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1 Steven H. Schultz, Esq., State Bar No. 163543
SCHULTZ LAW GROUP, P.C.
2 555 University Ave., Suite 154
Sacramento, California 65825 8/13/2020
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Telephone: (916) 922-2310
4 Facsimile: (916) 922-1921
5 Daniel R. Weltin, Esq., State Bar No. 226600
THE LAW OFFICES OF DANIEL WELTIN P.C.
6 777 Davis Street, Suite 146
7 San Leandro, CA 94577
Telephone 510-856-4421
8 Facsimile 510-856-3624
9 Attorney for Plaintiff
CAREN SCALLA
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11 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF BUTTE
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CAREN SCALLA, Case No. 18CV02004
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Plaintiff, Action Filed: June 21, 2018
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v.
15 PLAINTIFF CAREN SCALLA’S
MEMORANDUM OF POINTS AND
16 SEAN STODDARD, SEAN STODDARD AUTHORITIES IN OPPOSITION TO
LLC, NORCAL FOOT AND ANKLE, FOOT DEFENDANTS SEAN STODDARD, DPM,
17 AND ANKLE CLINIC OF NORTHERN SEAN STODDARD, LLC AND FOOT AND
CALIFORNIA, OROVILLE HOSPITAL, ANKLE CLINIC OF NORTHERN
18 CALIFORNIA, INC.’S (ALSO
PATIENTS’ HOSPITAL, and DOES 1 TO 100, ERRONEOUSLY SUED AS “NORCAL FOOT
19 AND ANKLE”)’S AMENDED MOTION FOR
Defendants. SUMMARY ADJUDICATION
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21 Date: 8/26/2020
Time: 9:00 a.m.
22 Dept.: TBA
23 Complaint Filed: June 21, 2018
Trial Set: September 28, 2020
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 COMES NOW Plaintiff, CAREN SCALLA, and hereby respectfully submits the below
2 Memorandum of Points and Authorities in Opposition to the Motion for Summary Adjudication of
3 Defendants SEAN STODDARD, DPM, SEAN STODDARD, LLC, and FOOT AND ANKLE
4 CLINIC OF NORTHERN CALIFORNIA, INC.
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 I. INTRODUCTION ................................................................................................................................ 5
2 II. BACKGROUND ................................................................................................................................. 5
3 III. ARGUMENT...................................................................................................................................... 7
4 A. Plaintiff Has Met Her Prima Facie Burden In Her First Claim For Assault And Battery. ........ 8
5 B. Plaintiff Has Met Her Prima Facie Burden In Her Second Claim For Fraud And Deceit
6 (Intentional Misrepresentation)............................................................................................................................... 11
7 C. Plaintiff Has Met Her Prima Facie Burden In Her Third Claim For Concealment Of Material
8 Facts. ………………………………………………………………………………………………………………………………….….12
9 D. Plaintiff Has Met Her Prima Facie Burden For Dependent Adult Abuse. .................................... 13
10 E. Plaintiff Has Met Her Prima Facie Burden For Intentional Infliction Of Emotional Distress. 14
11 F. Plaintiff’s Claims Against Defendant Stoddard Do Not Fail, And Neither Do Her Claims
12 Against The Stoddard Entities. ................................................................................................................................ 15
13 IV. CONCLUSION ............................................................................................................................... 15
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 TABLE OF AUTHORITIES
2 Cases
3 AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App. 3d 1061………………..8
4 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826………………………………………….....7
Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825…………………………15
5
Carter v. Cangello (1980) 105 Cal.App.3d 348…………………………………………………....14
6
Cheal v. El Camino Hosp. (2014) 223 Cal.App.4th 736…………………………………………….8
7
D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1……………………………………....8
8 Dennis v. Southard (2009) 174 Cal.App.4th 540…………………………………………………..11
9 Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446………………………………...8
10 FSR Brokerage, Inc. v. Sup. Ct. (1995) 35 Cal.App.4th 69…………………………………………8
11 Gardner v. Marshall (1944) 24 Cal.2d 686………………………………………………………...15
Mann v. Cracchiolo (1985) 38 Cal. 3d 18…………………………………………………………...8
12
Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243………………………………………….8
13
Rains v. Superior Court (1984) 150 Cal.App.3d 933………………………………………… 10, 14
14 So v. Shin (2013) 212 Cal.App.4th 652…………………………………………………………..9,11
15
16 Statutes
Welf. & Inst. Code § 15610.07……………………………………………………………….…….13
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Welf. & Inst. Code § 15610.63……………………………………………………………………..13
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Welf. & Inst. Code § 15657…………………………………………………………………….13, 14
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20 Other Authority
21 BAJI No. 1605…………………………………………………………………………………...…14
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 Plaintiff Caren Scalla (hereinafter “Plaintiff”) brings this lawsuit against Defendants Sean
3 Stoddard, DPM (hereinafter “Defendant Stoddard,” DPM is the abbreviation for Doctor of Podiatric
4 Medicine), Sean Stoddard, LLC, Foot and Ankle Clinic of Northern California, Inc., Oroville
5 Hospital, and Patients’ Hospital for: 1) medical malpractice; 2) general negligence; and the
6 intentional torts of 3) assault and battery; 4) intentional infliction of emotional distress; 5) fraud and
7 deceit; and 6) concealment. (Complaint.) Defendants Sean Stoddard, DPM, Sean Stoddard, LLC,
8 and Foot and Ankle Clinic of Northern California, Inc. (hereinafter “Moving Defendants”) bring an
9 Amended Motion for Summary Adjudication as to Plaintiff’s causes of action for intentional torts.
10 (Moving Defendants’ Motion for Summary Adjudication (“MSA”) at 1.)
11 For the reasons explained below, Defendant’s Amended MSA must be denied.
12 II. BACKGROUND
13 Defendant Stoddard performed four (4) different surgeries on Plaintiff’s left ankle from June
14 5, 2015 to March 14, 2017, including two Total Ankle Replacements (hereinafter “TAR”), repair of
15 her Achilles tendon, mid-foot arch reconstruction, removal of a screw previously inserted by
16 Defendant Stoddard, a calcaneal osteotomy, and removal of a medial first ray plate previously
17 inserted by Defendant Stoddard. (Defendant’s Undisputed Material Facts (hereinafter “Def. UMF”)
18 24, 41, 52.) Before each surgery, Defendant Stoddard spent time convincing her that surgery was
19 her best choice, having her sign informed consent forms. (Def. UMF 21, 31-32, 39-40, 52.).
20 Plaintiff’s signatures on the elaborate consent forms were obtained through fraud. Ultimately, he
21 recommended she be seen at UC Davis, where her consultations and amputation with Dr.
22 Christopher D. Kreulen revealed that Defendant Stoddard’s surgeries could not possibly have been
23 reasonable choices for her.
24 Dr. Christopher D. Kreulen M.D., the orthopaedic surgeon who was forced to amputate
25 Plaintiff’s left foot above the ankle, first saw Plaintiff following her four surgeries by Sean
26 Stoddard, DPM on January 23, 2018. (Deposition of Dr. Christopher D. Kreulen (“Kreulen Depo” at
27 14:4-7.) At this time, she presented with complete avascular necrosis of the talus with collapsed
28 and subluxation of the talar component, meaning that she had no talus at all, the bone between the
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 tibia and fibula, and the calcaneus bone of the foot. (Kreulen Depo at 28:5-12.) Dr. Kreulen also
2 noticed loosening of the subtalar screws that Defendant Stoddard had previously inserted. (Kreulen
3 Depo at 28:21-22.) Dr. Kreulen found that there was no evidence at all that Defendant Stoddard had
4 prepared the mid-foot for fusion at all, and that as a result the bones had not fused. (Kreulen Depo at
5 29:3-20; 37:21-38:12.) Dr. Kreulen testified that, normally, a surgeon would remove cartilage and
6 any other material between the bones to allow the bones to properly fuse. (Kreulen Depo at 29:3-
7 20.)
8 Dr. Kreulen, who has been practicing foot and ankle surgery since 2006, testified that he had
9 never seen such a severe collapse in his career. (Kreulen Depo at 35:12-13.) He further testified that
10 he did not understand why Defendant Stoddard performed a total ankle replacement on Plaintiff
11 because this is a treatment for end-stage arthritis, and Plaintiff did not have any arthritis in her ankle
12 according to Defendant Stoddard’s X-rays. (Kreulen Depo at 55:7-15; 60:21-24.) Dr. Kreulen
13 decided that amputation would be the best course of treatment for Plaintiff because she did not have
14 enough bone left in her ankle to perform a fusion, and there were multiple non-unions of bones and
15 broken hardware in her foot. (Kreulen Depo at 69:15-19; 109:5-10.) Dr. Kreulen described Dr.
16 Stoddard’s work on Plaintiff as a “horrible failure.” (Kreulen Depo at 75:12-17.)
17 Immediately following the amputation of Plaintiff’s left foot, Dr. Kreulen dissected the
18 ankle and foot. (Kreulen Depo at 78-100.) He found extensive metallosis in the ankle, or pieces of
19 metal that had broken off from hardware and stained the tissue. (Kreulen Depo at 78:23-24.) He also
20 found broken cement, in fragments, in the talus joint that had worn away, a broken screw in the
21 calcaneous bone, and broken fusion rods in the ankle. (Kreulen Depo at 78:24-25: 79:1-2; 83:22-
22 84:4; 99:8-12.) Dr. Kreulen testified that the large amounts of cement that he found at the talus joint
23 are not usually seen in TARs. (Kreulen Depo at 84:20-22.) This is because cement is used in
24 orthopaedic surgeries to glue small cracks in bone, not to replace an entire bone. (Kreulen Depo at
25 85:17-18; 85:22-24; 109:1-4.)
26 Dr. Kreulen testified that if anyone has ever used cement to replace bone in such surgeries,
27 “technology has moved past that.” (Kreulen Depo at 87:15) He also testified that he has never seen
28 a surgeon use fusion rods in a foot or ankle. (Kreulen Depo at 89:19-20.) There were broken screws
6
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 and cement just floating around the ankle. (Kreulen Depo at 100:11.) Dr. Kreulen said, “The reason
2 screws break like this is because repetitive micromotion due to failure of appropriate mechanical
3 fixation, kind of like when you bend a paper clip back and forth a whole bunch and then it breaks.
4 (Kreulen Depo at 100:19-25.)
5 In fact, Dr. Kreulen testified that whether or not Defendant Stoddard’s X-rays were
6 weightbearing, there was “not anywhere near what would be considered an end-stage arthritic
7 presentation on X-ray.” (Kreulen Depo at 60:21-24.) Dr. Kreulen testified that the non-
8 weightbearing nature of the X-rays from Oroville hospital made it difficult to tell if there was joint
9 narrowing in the ankle – a sign of arthritis. (Kreulen Depo at 60:14-18.) Whether the X-rays were
10 weightbearing or non-weightbearing, he would have been able to see osteophytes – another sign of
11 arthritis. (Kreulen Depo at 60:14-20.) “There are no abnormal incongruences of the ankle joint that
12 would be associated with end-stage arthritis.” (Kreulen Depo at 60:19-20.)
13 Dr. Kreulen’s opinion is confirmed by radiologist, Dr. William K. Hoddick. He reviewed
14 Plaintiff’s preoperative x-rays and found, “no anatomic findings in these x-rays that remotely
15 indicate end-stage ankle arthritis. Nor is there anything in these x-rays to indicate the need for the
16 total ankle replacement surgery performed by Dr. Stoddard.” See Ex. C to Dec. of Daniel Weltin,
17 Dec. of Dr. William K. Hoddick.
18 Defendant Stoddard, however, claims that Plaintiff had “severe arthritic changes to the
19 tibiotalar, subtalar, and talonavicular joints. (Deposition of Sean Stoddard (“Stoddard Depo”) at
20 182:20-23.) He cites “nonuniform joint space narrowing,” “no joint space at all at the talonavicular
21 joint”, and nonuniform joint space narrowing” at the calcanecuboid joint. (Stoddard Depo at 184:21-
22 185:7.)
23 III. ARGUMENT
24 The party moving for summary judgment or adjudication bears the burden of persuasion
25 that there is no triable issue of material fact and that it is entitled to judgment on one or more issues
26 as a matter of law, and bears an initial burden of production to make a prima facie showing of the
27 nonexistence of any triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25
28 Cal.4th 826, 854-855.) The moving party must show that the evidence is incapable of supporting a
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 judgment for the non-moving party. (Id. at 851.)
2 The responding party has no burden to show a triable issue if the moving party failed to
3 meet its initial burden of showing by admissible evidence the absence of a triable issue of material
4 fact. (FSR Brokerage, Inc. v. Sup. Ct. (1995) 35 Cal.App.4th 69, 73 n.4 (citations omitted).) “The
5 question is whether defendant conclusively negated a necessary element of the plaintiff’s case or
6 demonstrated that under no hypothesis is there a material issue of fact that requires the process of
7 trial.” (Cheal v. El Camino Hosp. (2014) 223 Cal.App.4th 736, 741 (internal quotations and
8 citations omitted).)
9 Defendant’s evidence must be strictly scrutinized, while the plaintiff’s evidence is viewed
10 in the light most favorable to the plaintiff. (D’Amico v. Board of Medical Examiners (1974) 11
11 Cal.3d 1, 21.) All evidentiary doubts or ambiguities are resolved in Plaintiff’s favor. (Nazir v.
12 United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.) The Court cannot resolve questions of
13 credibility. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App. 3d 1061,
14 1064.) Matters going to the weight of the evidence must be disregarded. (Mann v. Cracchiolo
15 (1985) 38 Cal. 3d 18, 39.) In deciding or reviewing a judgment on the pleadings, all properly
16 pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred
17 from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446,
18 452.)
19 As demonstrated below, Defendants cannot meet their burden to show that Plaintiff cannot
20 establish one of the prima facie elements of any of her claims. Moreover, Defendants are unable to
21 negate any of the points of Plaintiff’s intentional causes of action. In each of Plaintiff’s intentional
22 causes of action, there exists a triable issue as to the material facts, especially insofar as Defendant
23 Stoddard’s mental state.
24 A. Plaintiff Has Met Her Prima Facie Burden In Her First Claim For Assault And
25 Battery.
26 Here, Plaintiff has met her burden for both assault and battery. Regarding assault,
27 Defendant Stoddard, as an DPM, is capable of reading X-rays. (Deposition of Defendant Sean
28 Stoddard, DPM (“Stoddard Depo”) at 40:9-10.) He therefore knew or reasonably should have
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 known that Plaintiff did not have end-stage arthritis, and yet recommended a surgery that would
2 not only fail to treat her pain, but was contraindicated due to her diabetic neuropathy. (Stoddard
3 Depo at 142:13-16.) Defendant Stoddard claims that he did not know in 2015 that diabetes is a
4 contraindication to TARs and disagrees with that contention. (Stoddard Depo at 142:13-16.) He
5 also claims that sometimes he can figure out whether a patient has end-stage arthritis from talking
6 to them, even if there is no proof of such on the patient’s X-rays. (Stoddard Depo at 134:11-15.)
7 But any surgeon of his experience and skill - Defendant Stoddard completed his medical
8 residency in 1990, thirty (30) years ago –would surely know whether end-stage arthritis is present
9 on an X-ray, or whether diabetes is a contraindication to a TAR. (Stoddard Depo at 40:6-10.)
10 Based on the fact that Defendant Stoddard must have known these surgeries would harm Plaintiff,
11 he must have intended to touch her harmfully. (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.)
12 Further, Defendant, as a surgeon with thirty (30) years of experience, knows that cement is not
13 used to replace bone, how to correctly install metal materials in a total ankle replacement, and not
14 to use fusion rods, but did so anyways, despite the knowledge that doing so would harm Plaintiff.
15 (Kreulen Depo at 78:24-25: 79:1-2; 83:22-84:4; 99:8-12.) He therefore intended to cause her
16 harmful contact.
17 Plaintiff could never have consented to any of these surgeries because Defendant, a
18 professional, lied to her about her need for them, the cause of each of them, and whether she was
19 an appropriate candidate for each. (See generally, Kreulen Depo.) Plaintiff was harmed both
20 emotionally and physically. (Complaint at 5; for “emotionally” Scalla Depo 54:7-11, 72:9-14,
21 74:2-5, 277:16-25, 279:2-5; for “physically” see generally Scalla Depo).
22 Moreover, Defendant committed battery against Plaintiff. As outlined above, Defendant
23 Stoddard recommended a surgery to Plaintiff that would not help the pain in her ankle, and then
24 performed the surgery below any standard of care for any surgeon. (See generally, Kreulen Depo.)
25 Subsequently, instead of admitting to Plaintiff what he had done, Defendant Stoddard continued to
26 recommend and perform three more surgeries, each more disastrous than the next, until his
27 mangling lead Plaintiff to suffer a below the knee amputation of her leg. (Def. UMF 21, 31-32, 39-
28 40, 52.) Clearly, he intended to harm Plaintiff.
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 Before each surgery, Defendant Stoddard spent time convincing Plaintiff that surgery was
2 her best choice, having her sign elaborate informed consent forms. (Def. UMF 21, 31-32, 39-40,
3
52.) Ultimately, he referred her to UC Davis, where her consultations and amputation with Dr.
4
Kreulen revealed that the surgeries could not possibly have been the best choices for her. (See
5
generally, Kreulen Depo.) Dr. William K. Hoddick confirms that the TAR surgery was
6
7 unwarranted. Dec. of William K. Hoddick.
8 Plaintiff did not give informed consent to the surgeries because Defendant Stoddard lied
9 about the rationale for each of the surgeries, thereby obtaining her consent through fraud. (Rains v.
10 Superior Court (1984) 150 Cal.App.3d 933, 940-41.) California Courts have consistently held that,
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in the medical context, when a defendant fails to make a sufficient disclosure of the risks inherent
12
in the operation, they are guilty of a battery. (Berkey v. Anderson (1969) 1 Cal.App. 3d 790, 803.)
13
Liability for battery may be found where a physician “intentionally deceive[s] another into
14
15 submitting to otherwise offensive touching to achieve a nontherapeutic purpose known only to the
16 physician. “ (Rains v. Superior Court (1984) 150 Cal.App. 3d 933, 941.) Furthermore, “[i]f a
17 physician, for the sole purpose of generating a fee, intentionally misrepresented to a patient that
18
that an unneeded operation was necessary, it is beyond question that the consent so obtained would
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be legally ineffective.” (Id.)
20
Defendant Stoddard did in fact commit a battery against Plaintiff. It is unclear from the
21
record because Defendant Stoddard denies doing so, and Plaintiff is not a medical professional, at
22
23 what point Defendant put cement into Plaintiff’s ankle where her talus is supposed to be. (Kreulen
24 Depo at 85:17-18; 85:22-24; 109:1-4.) However, none of the surgeries to which Plaintiff gave
25 consent – a total ankle replacement, a fusion of her mid-foot, repair of her Achilles tendon, or
26
removal of the plate used to fuse the bones in her mid-foot – involved replacing her talus with
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 cement. (So v. Shin, supra, 212 Cal.App.4th at 669.) As noted by Dr. Kreulen, this is not something
2 that surgeons do, and it was something he had never seen before. (Kreulen Depo at 84:20-22.)
3
Plaintiff has also presented evidence that Defendant Stoddard performed a procedure to
4
which she conditionally consented “with knowledge that the condition had not occurred.” (Dennis
5
v. Southard (2009) 174 Cal.App.4th 540, 544.) Simply put, Plaintiff gave her conditional consent
6
7 to the total ankle replacement (a procedure) without the knowledge that the required condition
8 (end-stage arthritis) had not occurred. (Plaintiff Depo at 166:7-22.) Plaintiff has therefore met her
9 burden with regards to medical battery. Intent, here, is a question of fact for the fact-finder to
10 decide.
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B. Plaintiff Has Met Her Prima Facie Burden In Her Second Claim For Fraud
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And Deceit (Intentional Misrepresentation).
13
As outlined above, Defendant Stoddard knew that Plaintiff did not suffer from end-stage
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arthritis, yet represented to her that she did, in order to fraudulently convince her to consent to a
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total ankle replacement for his pecuniary gain. (This Opposition at 8:8-12.) Plaintiff’s reliance on
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Defendant Stoddard was of course reasonable because he was her caretaking doctor. (Stoddard
17
Depo at 40:6-10.) Following that disaster of a surgery, he continued to recommend more costly and
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painful surgeries that he convinced her were due to outside forces. (Def. UMF 21, 31-32, 39-40, 52
19
(Defendant explained the procedure to Plaintiff before each surgery); Kreulen Depo at 78:24-25:
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79:1-2; 83:22-84:4; 99:8-12 (finding floating in the ankle a broken screw, fragmented cement,
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metallosis, and broken fusion rods).)
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Whether Defendant Stoddard told Plaintiff that the surgeries were “necessary” is an issue of
23
material fact. Plaintiff relied on her surgeon’s recommendations when choosing to undergo the
24
surgery. (Def. UMF 21, 31-32, 39-40, 52 (Defendant explained the procedure to Plaintiff before
25
each surgery).) Whether there were other options is immaterial so long as the option that her
26
surgeon recommended was the TAR surgery. Defendant could not have reasonably believed that
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the surgeries were necessary because he is a trained and experienced surgeon. (Stoddard Depo at
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 40:6-10.) Furthermore, there is no basis for the claim that his belief, if it did indeed exist, was
2 reasonable. See Dec. of Daniel Weltin Ex. C, Dec. of William K. Hoddick.
3 A trained surgeon with thirty (30) years of experience performs a contraindicated and
4 ultimately catastrophic procedure, and subsequent procedures, on an unsuspecting patient, leaving
5 miscellaneous debris inside her body. (Kreulen Depo at 78:24-25: 79:1-2; 83:22-84:4; 99:8-12
6 (finding floating in the ankle a broken screw, fragmented cement, metallosis, and broken fusion
7 rods).) A fact finder cannot find reasonableness in this fact pattern.
8 C. Plaintiff Has Met Her Prima Facie Burden In Her Third Claim For
9 Concealment Of Material Facts.
10 Plaintiff has covered extensively in prong (B) the material facts that Defendant Stoddard
11 concealed and suppressed: mainly, that he hid from her that she did not have end-stage arthritis and
12 therefore was not a candidate for a TAR, that he hid from her that her diabetes meant that a TAR
13 was contraindicated for her, and that all of her subsequent surgeries were due to his intentionally
14 poorly performed surgeries. (Opposition at 10.) Defendant Stoddard knew that Plaintiff did not
15 suffer from end-stage arthritis and yet represented to her that she did intending to fraudulently
16 convince her to consent to a total ankle replacement. Any surgeon of his experience and skill
17 would surely know whether end-stage arthritis is present on an X-ray and whether diabetes is a
18 contraindication to a TAR. (Stoddard Depo at 40:6-10.)
19 No other surgeon would have reasonably performed these surgeries at all, or as intentionally
20 poorly and sloppily. (See Kreulen Depo at 35:12-13, 89:19-20. See also Dec. of Daniel Weltin Ex.
21 C, Dec. of William K. Hoddick.) Therefore, if Plaintiff knew that she was not a candidate for a
22 TAR, she would not have had the surgery, nor the subsequent TAR, and if she knew that her
23 second surgery was due to the poor surgical technique of Defendant Stoddard on her first TAR, she
24 would not have had the second surgery, nor the fourth surgery to remove the plate. She, of course,
25 suffered harm because of Defendant Stoddard’s suppressed and concealed material facts.
26 (Complaint at 5.)
27 Defendant argues once again that Defendant Stoddard “reasonably believed that the
28 surgeries were indicated.” (Def. MSA at 12:19.) There is nothing in any of the evidence that he
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 reasonably believed this. There is no medical evidence that would have given him the knowledge
2 that she needed these surgeries. There is only his vague assertion that even if he does not see
3 arthritis in an X-ray, he could find that patients have arthritis from talking to them. (Stoddard Depo
4 at 134:11-15.) Rather than submit a declaration from Dr. Stoddard, defendants submit a declaration
5 from a retained expert, another DPM, however, this declaration only begs the question that any
6 issues raised therein are disputed factual issues to be decided by the fact-finder.
7 Further, Plaintiff does not contend, as Defendant claims, that Defendant Stoddard concealed
8 that the surgeries were unsuccessful. (Def. MSA at 12:22-24.) Rather, she contends that he
9 concealed that they were unsuccessful due to him poorly performing them. (Complaint at 5.) It is
10 unclear to Plaintiff what Defendant hopes to communicate to the Court when it states that Plaintiff
11 did not ask Defendant his success rate on TARs. (Def. MSA at 13:7-11.)
12 D. Plaintiff Has Met Her Prima Facie Burden For Dependent Adult Abuse.
13 A plaintiff is entitled to recover under the Elder Abuse and Dependent Adult Civil
14 Protection Act for Dependent Adult Abuse “(w)here it is proven by clear and convincing evidence
15 that a defendant is liable for physical abuse… and that the defendant has been guilty of
16 recklessness, oppression, fraud, or malice in the commission of this abuse.” (Welf. & Inst. Code §
17 15657.)
18 First, Plaintiff has set forth proof of treatment that qualifies as dependent adult abuse under
19 Welf. & Inst. Code § 15657(a). At the very least, Defendant Stoddard’s behavior was “other
20 treatment with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code §
21 15657(a).) Defendant Stoddard’s fraudulent misrepresentations that these surgeries would help
22 Plaintiff caused her to undergo the contraindicated surgeries and resulted in physical harm, pain,
23 and mental suffering. (Complaint at 5.) Plaintiff does not need to prove that Defendant Stoddard’s
24 behavior qualified as abuse under Welf. & Inst. Code § 15610.63.
25 Nor does Plaintiff need to prove that Defendant Stoddard was her care custodian, but if she
26 did need to prove that, it would clearly be a question of fact as he served as Plaintiff’s caretaking
27 doctor four three years and four surgeries. (Def. MSA at 14:19-21.) This is only one possible basis
28 for Dependent Adult Abuse under § 15610.07 (subsection (2)) and Plaintiff has already proved that
13
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 Defendant Stoddard’s behavior qualified under prong (1): “other treatment with resulting physical
2 harm or pain or mental suffering.”
3 Finally, Plaintiff has proved by clear and convincing evidence that Defendant Stoddard
4 acted with at least recklessness in her care. Dr. Kreulen found broken pieces of cement in her
5 ankle, broken screws, and disintegrated pieces of metal floating around. (Kreulen Depo at 78:24-
6 25: 79:1-2; 83:22-84:4; 99:8-12.) He found that her X-rays from prior to her surgeries with
7 Defendant Stoddard showed that she was nowhere near end-stage arthritis and therefore not a
8 candidate for TAR. (Kreulen Depo at 60:21-24.) She is also has diabetic neuropathy which is a
9 contraindication to surgery. Despite all of these facts, known to all surgeons of similar experience
10 and skill, Defendant Stoddard proceeded with four poorly performed and unecessary surgeries.
11 (Def. UMF 24, 41, 52.) This behavior was at least reckless, if not oppressive, fraudulent, and
12 malicious. (Welf. & Inst. Code § 15657.) Furthermore, Plaintiff will prove her allegations of fraud
13 as set forth above.
14 E. Plaintiff Has Met Her Prima Facie Burden For Intentional Infliction Of
15 Emotional Distress.
16 Defendant argues that because Plaintiff consented to Defendant Stoddard’s procedures, that
17 her claim for Intentional Infliction of Emotional Distress necessary fails. However, Plaintiff could
18 not have given her informed consent to the surgeries because Defendant Stoddard lied about each
19 of the surgeries, thereby obtaining her consent through fraud. (Rains v. Superior Court (1984) 150
20 Cal.App.3d 933, 940-41.)
21 The results of Dr. Kreulen’s dissection of Plaintiff’s foot reveal extreme and outrageous
22 conduct in performing such poor surgical techniques that the inside of part of Plaintiff’s body – her
23 ankle – looked like a garbage dump. (Kreulen Depo at 78:24-25: 79:1-2; 83:22-84:4; 99:8-12.)
24 Finally, Defendant could not have held the good faith belief that Plaintiff consented to his surgeries
25 because he knew that he was making fraudulent misrepresentations and concealing and suppressing
26 material facts from her. (Carter v. Cangello (1980) 105 Cal.App.3d 348, 351; BAJI No. 1605.)
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
1 F. Plaintiff’s Claims Against Defendant Stoddard Do Not Fail, And Neither Do
2 Her Claims Against The Stoddard Entities.
3 Plaintiff has set forth her prima facie arguments for each of the intentional torts against
4 Defendant Stoddard. Therefore, it is irrelevant that the Stoddard Entities are only liable insofar as
5 Defendant Stoddard is liable, because he is liable for each of the intentional torts and is an agent of
6 the Stoddard Entities. (Def. UMF 90; Gardner v. Marshall (1944) 24 Cal.2d 686, 689.) In fact, it is
7 because Dr. Stoddard is the sole owner and operator of his business entities then it must be a
8 question of fact whether they are liable for his negligent or his intentional conduct because his
9 conduct and knowledge are imputed his entities. Associated Vendors, Inc. v. Oakland Meat Co.
10 (1962) 210 Cal.App.2d 825.
11 IV. CONCLUSION
12 For all the foregoing reasons, Plaintiff respectfully requests the Court to deny Defendants’
13 motion for summary adjudication or in the alternative allow for Plaintiff to conduct discovery in
14 order to elicit facts that will support opposition to Defendant’s motion for summary adjudication.
15 Lastly, to the extent that any of the defects can be cured by way of amendment, Plaintiff respectfully
16 requests this Court allow Plaintiff to amend her Complaint to correct any deficiencies.
17 THE LAW OFFICES OF DANIEL WELTIN, P.C.
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20 DATED: August 13, 2020 By:
Daniel Weltin
21
Attorney for PLAINTIFF,
22 CAREN SCALLA
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY ADJUDICATION
Preview
1 Steven H. Schultz, Esq., State Bar No. 163543 SCHULTZ LAW GROUP, P.C. 2 555 University Ave., Suite 154 Sacramento, California 65825 8/13/2020 3 Telephone: (916) 922-2310 4 Facsimile: (916) 922-1921 5 Daniel R. Weltin, Esq., State Bar No. 226600 THE LAW OFFICES OF DANIEL WELTIN P.C. 6 777 Davis Street, Suite 146 7 San Leandro, CA 94577 Telephone 510-856-4421 8 Facsimile 510-856-3624 9 Attorney for Plaintiff CAREN SCALLA 10 11 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF BUTTE 12 CAREN SCALLA, Case No. 18CV02004 13 Plaintiff, Action Filed: June 21, 2018 14 v. 15 PLAINTIFF CAREN SCALLA’S MEMORANDUM OF POINTS AND 16 SEAN STODDARD, SEAN STODDARD AUTHORITIES IN OPPOSITION TO LLC, NORCAL FOOT AND ANKLE, FOOT DEFENDANTS SEAN STODDARD, DPM, 17 AND ANKLE CLINIC OF NORTHERN SEAN STODDARD, LLC AND FOOT AND CALIFORNIA, OROVILLE HOSPITAL, ANKLE CLINIC OF NORTHERN 18 CALIFORNIA, INC.’S (ALSO PATIENTS’ HOSPITAL, and DOES 1 TO 100, ERRONEOUSLY SUED AS “NORCAL FOOT 19 AND ANKLE”)’S AMENDED MOTION FOR Defendants. SUMMARY ADJUDICATION 20 21 Date: 8/26/2020 Time: 9:00 a.m. 22 Dept.: TBA 23 Complaint Filed: June 21, 2018 Trial Set: September 28, 2020 24 25 26 27 28 1 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 COMES NOW Plaintiff, CAREN SCALLA, and hereby respectfully submits the below 2 Memorandum of Points and Authorities in Opposition to the Motion for Summary Adjudication of 3 Defendants SEAN STODDARD, DPM, SEAN STODDARD, LLC, and FOOT AND ANKLE 4 CLINIC OF NORTHERN CALIFORNIA, INC. 5 /// 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 I. INTRODUCTION ................................................................................................................................ 5 2 II. BACKGROUND ................................................................................................................................. 5 3 III. ARGUMENT...................................................................................................................................... 7 4 A. Plaintiff Has Met Her Prima Facie Burden In Her First Claim For Assault And Battery. ........ 8 5 B. Plaintiff Has Met Her Prima Facie Burden In Her Second Claim For Fraud And Deceit 6 (Intentional Misrepresentation)............................................................................................................................... 11 7 C. Plaintiff Has Met Her Prima Facie Burden In Her Third Claim For Concealment Of Material 8 Facts. ………………………………………………………………………………………………………………………………….….12 9 D. Plaintiff Has Met Her Prima Facie Burden For Dependent Adult Abuse. .................................... 13 10 E. Plaintiff Has Met Her Prima Facie Burden For Intentional Infliction Of Emotional Distress. 14 11 F. Plaintiff’s Claims Against Defendant Stoddard Do Not Fail, And Neither Do Her Claims 12 Against The Stoddard Entities. ................................................................................................................................ 15 13 IV. CONCLUSION ............................................................................................................................... 15 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 TABLE OF AUTHORITIES 2 Cases 3 AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App. 3d 1061………………..8 4 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826………………………………………….....7 Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825…………………………15 5 Carter v. Cangello (1980) 105 Cal.App.3d 348…………………………………………………....14 6 Cheal v. El Camino Hosp. (2014) 223 Cal.App.4th 736…………………………………………….8 7 D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1……………………………………....8 8 Dennis v. Southard (2009) 174 Cal.App.4th 540…………………………………………………..11 9 Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446………………………………...8 10 FSR Brokerage, Inc. v. Sup. Ct. (1995) 35 Cal.App.4th 69…………………………………………8 11 Gardner v. Marshall (1944) 24 Cal.2d 686………………………………………………………...15 Mann v. Cracchiolo (1985) 38 Cal. 3d 18…………………………………………………………...8 12 Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243………………………………………….8 13 Rains v. Superior Court (1984) 150 Cal.App.3d 933………………………………………… 10, 14 14 So v. Shin (2013) 212 Cal.App.4th 652…………………………………………………………..9,11 15 16 Statutes Welf. & Inst. Code § 15610.07……………………………………………………………….…….13 17 Welf. & Inst. Code § 15610.63……………………………………………………………………..13 18 Welf. & Inst. Code § 15657…………………………………………………………………….13, 14 19 20 Other Authority 21 BAJI No. 1605…………………………………………………………………………………...…14 22 23 24 25 26 27 28 4 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 I. INTRODUCTION 2 Plaintiff Caren Scalla (hereinafter “Plaintiff”) brings this lawsuit against Defendants Sean 3 Stoddard, DPM (hereinafter “Defendant Stoddard,” DPM is the abbreviation for Doctor of Podiatric 4 Medicine), Sean Stoddard, LLC, Foot and Ankle Clinic of Northern California, Inc., Oroville 5 Hospital, and Patients’ Hospital for: 1) medical malpractice; 2) general negligence; and the 6 intentional torts of 3) assault and battery; 4) intentional infliction of emotional distress; 5) fraud and 7 deceit; and 6) concealment. (Complaint.) Defendants Sean Stoddard, DPM, Sean Stoddard, LLC, 8 and Foot and Ankle Clinic of Northern California, Inc. (hereinafter “Moving Defendants”) bring an 9 Amended Motion for Summary Adjudication as to Plaintiff’s causes of action for intentional torts. 10 (Moving Defendants’ Motion for Summary Adjudication (“MSA”) at 1.) 11 For the reasons explained below, Defendant’s Amended MSA must be denied. 12 II. BACKGROUND 13 Defendant Stoddard performed four (4) different surgeries on Plaintiff’s left ankle from June 14 5, 2015 to March 14, 2017, including two Total Ankle Replacements (hereinafter “TAR”), repair of 15 her Achilles tendon, mid-foot arch reconstruction, removal of a screw previously inserted by 16 Defendant Stoddard, a calcaneal osteotomy, and removal of a medial first ray plate previously 17 inserted by Defendant Stoddard. (Defendant’s Undisputed Material Facts (hereinafter “Def. UMF”) 18 24, 41, 52.) Before each surgery, Defendant Stoddard spent time convincing her that surgery was 19 her best choice, having her sign informed consent forms. (Def. UMF 21, 31-32, 39-40, 52.). 20 Plaintiff’s signatures on the elaborate consent forms were obtained through fraud. Ultimately, he 21 recommended she be seen at UC Davis, where her consultations and amputation with Dr. 22 Christopher D. Kreulen revealed that Defendant Stoddard’s surgeries could not possibly have been 23 reasonable choices for her. 24 Dr. Christopher D. Kreulen M.D., the orthopaedic surgeon who was forced to amputate 25 Plaintiff’s left foot above the ankle, first saw Plaintiff following her four surgeries by Sean 26 Stoddard, DPM on January 23, 2018. (Deposition of Dr. Christopher D. Kreulen (“Kreulen Depo” at 27 14:4-7.) At this time, she presented with complete avascular necrosis of the talus with collapsed 28 and subluxation of the talar component, meaning that she had no talus at all, the bone between the 5 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 tibia and fibula, and the calcaneus bone of the foot. (Kreulen Depo at 28:5-12.) Dr. Kreulen also 2 noticed loosening of the subtalar screws that Defendant Stoddard had previously inserted. (Kreulen 3 Depo at 28:21-22.) Dr. Kreulen found that there was no evidence at all that Defendant Stoddard had 4 prepared the mid-foot for fusion at all, and that as a result the bones had not fused. (Kreulen Depo at 5 29:3-20; 37:21-38:12.) Dr. Kreulen testified that, normally, a surgeon would remove cartilage and 6 any other material between the bones to allow the bones to properly fuse. (Kreulen Depo at 29:3- 7 20.) 8 Dr. Kreulen, who has been practicing foot and ankle surgery since 2006, testified that he had 9 never seen such a severe collapse in his career. (Kreulen Depo at 35:12-13.) He further testified that 10 he did not understand why Defendant Stoddard performed a total ankle replacement on Plaintiff 11 because this is a treatment for end-stage arthritis, and Plaintiff did not have any arthritis in her ankle 12 according to Defendant Stoddard’s X-rays. (Kreulen Depo at 55:7-15; 60:21-24.) Dr. Kreulen 13 decided that amputation would be the best course of treatment for Plaintiff because she did not have 14 enough bone left in her ankle to perform a fusion, and there were multiple non-unions of bones and 15 broken hardware in her foot. (Kreulen Depo at 69:15-19; 109:5-10.) Dr. Kreulen described Dr. 16 Stoddard’s work on Plaintiff as a “horrible failure.” (Kreulen Depo at 75:12-17.) 17 Immediately following the amputation of Plaintiff’s left foot, Dr. Kreulen dissected the 18 ankle and foot. (Kreulen Depo at 78-100.) He found extensive metallosis in the ankle, or pieces of 19 metal that had broken off from hardware and stained the tissue. (Kreulen Depo at 78:23-24.) He also 20 found broken cement, in fragments, in the talus joint that had worn away, a broken screw in the 21 calcaneous bone, and broken fusion rods in the ankle. (Kreulen Depo at 78:24-25: 79:1-2; 83:22- 22 84:4; 99:8-12.) Dr. Kreulen testified that the large amounts of cement that he found at the talus joint 23 are not usually seen in TARs. (Kreulen Depo at 84:20-22.) This is because cement is used in 24 orthopaedic surgeries to glue small cracks in bone, not to replace an entire bone. (Kreulen Depo at 25 85:17-18; 85:22-24; 109:1-4.) 26 Dr. Kreulen testified that if anyone has ever used cement to replace bone in such surgeries, 27 “technology has moved past that.” (Kreulen Depo at 87:15) He also testified that he has never seen 28 a surgeon use fusion rods in a foot or ankle. (Kreulen Depo at 89:19-20.) There were broken screws 6 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 and cement just floating around the ankle. (Kreulen Depo at 100:11.) Dr. Kreulen said, “The reason 2 screws break like this is because repetitive micromotion due to failure of appropriate mechanical 3 fixation, kind of like when you bend a paper clip back and forth a whole bunch and then it breaks. 4 (Kreulen Depo at 100:19-25.) 5 In fact, Dr. Kreulen testified that whether or not Defendant Stoddard’s X-rays were 6 weightbearing, there was “not anywhere near what would be considered an end-stage arthritic 7 presentation on X-ray.” (Kreulen Depo at 60:21-24.) Dr. Kreulen testified that the non- 8 weightbearing nature of the X-rays from Oroville hospital made it difficult to tell if there was joint 9 narrowing in the ankle – a sign of arthritis. (Kreulen Depo at 60:14-18.) Whether the X-rays were 10 weightbearing or non-weightbearing, he would have been able to see osteophytes – another sign of 11 arthritis. (Kreulen Depo at 60:14-20.) “There are no abnormal incongruences of the ankle joint that 12 would be associated with end-stage arthritis.” (Kreulen Depo at 60:19-20.) 13 Dr. Kreulen’s opinion is confirmed by radiologist, Dr. William K. Hoddick. He reviewed 14 Plaintiff’s preoperative x-rays and found, “no anatomic findings in these x-rays that remotely 15 indicate end-stage ankle arthritis. Nor is there anything in these x-rays to indicate the need for the 16 total ankle replacement surgery performed by Dr. Stoddard.” See Ex. C to Dec. of Daniel Weltin, 17 Dec. of Dr. William K. Hoddick. 18 Defendant Stoddard, however, claims that Plaintiff had “severe arthritic changes to the 19 tibiotalar, subtalar, and talonavicular joints. (Deposition of Sean Stoddard (“Stoddard Depo”) at 20 182:20-23.) He cites “nonuniform joint space narrowing,” “no joint space at all at the talonavicular 21 joint”, and nonuniform joint space narrowing” at the calcanecuboid joint. (Stoddard Depo at 184:21- 22 185:7.) 23 III. ARGUMENT 24 The party moving for summary judgment or adjudication bears the burden of persuasion 25 that there is no triable issue of material fact and that it is entitled to judgment on one or more issues 26 as a matter of law, and bears an initial burden of production to make a prima facie showing of the 27 nonexistence of any triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 28 Cal.4th 826, 854-855.) The moving party must show that the evidence is incapable of supporting a 7 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 judgment for the non-moving party. (Id. at 851.) 2 The responding party has no burden to show a triable issue if the moving party failed to 3 meet its initial burden of showing by admissible evidence the absence of a triable issue of material 4 fact. (FSR Brokerage, Inc. v. Sup. Ct. (1995) 35 Cal.App.4th 69, 73 n.4 (citations omitted).) “The 5 question is whether defendant conclusively negated a necessary element of the plaintiff’s case or 6 demonstrated that under no hypothesis is there a material issue of fact that requires the process of 7 trial.” (Cheal v. El Camino Hosp. (2014) 223 Cal.App.4th 736, 741 (internal quotations and 8 citations omitted).) 9 Defendant’s evidence must be strictly scrutinized, while the plaintiff’s evidence is viewed 10 in the light most favorable to the plaintiff. (D’Amico v. Board of Medical Examiners (1974) 11 11 Cal.3d 1, 21.) All evidentiary doubts or ambiguities are resolved in Plaintiff’s favor. (Nazir v. 12 United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.) The Court cannot resolve questions of 13 credibility. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App. 3d 1061, 14 1064.) Matters going to the weight of the evidence must be disregarded. (Mann v. Cracchiolo 15 (1985) 38 Cal. 3d 18, 39.) In deciding or reviewing a judgment on the pleadings, all properly 16 pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred 17 from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 18 452.) 19 As demonstrated below, Defendants cannot meet their burden to show that Plaintiff cannot 20 establish one of the prima facie elements of any of her claims. Moreover, Defendants are unable to 21 negate any of the points of Plaintiff’s intentional causes of action. In each of Plaintiff’s intentional 22 causes of action, there exists a triable issue as to the material facts, especially insofar as Defendant 23 Stoddard’s mental state. 24 A. Plaintiff Has Met Her Prima Facie Burden In Her First Claim For Assault And 25 Battery. 26 Here, Plaintiff has met her burden for both assault and battery. Regarding assault, 27 Defendant Stoddard, as an DPM, is capable of reading X-rays. (Deposition of Defendant Sean 28 Stoddard, DPM (“Stoddard Depo”) at 40:9-10.) He therefore knew or reasonably should have 8 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 known that Plaintiff did not have end-stage arthritis, and yet recommended a surgery that would 2 not only fail to treat her pain, but was contraindicated due to her diabetic neuropathy. (Stoddard 3 Depo at 142:13-16.) Defendant Stoddard claims that he did not know in 2015 that diabetes is a 4 contraindication to TARs and disagrees with that contention. (Stoddard Depo at 142:13-16.) He 5 also claims that sometimes he can figure out whether a patient has end-stage arthritis from talking 6 to them, even if there is no proof of such on the patient’s X-rays. (Stoddard Depo at 134:11-15.) 7 But any surgeon of his experience and skill - Defendant Stoddard completed his medical 8 residency in 1990, thirty (30) years ago –would surely know whether end-stage arthritis is present 9 on an X-ray, or whether diabetes is a contraindication to a TAR. (Stoddard Depo at 40:6-10.) 10 Based on the fact that Defendant Stoddard must have known these surgeries would harm Plaintiff, 11 he must have intended to touch her harmfully. (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.) 12 Further, Defendant, as a surgeon with thirty (30) years of experience, knows that cement is not 13 used to replace bone, how to correctly install metal materials in a total ankle replacement, and not 14 to use fusion rods, but did so anyways, despite the knowledge that doing so would harm Plaintiff. 15 (Kreulen Depo at 78:24-25: 79:1-2; 83:22-84:4; 99:8-12.) He therefore intended to cause her 16 harmful contact. 17 Plaintiff could never have consented to any of these surgeries because Defendant, a 18 professional, lied to her about her need for them, the cause of each of them, and whether she was 19 an appropriate candidate for each. (See generally, Kreulen Depo.) Plaintiff was harmed both 20 emotionally and physically. (Complaint at 5; for “emotionally” Scalla Depo 54:7-11, 72:9-14, 21 74:2-5, 277:16-25, 279:2-5; for “physically” see generally Scalla Depo). 22 Moreover, Defendant committed battery against Plaintiff. As outlined above, Defendant 23 Stoddard recommended a surgery to Plaintiff that would not help the pain in her ankle, and then 24 performed the surgery below any standard of care for any surgeon. (See generally, Kreulen Depo.) 25 Subsequently, instead of admitting to Plaintiff what he had done, Defendant Stoddard continued to 26 recommend and perform three more surgeries, each more disastrous than the next, until his 27 mangling lead Plaintiff to suffer a below the knee amputation of her leg. (Def. UMF 21, 31-32, 39- 28 40, 52.) Clearly, he intended to harm Plaintiff. 9 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 Before each surgery, Defendant Stoddard spent time convincing Plaintiff that surgery was 2 her best choice, having her sign elaborate informed consent forms. (Def. UMF 21, 31-32, 39-40, 3 52.) Ultimately, he referred her to UC Davis, where her consultations and amputation with Dr. 4 Kreulen revealed that the surgeries could not possibly have been the best choices for her. (See 5 generally, Kreulen Depo.) Dr. William K. Hoddick confirms that the TAR surgery was 6 7 unwarranted. Dec. of William K. Hoddick. 8 Plaintiff did not give informed consent to the surgeries because Defendant Stoddard lied 9 about the rationale for each of the surgeries, thereby obtaining her consent through fraud. (Rains v. 10 Superior Court (1984) 150 Cal.App.3d 933, 940-41.) California Courts have consistently held that, 11 in the medical context, when a defendant fails to make a sufficient disclosure of the risks inherent 12 in the operation, they are guilty of a battery. (Berkey v. Anderson (1969) 1 Cal.App. 3d 790, 803.) 13 Liability for battery may be found where a physician “intentionally deceive[s] another into 14 15 submitting to otherwise offensive touching to achieve a nontherapeutic purpose known only to the 16 physician. “ (Rains v. Superior Court (1984) 150 Cal.App. 3d 933, 941.) Furthermore, “[i]f a 17 physician, for the sole purpose of generating a fee, intentionally misrepresented to a patient that 18 that an unneeded operation was necessary, it is beyond question that the consent so obtained would 19 be legally ineffective.” (Id.) 20 Defendant Stoddard did in fact commit a battery against Plaintiff. It is unclear from the 21 record because Defendant Stoddard denies doing so, and Plaintiff is not a medical professional, at 22 23 what point Defendant put cement into Plaintiff’s ankle where her talus is supposed to be. (Kreulen 24 Depo at 85:17-18; 85:22-24; 109:1-4.) However, none of the surgeries to which Plaintiff gave 25 consent – a total ankle replacement, a fusion of her mid-foot, repair of her Achilles tendon, or 26 removal of the plate used to fuse the bones in her mid-foot – involved replacing her talus with 27 28 10 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 cement. (So v. Shin, supra, 212 Cal.App.4th at 669.) As noted by Dr. Kreulen, this is not something 2 that surgeons do, and it was something he had never seen before. (Kreulen Depo at 84:20-22.) 3 Plaintiff has also presented evidence that Defendant Stoddard performed a procedure to 4 which she conditionally consented “with knowledge that the condition had not occurred.” (Dennis 5 v. Southard (2009) 174 Cal.App.4th 540, 544.) Simply put, Plaintiff gave her conditional consent 6 7 to the total ankle replacement (a procedure) without the knowledge that the required condition 8 (end-stage arthritis) had not occurred. (Plaintiff Depo at 166:7-22.) Plaintiff has therefore met her 9 burden with regards to medical battery. Intent, here, is a question of fact for the fact-finder to 10 decide. 11 B. Plaintiff Has Met Her Prima Facie Burden In Her Second Claim For Fraud 12 And Deceit (Intentional Misrepresentation). 13 As outlined above, Defendant Stoddard knew that Plaintiff did not suffer from end-stage 14 arthritis, yet represented to her that she did, in order to fraudulently convince her to consent to a 15 total ankle replacement for his pecuniary gain. (This Opposition at 8:8-12.) Plaintiff’s reliance on 16 Defendant Stoddard was of course reasonable because he was her caretaking doctor. (Stoddard 17 Depo at 40:6-10.) Following that disaster of a surgery, he continued to recommend more costly and 18 painful surgeries that he convinced her were due to outside forces. (Def. UMF 21, 31-32, 39-40, 52 19 (Defendant explained the procedure to Plaintiff before each surgery); Kreulen Depo at 78:24-25: 20 79:1-2; 83:22-84:4; 99:8-12 (finding floating in the ankle a broken screw, fragmented cement, 21 metallosis, and broken fusion rods).) 22 Whether Defendant Stoddard told Plaintiff that the surgeries were “necessary” is an issue of 23 material fact. Plaintiff relied on her surgeon’s recommendations when choosing to undergo the 24 surgery. (Def. UMF 21, 31-32, 39-40, 52 (Defendant explained the procedure to Plaintiff before 25 each surgery).) Whether there were other options is immaterial so long as the option that her 26 surgeon recommended was the TAR surgery. Defendant could not have reasonably believed that 27 the surgeries were necessary because he is a trained and experienced surgeon. (Stoddard Depo at 28 11 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 40:6-10.) Furthermore, there is no basis for the claim that his belief, if it did indeed exist, was 2 reasonable. See Dec. of Daniel Weltin Ex. C, Dec. of William K. Hoddick. 3 A trained surgeon with thirty (30) years of experience performs a contraindicated and 4 ultimately catastrophic procedure, and subsequent procedures, on an unsuspecting patient, leaving 5 miscellaneous debris inside her body. (Kreulen Depo at 78:24-25: 79:1-2; 83:22-84:4; 99:8-12 6 (finding floating in the ankle a broken screw, fragmented cement, metallosis, and broken fusion 7 rods).) A fact finder cannot find reasonableness in this fact pattern. 8 C. Plaintiff Has Met Her Prima Facie Burden In Her Third Claim For 9 Concealment Of Material Facts. 10 Plaintiff has covered extensively in prong (B) the material facts that Defendant Stoddard 11 concealed and suppressed: mainly, that he hid from her that she did not have end-stage arthritis and 12 therefore was not a candidate for a TAR, that he hid from her that her diabetes meant that a TAR 13 was contraindicated for her, and that all of her subsequent surgeries were due to his intentionally 14 poorly performed surgeries. (Opposition at 10.) Defendant Stoddard knew that Plaintiff did not 15 suffer from end-stage arthritis and yet represented to her that she did intending to fraudulently 16 convince her to consent to a total ankle replacement. Any surgeon of his experience and skill 17 would surely know whether end-stage arthritis is present on an X-ray and whether diabetes is a 18 contraindication to a TAR. (Stoddard Depo at 40:6-10.) 19 No other surgeon would have reasonably performed these surgeries at all, or as intentionally 20 poorly and sloppily. (See Kreulen Depo at 35:12-13, 89:19-20. See also Dec. of Daniel Weltin Ex. 21 C, Dec. of William K. Hoddick.) Therefore, if Plaintiff knew that she was not a candidate for a 22 TAR, she would not have had the surgery, nor the subsequent TAR, and if she knew that her 23 second surgery was due to the poor surgical technique of Defendant Stoddard on her first TAR, she 24 would not have had the second surgery, nor the fourth surgery to remove the plate. She, of course, 25 suffered harm because of Defendant Stoddard’s suppressed and concealed material facts. 26 (Complaint at 5.) 27 Defendant argues once again that Defendant Stoddard “reasonably believed that the 28 surgeries were indicated.” (Def. MSA at 12:19.) There is nothing in any of the evidence that he 12 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 reasonably believed this. There is no medical evidence that would have given him the knowledge 2 that she needed these surgeries. There is only his vague assertion that even if he does not see 3 arthritis in an X-ray, he could find that patients have arthritis from talking to them. (Stoddard Depo 4 at 134:11-15.) Rather than submit a declaration from Dr. Stoddard, defendants submit a declaration 5 from a retained expert, another DPM, however, this declaration only begs the question that any 6 issues raised therein are disputed factual issues to be decided by the fact-finder. 7 Further, Plaintiff does not contend, as Defendant claims, that Defendant Stoddard concealed 8 that the surgeries were unsuccessful. (Def. MSA at 12:22-24.) Rather, she contends that he 9 concealed that they were unsuccessful due to him poorly performing them. (Complaint at 5.) It is 10 unclear to Plaintiff what Defendant hopes to communicate to the Court when it states that Plaintiff 11 did not ask Defendant his success rate on TARs. (Def. MSA at 13:7-11.) 12 D. Plaintiff Has Met Her Prima Facie Burden For Dependent Adult Abuse. 13 A plaintiff is entitled to recover under the Elder Abuse and Dependent Adult Civil 14 Protection Act for Dependent Adult Abuse “(w)here it is proven by clear and convincing evidence 15 that a defendant is liable for physical abuse… and that the defendant has been guilty of 16 recklessness, oppression, fraud, or malice in the commission of this abuse.” (Welf. & Inst. Code § 17 15657.) 18 First, Plaintiff has set forth proof of treatment that qualifies as dependent adult abuse under 19 Welf. & Inst. Code § 15657(a). At the very least, Defendant Stoddard’s behavior was “other 20 treatment with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code § 21 15657(a).) Defendant Stoddard’s fraudulent misrepresentations that these surgeries would help 22 Plaintiff caused her to undergo the contraindicated surgeries and resulted in physical harm, pain, 23 and mental suffering. (Complaint at 5.) Plaintiff does not need to prove that Defendant Stoddard’s 24 behavior qualified as abuse under Welf. & Inst. Code § 15610.63. 25 Nor does Plaintiff need to prove that Defendant Stoddard was her care custodian, but if she 26 did need to prove that, it would clearly be a question of fact as he served as Plaintiff’s caretaking 27 doctor four three years and four surgeries. (Def. MSA at 14:19-21.) This is only one possible basis 28 for Dependent Adult Abuse under § 15610.07 (subsection (2)) and Plaintiff has already proved that 13 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 Defendant Stoddard’s behavior qualified under prong (1): “other treatment with resulting physical 2 harm or pain or mental suffering.” 3 Finally, Plaintiff has proved by clear and convincing evidence that Defendant Stoddard 4 acted with at least recklessness in her care. Dr. Kreulen found broken pieces of cement in her 5 ankle, broken screws, and disintegrated pieces of metal floating around. (Kreulen Depo at 78:24- 6 25: 79:1-2; 83:22-84:4; 99:8-12.) He found that her X-rays from prior to her surgeries with 7 Defendant Stoddard showed that she was nowhere near end-stage arthritis and therefore not a 8 candidate for TAR. (Kreulen Depo at 60:21-24.) She is also has diabetic neuropathy which is a 9 contraindication to surgery. Despite all of these facts, known to all surgeons of similar experience 10 and skill, Defendant Stoddard proceeded with four poorly performed and unecessary surgeries. 11 (Def. UMF 24, 41, 52.) This behavior was at least reckless, if not oppressive, fraudulent, and 12 malicious. (Welf. & Inst. Code § 15657.) Furthermore, Plaintiff will prove her allegations of fraud 13 as set forth above. 14 E. Plaintiff Has Met Her Prima Facie Burden For Intentional Infliction Of 15 Emotional Distress. 16 Defendant argues that because Plaintiff consented to Defendant Stoddard’s procedures, that 17 her claim for Intentional Infliction of Emotional Distress necessary fails. However, Plaintiff could 18 not have given her informed consent to the surgeries because Defendant Stoddard lied about each 19 of the surgeries, thereby obtaining her consent through fraud. (Rains v. Superior Court (1984) 150 20 Cal.App.3d 933, 940-41.) 21 The results of Dr. Kreulen’s dissection of Plaintiff’s foot reveal extreme and outrageous 22 conduct in performing such poor surgical techniques that the inside of part of Plaintiff’s body – her 23 ankle – looked like a garbage dump. (Kreulen Depo at 78:24-25: 79:1-2; 83:22-84:4; 99:8-12.) 24 Finally, Defendant could not have held the good faith belief that Plaintiff consented to his surgeries 25 because he knew that he was making fraudulent misrepresentations and concealing and suppressing 26 material facts from her. (Carter v. Cangello (1980) 105 Cal.App.3d 348, 351; BAJI No. 1605.) 27 28 14 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION 1 F. Plaintiff’s Claims Against Defendant Stoddard Do Not Fail, And Neither Do 2 Her Claims Against The Stoddard Entities. 3 Plaintiff has set forth her prima facie arguments for each of the intentional torts against 4 Defendant Stoddard. Therefore, it is irrelevant that the Stoddard Entities are only liable insofar as 5 Defendant Stoddard is liable, because he is liable for each of the intentional torts and is an agent of 6 the Stoddard Entities. (Def. UMF 90; Gardner v. Marshall (1944) 24 Cal.2d 686, 689.) In fact, it is 7 because Dr. Stoddard is the sole owner and operator of his business entities then it must be a 8 question of fact whether they are liable for his negligent or his intentional conduct because his 9 conduct and knowledge are imputed his entities. Associated Vendors, Inc. v. Oakland Meat Co. 10 (1962) 210 Cal.App.2d 825. 11 IV. CONCLUSION 12 For all the foregoing reasons, Plaintiff respectfully requests the Court to deny Defendants’ 13 motion for summary adjudication or in the alternative allow for Plaintiff to conduct discovery in 14 order to elicit facts that will support opposition to Defendant’s motion for summary adjudication. 15 Lastly, to the extent that any of the defects can be cured by way of amendment, Plaintiff respectfully 16 requests this Court allow Plaintiff to amend her Complaint to correct any deficiencies. 17 THE LAW OFFICES OF DANIEL WELTIN, P.C. 18 19 20 DATED: August 13, 2020 By: Daniel Weltin 21 Attorney for PLAINTIFF, 22 CAREN SCALLA 23 24 25 26 27 28 15 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION