Exhibit 1 - Request for Admissions, Set 1 (Saulo)
Exhibit 2 - Response to Request for Admissions, Set 1 (Saulo)
Exhibit 3 Form Interrogatories (17.1), Set 1 (Saulo)
Exhibit 4 Response to Form Interrogatories (17.1), Set 1 (Saulo)
Exhibit 5 Meet & Confer Letter dated March 20, 2024
Exhibit 6 Meet & Confer Letter dated April 5, 2024
Exhibit 7 - Declaration of Gabriel Aldea M.D.
10 4 Ihave been licensed to practice law in California since November 1978.
11 I was inactive for 3’ years (Jan. 1992 - June 1995) when I was practicing law in the
12 State of Israel. I have practiced personal injury law in general, and medical
13 malpractice law, in particular, throughout my career. My usual and customary hourly
14 rate is $500 per hour.
15 Ihave spent and expect to spend a total of 9 hours of time in connection with
16 the instant motion to compel. This includes time for preparing the moving papers
17 herein, reviewing and responding to the opposition papers, preparing reply papers,
18 and preparing for and appearing at the hearing on the motion.
19 I declare under penalty of perjury pursuant to the law of the State of California
20 that the foregoing is true and correct.
21 Dated: April 15, 2024
avi Wi ay
22
23
24
25
26
27
Decl. of David Edward May in Support of Motion to Compel Page 2
Exhibit 1
DISC-020
‘ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address). FOR COURT USE ONLY
David Edward May (SBN 083734
Law Office of Bruce S. Osterman
2300 Contra Costa Blvd., Suite 320
Pleasant Hill CA 94523
TELEPHONE NO: 415-399-3900 FAX NO. (Optional): 415-399-3920
E-MAIL ADDRESS (Optional): dem@bruceosterman.com
ATTORNEY FOR (Name): Plaintiffs Ortega
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
STREET ADDRESS: 1775 Concord Avenue
MAILING ADDRESS: same
CITY AND ZIP CODE: Chico, CA 95928
BRANCH NAME: Northern
SHORT TITLE:
REQUESTS FOR ADMISSION
[G2] Truth of Facts [= ]Genuineness of Documents CASE NUMBER;
Requesting Party: Saulo Ortega 20CV01510 & consolidated
Answering Party: LivaNova USA, Inc.
Set No.: 1 (One)
INSTRUCTIONS
Requests for admission are written requests by a party to an action requiring that any other party to the action either admit or deny,
under oath, the truth of certain facts or the genuineness of certain documents. For information on timing, the number of admissions a
party may request from any other party, service of requests and responses, restrictions on the style, format, and scope of requests for
admission and responses to requests, and other details, see Code of Civil Procedure sections 94-95, 1013, and 2033.010-2033.420
and the case law relating to those sections.
An answering party should consider carefully whether to admit or deny the truth of facts or the genuineness of documents. With limited
exceptions, an answering party will not be allowed to change an answer to a request for admission. There may be penalties if an
answering party fails to admit the truth of any fact or the genuineness of any document when requested to do so and the requesting
party later proves that the fact is true or that the document is genuine. These penalties may include, among other things, payment of
the requesting party's attorney's fees incurred in making that proof.
Unless there is an agreement or a court order providing otherwise, the answering party must respond in writing to requests for
admission within 30 days after they are served, or within 5 days after service in an unlawful detainer action. There may be significant
penalties if an answering party fails to provide a timely written response to each request for admission. These penalties may include,
among other things, an order that the facts in issue are deemed true or that the documents in issue are deemed genuine for purposes
of the case.
Answers to Requests for Admission must be given under oath. The answering party should use the following language at the end of
the responses:
| declare under penalty of perjury under the laws of the State of California that the foregoing answers are true and correct.
(DATE) (SIGNATURE)
These instructions are only a summary and are not intended to provide complete information about requests for admission. This
Requests for Admission form does not change existing law relating to requests for admissions, nor does it affect an answering party’s
right to assert any privilege or to make any objection.
REQUESTS FOR ADMISSION
You are requested to admit within 30 days after service, or within 5 days after service in an unlawful detainer action, of this Requests
for Admission that:
1. [3] Each of the following facts is true (if more than one, number each fact consecutively):
[€] Continued on Attachment 1
2. [-_] The original of each of the following documents, copies of which are attached, is genuine (if more than one, number each
document consecutively):
[J Continued on Attachment 2
David Edward May > Dave
(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR nee
Page 1 of 1
Form Approved for Optional Use REQUESTS FOR ADMISSION Code of Civil Procedure,
Judicial Council of California §§ 94-95, 2033.010-2033.420, 2033.710
DISC-020 [Rev. January 1, 2008)
Case No:
Plainitff: Ortega et al.
Defendant: Puig-Palomar et al. 20 CV 01510 & consolidated
Page No. 2
ATTACHMENT NO. | TO REQUEST FOR ADMISSIONS
(Judicial Council Form DISC-020)
Request for Admission No. 1.1:
Admit that prior to January 17, 2020 there were no warnings or cautions in any Instruction for Use for any part
of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient is on
cardiopulmonary bypass. Pursuantto C.C.P. §2033.080(e), for purposes of this Request for Admission, the term
CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together with
the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate tubing.
Request for Admission No. 1.2:
Admit that prior to January 17, 2020 there were no warnings or cautions in any label for any part of the
CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient is on
cardiopulmonary bypass. Pursuantto C.C.P. §2033.080(e), for purposes of this Request for Admission, the term
CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together with
the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate tubing.
Request for Admission No. 1.3:
Admit that prior to January 17, 2020 there were no warnings or cautions in any TRAINING MATERIAL for
any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient
is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission,
the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together
with the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate
tubing. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term TRAINING
MATERIAL shall mean letters, brochures, photographs, diagrams, videos, illustrations, and any other writings
and documents, both printed or in electronic form, that are distributed and used for training in the use and
understanding of the CARDIOPULMONARY BYPASS CIRCUIT and any of its parts.
Case No:
Plainitff: Ortega et al.
Defendant: Puig-Palomar et al. 20 CV 01510 & consolidated
Page No. 3
ATTACHMENT NO. | TO REQUEST FOR ADMISSIONS
(Judicial Council Form DISC-020)
Request for Admission No. 1.4:
Admit that prior to January 17, 2020 there were no warnings or cautions in any promotional material for any
part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient
is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission,
the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together
with the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate
tubing. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term MARKETING
MATERIAL shall mean letters, brochures, photographs, diagrams, videos, illustrations, and any other writings
and documents, both printed or in electronic form, that are distributed and used for marketing of the
CARDIOPULMONARY BYPASS CIRCUIT and any of its parts.
PROOF OF ELECTRIC SERVICE
Tam over the age of 18 years, I am not a party to the above-entitled action, and my
business address is Law Offices of Bruce S. Osterman, 2300 Contra Costa Blvd., Suite 320, Pleasant
Hill, California 94523-3952 and my email address is esw@bruceosterman.com. On January 11,
2024, I served a true copy of:
1 Request for Admission, Set One, Saulo to LivaNova USA, Inc.
on the following person(s):
Alaina Dickens Esquire Matthew Marshall, Esquire
Schuering Zimmerman & Doyle, LLP Clark Hill
400 University Avenue 600 W Broadway, Suite 500
10
Sacramento CA 95825-6502 San Diego, CA 92101
ATD@szs.com mimarshall@clarkhill.com
11
[Attorneys for Enloe Medical Center] [Attorneys for LivaNova USA, Inc.]
12
Marc Lyde Esquire Frances Bruce Esquire
13 Leonard & Lyde Law Offices Pollara Law Group
1600 Humboldt Road Suite 1 100 Howe Avenue Suite 165N
14 Chico CA 95928-8100 Sacramento CA 95825
leonardandlyde@gmail.com fb@pollara-law.com
15
[Attorneys for Gansevort H. Dunnington, M.D. [Attorneys for Miguel Puig-Palomar, M.D.]
16
17 Bruce E. Salenko, Esquire Scott Foley Esquire
Low McKinley & Salenko LLP La Follette, Johnson,
18 2150 River Plaza Drive Suite 250 De Haas, Fesler & Ames PC
Sacramento CA 95833 655 University Avenue, Suite 119
19 bes@Imblaw.net Sacramento, California 95825-6746
sfoley@lidfa.com
20
by email or electronic transmission: I caused the documents to be sent to the persons at the e-mail
21
addresses listed above. I did not receive, within a reasonable time after the transmission, any
22
electronic message or other indication that the transmission was unsuccessful.
23
I declare under penalty of perjury pursuant to the law of the State of California that the
24
foregoing is true and correct.
25
Dated: J anuary 1
26
j
27 stelle alker
Proof
of Electronic Service Page T
Exhibit 2
Matthew L. Marshall, Esq., SBN 168013
Seta Sarabekian, Esq., SBN 299578
CLARK HILL LLP
One America Plaza
600 West Broadway, Suite 500
San Diego, CA 92101
Telephone: (619) 557-0404
Facsimile: (619) 557-0460
mlmarshall@clarkhill.com
ssarabekian@clarkhill.com
Andre Karchemsky, Esq., SBN 327831
CLARK HILL LLP
555 South Flower Street, 24th Floor
Los Angeles, CA 90071
Telephone: (213) 891-9100
Facsimile: (213) 488-1178
akarchemsky@clarkhill.com
10
Attorneys for Defendant LivaNova USA, Inc.
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF BUTTE
13
14 RUBEN ORTEGA; SAULO ORTEGA; Case No. 20CV01510
CHRISTIAN ORTEGA; FERMIN ORTEGA; (Consolidated with 22CV00944)
15 CRYSTAL ORTEGA; RUBEN ORTEGA, JR,
DEFENDANT LIVANOVA USA, INC.'S
16 Plaintiffs, RESPONSES TO PLAINTIFF, SAULO
ORTEGA'S REQUEST FOR ADMISSIONS,
17 Vv. SET ONE
18 ENLOE MEDICAL CENTER; MIGUEL Assigned to: Hon. Stephen E. Benson for All
PUIG-PALOMAR, M.D.; GANSEVOORT H. Purposes
19 DUNNINGTON, M.D.; LIVANOVA USA,
INC.; Does 1-50, Complaint Filed: August 3, 2020
20 Trial Date: May 12, 2025
Defendants.
21
22 PROPOUNDING PARTY: Plaintiff: SAULO ORTEGA
23 RESPONDING PARTY: Defendant: LIVANOVA USA, INC.
24 SET NUMBER: ONE
25 Defendant LIVANOVA USA, INC. (“Defendant” or “Responding Party”) responds to Plaintiff,
26 SAULO ORTEGA’s Request for Admissions, Set One, as follows:
27 Mit
28
1
DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR
ADMISSIONS, SET ONE
276188714
PRELIMINARY STATEMENT AND GENERAL OBJECTIONS
Investigation and discovery by Defendant are continuing and are not complete. As discovery
proceeds, witnesses, facts and evidence may be discovered which are not set forth herein, but which
may have been responsive to Plaintiffs requests. Facts and evidence now known may be imperfectly
understood or the relevance or consequences of such facts and evidence may be imperfectly understood,
and, accordingly, information and documents responsive to Plaintiffs requests may, in good faith, not
be included in the following further responses.
Defendant reserves the right to refer to, conduct discovery with reference to, or offer into
evidence at trial any and all such witnesses, facts and evidence, notwithstanding the absence of
10 reference to such witnesses, facts and evidence in these further responses. Defendant has not completed
11 its investigation of the facts relating to this case, has not completed discovery in this action, and has
12 not completed preparation for any trial that might be held. Any responses to the following requests are
13 based on information presently known to Defendant and are given without prejudice to Defendant’s
14 right to provide or introduce at trial evidence of any subsequently discovered information. As a
15 consequence, all responses provided are subject to amendment and/or supplementation by Defendant
16 as discovery continues.
17 Defendant’s response to each request is made subject to and without waiver of any objections
18 as to the competency, relevancy, materiality, privilege or admissibility as evidence for any other
19 purpose, of the information provided or referred to, or any of the responses given, or of their subject
20 matter, in any proceedings.
21 Finally, because Defendant’s attorneys and/or investigators may have ascertained some of these
22 responses for Defendant, Defendant may not have personal knowledge of the information from which
23 such responses were derived.
24 RESPONSES TO REQUEST FOR ADMISSION
25 REQUEST FOR ADMISSION NO. 1.1:
26 Admit that prior to January 17, 2020 there were no warnings or cautions in any Instruction for
27 Use for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy
28
2
DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR
ADMISSIONS, SET ONE
276188714
suction when a patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes
of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the
Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the
Revolution Pump and connected with the appropriate tubing.
RESPONSE TO REQUEST FOR ADMISSION NO. 1.1:
Objection, this request seeks information protected by the attorney client privilege and work
product doctrine. This request seeks premature expert discovery and expert opinion in violation of Code
of Civil Procedure section 2034.210, 2034.220, and 234.270. This request is also overboard,
burdensome, oppressive, and intended to harass Responding Party as it has no limitation as to scope
10 and time. This request is impermissibly compound. This request is vague and ambiguous as phrased
11 generally, and specifically as to the terms “warnings or cautions’ «6
> ‘in any label for any part”, and
12 “CARDIOPULMONARY BYPASS CIRCUIT”. The request is also objectionable in that the
13 document(s) referenced therein speak for themselves. Subject to and without the foregoing objections,
14 Responding Party responds as follows:
15 Deny.
16 REQUEST FOR ADMISSION NO. 2.2:
17 Admit that prior to January 17, 2020 there were no warnings or cautions in any label for any
18 part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a
19 patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes of this Request
20 for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F
21 oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the Revolution Pump
22 and connected with the appropriate tubing.
23 RESPONSE TO REQUEST FOR ADMISSION NO. 2.2:
24 Objection, this request seeks information protected by the attorney client privilege and work
25 product doctrine. This request seeks premature expert discovery and expert opinion in violation of Code
26 of Civil Procedure section 2034.210, 2034.220, and 234.270. This request is also overboard,
27 burdensome, oppressive, and intended to harass Responding Party as it has no limitation as to scope
28
3
DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR
ADMISSIONS, SET ONE
276188714
and time. This request is impermissibly compound. This request is vague and ambiguous as phrased
generally, and specifically as to the terms “warnings or cautions «6:
> in any label for any part”, and
“CARDIOPULMONARY BYPASS CIRCUIT”. This request is duplicative of Request 1 as phrased
and as the terms “label” and “labeling” are defined under Section 201 of the Food, Drug and Cosmetic
Act. The request is also objectionable in that the document(s) referenced therein speak for themselves.
This request is unintelligible.
REQUEST FOR ADMISSION NO. 3.3:
Admit that prior to January 17, 2020 there were no warnings or cautions in any TRAINING
MATERIAL for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of
10 cardiotomy suction when a patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for
11 purposes of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall
12 mean the Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and
13 the Revolution Pump and connected with the appropriate tubing. Pursuant to C.C.P. §2033.080(e), for
14 purposes of this Request for Admission, the term TRAINING MATERIAL shall mean letters,
15 brochures, photographs, diagrams, videos, illustrations, and any other writings and documents, both
16 printed or in electronic form, that are distributed and used for training in the use and understanding of
17 the CARDIOPULMONARY BYPASS CIRCUIT and any of its parts.
18 RESPONSE TO REQUEST FOR ADMISSION NO. 3.3:
19 Objection, this request seeks information protected by the attorney client privilege and work
20 product doctrine. This request seeks premature expert discovery and expert opinion in violation of Code
21 of Civil Procedure section 2034.210, 2034.220, and 234.270. This request is also overboard,
22 burdensome, oppressive, and intended to harass Responding Party as it has no limitation as to scope
23 and time. This request is impermissibly compound. This request is vague and ambiguous as phrased
24 generally, and specifically as to the terms “warnings or cautions’ 966s n any label for any part”, and
25 “CARDIOPULMONARY BYPASS CIRCUIT” and “TRAINING MATERIAL”. This request is also
26 not reasonably calculated to lead to the discovery of admissible evidence. The request is also
27 objectionable in that the document(s) referenced therein speak for themselves.
28
4
DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR
ADMISSIONS, SET ONE
276188714
REQUEST FOR ADMISSION NO. 4.4:
Admit that prior to January 17, 2020 there were no warnings or cautions in any promotional
material for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy
suction when a patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes
of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the
Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the
Revolution Pump and connected with the appropriate tubing. Pursuant to C.C.P. §2033.080(e), for
purposes of this Request for Admission, the term MARKETING MATERIAL shall mean letters,
brochures, photographs, diagrams, videos, illustrations, and any other writings and documents, both
10 printed or in electronic form, that are distributed and used for marketing of the
11 CARDIOPULMONARY BYPASS CIRCUIT and any of its parts.
12 RESPONSE TO REQUEST FOR ADMISSION NO. 4.4:
13 Objection, this request seeks information protected by the attorney client privilege and work
14 product doctrine. This request seeks premature expert discovery and expert opinion in violation of Code
15 of Civil Procedure section 2034.210, 2034.220, and 234.270. This request is also overboard,
16 burdensome, oppressive, and intended to harass Responding Party as it has no limitation as to scope
17 and time. This request is impermissibly compound. This request is vague and ambiguous as phrased
18 generally, and specifically as to the terms “warnings or cautions” “in any label for any part”, and
19 “CARDIOPULMONARY BYPASS CIRCUIT” and “promotional material”. This request is also not
20 reasonably calculated to lead to the discovery of admissible evidence. The request is also objectionable
21 in that the document(s) referenced therein speak for themselves.
22 Dated: February 28, 2024 CLARK HILL LLP
Ags
23
24 By:
25, Matthew L. Marshall
Seta Sarabekian
26 Andre Karchemsky
Attorneys for Defendant LivaNova USA, Inc.
27
28
5
DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR
ADMISSIONS, SET ONE
276188714
VERIFICATION
I, Larry Petree, declare:
Iam a Sr. Marketing Manager at LIVANOVA USA, INC., a defendant in the above-entitled
action, and I have been authorized to make this verification on its behalf.
DEFENDANT LIVANOVA USA, INC.’S RESPONSE TO
I have read the foregoing
and know the contents
PLAINTIFF SAULO ORTEGA’S REQUEST FOR ADMISSIONS, SET ONE
on
thereof. The same is true of my personal knowledge, except as to the matters which are stated
information and belief, and as to those matters I believe them to be true.
foregoing is
I declare under penalty of perjury under the laws of the State of California that the
10 true and correct.
11 Executed on Feb 20 , 2024 at Arvada, Colorado.
12
13
a Larry Petfee
tL
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 7
' REQUEST FOR
DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGAS
ADMISSIONS, SET ONE
PROOF OF SERVICE
I, the undersigned, am an employee of Clark Hill LLP, located at 600 West Broadway, Suite
500, San Diego, California 92101. I am over the age of eighteen (18) and not a party to this matter.
On February 28, 2024, I served the document(s) listed below as follows:
DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO
ORTEGA'S REQUEST FOR ADMISSIONS, SET ONE
on the following part(ies) in this action:
SEE ATTACHED SERVICE LIST
(0 BY PERSONAL SERVICE: | caused the foregoing document(s) to be personally delivered to
the above addressee(s) by First Legal Network via a registered process server pursuant to C.C.P. §
1011.
10
OO BY U.S. MAIL: I enclosed the foregoing document(s) in a sealed envelope to the addressee(s)
11 above and, under the firm’s ordinary course of business, placed said envelope(s) for pick up and mailing
pursuant to C.C.P. § 1013. Iam readily familiar with the firm’s practice of processing outgoing mail,
12 under which outgoing mail is deposited for pickup by the U.S. Postal Service on the same day stated in
the proof
of service, with postage fully prepaid, at San Diego, California.
13
(0 BY OVERNIGHT DELIVERY (VIA FEDEX): | enclosed the foregoing documents in a sealed
14 envelope or package to the addressee(s) listed above and placed said envelope or package for pick up
for overnight delivery via FedEx under the firm’s ordinary course of business. I am familiar with the
15 firm’s practice of collecting and processing correspondence for overnight delivery via FedEx. Under
that practice, the envelope or package would be deposited for pick up by an authorized FedEx courier
16 or driver that same day at San Diego, California and delivered to the addressee(s) the following business
day pursuant to C.C.P. § 1013.
17
XX BY ELECTRONIC SERVICE/EMAIL: | caused a copy of the document(s) list above to be
18 transmitted via electronic mail from lortega@clarkhill.com to the addressees as listed above pursuant
to C.C.P. §§ 1010.6 and 1013(g), Cal. Rule of Court 2.251, and/or agreement or stipulation between
19 the parties.
20 I declare under penalty of perjury under the laws of the State of California, that the foregoing
is true and correct. Executed on February 28, 2024, at San Diego, California.
21
bin DAefs
22
Lynn Ortega
23
24
25
26
27
28
1
PROOF OF SERVICE
276188714
Bruce Osterman, Esq. Attorney for Plaintiffs
David Edward May, Esq.
LAW OFFICE OF BRUCE S. OSTERMAN
2300 Contra Costa Blvd., Suite 320
Pleasant Hill CA 94523-3952
Tel: (415) 399-3900
Fax: (415) 399-3920
bso.1 msn.com
dem@bruceosterman.com
SWI @bruceosterman. .com
Marc Lyde, Esq. Attorneys for Defendant, Gansevoort H.
Michael Gallert, Esq. Dunnington, M.D.
LEONARD & LYDE
1600 Humbolt Road, Suite 1
Chico, CA 95928
Tel: (530) 345-3494
Fax: (530) 345-0460
10 mare.lyde@gmail.com
michaelgallert@yahoo.com
11 leonardandlydet mail.com
ameliafburroughs@gmail.com
12
Dominique A. Pollara, Esq. Attorneys for Defendant, Miguel Puig
13 Frances Bruce, Esq. Palomar, M.D.
POLLARA LAW GROUP
14 100 Howe Avenue, Suite 165N
Sacramento, CA 95825
15 Tel: (916) 550-5880
Fax: (916) 550-5066
16 dp@pollara-law.com
fb@pollara-law.com
17 ko@pollara-law.com
18 Robert H. Zimmerman, Esq. Attorneys for Defendant, Enloe Medical
Alaina Dickens, Esq. Center
19 SCHUERING, ZIMMERMAN
& DOYLE, LLP
20 400 University Avenue
Sacramento, CA 95825-6502
21 Tel: (916) 567-0400
Fax: (916) 568-0400
22 RHZ@szs.com
ATD@szs.com
23 DMK@szs.com
LFE S$ZS.cOom
24
Bruce E. Salenko, Esq. Attorneys for Defendant, Peter Wolk, M.D.
25 Peter Washington, Esq.
LOW McKINLEY & SALENKO, LLP
26 2150 River Plaza Drive, Suite 250
Sacramento, CA 95833
27 Tel: (916) 231-2400
BES@I|mblaw.net
28 SLC@I|mblaw.net
2
PROOF OF SERVICE
276188714
PGW@Imblaw.net
KAK@Imblaw.net
Barry Vogel, Esq. Attorneys for Defendant Li Poa, M.D.
Scott W. Foley, Esq.
LA FOLLETTE, JOHNSON, DeHAAS,
FESLER & AMES
655 University Avenue, Suite 119
Sacramento, CA 95825-6746
Tel: (916) 563-3100
Fax: (910) 565-3704
bvogel@lidfa.com
sfoley@lidfa.com
berocker@ljdfa.com
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
PROOF OF SERVICE
276188714
Exhibit 3
DISC-001
"ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):
|Bruce S. Osterman (39310): David Edward May (83734)
Law Offices of Bruce S. Osterman
2300 Contra Costa Blvd.,
Suite 320
Pleasant Hill CA 94523-3952
‘TELEPHONE NO. 415.399.3900
FAX NO. (Optiona): 415.399.3920
E-MAIL ADDRESS (Optiona):_ dem@bruceosterman.com
ATTORNEY FOR (Name) Ruben Ortega et al.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
SHORT TITLE OF CASE: Ruben Ortega, et al v Enloe Medical Center et al
FORM INTERROGATORIES—GENERAL
Asking Party: Plaintiff, Saulo Ortega CASE NUMBER:
20CV01510
Answering Party: Defendant LivaNova, USA, Inc.
Set N One
Sec. 1. Instructions to All Parties (c) Each answer must be as complete and straightforward
(a) Interrogatories are written questions prepared by a party as the information reasonably available to you, including the
to an action that are sent to any other party in the action to be information possessed by your attorneys or agents, permits. If
answered under oath. The interrogatories below are form an interrogatory cannot be answered completely, answer it to
interrogatories approved for use in civil cases. the extent possible.
(b) For time limitations, requirements for service on other (a) If you do not have enough personal knowledge to fully
parties, and other details, see Code of Civil Procedure answer an interrogatory, say so, but make a reasonable and
sections 2030.010-2030.410 and the cases construing those good faith effort to get the information by asking other persons
sections. or organizations, unless the information is equally available to
(c) These form interrogatories do not change existing law the asking party.
relating to interrogatories nor do they affect an answering (e) Whenever an interrogatory may be answered by
party's right to assert any privilege or make any objection. referring to a document, the document may be attached as an
Sec. 2. Instructions to the Asking Party exhibit to the response and referred to in the response. If the
(a) These interrogatories are designed for optional use by document has more than one page, refer to the page and
section where the answer to the interrogatory can be found.
parties in unlimited civil cases where the amount demanded
exceeds $25,000. Separate interrogatories, Form (f) Wheneveran address and telephone number for the
Interrogatories—Limited Civil Cases (Economic Litigation) same person are requested in more than one interrogatory,
(form DISC-004), which have no subparts, are designed for you are required to furnish them in answering only the first
use in limited civil cases where the amount demanded is interrogatory asking for that information.
$25,000 or less; however, those interrogatories may also be
used in unlimited civil cases. (9) If you are asserting a privilege or making an objection to
an interrogatory, you must specifically assert the privilege or
(b) Check the box next to each interrogatory that you want state the objection in your written response.
the answering party to answer. Use care in choosing those
interrogatories that are applicable to the case. (h) Your answers to these interrogatories must be verified,
(c) You may insert your own definition of INCIDENT in dated, and signed. You may wish to use the following form at
Section 4, but only where the action arises from a course of the end of your answers:
conduct or a series of events occurring over a period of time. | declare under penalty of perjury under the laws of the
(d) The interrogatories in section 16.0, Defendant's State of California that the foregoing answers are true and
Contentions—Personal Injury, should not be used until the correct.
defendant has had a reasonable opportunity to conduct an
investigation or discovery of plaintiff's injuries and damages. (DATE) (SIGNATURE)
(e) Additional interrogatories may be attached.
Sec. 3. Instructions to the Answering Party Sec. 4. Definitions
(a) An answer or other appropriate response must be Words in BOLDFACE CAPITALS in these interrogatories
given to each interrogatory checked by the asking party. are defined as follows:
(a) (Check one of the following):
(b) As a general rule, within 30 days after you are served
with these interrogatories, you must serve your responses on [] (1) INCIDENT includes the circumstances and
the asking party and serve copies of your responses on all events surrounding the alleged accident, injury, or
other parties to the action who have appeared. See Code of other occurrence or breach of contract giving rise to
Civil Procedure sections 2030.260-2030.270 for details. this action or proceeding.
Page 1 of 8
Form Approved for Optional Use "ode of Civil Procedure,
Judicial Council of California FORM INTERROGATORIES—GENERAL Legal '§§ 2030.010-2030.410, 2033.710
DISC-001 [Rev. January 1, 2008] Solutions
‘@ Plus
DISC-001
[] (2) INCIDENT means (insert your definition here or 1.0 Identity of Persons Answering These Interrogatories
on a separate, attached sheet labeled "Sec.
[_] 1.1 State the name, ADDRESS, telephone number, and
4(a)(2)"): relationship to you of each PERSON who prepared or
assisted in the preparation of the responses to these
interrogatories. (Do not identify anyone who simply typed or
reproduced the responses.)
(b) YOU OR ANYONE ACTING ON YOUR BEHALF 2.0 General Background Information—individual
includes you, your agents, your employees, your insurance [] 2.1 State:
companies, their agents, their employees, your attorneys, your (a) your name;
accountants, your investigators, and anyone else acting on (b) every name you have used in the past; and
your behalf. (c) the dates you used each name.
(c) PERSON includes a natural person, firm, association,
organization, partnership, business, trust, limited liability
[_] 2.2 State the date and place of your birth.
company, corporation, or public entity.
[] 2.3 At the time of the INCIDENT, did you have a driver's
(d) DOCUMENT means a writing, as defined in Evidence license? If so, state:
Code section 250, and includes the original or a copy of (a) the state or other issuing entity;
handwriting, typewriting, printing, photostats, photographs, (b) the license number and type;
electronically stored information, and every other means of (c) the date of issuance; and
recording upon any tangible thing and form of communicating (d) all restrictions.
or representation, including letters, words, pictures, sounds, or
symbols, or combinations of them. 2.4 At the time of the INCIDENT, did you have any other
permit or license for the operation of a motor vehicle? If so,
(e) HEALTH CARE PROVIDER includes any PERSON state:
referred to in Code of Civil Procedure section 667.7(e)(3).
(a) the state or other issuing entity;
(f) ADDRESS means the street address, including the city, (b) the license number and type;
state, and zip code. (c) the date of issuance; and
Sec. 5. Interrogatories
(d) all restrictions.
The following interrogatories have been approved by the 25 State:
Judicial Council under Code of Civil Procedure section 2033.710: (a) your present residence ADDRESS;
(b) your residence ADDRESSES for the past five years; and
CONTENTS (c) the dates you lived at each ADDRESS.
1.0 Identity of Persons Answering These Interrogatories
2.0 General Background Information—Individual [) 26 State:
3.0 General Background Information—Business Entity (a) the name, ADDRESS, and telephone number of your
4.0 Insurance present employer or place of self-employment; and
5.0 [Reserved] (b) the name, ADDRESS, dates of employment, job title,
6.0 Physical, Mental, or Emotional Injuries and nature of work for each employer or
7.0 Property Damage self-employment you have had from five years before
8.0 Loss of Income or Earning Capacity the INCIDENT until today.
9.0 Other Damages [27 State:
10.0 Medical History
11.0 Other Claims and Previous Claims
(a) the name and ADDRESS of each school or other
academic or vocational institution you have attended,
12.0 Investigation — General beginning with high school;
13.0 Investigation — Surveillance (b) the dates you attended;
Preview
Superion Court of Califonria County of Butte 4/16/2024 David Edward May, Esq. (Bar No. 083734) LAW OFFICES OF BRUCE S. OSTERMAN 2300 Contra Costa Blvd., Suite 320 na Ged atk Pleasant Hill, CA 94523-3952 Deputy Tel: (415) 399-3900 Electronically FILED Fax: (415) 399-3920 Attorneys for Plaintiffs Saulo Ortega, et familia SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF BUTTE RUBEN ORTEGA, FERMIN ORETGA, Case No: 20CV01510 CRYSTAL ORTEGA, RUBEN ORTEGA, JR., CHRISTIAN ORTEGA; SAULO 10 ORTEGA, DECLARATION OF DAVID EDWARD 11 Plaintiffs, MAY IN SUPPORT OF MOTION TO vs. COMPEL FURTHER RESPONSE 12 ENLOE MEDICAL CENTER; MIGUEL 13 PUIG-PALOMAR, M.D.; GANSEVOORT Date: May 15, 2024 H. DUNNINGTON, M.D.; MICHAEL L. Time: 9:00 am 14 HIEB, M.D.; and DOES | to 50, Dept: Six (6) 15 Defendants, 16 and consolidated case. Case No. 22CV00944 17 18 I, David Edward May, state: 19 1 lam an attorney duly admitted to the Bar of the above entitled court and 20 am in good standing. I represent plaintiffs in the above entitled action. I have 21 personal knowledge of the matters set forth and am competent, willing and able to 22 testify to the same, if called upon to do so. 23 2 I met and conferred with opposing counsel in a good faith effort to 24 resolve the issues set forth in this Motion, but we were unable to settle the matter. 25 My attempts to meet and confer are set forth in the letters attached hereto as Exhibits 26 5 & 6. Those letters are dated March 20, 2024 and April 5, 2024, respectively. 27 Decl. of David Edward May in Support of Motion to Compel 3 Attached hereto are true and accurate copies of the following documents which are labeled with Exhibits numbers as follows: Exhibit 1 - Request for Admissions, Set 1 (Saulo) Exhibit 2 - Response to Request for Admissions, Set 1 (Saulo) Exhibit 3 Form Interrogatories (17.1), Set 1 (Saulo) Exhibit 4 Response to Form Interrogatories (17.1), Set 1 (Saulo) Exhibit 5 Meet & Confer Letter dated March 20, 2024 Exhibit 6 Meet & Confer Letter dated April 5, 2024 Exhibit 7 - Declaration of Gabriel Aldea M.D. 10 4 Ihave been licensed to practice law in California since November 1978. 11 I was inactive for 3’ years (Jan. 1992 - June 1995) when I was practicing law in the 12 State of Israel. I have practiced personal injury law in general, and medical 13 malpractice law, in particular, throughout my career. My usual and customary hourly 14 rate is $500 per hour. 15 Ihave spent and expect to spend a total of 9 hours of time in connection with 16 the instant motion to compel. This includes time for preparing the moving papers 17 herein, reviewing and responding to the opposition papers, preparing reply papers, 18 and preparing for and appearing at the hearing on the motion. 19 I declare under penalty of perjury pursuant to the law of the State of California 20 that the foregoing is true and correct. 21 Dated: April 15, 2024 avi Wi ay 22 23 24 25 26 27 Decl. of David Edward May in Support of Motion to Compel Page 2 Exhibit 1 DISC-020 ‘ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address). FOR COURT USE ONLY David Edward May (SBN 083734 Law Office of Bruce S. Osterman 2300 Contra Costa Blvd., Suite 320 Pleasant Hill CA 94523 TELEPHONE NO: 415-399-3900 FAX NO. (Optional): 415-399-3920 E-MAIL ADDRESS (Optional): dem@bruceosterman.com ATTORNEY FOR (Name): Plaintiffs Ortega SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE STREET ADDRESS: 1775 Concord Avenue MAILING ADDRESS: same CITY AND ZIP CODE: Chico, CA 95928 BRANCH NAME: Northern SHORT TITLE: REQUESTS FOR ADMISSION [G2] Truth of Facts [= ]Genuineness of Documents CASE NUMBER; Requesting Party: Saulo Ortega 20CV01510 & consolidated Answering Party: LivaNova USA, Inc. Set No.: 1 (One) INSTRUCTIONS Requests for admission are written requests by a party to an action requiring that any other party to the action either admit or deny, under oath, the truth of certain facts or the genuineness of certain documents. For information on timing, the number of admissions a party may request from any other party, service of requests and responses, restrictions on the style, format, and scope of requests for admission and responses to requests, and other details, see Code of Civil Procedure sections 94-95, 1013, and 2033.010-2033.420 and the case law relating to those sections. An answering party should consider carefully whether to admit or deny the truth of facts or the genuineness of documents. With limited exceptions, an answering party will not be allowed to change an answer to a request for admission. There may be penalties if an answering party fails to admit the truth of any fact or the genuineness of any document when requested to do so and the requesting party later proves that the fact is true or that the document is genuine. These penalties may include, among other things, payment of the requesting party's attorney's fees incurred in making that proof. Unless there is an agreement or a court order providing otherwise, the answering party must respond in writing to requests for admission within 30 days after they are served, or within 5 days after service in an unlawful detainer action. There may be significant penalties if an answering party fails to provide a timely written response to each request for admission. These penalties may include, among other things, an order that the facts in issue are deemed true or that the documents in issue are deemed genuine for purposes of the case. Answers to Requests for Admission must be given under oath. The answering party should use the following language at the end of the responses: | declare under penalty of perjury under the laws of the State of California that the foregoing answers are true and correct. (DATE) (SIGNATURE) These instructions are only a summary and are not intended to provide complete information about requests for admission. This Requests for Admission form does not change existing law relating to requests for admissions, nor does it affect an answering party’s right to assert any privilege or to make any objection. REQUESTS FOR ADMISSION You are requested to admit within 30 days after service, or within 5 days after service in an unlawful detainer action, of this Requests for Admission that: 1. [3] Each of the following facts is true (if more than one, number each fact consecutively): [€] Continued on Attachment 1 2. [-_] The original of each of the following documents, copies of which are attached, is genuine (if more than one, number each document consecutively): [J Continued on Attachment 2 David Edward May > Dave (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR nee Page 1 of 1 Form Approved for Optional Use REQUESTS FOR ADMISSION Code of Civil Procedure, Judicial Council of California §§ 94-95, 2033.010-2033.420, 2033.710 DISC-020 [Rev. January 1, 2008) Case No: Plainitff: Ortega et al. Defendant: Puig-Palomar et al. 20 CV 01510 & consolidated Page No. 2 ATTACHMENT NO. | TO REQUEST FOR ADMISSIONS (Judicial Council Form DISC-020) Request for Admission No. 1.1: Admit that prior to January 17, 2020 there were no warnings or cautions in any Instruction for Use for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient is on cardiopulmonary bypass. Pursuantto C.C.P. §2033.080(e), for purposes of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate tubing. Request for Admission No. 1.2: Admit that prior to January 17, 2020 there were no warnings or cautions in any label for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient is on cardiopulmonary bypass. Pursuantto C.C.P. §2033.080(e), for purposes of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate tubing. Request for Admission No. 1.3: Admit that prior to January 17, 2020 there were no warnings or cautions in any TRAINING MATERIAL for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate tubing. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term TRAINING MATERIAL shall mean letters, brochures, photographs, diagrams, videos, illustrations, and any other writings and documents, both printed or in electronic form, that are distributed and used for training in the use and understanding of the CARDIOPULMONARY BYPASS CIRCUIT and any of its parts. Case No: Plainitff: Ortega et al. Defendant: Puig-Palomar et al. 20 CV 01510 & consolidated Page No. 3 ATTACHMENT NO. | TO REQUEST FOR ADMISSIONS (Judicial Council Form DISC-020) Request for Admission No. 1.4: Admit that prior to January 17, 2020 there were no warnings or cautions in any promotional material for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate tubing. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term MARKETING MATERIAL shall mean letters, brochures, photographs, diagrams, videos, illustrations, and any other writings and documents, both printed or in electronic form, that are distributed and used for marketing of the CARDIOPULMONARY BYPASS CIRCUIT and any of its parts. PROOF OF ELECTRIC SERVICE Tam over the age of 18 years, I am not a party to the above-entitled action, and my business address is Law Offices of Bruce S. Osterman, 2300 Contra Costa Blvd., Suite 320, Pleasant Hill, California 94523-3952 and my email address is esw@bruceosterman.com. On January 11, 2024, I served a true copy of: 1 Request for Admission, Set One, Saulo to LivaNova USA, Inc. on the following person(s): Alaina Dickens Esquire Matthew Marshall, Esquire Schuering Zimmerman & Doyle, LLP Clark Hill 400 University Avenue 600 W Broadway, Suite 500 10 Sacramento CA 95825-6502 San Diego, CA 92101 ATD@szs.com mimarshall@clarkhill.com 11 [Attorneys for Enloe Medical Center] [Attorneys for LivaNova USA, Inc.] 12 Marc Lyde Esquire Frances Bruce Esquire 13 Leonard & Lyde Law Offices Pollara Law Group 1600 Humboldt Road Suite 1 100 Howe Avenue Suite 165N 14 Chico CA 95928-8100 Sacramento CA 95825 leonardandlyde@gmail.com fb@pollara-law.com 15 [Attorneys for Gansevort H. Dunnington, M.D. [Attorneys for Miguel Puig-Palomar, M.D.] 16 17 Bruce E. Salenko, Esquire Scott Foley Esquire Low McKinley & Salenko LLP La Follette, Johnson, 18 2150 River Plaza Drive Suite 250 De Haas, Fesler & Ames PC Sacramento CA 95833 655 University Avenue, Suite 119 19 bes@Imblaw.net Sacramento, California 95825-6746 sfoley@lidfa.com 20 by email or electronic transmission: I caused the documents to be sent to the persons at the e-mail 21 addresses listed above. I did not receive, within a reasonable time after the transmission, any 22 electronic message or other indication that the transmission was unsuccessful. 23 I declare under penalty of perjury pursuant to the law of the State of California that the 24 foregoing is true and correct. 25 Dated: J anuary 1 26 j 27 stelle alker Proof of Electronic Service Page T Exhibit 2 Matthew L. Marshall, Esq., SBN 168013 Seta Sarabekian, Esq., SBN 299578 CLARK HILL LLP One America Plaza 600 West Broadway, Suite 500 San Diego, CA 92101 Telephone: (619) 557-0404 Facsimile: (619) 557-0460 mlmarshall@clarkhill.com ssarabekian@clarkhill.com Andre Karchemsky, Esq., SBN 327831 CLARK HILL LLP 555 South Flower Street, 24th Floor Los Angeles, CA 90071 Telephone: (213) 891-9100 Facsimile: (213) 488-1178 akarchemsky@clarkhill.com 10 Attorneys for Defendant LivaNova USA, Inc. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF BUTTE 13 14 RUBEN ORTEGA; SAULO ORTEGA; Case No. 20CV01510 CHRISTIAN ORTEGA; FERMIN ORTEGA; (Consolidated with 22CV00944) 15 CRYSTAL ORTEGA; RUBEN ORTEGA, JR, DEFENDANT LIVANOVA USA, INC.'S 16 Plaintiffs, RESPONSES TO PLAINTIFF, SAULO ORTEGA'S REQUEST FOR ADMISSIONS, 17 Vv. SET ONE 18 ENLOE MEDICAL CENTER; MIGUEL Assigned to: Hon. Stephen E. Benson for All PUIG-PALOMAR, M.D.; GANSEVOORT H. Purposes 19 DUNNINGTON, M.D.; LIVANOVA USA, INC.; Does 1-50, Complaint Filed: August 3, 2020 20 Trial Date: May 12, 2025 Defendants. 21 22 PROPOUNDING PARTY: Plaintiff: SAULO ORTEGA 23 RESPONDING PARTY: Defendant: LIVANOVA USA, INC. 24 SET NUMBER: ONE 25 Defendant LIVANOVA USA, INC. (“Defendant” or “Responding Party”) responds to Plaintiff, 26 SAULO ORTEGA’s Request for Admissions, Set One, as follows: 27 Mit 28 1 DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR ADMISSIONS, SET ONE 276188714 PRELIMINARY STATEMENT AND GENERAL OBJECTIONS Investigation and discovery by Defendant are continuing and are not complete. As discovery proceeds, witnesses, facts and evidence may be discovered which are not set forth herein, but which may have been responsive to Plaintiffs requests. Facts and evidence now known may be imperfectly understood or the relevance or consequences of such facts and evidence may be imperfectly understood, and, accordingly, information and documents responsive to Plaintiffs requests may, in good faith, not be included in the following further responses. Defendant reserves the right to refer to, conduct discovery with reference to, or offer into evidence at trial any and all such witnesses, facts and evidence, notwithstanding the absence of 10 reference to such witnesses, facts and evidence in these further responses. Defendant has not completed 11 its investigation of the facts relating to this case, has not completed discovery in this action, and has 12 not completed preparation for any trial that might be held. Any responses to the following requests are 13 based on information presently known to Defendant and are given without prejudice to Defendant’s 14 right to provide or introduce at trial evidence of any subsequently discovered information. As a 15 consequence, all responses provided are subject to amendment and/or supplementation by Defendant 16 as discovery continues. 17 Defendant’s response to each request is made subject to and without waiver of any objections 18 as to the competency, relevancy, materiality, privilege or admissibility as evidence for any other 19 purpose, of the information provided or referred to, or any of the responses given, or of their subject 20 matter, in any proceedings. 21 Finally, because Defendant’s attorneys and/or investigators may have ascertained some of these 22 responses for Defendant, Defendant may not have personal knowledge of the information from which 23 such responses were derived. 24 RESPONSES TO REQUEST FOR ADMISSION 25 REQUEST FOR ADMISSION NO. 1.1: 26 Admit that prior to January 17, 2020 there were no warnings or cautions in any Instruction for 27 Use for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy 28 2 DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR ADMISSIONS, SET ONE 276188714 suction when a patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate tubing. RESPONSE TO REQUEST FOR ADMISSION NO. 1.1: Objection, this request seeks information protected by the attorney client privilege and work product doctrine. This request seeks premature expert discovery and expert opinion in violation of Code of Civil Procedure section 2034.210, 2034.220, and 234.270. This request is also overboard, burdensome, oppressive, and intended to harass Responding Party as it has no limitation as to scope 10 and time. This request is impermissibly compound. This request is vague and ambiguous as phrased 11 generally, and specifically as to the terms “warnings or cautions’ «6 > ‘in any label for any part”, and 12 “CARDIOPULMONARY BYPASS CIRCUIT”. The request is also objectionable in that the 13 document(s) referenced therein speak for themselves. Subject to and without the foregoing objections, 14 Responding Party responds as follows: 15 Deny. 16 REQUEST FOR ADMISSION NO. 2.2: 17 Admit that prior to January 17, 2020 there were no warnings or cautions in any label for any 18 part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a 19 patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes of this Request 20 for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F 21 oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the Revolution Pump 22 and connected with the appropriate tubing. 23 RESPONSE TO REQUEST FOR ADMISSION NO. 2.2: 24 Objection, this request seeks information protected by the attorney client privilege and work 25 product doctrine. This request seeks premature expert discovery and expert opinion in violation of Code 26 of Civil Procedure section 2034.210, 2034.220, and 234.270. This request is also overboard, 27 burdensome, oppressive, and intended to harass Responding Party as it has no limitation as to scope 28 3 DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR ADMISSIONS, SET ONE 276188714 and time. This request is impermissibly compound. This request is vague and ambiguous as phrased generally, and specifically as to the terms “warnings or cautions «6: > in any label for any part”, and “CARDIOPULMONARY BYPASS CIRCUIT”. This request is duplicative of Request 1 as phrased and as the terms “label” and “labeling” are defined under Section 201 of the Food, Drug and Cosmetic Act. The request is also objectionable in that the document(s) referenced therein speak for themselves. This request is unintelligible. REQUEST FOR ADMISSION NO. 3.3: Admit that prior to January 17, 2020 there were no warnings or cautions in any TRAINING MATERIAL for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of 10 cardiotomy suction when a patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for 11 purposes of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall 12 mean the Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and 13 the Revolution Pump and connected with the appropriate tubing. Pursuant to C.C.P. §2033.080(e), for 14 purposes of this Request for Admission, the term TRAINING MATERIAL shall mean letters, 15 brochures, photographs, diagrams, videos, illustrations, and any other writings and documents, both 16 printed or in electronic form, that are distributed and used for training in the use and understanding of 17 the CARDIOPULMONARY BYPASS CIRCUIT and any of its parts. 18 RESPONSE TO REQUEST FOR ADMISSION NO. 3.3: 19 Objection, this request seeks information protected by the attorney client privilege and work 20 product doctrine. This request seeks premature expert discovery and expert opinion in violation of Code 21 of Civil Procedure section 2034.210, 2034.220, and 234.270. This request is also overboard, 22 burdensome, oppressive, and intended to harass Responding Party as it has no limitation as to scope 23 and time. This request is impermissibly compound. This request is vague and ambiguous as phrased 24 generally, and specifically as to the terms “warnings or cautions’ 966s n any label for any part”, and 25 “CARDIOPULMONARY BYPASS CIRCUIT” and “TRAINING MATERIAL”. This request is also 26 not reasonably calculated to lead to the discovery of admissible evidence. The request is also 27 objectionable in that the document(s) referenced therein speak for themselves. 28 4 DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR ADMISSIONS, SET ONE 276188714 REQUEST FOR ADMISSION NO. 4.4: Admit that prior to January 17, 2020 there were no warnings or cautions in any promotional material for any part of the CARDIOPULMONARY BYPASS CIRCUIT about the use of cardiotomy suction when a patient is on cardiopulmonary bypass. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term CARDIOPULMONARY BYPASS CIRCUIT shall mean the Inspire 6F oxygenator assembled together with the Inspire Hardshell Venous Reservoir and the Revolution Pump and connected with the appropriate tubing. Pursuant to C.C.P. §2033.080(e), for purposes of this Request for Admission, the term MARKETING MATERIAL shall mean letters, brochures, photographs, diagrams, videos, illustrations, and any other writings and documents, both 10 printed or in electronic form, that are distributed and used for marketing of the 11 CARDIOPULMONARY BYPASS CIRCUIT and any of its parts. 12 RESPONSE TO REQUEST FOR ADMISSION NO. 4.4: 13 Objection, this request seeks information protected by the attorney client privilege and work 14 product doctrine. This request seeks premature expert discovery and expert opinion in violation of Code 15 of Civil Procedure section 2034.210, 2034.220, and 234.270. This request is also overboard, 16 burdensome, oppressive, and intended to harass Responding Party as it has no limitation as to scope 17 and time. This request is impermissibly compound. This request is vague and ambiguous as phrased 18 generally, and specifically as to the terms “warnings or cautions” “in any label for any part”, and 19 “CARDIOPULMONARY BYPASS CIRCUIT” and “promotional material”. This request is also not 20 reasonably calculated to lead to the discovery of admissible evidence. The request is also objectionable 21 in that the document(s) referenced therein speak for themselves. 22 Dated: February 28, 2024 CLARK HILL LLP Ags 23 24 By: 25, Matthew L. Marshall Seta Sarabekian 26 Andre Karchemsky Attorneys for Defendant LivaNova USA, Inc. 27 28 5 DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR ADMISSIONS, SET ONE 276188714 VERIFICATION I, Larry Petree, declare: Iam a Sr. Marketing Manager at LIVANOVA USA, INC., a defendant in the above-entitled action, and I have been authorized to make this verification on its behalf. DEFENDANT LIVANOVA USA, INC.’S RESPONSE TO I have read the foregoing and know the contents PLAINTIFF SAULO ORTEGA’S REQUEST FOR ADMISSIONS, SET ONE on thereof. The same is true of my personal knowledge, except as to the matters which are stated information and belief, and as to those matters I believe them to be true. foregoing is I declare under penalty of perjury under the laws of the State of California that the 10 true and correct. 11 Executed on Feb 20 , 2024 at Arvada, Colorado. 12 13 a Larry Petfee tL 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 ' REQUEST FOR DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGAS ADMISSIONS, SET ONE PROOF OF SERVICE I, the undersigned, am an employee of Clark Hill LLP, located at 600 West Broadway, Suite 500, San Diego, California 92101. I am over the age of eighteen (18) and not a party to this matter. On February 28, 2024, I served the document(s) listed below as follows: DEFENDANT LIVANOVA USA, INC.'S RESPONSES TO PLAINTIFF SAULO ORTEGA'S REQUEST FOR ADMISSIONS, SET ONE on the following part(ies) in this action: SEE ATTACHED SERVICE LIST (0 BY PERSONAL SERVICE: | caused the foregoing document(s) to be personally delivered to the above addressee(s) by First Legal Network via a registered process server pursuant to C.C.P. § 1011. 10 OO BY U.S. MAIL: I enclosed the foregoing document(s) in a sealed envelope to the addressee(s) 11 above and, under the firm’s ordinary course of business, placed said envelope(s) for pick up and mailing pursuant to C.C.P. § 1013. Iam readily familiar with the firm’s practice of processing outgoing mail, 12 under which outgoing mail is deposited for pickup by the U.S. Postal Service on the same day stated in the proof of service, with postage fully prepaid, at San Diego, California. 13 (0 BY OVERNIGHT DELIVERY (VIA FEDEX): | enclosed the foregoing documents in a sealed 14 envelope or package to the addressee(s) listed above and placed said envelope or package for pick up for overnight delivery via FedEx under the firm’s ordinary course of business. I am familiar with the 15 firm’s practice of collecting and processing correspondence for overnight delivery via FedEx. Under that practice, the envelope or package would be deposited for pick up by an authorized FedEx courier 16 or driver that same day at San Diego, California and delivered to the addressee(s) the following business day pursuant to C.C.P. § 1013. 17 XX BY ELECTRONIC SERVICE/EMAIL: | caused a copy of the document(s) list above to be 18 transmitted via electronic mail from lortega@clarkhill.com to the addressees as listed above pursuant to C.C.P. §§ 1010.6 and 1013(g), Cal. Rule of Court 2.251, and/or agreement or stipulation between 19 the parties. 20 I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on February 28, 2024, at San Diego, California. 21 bin DAefs 22 Lynn Ortega 23 24 25 26 27 28 1 PROOF OF SERVICE 276188714 Bruce Osterman, Esq. Attorney for Plaintiffs David Edward May, Esq. LAW OFFICE OF BRUCE S. OSTERMAN 2300 Contra Costa Blvd., Suite 320 Pleasant Hill CA 94523-3952 Tel: (415) 399-3900 Fax: (415) 399-3920 bso.1 msn.com dem@bruceosterman.com SWI @bruceosterman. .com Marc Lyde, Esq. Attorneys for Defendant, Gansevoort H. Michael Gallert, Esq. Dunnington, M.D. LEONARD & LYDE 1600 Humbolt Road, Suite 1 Chico, CA 95928 Tel: (530) 345-3494 Fax: (530) 345-0460 10 mare.lyde@gmail.com michaelgallert@yahoo.com 11 leonardandlydet mail.com ameliafburroughs@gmail.com 12 Dominique A. Pollara, Esq. Attorneys for Defendant, Miguel Puig 13 Frances Bruce, Esq. Palomar, M.D. POLLARA LAW GROUP 14 100 Howe Avenue, Suite 165N Sacramento, CA 95825 15 Tel: (916) 550-5880 Fax: (916) 550-5066 16 dp@pollara-law.com fb@pollara-law.com 17 ko@pollara-law.com 18 Robert H. Zimmerman, Esq. Attorneys for Defendant, Enloe Medical Alaina Dickens, Esq. Center 19 SCHUERING, ZIMMERMAN & DOYLE, LLP 20 400 University Avenue Sacramento, CA 95825-6502 21 Tel: (916) 567-0400 Fax: (916) 568-0400 22 RHZ@szs.com ATD@szs.com 23 DMK@szs.com LFE S$ZS.cOom 24 Bruce E. Salenko, Esq. Attorneys for Defendant, Peter Wolk, M.D. 25 Peter Washington, Esq. LOW McKINLEY & SALENKO, LLP 26 2150 River Plaza Drive, Suite 250 Sacramento, CA 95833 27 Tel: (916) 231-2400 BES@I|mblaw.net 28 SLC@I|mblaw.net 2 PROOF OF SERVICE 276188714 PGW@Imblaw.net KAK@Imblaw.net Barry Vogel, Esq. Attorneys for Defendant Li Poa, M.D. Scott W. Foley, Esq. LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 655 University Avenue, Suite 119 Sacramento, CA 95825-6746 Tel: (916) 563-3100 Fax: (910) 565-3704 bvogel@lidfa.com sfoley@lidfa.com berocker@ljdfa.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PROOF OF SERVICE 276188714 Exhibit 3 DISC-001 "ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): |Bruce S. Osterman (39310): David Edward May (83734) Law Offices of Bruce S. Osterman 2300 Contra Costa Blvd., Suite 320 Pleasant Hill CA 94523-3952 ‘TELEPHONE NO. 415.399.3900 FAX NO. (Optiona): 415.399.3920 E-MAIL ADDRESS (Optiona):_ dem@bruceosterman.com ATTORNEY FOR (Name) Ruben Ortega et al. SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE SHORT TITLE OF CASE: Ruben Ortega, et al v Enloe Medical Center et al FORM INTERROGATORIES—GENERAL Asking Party: Plaintiff, Saulo Ortega CASE NUMBER: 20CV01510 Answering Party: Defendant LivaNova, USA, Inc. Set N One Sec. 1. Instructions to All Parties (c) Each answer must be as complete and straightforward (a) Interrogatories are written questions prepared by a party as the information reasonably available to you, including the to an action that are sent to any other party in the action to be information possessed by your attorneys or agents, permits. If answered under oath. The interrogatories below are form an interrogatory cannot be answered completely, answer it to interrogatories approved for use in civil cases. the extent possible. (b) For time limitations, requirements for service on other (a) If you do not have enough personal knowledge to fully parties, and other details, see Code of Civil Procedure answer an interrogatory, say so, but make a reasonable and sections 2030.010-2030.410 and the cases construing those good faith effort to get the information by asking other persons sections. or organizations, unless the information is equally available to (c) These form interrogatories do not change existing law the asking party. relating to interrogatories nor do they affect an answering (e) Whenever an interrogatory may be answered by party's right to assert any privilege or make any objection. referring to a document, the document may be attached as an Sec. 2. Instructions to the Asking Party exhibit to the response and referred to in the response. If the (a) These interrogatories are designed for optional use by document has more than one page, refer to the page and section where the answer to the interrogatory can be found. parties in unlimited civil cases where the amount demanded exceeds $25,000. Separate interrogatories, Form (f) Wheneveran address and telephone number for the Interrogatories—Limited Civil Cases (Economic Litigation) same person are requested in more than one interrogatory, (form DISC-004), which have no subparts, are designed for you are required to furnish them in answering only the first use in limited civil cases where the amount demanded is interrogatory asking for that information. $25,000 or less; however, those interrogatories may also be used in unlimited civil cases. (9) If you are asserting a privilege or making an objection to an interrogatory, you must specifically assert the privilege or (b) Check the box next to each interrogatory that you want state the objection in your written response. the answering party to answer. Use care in choosing those interrogatories that are applicable to the case. (h) Your answers to these interrogatories must be verified, (c) You may insert your own definition of INCIDENT in dated, and signed. You may wish to use the following form at Section 4, but only where the action arises from a course of the end of your answers: conduct or a series of events occurring over a period of time. | declare under penalty of perjury under the laws of the (d) The interrogatories in section 16.0, Defendant's State of California that the foregoing answers are true and Contentions—Personal Injury, should not be used until the correct. defendant has had a reasonable opportunity to conduct an investigation or discovery of plaintiff's injuries and damages. (DATE) (SIGNATURE) (e) Additional interrogatories may be attached. Sec. 3. Instructions to the Answering Party Sec. 4. Definitions (a) An answer or other appropriate response must be Words in BOLDFACE CAPITALS in these interrogatories given to each interrogatory checked by the asking party. are defined as follows: (a) (Check one of the following): (b) As a general rule, within 30 days after you are served with these interrogatories, you must serve your responses on [] (1) INCIDENT includes the circumstances and the asking party and serve copies of your responses on all events surrounding the alleged accident, injury, or other parties to the action who have appeared. See Code of other occurrence or breach of contract giving rise to Civil Procedure sections 2030.260-2030.270 for details. this action or proceeding. Page 1 of 8 Form Approved for Optional Use "ode of Civil Procedure, Judicial Council of California FORM INTERROGATORIES—GENERAL Legal '§§ 2030.010-2030.410, 2033.710 DISC-001 [Rev. January 1, 2008] Solutions ‘@ Plus DISC-001 [] (2) INCIDENT means (insert your definition here or 1.0 Identity of Persons Answering These Interrogatories on a separate, attached sheet labeled "Sec. [_] 1.1 State the name, ADDRESS, telephone number, and 4(a)(2)"): relationship to you of each PERSON who prepared or assisted in the preparation of the responses to these interrogatories. (Do not identify anyone who simply typed or reproduced the responses.) (b) YOU OR ANYONE ACTING ON YOUR BEHALF 2.0 General Background Information—individual includes you, your agents, your employees, your insurance [] 2.1 State: companies, their agents, their employees, your attorneys, your (a) your name; accountants, your investigators, and anyone else acting on (b) every name you have used in the past; and your behalf. (c) the dates you used each name. (c) PERSON includes a natural person, firm, association, organization, partnership, business, trust, limited liability [_] 2.2 State the date and place of your birth. company, corporation, or public entity. [] 2.3 At the time of the INCIDENT, did you have a driver's (d) DOCUMENT means a writing, as defined in Evidence license? If so, state: Code section 250, and includes the original or a copy of (a) the state or other issuing entity; handwriting, typewriting, printing, photostats, photographs, (b) the license number and type; electronically stored information, and every other means of (c) the date of issuance; and recording upon any tangible thing and form of communicating (d) all restrictions. or representation, including letters, words, pictures, sounds, or symbols, or combinations of them. 2.4 At the time of the INCIDENT, did you have any other permit or license for the operation of a motor vehicle? If so, (e) HEALTH CARE PROVIDER includes any PERSON state: referred to in Code of Civil Procedure section 667.7(e)(3). (a) the state or other issuing entity; (f) ADDRESS means the street address, including the city, (b) the license number and type; state, and zip code. (c) the date of issuance; and Sec. 5. Interrogatories (d) all restrictions. The following interrogatories have been approved by the 25 State: Judicial Council under Code of Civil Procedure section 2033.710: (a) your present residence ADDRESS; (b) your residence ADDRESSES for the past five years; and CONTENTS (c) the dates you lived at each ADDRESS. 1.0 Identity of Persons Answering These Interrogatories 2.0 General Background Information—Individual [) 26 State: 3.0 General Background Information—Business Entity (a) the name, ADDRESS, and telephone number of your 4.0 Insurance present employer or place of self-employment; and 5.0 [Reserved] (b) the name, ADDRESS, dates of employment, job title, 6.0 Physical, Mental, or Emotional Injuries and nature of work for each employer or 7.0 Property Damage self-employment you have had from five years before 8.0 Loss of Income or Earning Capacity the INCIDENT until today. 9.0 Other Damages [27 State: 10.0 Medical History 11.0 Other Claims and Previous Claims (a) the name and ADDRESS of each school or other academic or vocational institution you have attended, 12.0 Investigation — General beginning with high school; 13.0 Investigation — Surveillance (b) the dates you attended;