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07/13/2017

Jahi McMath – Evidence that She Is Now Alive Considered by Court Today

Later today (California time), is a hearing on the Motion for Summary Adjudication of Plaintiff Jahi McMath’s First Cause of Action for Personal Injuries, filed jointly by all defendants (“Defendants”) on March 23, 2017.


Judge Stephen Pulido has posted his tentative ruling. I have pasted that below.   



Defendants and for Plaintiffs McMath et al. (“Plaintiffs”) shall be prepared to address, among other things, the following: 



(1) The supporting and opposition papers are “heavy” on discussion of the various medical diagnoses and opinions but “light” on discussion of the applicable legal standards for the court to apply. For example, though Defendants include a collateral estoppel argument, there is only one paragraph addressing it on the last page of Defendants’ memorandum, with a single case cite as to the general application of collateral estoppel, and this issue is not identified in the Notice of Motion. Is this a separate basis of the motion, and if so, have Defendants given proper notice of this? Which facts in the Separate Statement of Undisputed Material Facts (“UMF”), if any, are material to this issue? 



(2) The Notice of Motion states that the motion “is made on the grounds that Jahi McMath lacks standing to sue for personal injuries because she was pronounced deceased in accord with California law in December 2013. The undisputed material facts establish that no mistakes were made in the determination of McMath’s brain death in December 2013, and the diagnosis of McMath’s brain death was made in accord with the accepted medical standards required by California law.” (Notice, p. 3.) If the court were to determine that there is no genuine dispute as to the two matters stated – i.e., no mistakes made in a conforming diagnosis in December 2013 – does that establish as a matter of law that McMath lacks standing? What is Defendants’ legal authority (if any) that such a conforming medical diagnosis is conclusive as a matter of law for all purposes, regardless of an assertion (as here) that there have been changed circumstances? 



(3) The court notes that Defendants cite Dority v. Superior Court (1983) 145 Cal.App.3d 273, the case cited by Judge Grillo in his Amended Order of January 2, 2014, as to the propriety of judicial involvement. In that case, the court stated: “It appears that once brain death has been determined, by medical diagnosis under Health and Safety Code section 7180 or by judicial determination, no criminal or civil liability will result from disconnecting the life-support devices (see People v. Mitchell (1982) 132 Cal.App.3d 389).” (Id., p. 279.) The court also stated that “[n]o judicial action is necessary where the health care provider and the party having standing to represent the person allegedly declared to be brain dead are in accord brain death has occurred” but that “[t]he jurisdiction of the court can be invoked upon a sufficient showing that it is reasonably probable that a mistake has been made in the diagnosis of brain death or where the diagnosis was not made in accord with accepted medical standards.” (Id., p. 280.) Do Defendants contend this case (or any other) establishes that where a court makes such a determination for purposes of resolving a dispute as to life support it is final for all other purposes as well, including an individual’s standing to bring a civil action? In the above regard, the court notes that Judge Freedman considered a similar issue in his order of March 14, 2016, in which the court stated: “While Dority supports the appropriateness of the judicial proceeding in Case No. RP13-707598, in which Winkfield sought the court’s intervention because of uncertainty as to the treating physicians’ diagnosis of brain death and Winkfield’s assertion that CHO should continue providing life support to Jahi, it does not directly address CHO’s assertion that a court’s determination in the context of a such a dispute is to be accorded finality in any and all other proceedings or disputes that may arise subsequent to the life-support dispute in which the court’s intervention was sought. In the absence of other authority addressing this assertion, the court declines to make a final determination in this regard at the pleading stage.” Is there further authority the court should consider that was not previously cited? 



(4) Plaintiffs contend that the facts in the UMF to the effect that McMath was determined to fulfill the medical standards under the “Guidelines for the Determination of Brain Death…” are “disputed to the extent [they] impl[y] Jahi McMath presently fulfills the Guidelines, as there is no question that Jahi presently does not, for the single reason that the first of the “three cardinal findings in brain death’ – coma, absence of brainstem reflexes, and apnea – is not fulfilled.” (See, e.g., Plaintiffs’ Response to Defendants’ Separate Statement [“PRSS”], Nos. 26, 28, 29, 31, 32, 33, 34, 38, 48, 51, 62, 63, 64 and 65.) Although Defendants have objected to some of the cited evidence, if at least some portion of it is admitted, is this a sufficient reason to deny the motion, or do Defendants contend all of these purported disputes are immaterial?



(5) Although Plaintiffs purport to dispute the UMF facts listed in “Issue 3,” Nos. 67-69, which are to the effect that a clinical examination “in accord with the accepted medical standards in the Guidelines” has not taken place since December 2013, it does not appear that any of those disputes are to the effect that such a clinical examination has occurred. (PRSS Nos. 67-69; see also Winkfield’s response to RFA Nos. 15 and 18.) Instead, Plaintiffs’ expert opines that certain tests have been done since that time not to “determine brain death” or to “substitute for the accepted medical standards” but “to evaluate, out of interest, the structure and electrophysiological functioning of Jahi’s brain 9 months after the uncontroverted diagnosis of brain death according to the Guidelines.” (Decl. of D. Alan Shewmon, M.D., ¶ 29.) To what extent are such tests admissible and material even if they were not part of a clinical examination “in accord with the accepted medical standards in the Guidelines”? 



(6) Defendants object to the entire declaration of Dr. Shewmon, as well as specified portions thereof, on thirteen grounds. It would be helpful for the court to have a written response from Plaintiffs as to the evidentiary objections, or at least to discuss them in some detail at the hearing. Among other things, the objection to his testimony to the extent based on 49 video recordings which have not been introduced into evidence or authenticated appears to have merit. (See, e.g., Still Decl., ¶ 17 and Exh. M; Supp. Still Decl.; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743 [“Without those hospital records, and without testimony providing for authentication of such records, Dr. Frumovitz’s declaration had no evidentiary basis.”])


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