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ERIC J. RATINOFF, SBN 166204 / EF 2 Le iD
Superior Court of California
eric@ericratinoff.com
|MADIS M. SIMMONS,
ON SBN 292185 Buniyon Make
| msimmons@ericratinoff.com ‘
ERIC RATINOFF LAW CORP. MAR 20 208
1401 Watt Avenue . {Wake Chatters
Sacramento, California 95864 Clerk
Officer& Deputy
(Oesiiveucatuorto,
Telephone: (916) 970-9100
Facsimile: (916) 246-1696
DD NW
-Attomeys for Plaintiffs
KIMBERLY HOLE and LARRY HOLE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
co
FOR THE COUNTY OF PLACER
o
10 KIMBERLY HOLE AND LARRY HOLE, ) Case No.: SCV0034326
)
VE Plaintiffs, ) DECLARATION OF ERIC RATINOFF IN
) SUPPORT OF PLAINTIFFS’ OPPOSITION
Lp VS: ) TO DEFENDANTS’ MOTION TO
) BIFURCATE
13 ||SUTTER ROSEVILLE MEDICAL )
|CENTER, et al. ) Date: April 2, 2018
14 | ) Time: 8:30:a.m.
Defendants. ) Place: TBD
15 | )
16 |
17 \lL, ERIC J. RATINOFF, declare:
1. I am an attorney representing Plaintiffs Kimberly and Larry Hole in the above
18
Mr. and Ms. Hole are suing defendants Sutter Roseville Medical Center
19° captioned case.
(“Sutter”) and Terry Arikawa, D.O. in a medical malpractice claim. This claim arises out of Dr.
20
leg at
21 Arikawa’s failure to properly diagnose Ms. Hole, which resulted in the amputation of her
hip. Mr. and Ms. Hole’s claim against Dr. Arikawa is based on his malpractice, and their
22 the
‘claim against Sutter is based on its negligence in staffing itsurgent care facility with a physician,
23 |
who had insufficient training and experience to properly deal with the variety of
24 \Dr. Arikawa,
complex medical problems that might arise in such a facility.
25
2... AsT understand itfrom Defendants’ motion, the requested bifurcation will require |
26
“962 try the issue of Dr. Arikawa’s negligence to a jury. Then, assuming that the jury finds
me to first
to have breached the standard of care, I will be allowed to present my care Bey
28 \ Dr. Arikawa
1.
DECLARATION OF ERIC J.RATINOFF INSUPPORT OF PLAINTIFFS’ OPPOSITION
© oO
whether Sutter was negligent in staffing its urgent care facility with an unqualified
regarding
reason why Defendants want this bifurcation is that they believe that the details of
physician. The
NY
prior work history will not be presented to the jury until after it has decided
Dr. Arikawa’s
W
whether his failure to meet the standard of causéd an injury to Kim Hole:
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Here, I submit that Defendants are.wrong both as to the facts and as to the law.
3.
UU
Defendants call.the “infiagnmnasory evidence” (Motion, pg. 2:22-23) of Dr, Arikawa’s
First, what
DH
is hardly inflammatory. During his deposition I adduced no evidence of
prior work history
N
would be normally viewed as “character evidence.” That is, I have no evidence that
anything that
oo
had, in the past, been accused of malpractice, been terminated from his employment
Dr. Arikawa
Oo
due to improper conduct, or committed illegal or fraudulent acts..
OQ
=
the evidence that Defendants wish to conceal from the jury when it
4. Rather,
ee
_
Dr. Arikawa’s malpractice injured Ms. Hole is, simply, that he had very little
decides whether
N
—
for the work he was doing at Sutter. Dr. Arikawa téstified at his deposition
relevant experience
we
i
from the College of Osteopathic Medicine of the Pacific in 1995 (Todd,
| that,after his graduation
>
—
he completed his residency and then was out of the field of urgent care
Ex. B, pg. 15:8-12)
mr
ws
eight years. For a portion of this eight-year period Dr. Arikawa ran his own
| medicine for about
ON
~
period he supervised laser hair removal. and did Botox injections at a:‘spa,
family practice, for a
~~
-
he did primary care for inmates at the county jail.(Todd Ex. B, pg. 21:4-23:14).
and
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—
in their motion Defendants claim that Plaintiffs “will contend [Dr.}
5. Moreover,
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=
be accepted into allopathic medical school (versus. osteopathic school).”
Arikawa] failed to
oO
N
However, as the Court can see from the excerpts of Dr. Arikawa’s|
(Motion, pg. 2:24-26).
—_
NO
Todd’s Declaration, I do not have this information. I did ask Dr.
deposition attached to Ms.
No
NS
been accepted into any MD programs, however Ms. Todd instructed Dr.
| Arikawa whether he had
Qo
bo
afiswer my question, on relevance grounds. (Todd, Ex. B, pg. 15:18-16:23).
Arikatwa not to
>
N
nothing in the evidence I intend to present regarding Dr. Arikawa’s
6. In short,
wn
nN
misconduct, or anything showing poor character. It only goes: to show
| background represents any
ON
v
background and experience to do the urgent care work.that he did
that he really did not have the
~I
N
on Sutter’s behalf. ,
ttt
oo
i)
2
te
OFERIC 5.RATINOFF IN‘SUPPORT OF PLAINTIFFS’.OPPOSITION
‘DECLARATION
Cnn een
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the type of evidence described above is itrelevant
7. Defendants are also wrong that
standard of care. Ihave been lead counsel
whet her Dr. Arik awa failed to meet the
in dete rmining
N
of medical malpractice cases, Ihave
multiple malpractice cases. In my history
or second chair.in
W
physician about his (of her) knowledge,
able to fully question a defendant
aD
always been
usually are eager to talk about the
defendants
Ao
training and. experience. In fact;
background,
surprising, given that whether. the
n’s work experience. This is hardly
defendan t physicia
practicing medicine is one of the.substantive
has the training and experience to be
physician
greater detail in the accompanying opposition,
a malpractice claim. As explained in
elements of
oo
education, training and skill before,
on individuals a duty to have medical
“the law imposes
this education, training and skill is |
that prac ticing medi cine without
10 practicing medi cine and
Hosp: (1990) 218 Cal.App.3d 1110, 1119.
re |negligent.” Hinson v. Clairemont Cmty.
This case has been pending since)
Defendants motion is untimely.
12 8. Moreover,
which he testified as to details of his
deposition of Dr. Arikawa, during
13 February of 2014. The
as “inflammatory evidence,”. occurred]
which Defendants now: characterize
14 prior work history,
reason why Defendarits cannot have
January 11, 2016. There is no
15 over two years ago, on
However, it was not until on or]
any poin t in the lasttwo years (at least).
16 brought this motion at
informed me that he intended to
2018 , that-counsel for Defendants
17 about Wedn esda y, Marc h 21,
is set for the firstday of trial, so Tam
bifurcate the trial.The motion to bifurcate
18 file a motion to
precise. contours of the case I am|
until I actually appear for trial, the
"19 not supposed to know,
20 expected to try.
ptejudice if bifurcation is
y, Plaintiffs and I would suffer considerable
21 9. Obvi ousl
my staff and. I have expended ay
day of trial. During the past few months
22 ordered on the first
and Larry Hole’s case for trial.We
Kim
23 significant amount of time and effort into preparing
for the
them to testify, written direct and cross-examinations
24 have engaged experts and prepared
statement, and designed story boards
s expe cted to testify, prep ared an opening
25 various witnesse
If Defendants request to bifurcate
26 illustrating the rele vant facts of this case.to display to the jury.
will have: to be..re-
rds may become unusable, my opening
a7 | is granted, some of my storyboa
examinations will have to:be modified.
78, |written, and many of iis witness
3
ERIC J. RATINOFF IN'SUPPORT OF PLAINTIFFS’ OPPOSITION’
DECLARATION OF
ffi
scheduling medical experts is always difficult, and the
10. Perhaps most significantly,
and change when some of these experts will be
bifurcation will require me to re-order my case
Plaintiffs’ expert witnesses is expected to testify as
expected to testify. Moreover, atleast one of
of Sutter hiring Dr. Arikawa to do urgent care
to both the standard of care and the propriety
I would have to arrange for this expert to testify twice.
work, so
BD
that the bifurcated process requested by Defendants
11. also strenuously disagree
HN
at least one of my experts will have to
will save time. As noted above, under this procedure
fo
be two separate opening statements required, as
testify twice, as will Dr. Arikawa. There will
Oo
rebuttals. The jury will have to deliberate twice, rather
10 well as two closing statements, with two
of the expected process, assuming a finding of liability
11 than a single time. The greater length
jury selection more challenging.
12 during the firstphase, will make
Dr. Arikawa was not liable in the firstphase there
13 12. And, even if the jury finds that
As is typically the case in malpractice trials, the
14 will be no great savings of time for the Court.
of Kim Hole’s injury and damages, and under
15 most time consuming issue will be the extent
thiswill occur in the firstphase of trial.
16 Defendants’ requested procedure
the laws of the State of California that the
of perjury under
17 I declare under penalty
was made on March 22, 2018 in
and that this Declaration
18 foregoing is true and correct,
19 Sacramento, California.
20
21
22
23
24
25
26
21
28°
4
J.RATINOFF INSUPPORT OF PLAINTIFFS’ OPPOSITION
: DECLARATION OF ERIC
FROOF OF SERVICE
pei?
Tam a@-citizen of the United States, over the age of 18 years; not a party to the within
BP
+ action, employed in the County of Sacramento, California, and my business addyess. is
&
. 401 Watt Avenue, Sacramento, California 95864.
OB
On this date, service of the following document:
Ww
- DECLARATION OF ERIC J, RATINOFF IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANTS’ MOTION TO BIFURCATE
DOA
in this‘matter was effected by:
FACSIMILE— by transmitting via facsimile the document(s) listed above to’the fax
CO
number(s) set forth below on this date.
0
MAIL — by placing the document(s) listed above in a sealed: envelope with postage
thereon fully prepaid; in the United States mail at Sacramento, California addressed as set
©
forth above.
oe
&-
X__- ELECTRONIC - by electronically transmitting the document(s) listed above to the
“electronic notification address(es) of the addressee(s) listed below.
NYO
Soe
_X_ OVERNIGHT COURIER-— by placing the document(s) listed above in a sealed envelope
wo
with shipping prepaid, and depositing in a collection box for next day delivery to the
person(s) at the address(es) set forth below via Federal Express.
By
—
BeGB
|, on the following parties:
AR
| Kat Todd, Esq.
‘SCHUERING, ZIMMERMAN & DOYLE, LLP
RD
400 University: Avenue
Be
Sacramento, CA.95825
we
_ Tel: (916) 567-4044
Fax: - (916) 568-0400
Counsel for Defendant, Terry Arikawa, D.O., Sutter Medical Foundation, Sutter Urgent Care
SS
Re
Roseville, Sutter Medical Group
I am readily familiar with my fitm’s practice of collection arid processing corréspondénce
SF
NR
for mailing. Under that practice itwould be deposited with the U.S. Postal Service on that same
RON
SS
day with postage thereon fully prepaid in the ordinary course of business.
I declare under penalty of perjury under the laws of the State of California that the above
NON;
AR
istrue and.correct. Executed ‘on March:29, 2018, at Sacramento, California.
RM
A
CMS aA
woUN
Paw
~1.
Preview
ERIC J. RATINOFF, SBN 166204 / EF 2 Le iD Superior Court of California eric@ericratinoff.com |MADIS M. SIMMONS, ON SBN 292185 Buniyon Make | msimmons@ericratinoff.com ‘ ERIC RATINOFF LAW CORP. MAR 20 208 1401 Watt Avenue . {Wake Chatters Sacramento, California 95864 Clerk Officer& Deputy (Oesiiveucatuorto, Telephone: (916) 970-9100 Facsimile: (916) 246-1696 DD NW -Attomeys for Plaintiffs KIMBERLY HOLE and LARRY HOLE SUPERIOR COURT OF THE STATE OF CALIFORNIA co FOR THE COUNTY OF PLACER o 10 KIMBERLY HOLE AND LARRY HOLE, ) Case No.: SCV0034326 ) VE Plaintiffs, ) DECLARATION OF ERIC RATINOFF IN ) SUPPORT OF PLAINTIFFS’ OPPOSITION Lp VS: ) TO DEFENDANTS’ MOTION TO ) BIFURCATE 13 ||SUTTER ROSEVILLE MEDICAL ) |CENTER, et al. ) Date: April 2, 2018 14 | ) Time: 8:30:a.m. Defendants. ) Place: TBD 15 | ) 16 | 17 \lL, ERIC J. RATINOFF, declare: 1. I am an attorney representing Plaintiffs Kimberly and Larry Hole in the above 18 Mr. and Ms. Hole are suing defendants Sutter Roseville Medical Center 19° captioned case. (“Sutter”) and Terry Arikawa, D.O. in a medical malpractice claim. This claim arises out of Dr. 20 leg at 21 Arikawa’s failure to properly diagnose Ms. Hole, which resulted in the amputation of her hip. Mr. and Ms. Hole’s claim against Dr. Arikawa is based on his malpractice, and their 22 the ‘claim against Sutter is based on its negligence in staffing itsurgent care facility with a physician, 23 | who had insufficient training and experience to properly deal with the variety of 24 \Dr. Arikawa, complex medical problems that might arise in such a facility. 25 2... AsT understand itfrom Defendants’ motion, the requested bifurcation will require | 26 “962 try the issue of Dr. Arikawa’s negligence to a jury. Then, assuming that the jury finds me to first to have breached the standard of care, I will be allowed to present my care Bey 28 \ Dr. Arikawa 1. DECLARATION OF ERIC J.RATINOFF INSUPPORT OF PLAINTIFFS’ OPPOSITION © oO whether Sutter was negligent in staffing its urgent care facility with an unqualified regarding reason why Defendants want this bifurcation is that they believe that the details of physician. The NY prior work history will not be presented to the jury until after it has decided Dr. Arikawa’s W whether his failure to meet the standard of causéd an injury to Kim Hole: BP Here, I submit that Defendants are.wrong both as to the facts and as to the law. 3. UU Defendants call.the “infiagnmnasory evidence” (Motion, pg. 2:22-23) of Dr, Arikawa’s First, what DH is hardly inflammatory. During his deposition I adduced no evidence of prior work history N would be normally viewed as “character evidence.” That is, I have no evidence that anything that oo had, in the past, been accused of malpractice, been terminated from his employment Dr. Arikawa Oo due to improper conduct, or committed illegal or fraudulent acts.. OQ = the evidence that Defendants wish to conceal from the jury when it 4. Rather, ee _ Dr. Arikawa’s malpractice injured Ms. Hole is, simply, that he had very little decides whether N — for the work he was doing at Sutter. Dr. Arikawa téstified at his deposition relevant experience we i from the College of Osteopathic Medicine of the Pacific in 1995 (Todd, | that,after his graduation > — he completed his residency and then was out of the field of urgent care Ex. B, pg. 15:8-12) mr ws eight years. For a portion of this eight-year period Dr. Arikawa ran his own | medicine for about ON ~ period he supervised laser hair removal. and did Botox injections at a:‘spa, family practice, for a ~~ - he did primary care for inmates at the county jail.(Todd Ex. B, pg. 21:4-23:14). and oO — in their motion Defendants claim that Plaintiffs “will contend [Dr.} 5. Moreover, © = be accepted into allopathic medical school (versus. osteopathic school).” Arikawa] failed to oO N However, as the Court can see from the excerpts of Dr. Arikawa’s| (Motion, pg. 2:24-26). —_ NO Todd’s Declaration, I do not have this information. I did ask Dr. deposition attached to Ms. No NS been accepted into any MD programs, however Ms. Todd instructed Dr. | Arikawa whether he had Qo bo afiswer my question, on relevance grounds. (Todd, Ex. B, pg. 15:18-16:23). Arikatwa not to > N nothing in the evidence I intend to present regarding Dr. Arikawa’s 6. In short, wn nN misconduct, or anything showing poor character. It only goes: to show | background represents any ON v background and experience to do the urgent care work.that he did that he really did not have the ~I N on Sutter’s behalf. , ttt oo i) 2 te OFERIC 5.RATINOFF IN‘SUPPORT OF PLAINTIFFS’.OPPOSITION ‘DECLARATION Cnn een 0 ° the type of evidence described above is itrelevant 7. Defendants are also wrong that standard of care. Ihave been lead counsel whet her Dr. Arik awa failed to meet the in dete rmining N of medical malpractice cases, Ihave multiple malpractice cases. In my history or second chair.in W physician about his (of her) knowledge, able to fully question a defendant aD always been usually are eager to talk about the defendants Ao training and. experience. In fact; background, surprising, given that whether. the n’s work experience. This is hardly defendan t physicia practicing medicine is one of the.substantive has the training and experience to be physician greater detail in the accompanying opposition, a malpractice claim. As explained in elements of oo education, training and skill before, on individuals a duty to have medical “the law imposes this education, training and skill is | that prac ticing medi cine without 10 practicing medi cine and Hosp: (1990) 218 Cal.App.3d 1110, 1119. re |negligent.” Hinson v. Clairemont Cmty. This case has been pending since) Defendants motion is untimely. 12 8. Moreover, which he testified as to details of his deposition of Dr. Arikawa, during 13 February of 2014. The as “inflammatory evidence,”. occurred] which Defendants now: characterize 14 prior work history, reason why Defendarits cannot have January 11, 2016. There is no 15 over two years ago, on However, it was not until on or] any poin t in the lasttwo years (at least). 16 brought this motion at informed me that he intended to 2018 , that-counsel for Defendants 17 about Wedn esda y, Marc h 21, is set for the firstday of trial, so Tam bifurcate the trial.The motion to bifurcate 18 file a motion to precise. contours of the case I am| until I actually appear for trial, the "19 not supposed to know, 20 expected to try. ptejudice if bifurcation is y, Plaintiffs and I would suffer considerable 21 9. Obvi ousl my staff and. I have expended ay day of trial. During the past few months 22 ordered on the first and Larry Hole’s case for trial.We Kim 23 significant amount of time and effort into preparing for the them to testify, written direct and cross-examinations 24 have engaged experts and prepared statement, and designed story boards s expe cted to testify, prep ared an opening 25 various witnesse If Defendants request to bifurcate 26 illustrating the rele vant facts of this case.to display to the jury. will have: to be..re- rds may become unusable, my opening a7 | is granted, some of my storyboa examinations will have to:be modified. 78, |written, and many of iis witness 3 ERIC J. RATINOFF IN'SUPPORT OF PLAINTIFFS’ OPPOSITION’ DECLARATION OF ffi scheduling medical experts is always difficult, and the 10. Perhaps most significantly, and change when some of these experts will be bifurcation will require me to re-order my case Plaintiffs’ expert witnesses is expected to testify as expected to testify. Moreover, atleast one of of Sutter hiring Dr. Arikawa to do urgent care to both the standard of care and the propriety I would have to arrange for this expert to testify twice. work, so BD that the bifurcated process requested by Defendants 11. also strenuously disagree HN at least one of my experts will have to will save time. As noted above, under this procedure fo be two separate opening statements required, as testify twice, as will Dr. Arikawa. There will Oo rebuttals. The jury will have to deliberate twice, rather 10 well as two closing statements, with two of the expected process, assuming a finding of liability 11 than a single time. The greater length jury selection more challenging. 12 during the firstphase, will make Dr. Arikawa was not liable in the firstphase there 13 12. And, even if the jury finds that As is typically the case in malpractice trials, the 14 will be no great savings of time for the Court. of Kim Hole’s injury and damages, and under 15 most time consuming issue will be the extent thiswill occur in the firstphase of trial. 16 Defendants’ requested procedure the laws of the State of California that the of perjury under 17 I declare under penalty was made on March 22, 2018 in and that this Declaration 18 foregoing is true and correct, 19 Sacramento, California. 20 21 22 23 24 25 26 21 28° 4 J.RATINOFF INSUPPORT OF PLAINTIFFS’ OPPOSITION : DECLARATION OF ERIC FROOF OF SERVICE pei? Tam a@-citizen of the United States, over the age of 18 years; not a party to the within BP + action, employed in the County of Sacramento, California, and my business addyess. is & . 401 Watt Avenue, Sacramento, California 95864. OB On this date, service of the following document: Ww - DECLARATION OF ERIC J, RATINOFF IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO BIFURCATE DOA in this‘matter was effected by: FACSIMILE— by transmitting via facsimile the document(s) listed above to’the fax CO number(s) set forth below on this date. 0 MAIL — by placing the document(s) listed above in a sealed: envelope with postage thereon fully prepaid; in the United States mail at Sacramento, California addressed as set © forth above. oe &- X__- ELECTRONIC - by electronically transmitting the document(s) listed above to the “electronic notification address(es) of the addressee(s) listed below. NYO Soe _X_ OVERNIGHT COURIER-— by placing the document(s) listed above in a sealed envelope wo with shipping prepaid, and depositing in a collection box for next day delivery to the person(s) at the address(es) set forth below via Federal Express. By — BeGB |, on the following parties: AR | Kat Todd, Esq. ‘SCHUERING, ZIMMERMAN & DOYLE, LLP RD 400 University: Avenue Be Sacramento, CA.95825 we _ Tel: (916) 567-4044 Fax: - (916) 568-0400 Counsel for Defendant, Terry Arikawa, D.O., Sutter Medical Foundation, Sutter Urgent Care SS Re Roseville, Sutter Medical Group I am readily familiar with my fitm’s practice of collection arid processing corréspondénce SF NR for mailing. Under that practice itwould be deposited with the U.S. Postal Service on that same RON SS day with postage thereon fully prepaid in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the above NON; AR istrue and.correct. Executed ‘on March:29, 2018, at Sacramento, California. RM A CMS aA woUN Paw ~1.