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1 ROBERT H. ZIMMERMAN, BAR NO. 84345
RICHARD J. HOGAN, BAR NO. 312947
2 SCHUERING ZIMMERMAN & DOYLE, LLP
400 University Avenue 8/17/2020
3 Sacramento, California 95825-6502
(916) 567-0400
4 FAX: 568-0400
5
Attorneys for Defendant xxxxxx S. xxxxxx, JR., M.D.
6 (erroneously sued as xxxxxx S. xxxxxx, M.D.)
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 LYNN REICHENBACH, Successor in ) NO. 19CV01124
Interest to the Estate of GORDON )
11 REICHENBACH and Individually, ) ASSIGNED TO THE HONORABLE
) JUDGE ROBERT A. GLUSMAN FOR ALL
12 Plaintiff, ) PURPOSES
)
13 vs. ) DEFENDANT xxxxxx S. xxxxxx, JR.,
) M.D.'S ANSWER TO FIRST AMENDED
14 xxxxxx S. xxxxxx, M.D., xxxxxx ) COMPLAINT
xxxxxxxx, M.D., and DOES ONE to FIFTY, )
15 Inclusive. ) First Amended Complaint
) filed: 7/23/20
16 ____________D __d_a_n_t_s._________________ )
__e_fe_n
17
18 Comes now Defendant xxxxxx S. xxxxxx, JR., M.D. (erroneously sued as xxxxxx
19 S. xxxxxx, M.D.) and answering the First Amended Complaint of Plaintiff on file herein,
20 admits, denies and alleges as follows:
21 I.
22 GENERAL DENIAL
23 Defendant generally and specifically denies each and every allegation and cause
24 of action of the unverified First Amended Complaint for Damages pursuant to the
25 provisions of Code of Civil Procedure section 431.30, subdivision (d), and further
26 specifically denies that Plaintiff has been damaged in the manner or amount alleged or
27 in any other manner or amount due to any wrongful act by or attributable to this
28 Defendant.
01278498.WPD 1
DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED COMPLAINT
1 II.
2 COMPARATIVE NEGLIGENCE OF PLAINTIFF
3 Plaintiff or the decedent was negligent in some percentage compared to that of
4 other parties, and this negligence contributed legally to any injuries or damages.
5 III.
6 COMPARATIVE NEGLIGENCE OF OTHERS
7 Other persons or entities who are parties to this action and other persons or entities
8 who are not parties to this action are liable for negligence or other legal fault and are the
9 legal cause of any injuries or damages, so if Plaintiff obtains a judgment for damages, it
10 would be the result of this conduct.
11 IV.
12 EXPRESS ASSUMPTION OF THE RISK
13 Plaintiff or the decedent expressly assumed the risk of injury with full knowledge
14 and appreciation of such conduct and this conduct was the legal cause of any injuries and
15 damages.
16 V.
17 MITIGATION OF DAMAGES
18 Plaintiff or the decedent failed to exercise reasonable diligence to mitigate any
19 alleged damages and this conduct was the legal cause of any injuries and damages.
20 VI.
21 STATUTE OF LIMITATIONS
22 This action is barred pursuant to Code of Civil Procedure section 340.4 or 340.5, and
23 Defendant demands a separate trial of this defense pursuant to Code of Civil Procedure
24 section 597.5.
25 ///
26 ///
27 ///
28 ///
01278498.WPD 2
DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED COMPLAINT
1 VII.
2 INFORMED CONSENT
3 A. Plaintiff or the decedent would have consented to the procedure or the treatment
4 even if a reasonable person in his position might not if he had been given enough
5 information about the risks.
6 B. Defendant was not required to inform plaintiff or the decedent about any risks of
7 the procedure or the treatment because he asked not to be told of the risks.
8 C. Defendant was not required to inform plaintiff or the decedent about any risks of
9 the procedure or the treatment because the procedure or the treatment was simple
10 and it was commonly understood any dangers were not likely to occur.
11 D. Defendant was not required to inform plaintiff or the decedent about any risks of
12 the procedure or the treatment because plaintiff or the decedent would have been
13 so seriously upset that he would not have been able to reasonably consider those
14 risks.
15 E. Defendant was not required to obtain informed consent because an emergency
16 existed and plaintiff or the decedent was unconscious or there was not enough
17 time to inform him or an authorized person about the risks of the procedure or the
18 treatment.
19 VIII.
20 GOOD SAMARITAN
21 Defendant is immune from liability pursuant to Business and Professions Code
22 sections 2395, 2395.5, 2396, and 2397 and Health and Safety Code section 1317(f).
23 IX.
24 ADMISSIBILITY OF BENEFITS/LIMITATION ON NON-ECONOMIC DAMAGES
25 Defendant reserves the right to introduce evidence of any amounts paid or to be
26 paid as a benefit to plaintiff pursuant to Civil Code section 3333.1 and Defendant claims
27 the protection of Civil Code section 3333.2.
28 ///
01278498.WPD 3
DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED COMPLAINT
1 X.
2 NATURAL COURSE OF DISEASE/CONDITION
3 This action is barred pursuant to Civil Code section 1714.8 because plaintiffs
4 alleged personal or wrongful death injuries and damages were solely the result of the
5 natural course of a disease or condition or the expected result of reasonable treatment
6 provided for the disease or condition by Defendant.
7 XI.
8 PAYMENT OF FUTURE BENEFITS
9 Defendant reserves the right to have future damages, if any, paid in whole or in
10 part, pursuant to Code of Civil Procedure sections 667 and 667.7.
11 WHEREFORE, Defendant prays that Plaintiff take nothing by reason of the First
12 Amended Complaint on file herein, for costs of suit incurred herein; and, for such other
13 and further relief as the court deems just and proper.
14 Dated: August 10, 2020
15 Schuering Zimmerman & Doyle, llp
16
17 By*
ROBERT H. ZIMMERMAN
18 Attorneys for Defendant xxxxxx S.
xxxxxx, JR., M.D. (erroneously sued as
19 xxxxxx S. xxxxxx, M.D.)
20
21
22
23
24
25
26
27
28
01278498.WPD 4
DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED COMPLAINT
1 Proof of Service by Electronic Transmission - Civil
2 [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules
3 10.503, 2.100-2.119, 2.251]
4 I, Concha M. Leon, declare:
5 At the time of service, I was over 18 years of age and not a party to this action. My
6 business address is: 400 University Avenue, Sacramento, California 95825.
7 On August 17, 2020, I served the following documents:
8 DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED
9 COMPLAINT
10 By e-mail or electronic transmission: Based on a court order or an agreement of
11 the parties to accept service by e-mail or electronic transmission, I caused the documents
12 to be sent to the persons at the e-mail addresses listed below. I did not receive, within a
13 reasonable time after the transmission, any electronic message or other indication that
14 the transmission was unsuccessful.
15 Attorney Representing Phone/Fax/E-Mail
16 James J. Thompson Plaintiffs PHONE: 530-342-0886
2535 Ceanothus Avenue, FAX:
17 Suite 126 EMAIL: JJTLaw@Saber.net
Chico, CA 95973
18
19 Joel B. Massae Plaintiffs PHONE: 530-872-2375
Law Offices of Joel B. EMAIL:
20 Massae norcalattorney@gmail.com
P.O. Box 3104
21 Paradise, CA 95967
22
Michael G. Gallert Defendant xxxxxx PHONE: 530-345-3494
23 Leonard & Lyde xxxxxxxx, M.D. FAX: 530-345-0460
1600 Humboldt Rd., Suite 1 EMAIL:
24 Chico, CA 95928 leonardandlynde@gmail.com
25
I declare under penalty of perjury, under the laws of the State of California, that the
26
foregoing is true and correct, and that this declaration was executed on August 17, 2020,
27
at Sacramento, California.
28
/s/ Concha M. Leon
Concha M. Leon
1579-11882
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1 ROBERT H. ZIMMERMAN, BAR NO. 84345 RICHARD J. HOGAN, BAR NO. 312947 2 SCHUERING ZIMMERMAN & DOYLE, LLP 400 University Avenue 8/17/2020 3 Sacramento, California 95825-6502 (916) 567-0400 4 FAX: 568-0400 5 Attorneys for Defendant xxxxxx S. xxxxxx, JR., M.D. 6 (erroneously sued as xxxxxx S. xxxxxx, M.D.) 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 LYNN REICHENBACH, Successor in ) NO. 19CV01124 Interest to the Estate of GORDON ) 11 REICHENBACH and Individually, ) ASSIGNED TO THE HONORABLE ) JUDGE ROBERT A. GLUSMAN FOR ALL 12 Plaintiff, ) PURPOSES ) 13 vs. ) DEFENDANT xxxxxx S. xxxxxx, JR., ) M.D.'S ANSWER TO FIRST AMENDED 14 xxxxxx S. xxxxxx, M.D., xxxxxx ) COMPLAINT xxxxxxxx, M.D., and DOES ONE to FIFTY, ) 15 Inclusive. ) First Amended Complaint ) filed: 7/23/20 16 ____________D __d_a_n_t_s._________________ ) __e_fe_n 17 18 Comes now Defendant xxxxxx S. xxxxxx, JR., M.D. (erroneously sued as xxxxxx 19 S. xxxxxx, M.D.) and answering the First Amended Complaint of Plaintiff on file herein, 20 admits, denies and alleges as follows: 21 I. 22 GENERAL DENIAL 23 Defendant generally and specifically denies each and every allegation and cause 24 of action of the unverified First Amended Complaint for Damages pursuant to the 25 provisions of Code of Civil Procedure section 431.30, subdivision (d), and further 26 specifically denies that Plaintiff has been damaged in the manner or amount alleged or 27 in any other manner or amount due to any wrongful act by or attributable to this 28 Defendant. 01278498.WPD 1 DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED COMPLAINT 1 II. 2 COMPARATIVE NEGLIGENCE OF PLAINTIFF 3 Plaintiff or the decedent was negligent in some percentage compared to that of 4 other parties, and this negligence contributed legally to any injuries or damages. 5 III. 6 COMPARATIVE NEGLIGENCE OF OTHERS 7 Other persons or entities who are parties to this action and other persons or entities 8 who are not parties to this action are liable for negligence or other legal fault and are the 9 legal cause of any injuries or damages, so if Plaintiff obtains a judgment for damages, it 10 would be the result of this conduct. 11 IV. 12 EXPRESS ASSUMPTION OF THE RISK 13 Plaintiff or the decedent expressly assumed the risk of injury with full knowledge 14 and appreciation of such conduct and this conduct was the legal cause of any injuries and 15 damages. 16 V. 17 MITIGATION OF DAMAGES 18 Plaintiff or the decedent failed to exercise reasonable diligence to mitigate any 19 alleged damages and this conduct was the legal cause of any injuries and damages. 20 VI. 21 STATUTE OF LIMITATIONS 22 This action is barred pursuant to Code of Civil Procedure section 340.4 or 340.5, and 23 Defendant demands a separate trial of this defense pursuant to Code of Civil Procedure 24 section 597.5. 25 /// 26 /// 27 /// 28 /// 01278498.WPD 2 DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED COMPLAINT 1 VII. 2 INFORMED CONSENT 3 A. Plaintiff or the decedent would have consented to the procedure or the treatment 4 even if a reasonable person in his position might not if he had been given enough 5 information about the risks. 6 B. Defendant was not required to inform plaintiff or the decedent about any risks of 7 the procedure or the treatment because he asked not to be told of the risks. 8 C. Defendant was not required to inform plaintiff or the decedent about any risks of 9 the procedure or the treatment because the procedure or the treatment was simple 10 and it was commonly understood any dangers were not likely to occur. 11 D. Defendant was not required to inform plaintiff or the decedent about any risks of 12 the procedure or the treatment because plaintiff or the decedent would have been 13 so seriously upset that he would not have been able to reasonably consider those 14 risks. 15 E. Defendant was not required to obtain informed consent because an emergency 16 existed and plaintiff or the decedent was unconscious or there was not enough 17 time to inform him or an authorized person about the risks of the procedure or the 18 treatment. 19 VIII. 20 GOOD SAMARITAN 21 Defendant is immune from liability pursuant to Business and Professions Code 22 sections 2395, 2395.5, 2396, and 2397 and Health and Safety Code section 1317(f). 23 IX. 24 ADMISSIBILITY OF BENEFITS/LIMITATION ON NON-ECONOMIC DAMAGES 25 Defendant reserves the right to introduce evidence of any amounts paid or to be 26 paid as a benefit to plaintiff pursuant to Civil Code section 3333.1 and Defendant claims 27 the protection of Civil Code section 3333.2. 28 /// 01278498.WPD 3 DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED COMPLAINT 1 X. 2 NATURAL COURSE OF DISEASE/CONDITION 3 This action is barred pursuant to Civil Code section 1714.8 because plaintiffs 4 alleged personal or wrongful death injuries and damages were solely the result of the 5 natural course of a disease or condition or the expected result of reasonable treatment 6 provided for the disease or condition by Defendant. 7 XI. 8 PAYMENT OF FUTURE BENEFITS 9 Defendant reserves the right to have future damages, if any, paid in whole or in 10 part, pursuant to Code of Civil Procedure sections 667 and 667.7. 11 WHEREFORE, Defendant prays that Plaintiff take nothing by reason of the First 12 Amended Complaint on file herein, for costs of suit incurred herein; and, for such other 13 and further relief as the court deems just and proper. 14 Dated: August 10, 2020 15 Schuering Zimmerman & Doyle, llp 16 17 By* ROBERT H. ZIMMERMAN 18 Attorneys for Defendant xxxxxx S. xxxxxx, JR., M.D. (erroneously sued as 19 xxxxxx S. xxxxxx, M.D.) 20 21 22 23 24 25 26 27 28 01278498.WPD 4 DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED COMPLAINT 1 Proof of Service by Electronic Transmission - Civil 2 [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 3 10.503, 2.100-2.119, 2.251] 4 I, Concha M. Leon, declare: 5 At the time of service, I was over 18 years of age and not a party to this action. My 6 business address is: 400 University Avenue, Sacramento, California 95825. 7 On August 17, 2020, I served the following documents: 8 DEFENDANT xxxxxx S. xxxxxx, JR., M.D.'S ANSWER TO FIRST AMENDED 9 COMPLAINT 10 By e-mail or electronic transmission: Based on a court order or an agreement of 11 the parties to accept service by e-mail or electronic transmission, I caused the documents 12 to be sent to the persons at the e-mail addresses listed below. I did not receive, within a 13 reasonable time after the transmission, any electronic message or other indication that 14 the transmission was unsuccessful. 15 Attorney Representing Phone/Fax/E-Mail 16 James J. Thompson Plaintiffs PHONE: 530-342-0886 2535 Ceanothus Avenue, FAX: 17 Suite 126 EMAIL: JJTLaw@Saber.net Chico, CA 95973 18 19 Joel B. Massae Plaintiffs PHONE: 530-872-2375 Law Offices of Joel B. EMAIL: 20 Massae norcalattorney@gmail.com P.O. Box 3104 21 Paradise, CA 95967 22 Michael G. Gallert Defendant xxxxxx PHONE: 530-345-3494 23 Leonard & Lyde xxxxxxxx, M.D. FAX: 530-345-0460 1600 Humboldt Rd., Suite 1 EMAIL: 24 Chico, CA 95928 leonardandlynde@gmail.com 25 I declare under penalty of perjury, under the laws of the State of California, that the 26 foregoing is true and correct, and that this declaration was executed on August 17, 2020, 27 at Sacramento, California. 28 /s/ Concha M. Leon Concha M. Leon 1579-11882