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1 LEWIS BRISBOIS BISGAARD & SMITH LLP
KEVIN L. ENG, SB# 217248 Electronically Filed
2 E-Mail: Kevin.Eng@lewisbrisbois.com 1/15/2021 4:20 PM
CHRISTOPHER G. WASHINGTON, SB# 307804 Superior Court of California
3 E-Mail: Christopher.Washington@lewisbrisbois.com County of Stanislaus
633 West 5th Street, Suite 4000 Clerk of the Court
4 Los Angeles, California 90071 By: Kimberly Mean, Deputy
Telephone: 213.250.1800
5 Facsimile: 213.250.7900
6 Attorneys for Defendant, LIFE GENERATIONS
HEALTHCARE LLC (ERRONEOUSLY
7 SERVED AS LIFE GENERATIONS
HEALTHCARE LLC (dba ENGLISH OAKS
8 NURSING & REHABILITATION CENTER))
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF STANISLAUS
11
12 Pamela Tennison, (individually and as CASE NO. CV-19-002528
successor in interest for Decedent Green) and
13 Gary Green, EVIDENTIARY OBJECTIONS TO THE
DECLARATION OF L. MARCEL
14 Plaintiffs, STEWART AND EXPERT DEBBIE
BENES, CLNC, RN
15 vs.
Date: January 21, 2021
16 Life Generations Healthcare LLC (dba English Time: 8:30 a.m.
Oaks Nursing & Rehabilitation Center), Dept.: 24
17 Rachandeep Singh, M.D., Eugenia Cueto,
Patricia Dixon, FNP, Does 1-10 and Bryan [Assigned for All Purposes to:
18 Green (as a nominal defendant), The Hon. Roger M. Beauchesne, Dept. 24]
19 Defendants. Filed Concurrently with Defendant’s Reply in
support of Motion for Summary Judgment]
20
Action Filed: May 28, 2019
21 Trial Date: None Set
22
23 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
24 Defendant, LIFE GENERATIONS HEALTHCARE LLC (ERRONEOUSLY SERVED
25 AS LIFE GENERATIONS HEALTHCARE LLC (dba ENGLISH OAKS NURSING &
26 REHABILITATION CENTER)), hereby submits the following objections to the Declaration of L.
27 Marcel Stewart and Debbie Benes, CLNC, RN, submitted by Plaintiff in Opposition to the
28 Defendant’s Motion for Summary Judgment.
LEWIS 4842-1188-4759.1
BRISBOIS
BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1
2 Objection No. 1:
3 “1) Failure to document a comprehensive nursing note and complete a full nursing
4 admission assessment for a new patient admission. Under 42 CFR §483.20: The facility must
5 provide an initial accurate and comprehensive assessment in order to develop an individualized
6 comprehensive resident care plan. This is necessary in order to provide:
7 • The appropriate care and services for each resident based on their needs; and to modify
8 the care plan and care/services based on the resident status.
9 • The facility must use resident observation and communication as the primary source of
10 information when completing the Resident Admission Information (RAI).
11 • The facility must also use a variety of other sources, including communication with
12 licensed and non-licensed staff members on all shifts. Communication may include
13 discussions with the resident's physician, family members, or outside consultants and
14 review of the resident's record.” (Ex 5 p. 4, ¶2.)
15 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than
16 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code §
17 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory
18 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).
19 The expert’s recitation of the healthcare regulation is irrelevant, lacks foundation and is
20 misleading as the expert attempts to infer that any alleged lack of documentation by the nursing
21 staff was causal link to any alleged injury or death of the decedent. This opinion calls for
22 speculation.
23 Court Ruling on Objection No. 1: Sustained _______; Overruled ______
24 Objection No. 2:
25 “The nursing patient admission assessment is lacking key information, such as: respiratory
26 history (pg. 2- nursing admission assessment, under cardiopulmonary history). Since there is a
27 diagnosis of pleural effusion (unresolved) and pneumonia it is very important that Beverly's lung
28 sounds be monitored every shift to assess for any changes (an increase and/or change in adverse
LEWIS 4842-1188-4759.1
BRISBOIS 2
BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 lung sounds or improvement).” (Ex 5 p. 4, ¶2.)
2 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than
3 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code §
4 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory
5 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).
6 Here, the expert opines that the Decedent’s medical records from English Oaks lacks “key
7 information, such as: respiratory history,” but then immediately states that the Decedent was
8 diagnosed with pleural effusion and pneumonia. Her opinion lacks foundation and calls for
9 speculation based on this contradiction.
10 Court Ruling on Objection No. 2: Sustained _______; Overruled ______
11 Objection No. 3:
12 “There is no pain description or pain location documented. Beverly recently had hernia
13 surgery and she had complained of abdominal pain in the emergency room prior to her admission
14 at English Oaks. There is documentation that Beverly received pain medication that had been
15 ordered and it was effective. The LVN did write on the nursing admission assessment (part of the
16 comprehensive assessment) that the pain location was in the abdomen, but this should have also
17 been written in the nurses notes as well because the LVN provided nursing interventions to help
18 resolve a pain complaint.” (Ex 5 p. 5, ¶4.)
19 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than
20 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code §
21 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory
22 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).
23 Here, the expert opines that no pain description or pain location documented,” but then
24 later in her own declaration she concedes that “[n]ursing did complete their comprehensive
25 admission assessments – Pain Assessment.” (Ex 5 p. 10.) Her opinion lacks foundation and calls
26 for speculation based on this contradiction.
27 Court Ruling on Objection No. 3: Sustained _______; Overruled ______
28 ///
LEWIS 4842-1188-4759.1
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BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 Objection No. 4:
2 “Documentation that Beverly will receive Zithromax for another four days for her lung
3 infection was not documented along with her diagnosis of pleural effusion. The only diagnosis that
4 was documented was that the reason for admission was a mechanical ground level fall (MGLF)
5 from home.” (Ex 5 p. 5, ¶5.)
6 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than
7 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code §
8 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory
9 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).
10 The expert’s opinion that the Decedent will receive Zithromax for another four days was
11 not documented misstates the evidence as this is documented in the physician orders and the
12 Medication Administration Record (Declaration of Christopher G. Washington (“Washington
13 Decl.”), Ex. A, p. 107, 208.) Additionally, the expert opines that the only diagnoses documented
14 was a mechanical ground level fall (MGLF), however, this expert previously stated in her
15 declaration that she was diagnosed with “pleural effusion (unresolved) and pneumonia.”
16 (Washington Decl. Ex. A, p. 2). As such, the expert’s opinion lacks foundation and calls for
17 speculation based on this contradiction.
18 Court Ruling on Objection No. 4: Sustained _______; Overruled ______
19 Objection No. 5:
20 “There is no documentation that the LVN spoke to the physician or the nurse practitioner
21 regarding Beverly's admission to discuss the plan of care, medications, or clarify orders. There is
22 also no documentation that the pharmacy was contacted to communicate medication orders and at
23 what time.” (Ex 5 p. 4, ¶6.)
24 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than
25 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code §
26 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory
27 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).
28 Here, the expert opines that there is no documentation that the LVN spoke to the nurse
LEWIS 4842-1188-4759.1
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BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 practitioner of the physician regarding plan of care, medications, or to clarify orders. This
2 contradicts the medical record that both the nurse practitioner and the physician signed off on the
3 admitting orders which confirms they both reviewed medication and plan of care regarding the
4 decedent. (Washington Decl., Ex. A, p. 104.)
5 As such, the expert’s opinion lacks foundation and calls for speculation based on this
6 contradiction.
7 Court Ruling on Objection No. 5: Sustained _______; Overruled ______
8 Objection No. 6:
9 “In Pamela Tennison's deposition, she testified to numerous attempts she made to have her
10 mother transferred that were not respected by the nursing staff and FNP Dixon.” (Ex 5 p. 5, ¶8.)
11 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than
12 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code §
13 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory
14 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).
15 Contrary to the expert’s opinion, the nursing staff informed the attending physician and the
16 nurse practitioner of the requests. The decision not to transfer the decedent was Nurse Dixon’s
17 acting on behalf of the attending physician and not the nursing staff of English Oaks. Nurses are
18 required to follow the orders of the attending physician. (22 CCR § 74701(a); Bus. & Prof. Code
19 Sections 2834-2837 Art. 8.)
20 Court Ruling on Objection No. 6: Sustained _______; Overruled ______
21 Objection No. 7:
22 “Around Christmas 2017, Pam learned that her mother had pneumonia, so she plead for
23 her mother to be taken to the hospital, but they talked her out of it saying they could provide as
24 good care as the hospital. There was no need because they could do the same thing.” (Ex 5 p. 6,
25 ¶1.)
26 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
27 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
28 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
LEWIS 4842-1188-4759.1
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BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
2 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
3 This expert has not demonstrated by reference to competent, admissible evidence, nor has
4 she established that she has any personal knowledge of the events involving the Decedent while
5 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
6 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
7 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
8 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
9 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
10 the jury and confuse the issues.
11 Court Ruling on Objection No. 7: Sustained _______; Overruled ______
12 Objection No. 8:
13 “She learned on December 31, 2017 that her mother might have influenza. She again said
14 that her mother needed to go to the hospital. She told the nurses, FNP Dixon and Jeremy the
15 respiratory therapist.” (Ex 5 p. 6, ¶2.)
16 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
17 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
18 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
19 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
20 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
21 This expert has not demonstrated by reference to competent, admissible evidence, nor has
22 she established that she has any personal knowledge of the events involving the Decedent while
23 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
24 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
25 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
26 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
27 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
28 the jury and confuse the issues.
LEWIS 4842-1188-4759.1
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BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 Court Ruling on Objection No. 8: Sustained _______; Overruled ______
2 Objection No. 9:
3 “Pam was told that they would give her the same care that she would receive at the
4 hospital, hospitals were overflowing with people with the flu, they would probably put her in the
5 hallway and just leave her there. They would probably send her back to English Oaks and they
6 couldn't promise that a bed would be available for her.”(Ex 5 p. 6, ¶3.)
7 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
8 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
9 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
10 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
11 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
12 This expert has not demonstrated by reference to competent, admissible evidence, nor has
13 she established that she has any personal knowledge of the events involving the Decedent while
14 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
15 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
16 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
17 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
18 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
19 the jury and confuse the issues.
20 Court Ruling on Objection No. 9: Sustained _______; Overruled ______
21 Objection No. 10:
22 “Pam repeatedly spoke with her mother's caregivers, case worker, charge nurse, physical
23 therapist, PA about transferring her to the hospital with no success.” (Ex 5 p. 6, ¶5.)
24 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
25 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
26 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
27 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
28 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
LEWIS 4842-1188-4759.1
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BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 This expert has not demonstrated by reference to competent, admissible evidence, nor has
2 she established that she has any personal knowledge of the events involving the Decedent while
3 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
4 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
5 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
6 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
7 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
8 the jury and confuse the issues.
9 Court Ruling on Objection No. 10: Sustained _______; Overruled ______
10 Objection No. 11:
11 “On January 16, 2018, while visiting her mother, Pam spoke to a couple of English Oak's
12 nurses, telling them that her mother was not getting better. One of the nurses responded by saying
13 that she noticed that her mother was not getting better. Pam asked if she could be treated for the
14 flu again, but the nurse said that protocol was to only give one flu treatment. Pam then told her
15 that she had to do something, asking why was her mother so sick. Pam then requested an x-ray,
16 saying that she needed something to be done. Pam then told the nurse that her mother needed to be
17 put in the hospital because something was wrong.” (Ex 5 p. 6, ¶6.)
18 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
19 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
20 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
21 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
22 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
23 This expert has not demonstrated by reference to competent, admissible evidence, nor has
24 she established that she has any personal knowledge of the events involving the Decedent while
25 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
26 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
27 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
28 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
LEWIS 4842-1188-4759.1
BRISBOIS 8
BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
2 the jury and confuse the issues.
3 Court Ruling on Objection No. 11: Sustained _______; Overruled ______
4 Objection No. 12:
5 “Pam told Stephanie that her mom needed to be in the hospital and that she wanted her
6 mom in the hospital. Stephanie replied "no," saying that the doctor was going to check her again
7 on Friday, but that was three days away as it was only Tuesday.” (Ex 5 p. 6, ¶7.)
8 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
9 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
10 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
11 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
12 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
13 This expert has not demonstrated by reference to competent, admissible evidence, nor has
14 she established that she has any personal knowledge of the events involving the Decedent while
15 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
16 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
17 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
18 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
19 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
20 the jury and confuse the issues.
21 Court Ruling on Objection No. 12: Sustained _______; Overruled ______
22 Objection No. 13:
23 “The morning of January 17, 2018 Pam again asked Patricia to transfer her mother to the
24 hospital, but Patricia said "we can do everything they can do in the hospital. They won't treat her
25 any differently." Pam said that her mother needed and EKG and that they would do that at the
26 hospital. Patricia responded that they could do that there, but they didn't do the EKG.” (Ex 5 p. 6,
27 ¶8.)
28 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
LEWIS 4842-1188-4759.1
BRISBOIS 9
BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
2 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
3 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
4 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
5 This expert has not demonstrated by reference to competent, admissible evidence, nor has
6 she established that she has any personal knowledge of the events involving the Decedent while
7 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
8 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
9 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
10 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
11 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
12 the jury and confuse the issues.
13 Court Ruling on Objection No. 13: Sustained _______; Overruled ______
14 Objection No. 14:
15 Around 6 or 7 am on January 17, 2017, a nurse came into Beverly's room. Pam and the
16 nurse walked out of the room and Pam told the nurse that her mother needed to be in the hospital.
17 They nurse responded saying "You didn't hear it from me, but we're incapable of taking care of
18 your mother at this point. Your mother needs to be in the hospital." (Ex 5 p. 6, ¶9.)
19 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
20 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
21 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
22 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
23 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
24 This expert has not demonstrated by reference to competent, admissible evidence, nor has
25 she established that she has any personal knowledge of the events involving the Decedent while
26 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
27 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
28 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
LEWIS 4842-1188-4759.1
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BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
2 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
3 the jury and confuse the issues.
4 Court Ruling on Objection No. 14: Sustained _______; Overruled ______
5 Objection No. 15:
6 “Later than morning on January 17, 2017, Pam talks to FNP Patricia Dixon, who tells her
7 that her mother's doing really bad and that she has pneumonia in both legs.” (Ex 5 p. 6, ¶10.)
8 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
9 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
10 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
11 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
12 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
13 This expert has not demonstrated by reference to competent, admissible evidence, nor has
14 she established that she has any personal knowledge of the events involving the Decedent while
15 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
16 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
17 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
18 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
19 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
20 the jury and confuse the issues. Further, Nurse Dixon is not an employee of the facility, but an
21 independent contractor. (see the “CMEC Medical Management Services Agreement” and
22 “Medical Director Agreement”, Stewart Decl., Ex. 1, p. 2-20.)
23 Court Ruling on Objection No. 15: Sustained _______; Overruled ______
24 Objection No. 16:
25 “Pam again told Patricia that her mother needed to be transferred to the hospital, but again
26 Patricia told Pam that they were doing the same things that could be done at the hospital. Patricia
27 said that they'd do an EKG there and that they would do all of the same treatments there.” (Ex 5 p.
28 6, ¶11.)
LEWIS 4842-1188-4759.1
BRISBOIS 11
BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
2 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
3 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
4 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
5 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
6 This expert has not demonstrated by reference to competent, admissible evidence, nor has
7 she established that she has any personal knowledge of the events involving the Decedent while
8 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
9 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her
10 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as
11 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
12 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
13 the jury and confuse the issues. Further, Nurse Dixon is not an employee of the facility, but an
14 independent contractor. (see the “CMEC Medical Management Services Agreement” and
15 “Medical Director Agreement”, Stewart Decl., Ex. 1, p. 2-20.)
16 Court Ruling on Objection No. 16: Sustained _______; Overruled ______
17 Objection No. 17:
18 “As paramedic rolled her mother out, another lady in a white coat pulled Pam to the side
19 and said that she heard the argument Pam had earlier with the two nurses in the hallway and that it
20 never should have happened. Pam told the woman that it shouldn't be that hard to get a family
21 member to the hospital. The women, who Pam later learned was the Director of Nursing, said:
22 "No, it shouldn't have been that hard" and she apologized, saying it "was totally unnecessary.” (Ex
23 5 p. 7, ¶1.)
24 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200);
25 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant
26 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP §
27 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible
28 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155).
LEWIS 4842-1188-4759.1
BRISBOIS 12
BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 This expert has not demonstrated by reference to competent, admissible evidence, nor has
2 she established that she has any personal knowledge of the events involving the Decedent while
3 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on
4 the what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form
5 her opinion of events involving the Decedent while a resident at English Oaks inadmissible as
6 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged
7 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of
8 the jury and confuse the issues.
9 Court Ruling on Objection No. 17: Sustained _______; Overruled ______
10 Objection No. 18:
11 “Failure to monitor, document, complete care plan, and effectively communicate with
12 other interdisciplinary team members regarding the patient's continual decline in appetite. This
13 breach in the standard of care pertains not only to the 42 CFR §483.20, as explained above, but
14 also under the regulation42 CFR §483.35(a),(c), as the facility must ensure that its licensed nurses
15 and nurse's aides have the specific competencies and skill sets necessary to care for the residents'
16 needs as it relates to assessing, evaluating, planning, implementing resident care plans and
17 responding to resident needs. Thus, the patient must be assessed and monitored for nutritional
18 needs. Additionally, under 42 CFR §483.25(g)(1): Based on a resident's comprehensive
19 assessment, the facility must ensure that a resident maintains acceptable parameters of nutritional
20 status, such as body weight and protein levels (unless the clinical condition demonstrates that this
21 is not possible). The facility must recognize, evaluate and address the needs of the resident,
22 including, but not limited to, the resident at risk or already experiencing impaired nutrition.
23 Moreover, under 22 CCR §72315(h) (Nursing Services), each resident patient shall be provided
24 with good nutrition and with necessary fluids for hydration:
25 • If the patient is having nutritional problems this must be communicated with the
26 physician and the nursing staff must make a referral to the registered dietician (RD)
27 so that a more comprehensive assessment of the resident's nutritional needs can be
28 determined.
LEWIS 4842-1188-4759.1
BRISBOIS 13
BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 • This regulation is in place to ensure that a Dietician is utilized in the planning,
2 managing, and implementing of the dietary service activities in order to assure that
3 the resident does receive adequate nutrition.
4 • Part of the Dietician's responsibilities are to assess the special nutritional needs of
5 the geriatric and physically impaired persons; develop therapeutic diets; and
6 participate in the interdisciplinary care planning” (Ex 5 p. 7, ¶2.)
7 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than
8 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code §
9 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory
10 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).
11 Reference to the lack of nursing documentation is irrelevant as this did not have an impact
12 on patient care or her death.
13 Court Ruling on Objection No. 18: Sustained _______; Overruled ______
14 Objection No. 19:
15 The monitoring of Beverly's meal intake (percentages) and weight was critically lacking.
16 The dietary supervisor recommended on 12/26/2017 that Beverly be assessed by the registered
17 dietician (RD) due to poor appetite. The RD saw and assessed Beverly on 1/2/2018, seven days
18 after the dietary request. The RD documented: Weight 139 pounds (ideal body weight is 113-
19 132).” (Ex 5 p. 7, ¶3.)
20 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than
21 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code §
22 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory
23 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).
24 This expert’s opinion attempts to infer that there is an issue with the Decedent’s weight,
25 however this is irrelevant as this was not a cause of any alleged injury or death. Further, as
26 admitted by Nurse Benes, the decedent was within her idea body weight as noted by the
27 Registered Dietician. (Washington Decl., Ex. A, p. 139.) As such, the expert’s conclusory opinion
28 is irrelevant.
LEWIS 4842-1188-4759.1
BRISBOIS 14
BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT
& SMITH LLP
ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN
1 Court Ruling on Objection No. 19: Sustained _______; Overruled ______
2 Objection No. 20:
3 “Beverly's appetite continued to decline and the nursing staff should have requested for the
4 RD to make another visit to reassess her nutritional needs and to review the changes that have
5 been made to Beverly's diet along with the fluid restrictions that were initiated. There is no
6 documentation that the nursing staff communicated to the physician Beverly's continued decline in
7 her appetite either. This is also evident in the physician's notes as he only documented that Beverly
8 said that she was eating better.” (Ex 5 p. 8, ¶2.)
9 Lacks foundation/speculation (E
Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP KEVIN L. ENG, SB# 217248 Electronically Filed 2 E-Mail: Kevin.Eng@lewisbrisbois.com 1/15/2021 4:20 PM CHRISTOPHER G. WASHINGTON, SB# 307804 Superior Court of California 3 E-Mail: Christopher.Washington@lewisbrisbois.com County of Stanislaus 633 West 5th Street, Suite 4000 Clerk of the Court 4 Los Angeles, California 90071 By: Kimberly Mean, Deputy Telephone: 213.250.1800 5 Facsimile: 213.250.7900 6 Attorneys for Defendant, LIFE GENERATIONS HEALTHCARE LLC (ERRONEOUSLY 7 SERVED AS LIFE GENERATIONS HEALTHCARE LLC (dba ENGLISH OAKS 8 NURSING & REHABILITATION CENTER)) 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF STANISLAUS 11 12 Pamela Tennison, (individually and as CASE NO. CV-19-002528 successor in interest for Decedent Green) and 13 Gary Green, EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL 14 Plaintiffs, STEWART AND EXPERT DEBBIE BENES, CLNC, RN 15 vs. Date: January 21, 2021 16 Life Generations Healthcare LLC (dba English Time: 8:30 a.m. Oaks Nursing & Rehabilitation Center), Dept.: 24 17 Rachandeep Singh, M.D., Eugenia Cueto, Patricia Dixon, FNP, Does 1-10 and Bryan [Assigned for All Purposes to: 18 Green (as a nominal defendant), The Hon. Roger M. Beauchesne, Dept. 24] 19 Defendants. Filed Concurrently with Defendant’s Reply in support of Motion for Summary Judgment] 20 Action Filed: May 28, 2019 21 Trial Date: None Set 22 23 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: 24 Defendant, LIFE GENERATIONS HEALTHCARE LLC (ERRONEOUSLY SERVED 25 AS LIFE GENERATIONS HEALTHCARE LLC (dba ENGLISH OAKS NURSING & 26 REHABILITATION CENTER)), hereby submits the following objections to the Declaration of L. 27 Marcel Stewart and Debbie Benes, CLNC, RN, submitted by Plaintiff in Opposition to the 28 Defendant’s Motion for Summary Judgment. LEWIS 4842-1188-4759.1 BRISBOIS BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 2 Objection No. 1: 3 “1) Failure to document a comprehensive nursing note and complete a full nursing 4 admission assessment for a new patient admission. Under 42 CFR §483.20: The facility must 5 provide an initial accurate and comprehensive assessment in order to develop an individualized 6 comprehensive resident care plan. This is necessary in order to provide: 7 • The appropriate care and services for each resident based on their needs; and to modify 8 the care plan and care/services based on the resident status. 9 • The facility must use resident observation and communication as the primary source of 10 information when completing the Resident Admission Information (RAI). 11 • The facility must also use a variety of other sources, including communication with 12 licensed and non-licensed staff members on all shifts. Communication may include 13 discussions with the resident's physician, family members, or outside consultants and 14 review of the resident's record.” (Ex 5 p. 4, ¶2.) 15 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than 16 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code § 17 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory 18 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). 19 The expert’s recitation of the healthcare regulation is irrelevant, lacks foundation and is 20 misleading as the expert attempts to infer that any alleged lack of documentation by the nursing 21 staff was causal link to any alleged injury or death of the decedent. This opinion calls for 22 speculation. 23 Court Ruling on Objection No. 1: Sustained _______; Overruled ______ 24 Objection No. 2: 25 “The nursing patient admission assessment is lacking key information, such as: respiratory 26 history (pg. 2- nursing admission assessment, under cardiopulmonary history). Since there is a 27 diagnosis of pleural effusion (unresolved) and pneumonia it is very important that Beverly's lung 28 sounds be monitored every shift to assess for any changes (an increase and/or change in adverse LEWIS 4842-1188-4759.1 BRISBOIS 2 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 lung sounds or improvement).” (Ex 5 p. 4, ¶2.) 2 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than 3 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code § 4 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory 5 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). 6 Here, the expert opines that the Decedent’s medical records from English Oaks lacks “key 7 information, such as: respiratory history,” but then immediately states that the Decedent was 8 diagnosed with pleural effusion and pneumonia. Her opinion lacks foundation and calls for 9 speculation based on this contradiction. 10 Court Ruling on Objection No. 2: Sustained _______; Overruled ______ 11 Objection No. 3: 12 “There is no pain description or pain location documented. Beverly recently had hernia 13 surgery and she had complained of abdominal pain in the emergency room prior to her admission 14 at English Oaks. There is documentation that Beverly received pain medication that had been 15 ordered and it was effective. The LVN did write on the nursing admission assessment (part of the 16 comprehensive assessment) that the pain location was in the abdomen, but this should have also 17 been written in the nurses notes as well because the LVN provided nursing interventions to help 18 resolve a pain complaint.” (Ex 5 p. 5, ¶4.) 19 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than 20 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code § 21 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory 22 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). 23 Here, the expert opines that no pain description or pain location documented,” but then 24 later in her own declaration she concedes that “[n]ursing did complete their comprehensive 25 admission assessments – Pain Assessment.” (Ex 5 p. 10.) Her opinion lacks foundation and calls 26 for speculation based on this contradiction. 27 Court Ruling on Objection No. 3: Sustained _______; Overruled ______ 28 /// LEWIS 4842-1188-4759.1 BRISBOIS 3 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 Objection No. 4: 2 “Documentation that Beverly will receive Zithromax for another four days for her lung 3 infection was not documented along with her diagnosis of pleural effusion. The only diagnosis that 4 was documented was that the reason for admission was a mechanical ground level fall (MGLF) 5 from home.” (Ex 5 p. 5, ¶5.) 6 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than 7 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code § 8 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory 9 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). 10 The expert’s opinion that the Decedent will receive Zithromax for another four days was 11 not documented misstates the evidence as this is documented in the physician orders and the 12 Medication Administration Record (Declaration of Christopher G. Washington (“Washington 13 Decl.”), Ex. A, p. 107, 208.) Additionally, the expert opines that the only diagnoses documented 14 was a mechanical ground level fall (MGLF), however, this expert previously stated in her 15 declaration that she was diagnosed with “pleural effusion (unresolved) and pneumonia.” 16 (Washington Decl. Ex. A, p. 2). As such, the expert’s opinion lacks foundation and calls for 17 speculation based on this contradiction. 18 Court Ruling on Objection No. 4: Sustained _______; Overruled ______ 19 Objection No. 5: 20 “There is no documentation that the LVN spoke to the physician or the nurse practitioner 21 regarding Beverly's admission to discuss the plan of care, medications, or clarify orders. There is 22 also no documentation that the pharmacy was contacted to communicate medication orders and at 23 what time.” (Ex 5 p. 4, ¶6.) 24 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than 25 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code § 26 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory 27 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). 28 Here, the expert opines that there is no documentation that the LVN spoke to the nurse LEWIS 4842-1188-4759.1 BRISBOIS 4 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 practitioner of the physician regarding plan of care, medications, or to clarify orders. This 2 contradicts the medical record that both the nurse practitioner and the physician signed off on the 3 admitting orders which confirms they both reviewed medication and plan of care regarding the 4 decedent. (Washington Decl., Ex. A, p. 104.) 5 As such, the expert’s opinion lacks foundation and calls for speculation based on this 6 contradiction. 7 Court Ruling on Objection No. 5: Sustained _______; Overruled ______ 8 Objection No. 6: 9 “In Pamela Tennison's deposition, she testified to numerous attempts she made to have her 10 mother transferred that were not respected by the nursing staff and FNP Dixon.” (Ex 5 p. 5, ¶8.) 11 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than 12 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code § 13 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory 14 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). 15 Contrary to the expert’s opinion, the nursing staff informed the attending physician and the 16 nurse practitioner of the requests. The decision not to transfer the decedent was Nurse Dixon’s 17 acting on behalf of the attending physician and not the nursing staff of English Oaks. Nurses are 18 required to follow the orders of the attending physician. (22 CCR § 74701(a); Bus. & Prof. Code 19 Sections 2834-2837 Art. 8.) 20 Court Ruling on Objection No. 6: Sustained _______; Overruled ______ 21 Objection No. 7: 22 “Around Christmas 2017, Pam learned that her mother had pneumonia, so she plead for 23 her mother to be taken to the hospital, but they talked her out of it saying they could provide as 24 good care as the hospital. There was no need because they could do the same thing.” (Ex 5 p. 6, 25 ¶1.) 26 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 27 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 28 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § LEWIS 4842-1188-4759.1 BRISBOIS 5 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 2 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 3 This expert has not demonstrated by reference to competent, admissible evidence, nor has 4 she established that she has any personal knowledge of the events involving the Decedent while 5 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 6 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 7 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 8 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 9 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 10 the jury and confuse the issues. 11 Court Ruling on Objection No. 7: Sustained _______; Overruled ______ 12 Objection No. 8: 13 “She learned on December 31, 2017 that her mother might have influenza. She again said 14 that her mother needed to go to the hospital. She told the nurses, FNP Dixon and Jeremy the 15 respiratory therapist.” (Ex 5 p. 6, ¶2.) 16 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 17 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 18 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 19 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 20 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 21 This expert has not demonstrated by reference to competent, admissible evidence, nor has 22 she established that she has any personal knowledge of the events involving the Decedent while 23 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 24 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 25 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 26 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 27 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 28 the jury and confuse the issues. LEWIS 4842-1188-4759.1 BRISBOIS 6 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 Court Ruling on Objection No. 8: Sustained _______; Overruled ______ 2 Objection No. 9: 3 “Pam was told that they would give her the same care that she would receive at the 4 hospital, hospitals were overflowing with people with the flu, they would probably put her in the 5 hallway and just leave her there. They would probably send her back to English Oaks and they 6 couldn't promise that a bed would be available for her.”(Ex 5 p. 6, ¶3.) 7 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 8 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 9 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 10 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 11 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 12 This expert has not demonstrated by reference to competent, admissible evidence, nor has 13 she established that she has any personal knowledge of the events involving the Decedent while 14 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 15 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 16 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 17 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 18 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 19 the jury and confuse the issues. 20 Court Ruling on Objection No. 9: Sustained _______; Overruled ______ 21 Objection No. 10: 22 “Pam repeatedly spoke with her mother's caregivers, case worker, charge nurse, physical 23 therapist, PA about transferring her to the hospital with no success.” (Ex 5 p. 6, ¶5.) 24 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 25 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 26 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 27 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 28 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). LEWIS 4842-1188-4759.1 BRISBOIS 7 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 This expert has not demonstrated by reference to competent, admissible evidence, nor has 2 she established that she has any personal knowledge of the events involving the Decedent while 3 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 4 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 5 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 6 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 7 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 8 the jury and confuse the issues. 9 Court Ruling on Objection No. 10: Sustained _______; Overruled ______ 10 Objection No. 11: 11 “On January 16, 2018, while visiting her mother, Pam spoke to a couple of English Oak's 12 nurses, telling them that her mother was not getting better. One of the nurses responded by saying 13 that she noticed that her mother was not getting better. Pam asked if she could be treated for the 14 flu again, but the nurse said that protocol was to only give one flu treatment. Pam then told her 15 that she had to do something, asking why was her mother so sick. Pam then requested an x-ray, 16 saying that she needed something to be done. Pam then told the nurse that her mother needed to be 17 put in the hospital because something was wrong.” (Ex 5 p. 6, ¶6.) 18 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 19 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 20 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 21 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 22 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 23 This expert has not demonstrated by reference to competent, admissible evidence, nor has 24 she established that she has any personal knowledge of the events involving the Decedent while 25 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 26 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 27 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 28 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged LEWIS 4842-1188-4759.1 BRISBOIS 8 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 2 the jury and confuse the issues. 3 Court Ruling on Objection No. 11: Sustained _______; Overruled ______ 4 Objection No. 12: 5 “Pam told Stephanie that her mom needed to be in the hospital and that she wanted her 6 mom in the hospital. Stephanie replied "no," saying that the doctor was going to check her again 7 on Friday, but that was three days away as it was only Tuesday.” (Ex 5 p. 6, ¶7.) 8 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 9 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 10 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 11 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 12 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 13 This expert has not demonstrated by reference to competent, admissible evidence, nor has 14 she established that she has any personal knowledge of the events involving the Decedent while 15 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 16 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 17 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 18 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 19 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 20 the jury and confuse the issues. 21 Court Ruling on Objection No. 12: Sustained _______; Overruled ______ 22 Objection No. 13: 23 “The morning of January 17, 2018 Pam again asked Patricia to transfer her mother to the 24 hospital, but Patricia said "we can do everything they can do in the hospital. They won't treat her 25 any differently." Pam said that her mother needed and EKG and that they would do that at the 26 hospital. Patricia responded that they could do that there, but they didn't do the EKG.” (Ex 5 p. 6, 27 ¶8.) 28 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); LEWIS 4842-1188-4759.1 BRISBOIS 9 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 2 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 3 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 4 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 5 This expert has not demonstrated by reference to competent, admissible evidence, nor has 6 she established that she has any personal knowledge of the events involving the Decedent while 7 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 8 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 9 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 10 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 11 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 12 the jury and confuse the issues. 13 Court Ruling on Objection No. 13: Sustained _______; Overruled ______ 14 Objection No. 14: 15 Around 6 or 7 am on January 17, 2017, a nurse came into Beverly's room. Pam and the 16 nurse walked out of the room and Pam told the nurse that her mother needed to be in the hospital. 17 They nurse responded saying "You didn't hear it from me, but we're incapable of taking care of 18 your mother at this point. Your mother needs to be in the hospital." (Ex 5 p. 6, ¶9.) 19 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 20 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 21 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 22 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 23 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 24 This expert has not demonstrated by reference to competent, admissible evidence, nor has 25 she established that she has any personal knowledge of the events involving the Decedent while 26 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 27 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 28 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as LEWIS 4842-1188-4759.1 BRISBOIS 10 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 2 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 3 the jury and confuse the issues. 4 Court Ruling on Objection No. 14: Sustained _______; Overruled ______ 5 Objection No. 15: 6 “Later than morning on January 17, 2017, Pam talks to FNP Patricia Dixon, who tells her 7 that her mother's doing really bad and that she has pneumonia in both legs.” (Ex 5 p. 6, ¶10.) 8 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 9 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 10 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 11 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 12 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 13 This expert has not demonstrated by reference to competent, admissible evidence, nor has 14 she established that she has any personal knowledge of the events involving the Decedent while 15 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 16 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 17 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 18 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 19 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 20 the jury and confuse the issues. Further, Nurse Dixon is not an employee of the facility, but an 21 independent contractor. (see the “CMEC Medical Management Services Agreement” and 22 “Medical Director Agreement”, Stewart Decl., Ex. 1, p. 2-20.) 23 Court Ruling on Objection No. 15: Sustained _______; Overruled ______ 24 Objection No. 16: 25 “Pam again told Patricia that her mother needed to be transferred to the hospital, but again 26 Patricia told Pam that they were doing the same things that could be done at the hospital. Patricia 27 said that they'd do an EKG there and that they would do all of the same treatments there.” (Ex 5 p. 28 6, ¶11.) LEWIS 4842-1188-4759.1 BRISBOIS 11 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 2 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 3 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 4 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 5 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). 6 This expert has not demonstrated by reference to competent, admissible evidence, nor has 7 she established that she has any personal knowledge of the events involving the Decedent while 8 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 9 what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form her 10 opinion of events involving the Decedent while a resident at English Oaks is inadmissible as 11 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 12 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 13 the jury and confuse the issues. Further, Nurse Dixon is not an employee of the facility, but an 14 independent contractor. (see the “CMEC Medical Management Services Agreement” and 15 “Medical Director Agreement”, Stewart Decl., Ex. 1, p. 2-20.) 16 Court Ruling on Objection No. 16: Sustained _______; Overruled ______ 17 Objection No. 17: 18 “As paramedic rolled her mother out, another lady in a white coat pulled Pam to the side 19 and said that she heard the argument Pam had earlier with the two nurses in the hallway and that it 20 never should have happened. Pam told the woman that it shouldn't be that hard to get a family 21 member to the hospital. The women, who Pam later learned was the Director of Nursing, said: 22 "No, it shouldn't have been that hard" and she apologized, saying it "was totally unnecessary.” (Ex 23 5 p. 7, ¶1.) 24 Lack of Personal Knowledge (Evidence Code § 702(a)); Hearsay (Evidence Code § 1200); 25 Speculation and Conjecture (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481); Irrelevant 26 (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory Opinion (CCP § 27 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). Inadmissible 28 Ultimate Legal Conclusion (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155). LEWIS 4842-1188-4759.1 BRISBOIS 12 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 This expert has not demonstrated by reference to competent, admissible evidence, nor has 2 she established that she has any personal knowledge of the events involving the Decedent while 3 she was a resident at English Oaks Nursing and Rehabilitation Center. The expert’s reliance on 4 the what a third party told the Plaintiff as reflected in the deposition of Pamela Tennison to form 5 her opinion of events involving the Decedent while a resident at English Oaks inadmissible as 6 hearsay and purely speculative. Thus her opinion regarding the issue of this Defendant’s alleged 7 negligence is highly prejudicial and the only purpose of these opinion is to invoke the sympathy of 8 the jury and confuse the issues. 9 Court Ruling on Objection No. 17: Sustained _______; Overruled ______ 10 Objection No. 18: 11 “Failure to monitor, document, complete care plan, and effectively communicate with 12 other interdisciplinary team members regarding the patient's continual decline in appetite. This 13 breach in the standard of care pertains not only to the 42 CFR §483.20, as explained above, but 14 also under the regulation42 CFR §483.35(a),(c), as the facility must ensure that its licensed nurses 15 and nurse's aides have the specific competencies and skill sets necessary to care for the residents' 16 needs as it relates to assessing, evaluating, planning, implementing resident care plans and 17 responding to resident needs. Thus, the patient must be assessed and monitored for nutritional 18 needs. Additionally, under 42 CFR §483.25(g)(1): Based on a resident's comprehensive 19 assessment, the facility must ensure that a resident maintains acceptable parameters of nutritional 20 status, such as body weight and protein levels (unless the clinical condition demonstrates that this 21 is not possible). The facility must recognize, evaluate and address the needs of the resident, 22 including, but not limited to, the resident at risk or already experiencing impaired nutrition. 23 Moreover, under 22 CCR §72315(h) (Nursing Services), each resident patient shall be provided 24 with good nutrition and with necessary fluids for hydration: 25 • If the patient is having nutritional problems this must be communicated with the 26 physician and the nursing staff must make a referral to the registered dietician (RD) 27 so that a more comprehensive assessment of the resident's nutritional needs can be 28 determined. LEWIS 4842-1188-4759.1 BRISBOIS 13 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 • This regulation is in place to ensure that a Dietician is utilized in the planning, 2 managing, and implementing of the dietary service activities in order to assure that 3 the resident does receive adequate nutrition. 4 • Part of the Dietician's responsibilities are to assess the special nutritional needs of 5 the geriatric and physically impaired persons; develop therapeutic diets; and 6 participate in the interdisciplinary care planning” (Ex 5 p. 7, ¶2.) 7 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than 8 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code § 9 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory 10 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). 11 Reference to the lack of nursing documentation is irrelevant as this did not have an impact 12 on patient care or her death. 13 Court Ruling on Objection No. 18: Sustained _______; Overruled ______ 14 Objection No. 19: 15 The monitoring of Beverly's meal intake (percentages) and weight was critically lacking. 16 The dietary supervisor recommended on 12/26/2017 that Beverly be assessed by the registered 17 dietician (RD) due to poor appetite. The RD saw and assessed Beverly on 1/2/2018, seven days 18 after the dietary request. The RD documented: Weight 139 pounds (ideal body weight is 113- 19 132).” (Ex 5 p. 7, ¶3.) 20 Lacks foundation/speculation (Evid. Code §§702(a).) Relevance/more prejudicial than 21 probative (Evid. Code §§210, 350, 351, 352.) Lacks Foundation and Misleading (Evidence Code § 22 403); Irrelevant (Evidence Code 210, 350-352); Inadmissible and Unsupported Conclusory 23 Opinion (CCP § 437c(d), Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510). 24 This expert’s opinion attempts to infer that there is an issue with the Decedent’s weight, 25 however this is irrelevant as this was not a cause of any alleged injury or death. Further, as 26 admitted by Nurse Benes, the decedent was within her idea body weight as noted by the 27 Registered Dietician. (Washington Decl., Ex. A, p. 139.) As such, the expert’s conclusory opinion 28 is irrelevant. LEWIS 4842-1188-4759.1 BRISBOIS 14 BISGAARD EVIDENTIARY OBJECTIONS TO THE DECLARATION OF L. MARCEL STEWART AND EXPERT & SMITH LLP ATTORNEYS AT LAW DEBBIE BENES, CLNC, RN 1 Court Ruling on Objection No. 19: Sustained _______; Overruled ______ 2 Objection No. 20: 3 “Beverly's appetite continued to decline and the nursing staff should have requested for the 4 RD to make another visit to reassess her nutritional needs and to review the changes that have 5 been made to Beverly's diet along with the fluid restrictions that were initiated. There is no 6 documentation that the nursing staff communicated to the physician Beverly's continued decline in 7 her appetite either. This is also evident in the physician's notes as he only documented that Beverly 8 said that she was eating better.” (Ex 5 p. 8, ¶2.) 9 Lacks foundation/speculation (E