Owen v. Mentor Corporation et alMOTION for Summary JudgmentM.D. Ga.July 25, 2016 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-438 (Owen) DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF MICHELE OWEN Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56, Defendant Mentor Worldwide LLC (“Mentor”) respectfully moves the Court for summary judgment on all counts of Plaintiff’s Complaint. All claims are barred by the doctrine of judicial estoppel because Plaintiff failed to disclose them as part of her 2011 bankruptcy filing. Alternatively, partial summary judgment is warranted because the strict liability and negligence claims (Counts I and II) fail for lack of causation to the extent they are based on a failure to warn, and the breach of warranty claims (Counts III and IV) are time-barred. The grounds for this Motion are set forth in more detail in the accompanying memorandum in support. Dated: July 25, 2016 Respectfully submitted, s/ John Q. Lewis John Q. Lewis TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Telephone: 216.592.5000 Facsimile: 216.592.5009 john.lewis@tuckerellis.com Designated Lead Counsel for Defendant Mentor Worldwide LLC Case 4:13-cv-00438-CDL Document 37 Filed 07/25/16 Page 1 of 2 012813\001798\2755053.2 IN RE: MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL NO. 2004 CERTIFICATE OF SERVICE A copy of the foregoing filing was served via ECF and by electronic mail on the following counsel this 25th day of July, 2016: Daniel J. Thornburgh dthornburgh@awkolaw Attorney for Plaintiff Michele Owen s/ John Q. Lewis Attorney for Defendant Mentor Worldwide LLC Case 4:13-cv-00438-CDL Document 37 Filed 07/25/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL Case No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-438 (Owen) DEFENDANT MENTOR WORLDWIDE LLC’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF MICHELE OWEN Defendant Mentor Worldwide LLC (“Mentor”) is entitled to summary judgment on all counts of Plaintiff Michele Owen’s Complaint because they are barred by the doctrine of judicial estoppel because she failed to disclose them as part of her 2011 bankruptcy filing. Alternatively, Mentor is entitled to partial summary judgment for the following reasons: • The strict liability and negligence claims (Counts I and II) fail for lack of causation to the extent based on a failure to warn; and • The breach of warranty claims (Counts III and IV) are time-barred. UNDISPUTED FACTS RELEVANT TO THIS MOTION This Court previously described general facts related to ObTape (e.g., Apr. 22. 2010 Order, Doc. 241, at 4-5); Mentor will not restate them here because this motion is premised on undisputed facts unique to Plaintiff Michele Owen. Mrs. Owen was referred to Dr. Robert E. James, a urologist, in January 2005 with symptoms of mixed urinary incontinence. (Separate Statement of Material Facts (SSMF) ¶ 1.) Following a pelvic exam and stress test, Dr. James diagnosed Plaintiff with a cystocele, rectocele, mild stress urinary incontinence (SUI), overactive bladder, retention, and hypnotic bladder. (Id. ¶ 2.) After follow-up tests, Dr. James Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 1 of 16 2 recommended implanting a suburethral sling to address the SUI and a cystocele repair; at the same time, Mrs. Owen was scheduled to have a hysterectomy by a different doctor. (Id. ¶ 3.) During Plaintiff’s March 1, 2005 preoperative visit, Dr. James “outlined” his “personal experience” with mid-urethral sling implants, informed her that there were “[n]o guarantees,” and specifically warned her of the risk of the following complications: “recurrent or persistent stress urinary incontinence, recurrent or persist[ent] cystocele, anterior vaginal wall extrusion, urethral erosion, wound infection, blood loss requiring nondirective blood transfusions, urinary retention, voiding dysfunction, chronic bladder or pelvic pain, dyspareunia, sexual dysfunction, thrombophlebitis, pulmonary emboli, mild cardiac infarction, stroke and death.” (Id. ¶ 4.) With regard to painful intercourse, Dr. James warned his patients that “they may have pain of varying degrees with intercourse, which may make intercourse uncomfortable and, in fact, prohibit intercourse.” (Id. ¶ 5.) Dr. James surgically implanted Mrs. Owen with ObTape on March 7, 2005. (Id. ¶ 6.) Dr. James did not read or rely on ObTape’s product insert data sheet in prescribing ObTape to Plaintiff because he “knew the existing risks,” and “[a]t the end of the day, [he had] to make a judgment based upon the outcome for the patient and patient safety.” (SSMF ¶ 7.) Nor did Dr. James rely on any Mentor representations about ObTape’s risks or complications. (Id. ¶ 8.) In fact, when he first selected ObTape for his practice, Dr. James sought a softer mesh material to alleviate the scarring-related dyspareunia his patients had experienced with another mesh product; he picked ObTape because it felt softer “[i]n [his] hands,” not because of Mentor’s marketing of the product. (Id. ¶ 9.) Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 2 of 16 3 Plaintiff was diagnosed with a mesh erosion in 2010 and had her ObTape partially removed in May 2010. (Id. ¶ 10.) She attributes the following alleged injuries to ObTape: erosion and surgical procedure to remove ObTape, pain in her hips, and dyspareunia. (Id. ¶ 11.) Mrs. Owen jointly filed for Chapter 13 bankruptcy protection with her husband on July 21, 2011. (Id. ¶ 12.) She did not disclose her potential claims against Mentor in her bankruptcy petition’s schedule of assets, never amended her bankruptcy schedules to disclose these assets, and it does not appear that she otherwise attempted to disclose them at any point during the remainder of her bankruptcy proceedings. (SSMF ¶ 13.) The bankruptcy court discharged Plaintiff’s debts by Order dated October 29, 2014, and the bankruptcy proceeding was closed on January 6, 2015. (Id. ¶ 14.) Plaintiff served Mentor with a Complaint captioned in Hennepin County District Court of the State of Minnesota on August 27, 2013. (Id. ¶ 15.) Mentor subsequently removed the case to the District of Minnesota, and the case was then transferred to this Court for coordinated proceedings. (Id. ¶ 16.) Plaintiff asserts claims for: (1) strict liability; (2) negligence; (3) breach of express warranty; (4) breach of implied warranty; (5) common law fraud; (6) constructive fraud; and (7) negligent and intentional misrepresentation. (Id. ¶ 17.) Plaintiff is a California resident, and all of her ObTape- related treatment occurred there. (Id. ¶ 18.) LEGAL ARGUMENT Summary judgment should be granted where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 3 of 16 4 P. 56(a). Indeed, Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Facts are “material” only if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). A. Plaintiff’s Claims Are Barred by Judicial Estoppel. Upon declaring Chapter 13 bankruptcy, Plaintiff and her husband had a legal duty to file a schedule of assets and liabilities with the bankruptcy court, see 11 U.S.C. § 521(a)(1), and all of their property interests became the property of their bankruptcy estate, see 11 U.S.C. § 1306(a)(1). They did not list Plaintiff’s claims against Mentor in their bankruptcy schedules or notify the trustee or bankruptcy court after Plaintiff filed her Complaint in this matter, and the bankruptcy case is now closed. Because Plaintiff never amended her bankruptcy schedules or otherwise notified the trustee or the bankruptcy court of these claims, she is now judicially estopped from asserting them. 1. Federal Law Governs Judicial Estoppel Here Due to the Federal Issues and the Integrity of Federal Proceedings at Stake. As a threshold matter, the Court must decide whether judicial estoppel is a matter of federal or state law, the latter of which would be governed by Minnesota’s choice-of-law principles under this Court’s Cline/Morey ObTape decision, 4:10-cv- 5060/5065, 2013 WL 286276 (M.D. Ga. Jan. 24, 2013). “Judicial estoppel is an Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 4 of 16 5 equitable doctrine that precludes a party from asserting a claim in a legal proceeding that is inconsistent with a position taken by that party in a previous proceeding.” Barger v. City of Cartersville, 348 F.3d 1289, 1293 (11th Cir. 2003) (citation and internal quotation marks omitted). Federal law controls here because this matter involves federal bankruptcy issues, and judicial estoppel would protect the integrity of two federal proceedings—the bankruptcy case and this one. Though the Eleventh Circuit typically applies state-law judicial estoppel principles to diversity cases, see Original Appalachian Artworks, Inc. v. S. Diamond Assocs., Inc., 44 F.3d 925, 930 (11th Cir. 1995), it has held that federal estoppel principles may apply, notwithstanding the existence of a diversity action, “where federal issues are involved,” Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1261 (11th Cir. 1988), abrogated on other grounds by Grogan v. Garner, 498 U.S. 279 (1991).1 The federal issues requiring application of federal estoppel rules in Chrysler Credit were the debtor’s inconsistent position in federal bankruptcy proceedings and the availability of dischargeability under the bankruptcy code. 44 F.3d at 1261 (“Because this is a bankruptcy case, involving federal issues of dischargeability, we are, therefore, free to apply a formulation of the judicial estoppel doctrine as we think proper.”). In Chrysler Credit, the debtor had acknowledged his active management in an insolvent 1 Chrysler Credit is not alone in recognizing the unique federal interests at stake when a litigant presses an inconsistent position in a federal proceeding. E.g., G-I Holdings, Inc. v. Reliance Ins. Co., 586 F.3d 247, 261 (3d Cir. 2009) (explaining that a “strong federal policy” interest can overcome Erie’s mandate that federal courts apply states’ substantive law in diversity cases) (citing Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 538 (1958)); Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 603–04 (9th Cir. 1996) (concluding that the “interested party is . . . the court in which a litigant takes a position incompatible with one the litigant has previously taken,” and favors application of federal law when the second court is a federal court, because the original court cannot do anything about the inconsistent position). Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 5 of 16 6 car dealership in a contemporaneous state-court contract dispute, but then tried to deny that role in the bankruptcy proceeding in the hopes of discharging his debt to the dealership’s bank. See id. at 1259–61. The bankruptcy court estopped the debtor from contradicting his admitted management role in the dealership and refused to discharge the debt, and the court of appeals affirmed. Id. at 1261. As in Chrysler Credit, federal bankruptcy issues and the integrity of federal proceedings require the application of federal judicial estoppel principles here. Plaintiff and her husband had a federal statutory duty to disclose all assets, including legal claims, to their bankruptcy estate. See 11 U.S.C. §§ 521(a)(1), 1306(a)(1); Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir. 2002). And there is even more reason to apply federal estoppel principles here than in Chrysler Credit because this case involves two federal proceedings—both the bankruptcy case and this one. Though she denied having legal claims in her federal bankruptcy proceeding in California, Plaintiff now advances these claims in federal court. “[T]his is precisely the type of calculated assertion of divergent sworn positions which the judicial estoppel doctrine abhors . . . .” Chrysler Credit, 842 F.2d at 1261 (referring to opportunistic positions in a bankruptcy proceeding to obtain benefits). For these reasons, federal judicial estoppel rules apply. 2. Judicial Estoppel Bars Plaintiff’s Claims Because She Never Disclosed Them in her Bankruptcy Proceeding The definition of the Chapter 13 bankruptcy estate is broad, encompassing “all legal or equitable interests of the debtor in property as of the commencement of the case,” see 11 U.S.C. § 1306(a) (incorporating 11 U.S.C. § 541’s definition of estate property), plus “all [such] property . . . acquire[d] after the commencement of the case Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 6 of 16 7 but before the case is closed, dismissed, or converted” to another type of bankruptcy case, id. § 1306(a)(1) (emphasis added). The duty to disclose “is a continuing [duty] that does not end once the forms are submitted to the bankruptcy court,” but requires the debtor to “amend [her] financial statements if circumstances change.” Burnes, 291 F.3d at 1286. “Full and honest disclosure in a bankruptcy case is crucial to the effective functioning of the federal bankruptcy system.” Id. (citation and internal quotation marks omitted). Despite this continuing duty to disclose, Plaintiff never alerted the trustee or the bankruptcy court to her claims against Mentor, and her bankruptcy case is now closed. As this Court has recognized, the pursuit of legal claims not disclosed as assets in a bankruptcy proceeding qualifies as an inconsistent position for purposes of judicial estoppel. E.g., In re Tyson Foods, Inc., 732 F. Supp. 2d 1363, 1371 (M.D. Ga. 2010) (Land, J.) (collecting authority); id. at 1373 (“The doctrine of judicial estoppel has been applied consistently in the bankruptcy context notwithstanding its often harsh consequences.”). Whether judicial estoppel bars such cases depends on whether the plaintiff intended to conceal the assets from the bankruptcy estate, see id., which “can be inferred from the record where the debtor has knowledge of the undisclosed claims and has motive for concealment,” Barger, 348 F.3d at 1294 (internal quotation marks omitted). Plaintiff had both knowledge and motive here, because she knew that her ObTape was linked to her claimed vaginal pain when she was diagnosed with a mesh erosion and had part of her ObTape surgically removed in May of 2010, more than a year before she and her husband filed their bankruptcy petition in July 2011. (SSMF ¶ 10.) And even if she did not fully appreciate her potential ObTape legal claims then, Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 7 of 16 8 she certainly knew of her claims when she filed her Complaint in this action in August 2013, more than a year before the Bankruptcy Court’s October 2014 discharge order. (See id. ¶¶ 14–15.) Despite her continuing legal duty to disclose such assets in her bankruptcy proceeding, she never did, yet she still received a discharge of her debts. Consequently, a motive to conceal assets may be inferred as a matter of law. See, e.g., De Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir. 2003) (per curiam) (“[A] financial motive to secret assets exists under Chapter 13 . . . because the hiding of assets affects the amount to be discounted and repaid.”); In re Tyson Foods, 732 F. Supp. 2d at 1373–75; see also Tokheim v. Georgia-Pacific Gypsum L.L.C., 606 F.Supp.2d 988, 997 (N.D. Iowa 2009) (justifying estoppel of undisclosed claims by explaining that plaintiff “would be . . . in the position to recover monetary damages for herself without having to pay creditors since her debts have already been discharged”). This Court has granted summary judgment on judicial estoppel grounds where plaintiffs failed to disclose legal claims in their bankruptcy schedules and the omission could not have been deemed inadvertent. In re Tyson Foods, 732 F. Supp. 2d at 1373– 75 (plaintiffs failed to disclose FLSA claims); Moore v. Fred’s Stores of Tenn., Inc., No. 4:05–CV–133, 2006 WL 2374768, at *2–3, 5 (M.D. Ga. Aug. 16, 2006) (Land, J.) (same) (attached as Ex. G to Lewis Decl.). The same result is warranted here. Plaintiff knew of her potential claims against Mentor, at the latest, when she filed this action in 2013, but never disclosed this asset in her bankruptcy proceeding. She cannot reverse course now. In re Tyson Foods, 732 F. Supp. 2d at 1373 (explaining that non-disclosing debtor cannot “‘back-up, re-open the bankruptcy case, and amend [her] bankruptcy filings,’” because that “would ‘suggest [] that a debtor should consider disclosing potential assets only if [she] is caught concealing them.’” (quoting Burnes, 291 F.3d at 1288)). Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 8 of 16 9 3. Even if Minnesota Law Applies, Judicial Estoppel Is Warranted. If this Court determines that Eleventh Circuit law requires the application of Minnesota’s law of judicial estoppel, the result should be the same.2 Though the Minnesota Supreme Court has never explicitly adopted or rejected judicial estoppel, it has recognized the animating principles behind the doctrine: a party may not benefit by taking inconsistent positions on the same issue in the same or multiple proceedings. E.g., State v. Pendleton, 706 N.W.2d 500, 507 (Minn. 2005); Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 800–01 (Minn. 2004); State v. Profit, 591 N.W.2d 451, 462 (Minn. 1999). “Unlike equitable estoppel, which protects the reliance interests of parties, the purpose of judicial estoppel is to protect the integrity of the judicial process from a party who plays ‘fast and loose with the courts.’” Profit, 591 N.W.2d at 462 (quoting Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C. Cir. 1980)). Notwithstanding its reluctance to adopt the equitable doctrine, the Minnesota 2Although Mentor cannot ask this Court to defy its interpretation of binding Eleventh Circuit precedent, Mentor reserves the right to argue that Chrysler Credit is binding under the prior panel rule, authorizing the application of federal judicial estoppel principles here. Alternatively, Mentor reserves the right to argue that the Eleventh Circuit’s mandatory application of state-law judicial estoppel principles to diversity cases—which depends on whether the state even recognizes judicial estoppel—is an improper limitation on federal courts’ inherent authority to employ equitable remedies to protect the integrity of their own proceedings. Indeed, the majority of federal appellate courts recognize that federal judicial estoppel principles apply in these circumstances. E.g., G-I Holdings, Inc. v. Reliance Ins. Co., 586 F.3d 247, 261 (3d Cir. 2009); Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir. 2007); Ogden Martin Sys. of Indianapolis, Inc. v. Whiting Corp., 179 F.3d 523, 527 n.1 (7th Cir. 1999); Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 603–04 (9th Cir. 1996); Guinness PLC v. Ward, 955 F.2d 875, 899 n.20 (4th Cir. 1992) (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1167 n.4 (4th Cir. 1982)); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 n.4 (6th Cir. 1982). Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 9 of 16 10 Supreme Court has recognized two important limitations to its application: (1) the “subsequent position must be clearly inconsistent with [the] original position, Profit, 591 N.W.2d at 462; and (2) the party invoking judicial estoppel must have clean hands, Ill. Farmers Ins. Co., 683 N.W.2d at 801. The facts of this case satisfy these two requirements, and judicial estoppel is warranted. First, as detailed above, Ms. Owen took clearly inconsistent positions in her bankruptcy proceedings and this case. Despite knowing of potential claims against Mentor and a continuing obligation to disclose such assets, see 11 U.S.C. §§ 521(a)(1), 1306(a)(1), she never disclosed them to her bankruptcy estate or the bankruptcy court, even after she filed this lawsuit against Mentor in 2013. Second, Mentor has clean hands, because it played no part in the bankruptcy proceedings, and it could not have concealed Plaintiff’s potential claims, because Plaintiff filed this suit during her bankruptcy proceeding. Last, the equities favor application of judicial estoppel here, because Plaintiff’s case would be dismissed under Minnesota law for lack of standing if she had failed to disclose these assets in a Chapter 7 bankruptcy, instead of a Chapter 13 bankruptcy. See Leffler v. Leffler, 602 N.W.2d 420, 422–23 (Minn. Ct. App. 1999) (recognizing that a bankruptcy filing transfers all legal interests and equitable interests in property, including causes of action, to the bankruptcy estate and divests the debtor of standing to pursue claims related to that property); cf. Nettles v. State Farm Fire & Cas. Co., No. 4:10–CV–106, 2011 WL 2462556, at *3–6 (M.D. Ga. June 17, 2011) (noting that Chapter 13 debtors “retain standing to pursue legal claims on behalf of the estate,” but noting that they are still subject to judicial estoppel for knowingly concealing assets Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 10 of 16 11 from the bankruptcy estate).3 Plaintiff’s ability to conceal assets from her bankruptcy estate should not be sanctioned under Minnesota law solely because she filed a Chapter 13 petition.4 B. Alternatively, Plaintiff’s Failure to Warn Claims Fail for Lack of Causation, and Her Warranty Claims Are Time-Barred. Apart from judicial estoppel, summary judgment is warranted on Plaintiff’s failure to warn and warranty claims. 1. Minnesota Law Applies to Plaintiff’s Claims Because There Is No Outcome-Determinative Conflict that Would Require a Choice-of-Law Analysis. Because this case was transferred to this Court from the District of Minnesota, this Court applies Minnesota’s choice-of-law rules to determine which state’s law controls. See In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 911 (8th Cir. 2004); accord Murphy v. Fed. Deposit Ins. Corp., 208 F.3d 959, 965 (11th Cir. 3 In Nettles, this Court declined to apply judicial estoppel, finding that the plaintiffs rebutted the presumption of intentional concealment because the record confirmed that they had made multiple attempts to disclose their fire-loss claim to the bankruptcy estate, mortgage holder, and insurance provider during the pendency of the bankruptcy proceeding. 2011 WL 2462556, at *4–*6. 4 Should this Court have any doubt as to whether the Minnesota Supreme Court would apply judicial estoppel here, Mentor requests that this Court certify the question to the Minnesota Supreme Court under Minn. Stat. § 480.065 subd. 3 (“The Supreme Court of this state may answer a question of law certified to it by a court of the United States . . . if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this state.”), subd. 5 (process for certifying question of law to Minnesota Supreme Court). This legal issue satisfies the Emme requirements the Minnesota Supreme Court considers in deciding whether to accept a certified question: (1) the issue is important, in that it would have statewide application, determine whether Minnesota law is consistent with federal law and protects the integrity of federal proceedings, and it potentially resolves all issues in the litigation without the need of a trial, saving the parties valuable time and resources; and (2) it is doubtful, in that there is no controlling law or precedent. See Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 883–85 (Minn. 2000) (citing Emme v. C.O.M.B., Inc., 418 N.W.2d 176 (Minn. 1988)). Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 11 of 16 12 2000). Here, the two possibilities are the law of Minnesota (where the suit was filed) and California (where Plaintiff lives and all of her ObTape-related medical treatment occurred). Under Minnesota law, this Court must first determine whether there is an actual conflict between Minnesota and California law before proceeding to a choice-of-law analysis. Glover v. Merck & Co., 345 F. Supp. 2d 994, 997 (D. Minn. 2004) (citing Jepson v. Gen. Cas. Co. of Wis., 513 N.W.2d 467, 469 (Minn. 1994)). A conflict exists if the rule of one state or the other is outcome-determinative. Id. If there is no conflict, the inquiry ends, and Minnesota law applies. Healey v. I-Flow, LLC, 853 F. Supp. 2d 868 (D. Minn. 2012); Davis by Davis v. Outboard Marine Corp., 415 N.W.2d 719, 723 (Minn. Ct. App. 1987) (applying Minnesota law in the absence of an outcome- determinative difference between the potentially applicable states’ laws). No conflict exists between Minnesota and California law on Plaintiff’s failure to warn and warranty claims. For warnings claims, both states apply the learned intermediary doctrine and require evidence that the allegedly deficient warning caused the plaintiff’s injury; a physician’s existing knowledge of a product’s risks at the time of prescription and/or failure to read or rely on product warnings breaks the causation chain and defeats the failure to warn claim. E.g., Johnson v. Zimmer, Inc., No. Civ. 02– 1328 JTNFLN, 2004 WL 742038, at *9–10 (D. Minn. Mar. 31, 2004) (attached as Ex. H to Lewis Decl.); Motus v. Pfizer, Inc., 196 F. Supp. 2d 984, 990–98 (C.D. Cal. 2001), aff’d, 358 F.3d 659, 660–61 (9th Cir. 2004) (applying California law). As for the warranty claims, both states apply the U.C.C.’s four-year limitations period and accrual- on-tender rule. See Minn. Stat. 336.2-725; Cal. Com. Code § 2725. Because no conflict exists, Minnesota law applies to these claims. Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 12 of 16 13 2. Plaintiff’s Failure to Warn Claims Fail for Lack of Causation. Though Minnesota courts typically view warnings causation as a factual issue, it can be decided as a matter of law where the record shows that “an adequate warning could not have prevented a plaintiff’s injuries.” Johnson, 2004 WL 742038, at *9 (collecting authority). For instance, Minnesota courts have recognized that the failure to read a warning defeats the “causal link between the alleged defect and the injury” necessary for an inadequate warning claim. J & W Enters. v. Econ. Sales, 486 N.W.2d 179, 181 (Minn. Ct. App. 1992) (affirming summary judgment for manufacturer where the plaintiff did not recall reading the fire extinguisher’s warning). Because the learned intermediary doctrine applies to prescription medical devices, the plaintiff must show that the allegedly inadequate warning affected the doctor’s treatment decisions resulting in the alleged injuries. See Johnson, 2004 WL 742038, at *9; In re Levaquin Prods. Liab. Litig., No. 08-5742, 2012 WL 4481223, at *5 (D. Minn. Sept. 28, 2012) (attached as Ex. I to Lewis Decl.). Here, the record shows that Dr. James neither read the product insert nor relied on any Mentor representation in selecting ObTape for Mrs. Owen. (SSMF ¶¶ 7–8.) He started using ObTape because he believed that a softer mesh would address complications experienced with a different mesh product, not because of Mentor’s marketing of the product. (Id. ¶ 9.) Thus, no allegedly inadequate warning impacted his prescribing decision. Further, Dr. James already knew of the relevant risks; his detailed pre-implant warnings to Plaintiff alerted her to the risk of developing the very symptoms she now claims: erosion, pelvic pain, dyspareunia, and sexual dysfunction. (Id. ¶ 4.) Consequently, whether or not Mrs. Owen understood or remembers these Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 13 of 16 14 warnings, Dr. James knew of these risks at the time of Plaintiff’s ObTape implant, such that no warning inadequacy affected his selection of ObTape for Mrs. Owen’s treatment. Johnson is instructive. There, the surgeon testified that he did not see or rely on product warnings for the plaintiff’s hip implant. Johnson, 2004 WL 742038, at *10. The court granted summary judgment to the manufacturer on the warnings claims, concluding that “regardless of any inadequacy of the warnings and instructions included with [the hip implant], causation does not exist as a matter of law.” Id. So too here. This is not a case where a new product warning was surreptitiously added to the product insert or there is evidence that the prescribing doctor may have learned of the new risk from a “Dear Doctor” letter. Cf. In re Levaquin Prods. Liab. Litig., 700 F.3d 1161, 1167–69 (8th Cir. 2012) (finding sufficient evidence of causation to sustain jury verdict on warnings claim, but calling it “a stretch,” where there was evidence that the prescribing physician relied on sales representatives and colleagues’ experiences, and that he would have avoided the drug if he knew of the newly disclosed risk). Here, Dr. James unequivocally testified that he did not rely on the product insert or Mentor representations, and he already knew of the precise risk of the claimed injuries in this case. (SSMF ¶¶ 4–5, 7–9.) “[W]here the only issue is failure to communicate a warning, the manufacturer is not liable if the doctor was fully aware of the facts which were the subject of the warning.” Cornfeldt v. Tongen, 262 N.W.2d 684, 698 (Minn. 1977) (quoting Mulder v. Parke Davis & Co., 181 N.W.2d 882, 885 (Minn. 1970)). Accordingly, no additional warnings about ObTape’s risks would have prevented Plaintiff’s alleged injuries, so to the extent Plaintiff’s strict liability and negligence claims are based on a failure to warn, summary judgment is warranted. Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 14 of 16 15 3. Plaintiff’s Breach of Warranty Claims Are Time-Barred. Under Minn. Stat. § 336.2-725, Minnesota imposes a four-year limitations period on claims arising under the Uniform Commercial Code, including claims for breach of warranty. Minn. Stat. § 336.2-725. Moreover, the statute is explicit as to when breach- of-warranty claims accrue: “[a] breach of warranty occurs when tender of delivery is made.”5 Here, Plaintiff’s ObTape was “delivered,” and the warranty claims accrued, no later than the date it was implanted—March 7, 2005. As such, any breach of warranty claims had to be filed by March 7, 2009. Because they were not, they are time-barred. CONCLUSION The record confirms that Plaintiff failed to disclose her claims against Mentor in her bankruptcy proceeding despite a continuing obligation to do so. Because she should not be able to benefit from knowingly concealing these assets, judicial estoppel bars all of her claims. Alternatively, her failure-to-warn claims fail for lack of causation, and her warranty claims are time-barred. 5 The only exception to the accrual-on-tender rule is where a warranty explicitly extends to future performance, in which case “the cause of action accrues when the breach is or should have been discovered.” But “[m]ost courts have been very harsh in determining whether a warranty explicitly extends to future performance,” and to do so “there must be specific reference to a future time in the warranty.” Allstate Ins. Co. v. Gen. Motors Corp., No. PD 04-12393, 2005 WL 264276, at *3-4 (Minn. Dist. Ct. Jan. 24, 2005) (citing Standard Alliance Indus., Inc. v. Black Clawson, Co., 587 F.2d 813, 820 (6th Cir. 1978)) (attached as Ex. J to Lewis Decl.). Here, Plaintiff has never even alleged—much less presented evidence of—a promise of future performance. Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 15 of 16 16 012813\001798\2755052.2 Dated: July 25, 2016 Respectfully submitted, s/ John Q. Lewis John Q. Lewis TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Telephone: 216.592.5000 Facsimile: 216.592.5009 john.lewis@tuckerellis.com Designated Lead Counsel for Defendant Mentor Worldwide LLC Case 4:13-cv-00438-CDL Document 37-1 Filed 07/25/16 Page 16 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-438 (Owen) DEFENDANT MENTOR WORLDWIDE LLC’S SEPARATE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAINST MICHELE OWEN Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56, Defendant Mentor Worldwide LLC submits this Separate Statement of Material Facts in support of its Motion for Summary Judgment against Plaintiff Michele Owen. A. Plaintiff’s ObTape Implant. 1. Mrs. Owen was referred to Dr. Robert E. James, a urologist, in January 2005 with symptoms of mixed urinary incontinence. (Dep. of Dr. Robert E. James 59:3–60:14, 66:3–4, attached as Ex. A to Decl. of John Q. Lewis (“Lewis Decl.”).) 2. Following a pelvic exam and stress test, Dr. James diagnosed Plaintiff with a cystocele, rectocele, mild stress urinary incontinence (SUI), overactive bladder, retention, and hypnotic bladder. (Id. at 62:9–64:8.) 3. After follow-up tests, Dr. James recommended implanting a suburethral sling to address the SUI and a cystocele repair; at the same time, Mrs. Owen was scheduled to have a hysterectomy by a different doctor. (See id. at 67:25–68:21.) 4. During Plaintiff’s March 1, 2005 preoperative visit, Dr. James “outlined” his “personal experience” with mid-urethral sling implants, informed her that there were “[n]o guarantees,” and specifically warned her of the risk of the following Case 4:13-cv-00438-CDL Document 37-2 Filed 07/25/16 Page 1 of 4 2 complications: “recurrent or persistent stress urinary incontinence, recurrent or persist[ent] cystocele, anterior vaginal wall extrusion, urethral erosion, wound infection, blood loss requiring nondirective blood transfusions, urinary retention, voiding dysfunction, chronic bladder or pelvic pain, dyspareunia, sexual dysfunction, thrombophlebitis, pulmonary emboli, mild cardiac infarction, stroke and death.” (Id. at 70:12–15, 72:8–20; see also id. Ex. 8, 3-1-2005 Preoperative Visit Report at 1–2, attached as Ex. B to Lewis Decl.) 5. With regard to painful intercourse, Dr. James warned his patients that “they may have pain of varying degrees with intercourse, which may make intercourse uncomfortable and, in fact, prohibit intercourse.” (Dr. James Dep. at 98:7–14.) 6. Dr. James surgically implanted Mrs. Owen with ObTape on March 7, 2005. (Pl. Fact Sheet § II, ¶¶ 2–3, attached as Ex. C to Lewis Decl.) 7. Dr. James did not read or rely on ObTape’s product insert data sheet in prescribing ObTape to Plaintiff because he “knew the existing risks,” and “[a]t the end of the day, [he had] to make a judgment based upon the outcome for the patient and patient safety.” (Dr. James Dep. at 45:16–46:3.) 8. Nor did Dr. James rely on any Mentor representations about ObTape’s risks or complications. (Id. at 46:9–18 (stating that “there were none” that “played a role in [his] decision to use ObTape with Ms. Owen”).) 9. In fact, when he first selected ObTape for his practice, Dr. James sought a softer mesh material to alleviate the scarring-related dyspareunia his patients had experienced with another mesh product; he picked ObTape because it felt softer “[i]n [his] hands,” not because of Mentor’s marketing of the product. (Id. at 96:18–97:15, 101:9–20.) Case 4:13-cv-00438-CDL Document 37-2 Filed 07/25/16 Page 2 of 4 3 10. Plaintiff was diagnosed with a mesh erosion in 2010 and had her ObTape partially removed in May 2010. (Pl. Fact Sheet § II, ¶¶ 5–10; see also Dep. of Michele Owen 92:15–94:7, attached as Ex. D to Lewis Decl.) 11. She attributes the following alleged injuries to ObTape: erosion and surgical procedure to remove ObTape, pain in her hips, and dyspareunia. (Pl. Fact Sheet § VIII, ¶ 1; Owen Dep. at 25:14–18.) 12. Mrs. Owen jointly filed for Chapter 13 bankruptcy protection with her husband on July 21, 2011. (See Bankruptcy Docket Report, In re Owen, No. 11-1- 2760AJ13 (N.D. Cal. Bankr.), attached as Ex. E to Lewis Decl.) 13. She did not disclose her potential claims against Mentor in her bankruptcy petition’s schedule of assets, never amended her bankruptcy schedules to disclose these assets, and it does not appear that she otherwise attempted to disclose them at any point during the remainder of her bankruptcy proceedings. (See Chapter 13 Petition at 11–14 (Schedule B-Personal Property), attached as Ex. F to Lewis Decl.; see also Bankruptcy Docket Report.) 14. The bankruptcy court discharged Plaintiff’s debts by Order dated October 29, 2014, and the bankruptcy proceeding was closed on January 6, 2015. (Bankruptcy Docket Report.) B. Procedural History. 15. Plaintiff served Mentor with a Complaint captioned in the Hennepin County District Court of the State of Minnesota on August 27, 2013. (Doc. 1-1, Summons & Compl.) Case 4:13-cv-00438-CDL Document 37-2 Filed 07/25/16 Page 3 of 4 4 012813\001798\2755055.2 16. Mentor subsequently removed the case to the District of Minnesota, and the case was then transferred to this Court for coordinated proceedings. (Doc. 1, Notice of Removal.) 17. Mrs. Owen asserts seven products liability claims: (1) strict liability, (2) negligence, (3) breach of express warranty, (4) breach of implied warranty, (5) common law fraud, (6) constructive fraud, and (7) negligent and intentional misrepresentation. (Doc. 1-1, Compl. ¶¶ 20–104.) 18. Plaintiff is a California citizen, and all of Mrs. Owen’s ObTape-related medical treatment occurred in California. (Pl. Fact Sheet § II, ¶¶ 3–10, § III ¶¶ 3– 4, § IV.) Dated: July 25, 2016 Respectfully submitted, s/ John Q. Lewis John Q. Lewis TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Telephone: 216.592.5000 Facsimile: 216.592.5009 john.lewis@tuckerellis.com Designated Lead Counsel for Defendant Mentor Worldwide LLC Case 4:13-cv-00438-CDL Document 37-2 Filed 07/25/16 Page 4 of 4 012813\001798\2755056.1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-438 (Owen) DECLARATION OF JOHN Q. LEWIS IN SUPPORT OF DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST MICHELE OWEN I, JOHN Q. LEWIS, declare as follows: 1. I am an attorney admitted to practice law in the State of Ohio and admitted pro hac vice in this action. I am a partner at the law firm of Tucker Ellis LLP and counsel of record for Defendant Mentor Worldwide LLC (“Mentor”) in this action. I have personal knowledge of the matters stated herein and, if called upon, I could and would competently testify to the matters contained in this Declaration. 2. Attached as Exhibit A are true and correct copies of excerpts from Dr. Robert E. James’s May 25, 2016 deposition. 3. Attached as Exhibit B is a true and correct copy of Dr. James’s March 1, 2005 Preoperative Visit Report, from his treatment of Plaintiff. 4. Attached as Exhibit C is a true and correct copy of Plaintiff’s Fact Sheet. 5. Attached as Exhibit D is a true and correct copy an excerpt from Plaintiff’s May 23, 2016 deposition. 6. Attached as Exhibit E is a true and correct copy of the bankruptcy court’s docket sheet for In re Owen, No. 11-1-2760AJ13 (N.D. Cal. Bankr.). Case 4:13-cv-00438-CDL Document 37-3 Filed 07/25/16 Page 1 of 2 2 012813\001798\2755056.1 7. Attached as Exhibit F is a true and correct copy of Plaintiff’s Chapter 13 bankruptcy petition, filed in In re Owen, No. 11-1-2760AJ13 (N.D. Cal. Bankr.). 8. Attached as Exhibit G is a true and correct copy of this Court’s unreported decision in Moore v. Fred’s Stores of Tennessee, Inc., No. 4:05–CV–133, 2006 WL 2374768 (M.D. Ga. Aug. 16, 2006). 9. Attached as Exhibit H is a true and correct of the unreported decision Johnson v. Zimmer, Inc., No. Civ. 02–1328 JTNFLN, 2004 WL 742038 (D. Minn. Mar. 31, 2004). 10. Attached as Exhibit I is a true and correct copy of the unreported decision In re Levaquin Products Liability Litigation, No. 08-5742, 2012 WL 4481223 (D. Minn. Sept. 28, 2012). 11. Attached as Exhibit J is a true and correct copy of the unreported decision Allstate Insurance Co. v. General Motors Corp., No. PD 04-12393, 2005 WL 264276 (Minn. Dist. Ct. Jan. 24, 2005). I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 25th day of July, 2016, in Cleveland, Ohio. s/John Q. Lewis John Q. Lewis Case 4:13-cv-00438-CDL Document 37-3 Filed 07/25/16 Page 2 of 2 Exhibit A Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 1 of 11 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE MIDDLE DISTRICT OF GEORGIA 3 COLUMBUS DIVISION 4 --oOo-- 5 6 IN RE MENTOR CORP. OBTAPE )MDL Case No. 7 TRANSOBTURATOR SLING PRODUCTS )4:08-MD-2004 (CDL) LIABILITY LITIGATION ) 8 )Individual Case No. __________________________________)4:13-CV-000438 (Owen) 9 10 11 12 13 14 15 VIDEOTAPED DEPOSITION OF 16 ROBERT E. JAMES, M.D., F.A.C.S. 17 ________________________________________________________ 18 May 25, 2016 19 20 21 22 23 24 REPORTED BY: 25 JULIE ANNE ZEIGLER, RPR, CSR 9570 JOB 2293921 Page 1 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 2 of 11 Page 2 1 I N D E X 2 EXAMINATION BY: Page 3 MR. FEVRET 7, 129 4 MS. PHILLIPS 94, 139 5 6 EXHIBITS MARKED FOR IDENTIFICATION 7 No. Description Page 8 Exhibit 1 Amended Notice Of Subpoena Of 9 Third Party Robert E. James, 9 M.D., for Deposition And For Production Of Documents. 10 Exhibit 2 Medical records of Dr. James 10 11 for Michele Owen. 12 Exhibit 3 Curriculum vitae of Robert 11 E. James, M.D., F.A.C.S. 13 Exhibit 4 Letter from Donald Van Glesen, 51 14 M.D. to Lela Emad, M.D., and James Trapnell, M.D. dated 15 November 24, 2004. Bates stamped OBT OWEN M 00061- 62. 16 Exhibit 5 New Patient Evaluation dated 58 17 1/4/05 for Michele Owen. 18 Exhibit 6 Letter to Lela Emad, M.D. from 65 Robert James, M.D. dated January 19 4, 2005. Bates stamped OBT OWEN M 00135 - 136. 20 Exhibit 7 Office Visit for Michele Owen 66 21 with Robert James, M.D. dated January 25, 2005. Bates 22 stamped OBT OWEN M 00131-132. 23 Exhibit 8 Medical records of Dr. James for 69 Michele Owen dated march 1, 2005. 24 Bates stamped OBT OWEN M 00129- 130. 25 Page 3 1 EXHIBITS MARKED FOR IDENTIFICATION (continued) 2 No. Description Page 3 Exhibit 9 Dr. James' consent for surgery form 73 for Michele Owen dated 3/1/05. Bates 4 stamped PLF OWEN M 00166-167. 5 Exhibit 10 Dr. James' consent for surgery form 75 for Michele Owen dated 3/1/05. Bates 6 stamped PLF OWEN M 00164-165. 7 Exhibit 11 Medical record of Dr. James for 77 Michele Owen dated 3/7/2005. Bates 8 stamped OBT OWEN M 00125-127. 9 Exhibit 12 Medical record of Dr. James for 78 Michele Owen dated 3/7/2005. Bates 10 stamped OBT OWEN M 00092-93. 11 Exhibit 13 Medical record of Dr. James for 80 Michele Owen dated 3/7/2005. Bates 12 stamped OBT OWEN M 00123-124. 13 Exhibit 14 Medical record of Dr. Emad for 87 Michele Owen dated 3/7/2005. Bates 14 stamped OBT OWEN M 00086-87. 15 Exhibit 15 Medical record of Dr. James for 89 Michele Owen dated March 29, 2005. 16 Bates stamped OBT OWEN M 00128. 17 18 19 20 21 22 23 24 25 Page 4 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE MIDDLE DISTRICT OF GEORGIA 3 COLUMBUS DIVISION 4 --oOo-- 5 6 IN RE MENTOR CORP. OBTAPE )MDL Case No. 7 TRANSOBTURATOR SLING PRODUCTS )4:08-MD-2004 (CDL) LIABILITY LITIGATION ) 8 )Individual Case No. __________________________________)4:13-CV-000438 (Owen) 9 10 11 12 13 --o0o-- 14 Videotaped deposition of ROBERT E. JAMES, 15 M.D., F.A.C.S., taken by Defendant, at Annadel Medical 16 Group, 121 Sotoyome Street, Suite 201, Santa Rosa, 17 California 95405, commencing at 9:06 a.m., on May 25th, 18 2016, before Julie Anne Zeigler, RPR, CSR, pursuant to 19 Subpoena. 20 21 22 23 24 25 Page 5 1 A P P E A R A N C E S 2 3 FOR THE PLAINTIFF: 4 HEARD ROBINS CLOUD LLP 2000 West Loop Street, 22nd Floor 5 Houston, Texas 77027 (713)650-1200 6 BY: REBECCA L. PHILLIPS, Attorney at Law rphillips@heardrobins.com 7 8 FOR THE DEFENDANT: 9 TUCKER ELLIS LLP 515 South flower Street, 42nd Floor 10 Los Angeles, California 90071-2223 (213)430-3378 11 BY: JOHN A. FAVRET, III, Attorney at Law and 12 MONEE TAKLA HANNA, Attorney at Law monee.hanna@tuckerellis.com 13 14 ALSO PRESENT: 15 Jim Terrell, Video Operator 16 17 18 19 20 21 22 23 24 25 2 (Pages 2 - 5) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 3 of 11 Page 42 1 literature that was available. 2 Q. At the time, did you believe the TOT approach 3 with ObTape was an improvement over prior surgical 4 techniques to treat stress urinary incontinence? 5 A. I did. 6 Q. Do you recall -- I believe you said that you 7 implanted about 10 to 20 ObTape slings. Do you 8 remember when you -- the last sling you implanted? 9 A. I honestly don't. 10 MS. PHILLIPS: I'm concerned that we should 11 take a break for just a second. You and I should have a 12 word. 13 MR. FAVRET: Okay. 14 THE VIDEOGRAPHER: Off record at 9:51. 15 (Discussion off the record.) 16 THE VIDEOGRAPHER: On record at 9:54. 17 BY MR. FAVRET: 18 Q. Dr. James, and in particular I want to talk 19 about the ObTape transobturator approach tape by 20 Mentor. Do you know who your Mentor sales rep was back 21 when you were using the ObTape product? 22 A. I believe it was a Alfonso Ford. 23 THE REPORTER: It was who? 24 THE WITNESS: Alfonso Ford, F-O-R-D. 25 Page 43 1 BY MR. FAVRET: 2 Q. Do you have any specific recollections of any 3 discussions with Mr. Ford about ObTape? 4 A. Not that I recall specifically. 5 Q. When you were using ObTape, was that a 6 decision by yourself or the hospital? 7 A. It was my decision. 8 Q. You talked about the TOT approach in general 9 and some of the advantages. Were there certain 10 characteristics of the ObTape sling that were also -- 11 that you also saw as an advantage or something that was 12 useful for your patients? 13 A. One of the potential complications when you 14 put a mid-urethral sling in is someone will develop a 15 fibrous band in reaction to the sling itself. So when I 16 looked at the ObTape, it was so much softer than the 17 existing slings, I thought we would have a reduced risk 18 of vaginal pain and dyspareunia or painful intercourse. 19 Q. Did you understand that ObTape was less 20 elastic than other tapes? 21 A. Not that I recall. 22 Q. Do you recall if you had any training from 23 Mentor beforehand pertaining to the TOT procedure with 24 ObTape? 25 A. I did, yes. Page 44 1 Q. Can you tell me what you recall about that? 2 A. I don't remember where it was. It was 3 probably in Las Vegas. That's usually where they're 4 held. And I don't remember the specific course, but, in 5 general, you go through a didactic course of a half a 6 day or a day, and then you spend time in the cadaver lab 7 with your mentors, who have done this procedure a number 8 of times, and then you go over the fine techniques in 9 anatomy that you should be aware of, as well as any 10 potential complications. 11 Q. Did you find it helpful to get together with 12 other urologists and surgeons who were using ObTape? 13 A. It always is. You get that shared experience. 14 Q. You implanted Ms. Owen on March 7th, 2005. 15 Do you know if you had any complications with ObTape 16 prior to that? 17 A. I don't recall. 18 Q. And you had talked about when a patient has a 19 vaginal extrusion or an erosion from a suburethral 20 sling. Can you talk about how urologists, like 21 yourself, goes about surgically taking care of the 22 extrusion or erosion? 23 A. So, typically, if the patient has an 24 extrusion, she will usually have vaginal bleeding or 25 discharge that just persists because of the exposure, Page 45 1 and may have a malodor from the vagina as well, or may 2 have pain with intercourse, or their partner may feel 3 the sling with their penis during intercourse. So the 4 diagnosis is made by pelvic examination, and then 5 depending upon the size of the extrusion and its 6 location, you can do one of three things: One is 7 sometimes applying vaginal estrogen will stimulate 8 vaginal growth. If it's a small defect, it will heal 9 spontaneously; No. 2, if it's small and accessible, you 10 can remove it in the office with or without local 11 anesthesia. If it's difficult to access, you take them 12 to the outpatient center, give them an anesthetic so 13 that you can see the area clearly; you put a hemostat on 14 the sling to facilitate exposure; you excise the lateral 15 aspect of the sling, and then you close the defect. 16 Q. Doctor, as a general practice, do you read 17 the package insert that comes with the product? 18 A. I do not. 19 Q. So is it fair to say that nothing that Mentor 20 said or did not say in the product insert data sheet 21 with ObTape would have influenced your decision to use 22 ObTape? 23 A. I knew the existing risks. I knew the 24 literature, so the answer is no. It's kind of like 25 looking at the PDR. There's many, many risks and 12 (Pages 42 - 45) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 4 of 11 Page 46 1 potential complications. At the end of the day, you 2 have to make a judgment based upon the outcome for the 3 patient and patient safety. 4 Q. And that's something you talked about 5 before -- using your professional experience, training, 6 and judgment, and the patient's characteristics in 7 making a decision, a medical decision? 8 A. That's correct. 9 Q. Before Ms. Owen's surgery on March 7th, 2005, 10 had Mentor made any representations to you, either 11 orally or in writing, about the potential rate of 12 complications from ObTape? 13 A. I don't recall. 14 Q. Can you identify any statement or 15 representation from Mentor, either orally or in 16 writing, that played any role in your decision to use 17 ObTape with Ms. Owen? 18 A. Not -- there were none. 19 Q. Can you identify any statement or 20 representation from Mentor, either orally or in 21 writing, that you know was false when it was made? 22 A. None. 23 Q. Are you familiar with the FDA's 510(k) 24 process for regulatory approval of medical devices? 25 A. In a general sense, yes. Page 47 1 Q. Is it fair to say you don't know the 2 understanding of the meaning of the term "substantial 3 equivalence" as it is used in the 510(k) process? 4 A. I do not understand that. 5 Q. Did you ask anyone about Mentor's's 510(k) 6 submission to the FDA or any follow-up submission? 7 A. I did not ask Mentor, nor have I asked any 8 other company. 9 Q. Is it fair to say that nothing that was said 10 or not said within Mentor's 510(k) submissions to the 11 FDA for ObTape played any role in your decision to use 12 ObTape? 13 A. I wasn't aware of the submissions, so the 14 answer would be no. 15 Q. You had briefly touched on some of the -- 16 when you went to Las Vegas and were with other 17 urologists and went over the transobturator approach. 18 Do you remember any -- some of the surgical fine points 19 that were discussed? 20 A. I mean, the most important thing is you needed 21 to know where the obturator artery and nerve were, which 22 is at the inferior lateral aspect of the obturator 23 foramen at 5:00 o'clock. That's what you had to avoid 24 in your surgical approach. You can either go inside the 25 vagina out to the obturator foramen, or you can go Page 48 1 outside into the vagina. It doesn't really matter which 2 you do. It just depends upon your preference, but the 3 key is is to be in the obturator foramen around 4 10:00 o'clock to avoid any complications. 5 Q. Doctor, you keep records on individual 6 patients in your ordinary course of business; is that 7 right? 8 A. I do. 9 Q. And can you just briefly describe your 10 record-keeping procedure as it was effective back in 11 2005? 12 A. Typically, when we see the patient initially, 13 we take a history and perform a physical examination, 14 and it's relevant to their chief complaint. At that 15 time, we were using a Dictaphone to record our 16 dictation. It was submitted to a transcriptionist, who 17 then gave us a report within a couple of days. 18 Q. And in your experience, is dictation an 19 accurate method of recording the events, in your 20 experience? 21 A. Yes. 22 Q. And other physicians rely on your records; is 23 that right? 24 A. That's correct. 25 Q. And you rely on other physicians' records? Page 49 1 A. Yes. 2 Q. I'd just like to talk to you about your 3 informed consent procedure with your patients as it 4 pertains to suburethral slings back in 2005. Can 5 you -- what do you generally do with your patients? Do 6 you use any sort of diagrams? 7 A. Usually what I do is I use a legal pad, or I 8 use a bulletin board, and I draw a cross-section of the 9 anatomy to explain to them why they developed stress 10 incontinence, what we believe is the cause of the stress 11 incontinence, and their surgical options. Then I walk 12 them through their options. I then tell them about the 13 various slings that are available, and the risk, why 14 they occur, and how we can manage them if they do occur. 15 Q. And what are some of the risks that you talk 16 to your patients about in particular in 2005 when you 17 were implanting a suburethral sling? 18 A. The first thing I tell all patients who are 19 going to have the procedure is that there have three 20 things that they must accept that I accept everyday 21 going into the operating room: That is the known, the 22 unknown, and unpredictable. The worst is the 23 unpredictable. It's a complication nobody has imagined, 24 but I have to accept it, and they have to accept it. 25 I'll do my best to manage that. 13 (Pages 46 - 49) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 5 of 11 Page 58 1 has lost its resiliency, and it's like a hernia so that 2 the rectum bulges in between the muscles into the 3 vagina. It can cause constipation. It can cause 4 vaginal discomfort with sexual activity. 5 Q. In the note he references alerting Dr. Emad's 6 office, and this letter is sent to Dr. Emad. And you 7 had testified that you know Dr. Emad; is that correct? 8 A. I do. 9 Q. Can you tell me about your professional 10 relationship with Dr. Emad? You said she's a 11 gynecologist, and you're a urologist, and can you talk 12 about your relationship? 13 A. Yeah. If you go back to this time in history, 14 they were learning how to do -- the gynecologists were 15 learning how to do these procedures, and so I either did 16 the procedures for Dr. Emad or showed them how to do the 17 procedures. Over time, it has transitioned. With the 18 mentoring program, Dr. Emad does all of her slings 19 herself. 20 Q. If you could put that aside. I'm going to 21 mark another exhibit here, which is entitled, "New 22 Patient Evaluation ObTape 00133 through 134. 23 (Whereupon, Deposition Exhibit 5 was 24 marked for identification.) 25 Page 59 1 THE WITNESS: Okay. 2 BY MR. FAVRET: 3 Q. Doctor, is this your record? 4 A. It is. 5 Q. And this is dated January 4th, 2005. It's 6 entitled "New Patient Evaluation"; is that right? 7 A. That is correct. 8 Q. And so, obviously, it says "New Patient 9 Evaluation." This is the first record I have that you 10 saw Ms. Owen. Is the new patient evaluation something 11 you do when you see a new patient? 12 A. That is correct. 13 Q. And what is her chief complaint? 14 A. Chief complaint was urinary incontinence. 15 Q. And under the "History of Present Illness," 16 does that information come from the patient, Ms. Owen, 17 herself? 18 A. It does. 19 Q. And she reports that she had mixed urinary 20 incontinence during the past six to ten months. Can 21 you explain what mixed urinary incontinence is? 22 A. So incontinence is the involuntary leakage of 23 urine. So traditionally, we define stress incontinence 24 as incontinence with occurs with physical activity. 25 Urge incontinence is incontinence that occurs before the Page 60 1 patient can make it to the bathroom. And gravitational 2 incontinence occurs when the patient gets up from a 3 sitting position. And enuresis means the patient wets 4 the bed at night when they're sleeping. So mixed 5 incontinence is a mixture of usually stress and urge 6 incontinence, which occurs in probably 40 percent of 7 patients who present with stress incontinence. 8 Q. And Ms. Owen is presenting with stress 9 urinary incontinence and urge incontinence? 10 A. Correct. 11 Q. You also wrote in the History of Present 12 Illness, "She normally urinates eight to ten times a 13 day and none at night." Do you see that? 14 A. I do. 15 Q. Urinating eight to ten times a day, is that 16 considered frequently? 17 A. No. The average adult will urinate one to two 18 times at night, and six to eight times a day, and it 19 really is dependent upon their fluid intake. So that's 20 slightly more than normal, but not exaggerated. 21 Q. You also report that "She had difficulty 22 initiating her stream and emptying her bladder. During 23 the past year, she's had to bend over, lean forward, or 24 perform a Crede, C-R-E-D-E, maneuver to empty her 25 bladder adequately." Did I read that adequately? Page 61 1 A. It's Crede. Crede maneuver is when you put 2 your hands on your lower abdomen between your belly 3 button and pubic bone and push down into the pelvis to 4 put pressure on the bladder to help you empty your 5 bladder more completely. 6 Q. And so that's something Ms. Owen had to do in 7 order to urinate? 8 A. In order to feel that she is emptying her 9 bladder completely. 10 Q. You also -- strike that. 11 What are her current medications that you 12 reported? 13 A. Medications recorded are Elevil, 100 14 milligrams daily, and that's usually for depression. 15 And Ambien, 10 milligrams nightly, which is for sleep. 16 Q. And the past medical history does indicate 17 depression? 18 A. Correct. 19 Q. Is that something you would have got from the 20 patient directly? 21 A. That's correct. 22 Q. What prior surgeries did she have? 23 A. She had her appendix removed and gall bladder 24 removed. 25 Q. You did a physical examination on this date? 16 (Pages 58 - 61) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 6 of 11 Page 62 1 A. I did. 2 Q. And how did you conduct that? 3 A. The patient normally gets undressed from the 4 waist on down usually accompanied by an assistant or 5 nurse. We then do an abdominal examination, a visual 6 examination of the outside of the vaginal, then do a 7 manual examination of the vagina looking for the 8 position of the bladder, the uterus, and the rectum. 9 Q. With respect to Ms. Owen on this date, what 10 did the pelvic exam show? 11 A. So the pelvic examination showed that she a 12 wide vaginal opening. That's what multiparous introitus 13 means. She had a grade 2 cystocele, which means that 14 her bladder was coming down toward the outlet or hymen. 15 And pelvic relaxation means that her uterus was 16 descending into the vagina, and that she had a bulge in 17 her rectum called a rectocele. 18 Q. Then you -- it looks like you had a stress 19 test done? 20 A. Correct. 21 Q. And can you just briefly describe what a 22 stress test is? 23 A. We do a stress test to collaborate the 24 patient's history that they leak when they cough, 25 sneeze, or strain. So we fill the bladder with sterile Page 63 1 water, then we ask the patient to strain. If she 2 doesn't have leakage, then we ask them to cough, and 3 we'll see urine coming out of the urethra confirming 4 that the patient has stress incontinence. And at the 5 same time we look at the urethra, and we should see the 6 urethra drop down -- it's a hypermobile structure -- 7 confirming that she has stress incontinence due to 8 anatomical weakness. 9 Q. And what did the stress test show with Ms. 10 Owen? 11 A. That she had mild stress incontinence. 12 Q. And then you reported your impression. What 13 was your impression of Ms. Owen's condition? 14 A. That her leakage was secondary to stress 15 incontinence, an overactive bladder, which means a 16 bladder that contracts frequently; and incomplete 17 bladder emptying. 18 Q. An incomplete bladder emptying, can you just 19 briefly describe what that means? 20 A. She was catheterized; she did not empty her 21 bladder completely. Most people that less than 75 cc's 22 left when they're catheterized. She had 350 cc's. You 23 don't know whether that's due to a functional 24 abnormality or the patient just did not empty completely 25 for a variety of reasons. Page 64 1 Q. And then what was your second impression? 2 A. She had significant retention today. 3 Q. And you continued to note that it suggests 4 the presence of hypotonic bladder? 5 A. Hypotonic means weak bladder muscle. 6 Q. And finally, you report the cystocele? 7 A. The cystocele is the weakness of the bladder 8 dropping into the vagina. 9 Q. And what was your recommendation? 10 A. According to the document here, I advised her 11 she return to the office so we can do some bladder 12 function tests to make sure that there were no 13 significant bladder abnormalities; to look into her 14 bladder; and to determine whether or not she was a 15 candidate for surgical repair. 16 Q. Towards the bottom of the page, you wrote, 17 "We discussed the performance of a suburethral sling 18 today." Do you see that? 19 A. I do. 20 Q. And do you recall what you would have 21 discussed with her on that date regarding the 22 performance of a suburethral sling? 23 A. Right. Not specifically, but whenever I have 24 this discussion with the patient, I go through the 25 anatomy that is causing the stress incontinence; I go Page 65 1 through the choices the patient has for sling materials; 2 and the risk, including infection, pain, failure, 3 extrusion and erosion. 4 Q. And you believe you did that with Ms. Owen on 5 this date in 2005? 6 A. That is my standard, so I'm sure I did it. 7 Q. You also note that all questions were 8 answered. Is that something you would always do with 9 answered questions that your patient -- 10 A. Oh, I always ask the patients at the end of 11 the exam, no matter what the visit is for, "Do you have 12 any questions or concerns?" That's my standard. 13 Q. Doctor, I've marked Exhibit 6, which is dated 14 January 4th were 2005. It's a letter from Robert James 15 to Lela Emad. 16 (Whereupon, Deposition Exhibit 6 was 17 marked for identification.) 18 BY MR. FAVRET: 19 Q. Doctor, is this your letter? 20 A. It is. 21 Q. And this is a letter to Dr. Emad? 22 A. Really, this is the same dictation that I used 23 in my new patient visit that was sent to Dr. Emad. 24 Q. So the information that we just discussed in 25 the new patient evaluation is contained in the letter 17 (Pages 62 - 65) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 7 of 11 Page 66 1 that you sent to Dr. Emad? 2 A. That is correct. 3 Q. And Dr. Emad had referred the patient to you? 4 A. That's correct. 5 Q. And then you were communicating with Dr. Emad 6 as to what your examination showed? 7 A. Yes. 8 Q. Marked Exhibit 7, Office Visit dated 9 January 25th, 2005. Bates stamped 00131 to 132. 10 (Whereupon, Deposition Exhibit 7 was 11 marked for identification.) 12 BY MR. FAVRET: 13 Q. Doctor, is that your record? 14 A. It is my record. 15 Q. And you saw Ms. Owen on January 25th, 2005, 16 according to your record? 17 A. I did. 18 Q. And what was her chief complaint? 19 A. Urinary incontinence and incomplete bladder 20 emptying. 21 Q. It refers to a residual urine as 35 co (sic), 22 and the last time it was 350 co (sic). Did I read that 23 right? 24 A. Yes. It's cc's, but yes. Initially, when I 25 saw her the first time, her apparent residual urine was Page 67 1 350 cc's. So she was to undergo these tests and a 2 repeat residual urine to see if that was an issue. And 3 when we tested her residual urine that day, it was 4 normal at 35 cc's. So did not have any retention and 5 did not have a hypertonic, or weak, bladder. 6 Q. And there was an urodynamic evaluation that 7 was done? 8 A. There was. 9 Q. And what did that show? 10 A. It showed that her bladder function was 11 normal; that she emptied her bladder normally; that her 12 bladder capacity was within normal limits; and that she 13 had weak support for her urethra. 14 Q. And there was also a cystoscopy done? 15 A. That's correct. 16 Q. And just briefly, what is a cystoscopy? 17 A. A cystoscopy was where we pass a small 18 flexible or rigid scope through the urethra into the 19 bladder; we fill the bladder slowly with water so we can 20 look at the entire bladder wall to make sure there are 21 no bladder tumors, stones, or other abnormalities, and 22 her bladder was normal. 23 Q. And it showed that she had hypermobility? 24 A. Yes. 25 Q. And what was your impression, as noted on Page 68 1 that record? 2 A. A Type 1 stress incontinence, which means that 3 the incontinence is due to a hypermobile urethra; No. 2, 4 mild hypotonic bladder with reduced bladder cessation. 5 I came to that conclusion because I thought her bladder 6 capacity was a little bit larger and she had delayed 7 sense in urgency when we filled her bladder, but nothing 8 significant. Probably within the range of norm, and 9 then a Grade 1 - 2 cystocele, as previously described. 10 Q. And what was your recommendation? 11 A. Recommended that she undergo a suburethral 12 sling and cystocele repair. 13 Q. And she was also going to have a 14 hysterectomy? 15 A. That is correct. 16 Q. And do you know why she was going to have a 17 hysterectomy? 18 A. As I recall, that the uterus had dropped into 19 the vagina causing vaginal pressure, but it also may 20 have been related from her periods, but I don't recall 21 that. 22 Q. The last sentence of that record states, 23 "Once again, the operation, potential complications, 24 risks and recuperations were discussed with the patient 25 and all questions answered." Did I read that Page 69 1 correctly? 2 A. That's correct. 3 Q. So this is the second time you would have 4 reviewed with Ms. Owen the potential complications, 5 risks and recuperation from the surgery? 6 A. Right. It's my norm to discuss it with the 7 patient at least two if not three times. 8 Q. And the risks and complications you would 9 have discussed with Ms. Owen were the risks and 10 complications you previously testified about as part of 11 your standard informed consent for a suburethral sling? 12 A. That's correct. 13 (Whereupon, Deposition Exhibit 8 was 14 marked for identification.) 15 BY MR. FAVRET: 16 Q. I've marked Exhibit 8, OBT Owen M 00129 - 17 130. It's dated March 1st, 2005. Redwood Urology 18 Medical Group. 19 A. Okay. 20 Q. Doctor, is this your record? 21 A. It is. 22 Q. And what is her chief complaint at this time? 23 A. It was stress incontinence and cystocele. 24 Q. And she was also there for a preoperative 25 visit? 18 (Pages 66 - 69) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 8 of 11 Page 70 1 A. Right. She had come in to discuss her surgery 2 once again prior to the actual operation. 3 Q. Under the history it says, "I once again 4 reviewed her therapeutic options in detail, the 5 operation, potential complications, risks, recuperation 6 and expectations." Did I read that correctly? 7 A. That is correct. 8 Q. So this would have been, at least, the third 9 time that you talked to her about these different risks 10 and complications? 11 A. That is correct. 12 Q. You go on to write, "My personal experience 13 was outlined. No guarantees were made or implied." 14 Did I read that correctly? 15 A. That is correct. 16 Q. Do you remember what you would have told her 17 about your personal experience? 18 A. I go back to the beginning of my surgical 19 career and tell her about the evolution of procedures, 20 how we've gotten where we're at, and that the procedure 21 is the one that I did commonly at that time, and is the 22 one that I recommend for her. 23 Q. And would you have talked to her about using 24 the ObTape sling? 25 A. I would talk to her about a mid-urethral Page 71 1 sling. I never discuss individual products. If the 2 patient were to inquire, I certainly would, but that's 3 beyond the patient's understanding and need for the 4 operation. 5 Q. The impression on this note is the same as it 6 was before? 7 A. That is correct. 8 Q. And the recommendation continued to be the 9 cystoscopy, ObTape sling, and the cystocele repair? 10 A. That's correct. 11 Q. You have a section here at the bottom where 12 it's entitled "Informed Consent." Do you see that? 13 A. I do. 14 Q. And you noted that she has reviewed and 15 signed the procedure specific consent form. Do you see 16 that? 17 A. I do. 18 Q. And this indicates that she would have signed 19 the consent form that you use prior to the procedure? 20 A. That is correct. 21 Q. It notes "the document was reviewed with her 22 and all questions were answered." Did I read that 23 correctly? 24 A. That is correct. 25 Q. And so you would have reviewed the consent Page 72 1 forms with her and discussed the forms and the risks 2 contained therein? 3 A. Yes. 4 Q. And you identify some of the specific 5 complications you discussed with her under the informed 6 consent; is that correct? 7 A. That is correct. 8 Q. Can you read that section of the specific 9 risks that you noted in your informed consent on this 10 page? 11 A. "Some of the potential complications discussed 12 but not limited to include recurrent or persistent 13 stress urinary incontinence, recurrent or persist 14 cystocele, anterior vaginal wall extrusion, urethral 15 erosion, wound infection, blood loss requiring 16 nondirective blood transfusions, urinary retention, 17 voiding dysfunction, chronic bladder or pelvic pain, 18 dyspareunia, sexual dysfunction, thrombophlebitis, 19 pulmonary emboli, mild cardiac infarction, stroke and 20 death. She understands and accepts these risks." 21 Q. And the risks that you just testified about 22 are risks of the suburethral sling procedure? 23 A. That's correct. 24 Q. They're risks of the cystocele procedure? 25 A. That is correct. Page 73 1 Q. And your understanding was she understood the 2 risks and was accepting the risks to help her current 3 condition? 4 A. That is correct. 5 Q. Marked Exhibit 9, "Redwood Urology Medical 6 Group, Inc. Consent For Surgery." It's Bates stamped 7 00166 through 00167. 8 (Whereupon, Deposition Exhibit 9 was 9 marked for identification.) 10 BY MR. FAVRET: 11 Q. Dr. James, are you familiar with this 12 document? 13 A. I am. 14 Q. And what is it? 15 A. It's the informed consent for the treatment of 16 incontinence or loss of urinary control with a list of 17 risks in the mid page where I checked off the list as we 18 went through them, and I signed next to the document. 19 Q. And this is the consent form that you 20 reviewed with Ms. Owen that you just referred to in 21 your previous note? 22 A. Yes, it is. 23 Q. And the possible risks associated with the 24 procedure, you went through and reviewed each of these 25 risks with Ms. Owen? 19 (Pages 70 - 73) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 9 of 11 Page 94 1 Owen; is that correct? 2 A. Correct. 3 Q. And you're not providing any testimony as to 4 the manufacturing or design of ObTape? 5 A. I'm not. 6 Q. Let me just look at my notes quickly. 7 No further questions at this time. 8 EXAMINATION BY MS. PHILLIPS 9 BY MS. PHILLIPS: 10 Q. Okay. Good morning, Dr. James. 11 A. Good morning. 12 Q. My name is Rebecca Phillips. We met earlier, 13 briefly, off the record. I represent the plaintiff 14 Michele Owen, your patient, in this lawsuit. Do you 15 understand that Ms. Owen has not alleged any wrongdoing 16 on your part? 17 A. I do. 18 Q. Do you understand that she does not intend to 19 allege any wrongdoing on your part? 20 A. I don't know that, but I would hope so. 21 Q. You do understand that Mentor has not alleged 22 any wrongdoing on your part? 23 A. I've not had a conversation with them, so I 24 don't know that. 25 Q. Are you aware that Mentor has alleged Page 95 1 wrongdoing on implanting surgeons in other ObTape 2 lawsuits? 3 MR. FAVRET: Objection; misstates facts. 4 THE WITNESS: I'm not aware of that. 5 BY MS. PHILLIPS: 6 Q. I'd like to make you aware as well. I have 7 lots of documents I would like to go over with you 8 today, but I can't confirm with anyone in my office 9 that those documents were actually produced to opposing 10 counsel; therefore, I'm not going to be allowed to show 11 you documents today. So if some of the questioning 12 seems a little bit awkward, that's going to be why, and 13 I apologize for it in advance. I'll do the best I can 14 to ask you the questions I have without the use of 15 those documents. 16 So we've already discussed quite a bit about 17 your practice and your background. I'd like to talk to 18 you a little bit more in depth about your use of ObTape. 19 You did use ObTape at some point in your career; is that 20 correct? 21 A. That's correct. 22 Q. And what time period, if you recall, were you 23 using ObTape? 24 A. You know, again, I intentionally did not go 25 back and look at medical records, so I really can't tell Page 96 1 you the number of cases I did or the time frame. It was 2 around the time of your client, but I can't tell you 3 precise dates. 4 Q. And I believe you testified earlier that you 5 implanted 10 to 20 ObTapes? 6 A. Yes. 7 Q. And when did you stop implanting ObTape? 8 A. In terms of a date, I don't recall. 9 Q. I'd like to go over the design of ObTape with 10 you in your head just a little bit. What do you 11 remember about what ObTape looked like and felt like? 12 A. It was white in color. It was probably an 13 inch by, maybe, four to five inches in length. It was 14 incredibly soft. It felt like the texture of a golf 15 shirt. Most slings, you can easily feel the Prolene 16 suture, and they're somewhat rigid. This was completely 17 different. 18 Q. So you recall ObTape being a sling that was 19 very soft? 20 A. Correct. 21 Q. Why would you choose a soft sling? 22 A. Because, as I said earlier, one of the 23 problematic complications is patients would develop scar 24 tissue around the sling, and then they would develop a 25 fibrous band. So that would make intercourse extremely Page 97 1 uncomfortable, and, honestly, subsequently difficult to 2 correct. So it was my conjecture that the softer sling 3 may have less of a reaction and therefore this risk 4 would be reduced. 5 Q. Did you ever use any of the slings that were 6 harder, that were more stiff? 7 A. I did. 8 Q. And what was your experience with those 9 slings? 10 A. The incontinence rate was really the same as 11 ObTape, but I did have an increase risk of patients 12 complaining of that fibrous band, which was distressing 13 to them. So one of my goals was to try and eliminate 14 that, of course. And when ObTape came along with this 15 new softer device, I thought this might be a solution. 16 Q. Tell me about -- do you remember the patients 17 who complained about the fibrous brand? Do you 18 remember any of them specifically? 19 A. Not by name, no. 20 Q. What do you remember about the problems they 21 complained to you of? 22 A. They complained that with intercourse -- with 23 early penetration they had significant pain. And with 24 pelvic thrusting, they had significant pain, and they 25 could clearly show you it was right underneath the 25 (Pages 94 - 97) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 10 of 11 Page 98 1 bladder neck where the band was and the sling was. 2 Q. And you say significant pain. These patients 3 of yours who used the harder mesh, they had significant 4 pain with intercourse; is that correct? 5 A. Pain that was disruptive and made intercourse 6 unpleasurable and undesirable. 7 Q. When you warned against painful intercourse 8 to your patients, as you would with a general risk of 9 surgery, was it a significant pain that you were 10 warning them against? 11 A. I simply tell them that they may have pain of 12 varying degrees with intercourse, which may make 13 intercourse uncomfortable and, in fact, prohibit 14 intercourse. 15 Q. But it was your experience that with the 16 harder mesh, with the less flexible mesh, the patients 17 who had that tape implanted had more significant pain 18 with intercourse than patients who had a softer mesh 19 implanted? 20 MR. FAVRET: Objection; vague. "Inform." 21 THE WITNESS: I had no basis to compare it. 22 All I knew is these patients had a complication that I 23 thought may be related to the hardness of the sling, and 24 I was looking for a solution to their problem. And when 25 I saw the ObTape and read about it and talked to other Page 99 1 physicians, I thought it might be a solution. 2 BY MS. PHILLIPS: 3 Q. Okay. 4 A. And, in fact, I would say, as I recollect, 5 with the ObTape, I did not have any patients complain of 6 intercourse -- or pain with intercourse. It was a small 7 number. So I'm not sure that's a valid statistic, but 8 it seems like, in the beginning, that assumption was 9 correct, but I don't know if it was valid long term. 10 Q. But with the more stiff slings, you did have 11 patients complaining of pain? 12 A. And I still do. 13 Q. Doctor, are you hundred percent certain that 14 you remember the design of the ObTape? 15 MR. FAVRET: Objection. 16 THE WITNESS: I can tell you a hundred percent 17 the description, as I recall. The design, as you're 18 talking about now at a micro level, I don't remember the 19 design, frankly. 20 BY MS. PHILLIPS: 21 Q. Okay. 22 A. I'm not sure what you're asking. But the 23 description, as I recall, is what I told you. It was 24 soft. It was white, you know. 25 Q. So Doctor, are you aware that ObTape was Page 100 1 actually marketed for its low elasticity? 2 A. No. 3 Q. Are you aware that ObTape was marketed as 4 being resistant to traction? 5 MR. FAVRET: Objection to form. 6 THE WITNESS: No. 7 BY MS. PHILLIPS: 8 Q. Mind it -- if those things are true, might it 9 be the case you are misremembering which product you 10 implanted and are describing as soft? Might it be the 11 case -- strike that. 12 If those things I just said about ObTape are 13 true, might you be misremembering which product -- let 14 me see how to ask this correctly. 15 Is it possible, Doctor, with the number of 16 products that you've used over the years, that you are 17 confusing ObTape for another product? 18 MR. FAVRET: Objection to form. 19 THE WITNESS: Until you raised the question, I 20 have never felt confused about the issue. I know how I 21 came to conclude I was going to use the device, and it's 22 really what I just told you. So I don't think I'm 23 confused. 24 BY MS. PHILLIPS: 25 Q. Okay. If I told you that ObTape was not a Page 101 1 woven soft mesh, that, in fact, it was a heat-welded, 2 more stiff poly propylene device, would that cause you 3 some concern about any of your prior testimony with 4 regard to ObTape? 5 MR. FAVRET: Objection; form; misstates facts. 6 THE WITNESS: No. What I recollect is what I 7 told you, and I believe that to be true. 8 BY MS. PHILLIPS: 9 Q. So you believe ObTape was a soft mesh? 10 A. Yeah. The reason I say that is something made 11 me change my behavior because I was using a different 12 device beforehand. And as I recall the process, how I 13 came to ObTape, it had nothing to do with the company's 14 marketing. It had to do with my attempting to find a 15 solution to a patient problem, and I can remember 16 feeling the device, and I thought that this was going to 17 be a good device. 18 BY MS. PHILLIPS: 19 Q. Because it was softer? 20 A. In my hands it was softer, correct. 21 Q. Can you tell me: Do you recall the device 22 that you're describing as ObTape right now having 23 pores? 24 MR. FAVRET: Objection to form. 25 THE WITNESS: All slings have pores. As I 26 (Pages 98 - 101) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-4 Filed 07/25/16 Page 11 of 11 Exhibit B Case 4:13-cv-00438-CDL Document 37-5 Filed 07/25/16 Page 1 of 3 Apr/20/2016 10:58:20 SPHP HIM 7075231316 9/22 REDWOOD UROLOGY MEDICAL GROUP, James R Palleschi, MD Robert E. James, MD, FACS Thomas Patient: Owen, Michele Chart #: 44654 Date: March 01, 2005 CHIEF COMPLAINT: Preoperative visit. C. uekett, MD, FACS HISTORY: Mrs. Owen has type I stress urinary incontinence with a cystocele and pelvic. relaxation. She will be undergoing a cytoscopy, Op -Tape pubovaginal sling, and cystocele repair in the near fixture at which time a hysterectomy and rectocele repair will be performed as well. I once again reviewed her therapeutic options In detail, the operation, potential complications, risk, recuperation and expectations. My personal experience was outlined, no guarantees were made or implied. CURRENT MEDICATIONS: Elavil 25 mg q day, Ambien 10 mg p.r.n., Motrin 300 mg p.nn. MEDICATION ALLERGIES: TRIPTAN. REVIEW OF SYSTEMS: She denies any fevers, chills, chest pain, shortness of breath, progressive fatigua, involuntary weight loss or syncope. During her previous surgical procedures, she has not received any blood transfusion or had any anesthetic complications. There is no past history of thromboembolic disorders or family history of anesthetic complications. She has no prosthetic components for mitral valve prolapse. PHYSICAL EXAMINATION: BEET, neck and cardiopulmonary examination were normal. URINALYSIS: pH of 6.0 without protein or glucose present. Acellular, IMPRESSION: 1, Type I stress urinary incontinence. 2. Grade II cystocele. 3. Pelvic relaxation. RECOMMENDATIONS: Cystoscopy, Op -Tape sling and cystocele repair. INFORMED CONSENT: She has reviewed and signed the procedure specific consent form. The document was reviewed with ber and all questions were answered. Some of the potential complications discussed but not limited to include recurrent or persistent stress urinary incontinence, recurrent or persistent cystocele, anterior vaginal wall extrusion, urethral erosion, wound infection, blood loss requiring non directive blood transfusions, urinary retention, voiding 500 Doyle Park Drive, Suite 303 Santa Rasa, CA 95405 (707) 575 -1833 (707) 575 -1892 FAX Case 4:13-cv-00438-CDL Document 37-5 Filed 07/25/16 Page 2 of 3 Apr /20/2016 10:58:20 SPHP HIM 7075231316 10/22 REDWOOD UROLOGY MEDICAL GROUP, INC. James R. Palleschi, MD Robert E. James, MD, FACS Thomas Duckett, MD, FACS Patient: Owen, Michele Page: 2 a. dysfunction, chronic bladder or pelvic pain, dysparounia, sexual dysfunction , thrombophlebitis, pulmonary emboli, myocardial infarction, stroke and death. She understands and accepts these risks. Rob qfl James, M.D, PACS. 500 Doyle Park Drive, Suite 303 Santa Rosa, CA 95405 (707) 575 -1833 (707) 575 -1892 FAX Case 4:13-cv-00438-CDL Document 37-5 Filed 07/25/16 Page 3 of 3 Exhibit C Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 1 of 24 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL CASE NO. 2004 Ind. Case No. 4:13-cv-00438-CDL PLAINTIFF FACT SHEET Please provide the following information for each individual on whose behalf a claim is being made. Whether you are completing this Plaintiff Fact Sheet for yourself or for someone else, please assume that “You” means the person who had the ObTape implanted. In filling out this form please use the following definition: “healthcare provider” means any hospital, clinic, center, physician’s office, infirmary, medical or diagnostic laboratory, or other facility that provides medical care or advice, and any pharmacy, x-ray department, radiology department, laboratory, physical therapist or physical therapy department, rehabilitation specialist, or other persons or entities involved in the diagnosis, care and/or treatment of you. In filling out any section or sub-section of this form, please submit additional sheets as necessary to provide complete information. In addition, if you learn that any of your responses are incomplete or incorrect at any time, please supplement your responses to provide that information as soon as you become aware of this information. In completing this Plaintiff Fact Sheet, you are under oath and must provide information that is true and correct to the best of your knowledge, information and belief. Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 2 of 24 2 I. CASE INFORMATION 1. Name of person completing this form: Michele Owen 2. Name of person on whose behalf a claim is being made: N/A THE REST OF THIS PLAINTIFF FACT SHEET REQUESTS INFORMATION ABOUT THE PERSON WHO WAS IMPLANTED WITH THE OBTAPE II. CORE INFORMATION 1. Lot No. for the ObTape (please attach a copy of the stickers shown on the operative report): Not available 2. Date of Implantation: 3/7/2005 3. Name and Address of Implanting Surgeon(s): Robert E. James, M.D., Sutter Pacific Medical Foundation, 3883 Airway Dr., Suite 202, Santa Rosa, CA 95403 4. Name and Address of Hospital, Clinic, or Doctor’s Office where implantation surgery was performed: Santa Rosa Memorial Hospital; 1165 Monthomery Drive, Santa Rosa, CA 95405 5. If the ObTape has been removed, provide the date on which it was removed: 5/7/2010 6. Name and Address of Surgeon(s) who removed the ObTape: Lela M. Emad, MD; 500 Doyle Park Drive, Santa Rosa, CA 95405 7. Name and Address of Hospital, Clinic, or Doctor’s Office where surgery(ies) performed: The Surgery Center of Santa Rosa; 1111 Sonoma Avenue – Lower Level, Santa Rosa, CA 95405 8. Name of the Manufacturer and Type of the replacement sling, if any: N/A Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 3 of 24 3 9. Were any portions of the ObTape surgically removed? Yes X No a) If Yes, what is the present location of the removed portions of the ObTape? Unknown 10. Has any doctor ever told you that there are portions of the ObTape still in your body? Yes X No If Yes, please provide name and address of each such doctor: Susan Dehnad, MD; 3883 Airway Drive #165, Santa Rosa, CA 95403 11. Has any doctor told you that those portions of the ObTape still in your body need to be removed? Yes No X If Yes, please provide name and address of each such doctor: N/A Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 4 of 24 4 III. PERSONAL INFORMATION 1. Name (first, middle name or initial, last): Michele Owen 2. Maiden or other names used and dates you used those names: Rainone 1960-1987; Preisinger 1987-1995 3. Current address and date when you began living at this address: CA 95401, I began living there in 2003 the first time and moved back to that house in 2009 – present. 4. Identify each address at which you resided for the period from ten years before your ObTape surgery up to the present and the dates you resided at each one. Address Dates of Residence Novato, CA 94947 1988 - 1998 C t . , Rohne rt Park, CA 94928 1998 - 2003 anta Rosa, CA 95401 2003 - 2006 o, Rohnert Park, CA 94928 2006 -2009 an ta Rosa , CA 95401 2009 - present 5. Social Secur ber: 078-56-1213 6. Date and place of birth: /1960; Queens, NY 7. Current marital status: Married 8. If married, please provide the following information: Date of marriage: 3/14/1996 Name of spouse: Joseph T. Owen, II Date and place of birth of spouse Santa Rosa, CA 9. Name(s) of former spouse(s), date(s) of marriage(s) and dates the marriage(s) were terminated, and the nature of the termination (i.e., death, divorce): John J. Preisinger III; married 9/1986; divorced 1988 10. If you have children, list each child’s name and date of birth and whether they were delivered vaginally or by Caesarian. Alexander W. Preisinger vaginally delivered; Joseph T. Owen III vaginally delivered Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 5 of 24 5 11. Identify all schools you attended, starting with high school: Name of School Address Dates of Attendance Degree Awarded Major or Primary Field Sachem High School 212 Smith Rd. Lake Ronkonkoma, NY 11779 1975 – 1978 Diploma General Studies 12. Are you currently employed? Yes __X___ No _____ If yes, please identify your current employer with name, address and telephone number and your position there: Oil Stop Car Wash; 5070 Redwood Drive, Rohnert Park, CA 94928; (707) 588-8000 Position: Cashier/Administrative Assistant If not, did you leave your last job for a medical reason? Yes _____ No __X___ If Yes, describe why you left: N/A 13. For the period of time from ten years before you had your ObTape surgery, until the present, please identify all of your employers, with name, address and telephone number, your employment dates, your position there, and your reason for leaving: Name of Employer Address and Telephone Number Dates of Employment and Wage/Salary Describe Your Position or Duties Reason for Leaving Amplexus Corporation 7665 Redwood Blvd., Novato, CA 94945 (415) 897-3700 1994 – 2004; $19.25 / hour Administrative Assistant lay off Calvary Chapel of Petaluma 1955 S. McDowell Blvd., Petaluma, CA 94954 (707) 766-1567 2004 – 2009; $14.00/hour Administrative Assistant lay off Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 6 of 24 6 14. If you have Medicare, please state your HICN number: N/A 15. For the period from ten years before your ObTape surgery to the present, have you been on or applied for workers’ compensation, social security, and/or state or federal disability benefits? Yes _X__ No _____ If Yes, then as to each application, separately state the following and attach any documents you have which relate to the application and/or award of benefits: i. Date (or year) of application: 2012 ii. Type of benefits: State Disability Insurance iii. Nature of claimed injury/disability: HEPC iv. Period of disability: 8/6/2012 – 6/6/2013 v. Amount awarded: $584 bi-monthly vi. Basis of your claim: illness vii. Was claim denied? Yes _____ No __X___ viii. To what agency or company did you submit your application: California State Disability ix. Claim/docket number, if applicable: DI – 1000 – 039 – 280 16. Have you ever filed a lawsuit or made a claim (other than this suit)? Yes _____ No _X_ If Yes, please provide the following information and attach copies of all pleadings, releases or settlement agreements and deposition transcripts you have: Party You Sued/Made Claim Against Court in Which Suit Filed/Claim Made Case/Claim Number Attorney Who Represented You Nature of Claim and Injury N/A Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 7 of 24 7 17. Have you ever been convicted of, or pled guilty to, a felony or a crime of dishonesty within the past ten years? Yes _____ No __X___ If Yes, please state the charge to which you plead guilty or which you were convicted of, as well as the court where the action was pending and the date of such conviction or plea: N/A 18. Have you or your spouse ever declared bankruptcy since the date of your initial ObTape surgery? Yes _X__ No _____ If Yes, please state when and in what court you filed your bankruptcy petition, including the docket number of the petition and the orders of discharge: 8/30/2011 – US Bankruptcy Court, Northern District of California Cause No. 11-1-2760AJ13 19. Have you or your spouse (if he/she is pursuing a loss of consortium claim) received any money from a third party in exchange for an assignment of any portion of your claim or recovery in this lawsuit, so that the payer or assignee has decision making authority over the terms of any settlement or other resolution of your claim or has lien rights (excluding liens by healthcare providers) against any funds generated by the resolution of your claim? Yes _____ No _X__ If Yes, please state: The name and address of the third party with whom you have entered into such a contract. N/A Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 8 of 24 8 IV. HEALTHCARE PROVIDERS 1. Identify each doctor, healthcare provider, hospital, clinic, surgery center, healthcare facility, physical therapy or rehabilitation centers (including but not limited to family/primary care physicians, surgeons, urologists, gynecologists, infectious disease specialists, physical therapists, practitioners of the healing arts) whom you have seen for medical care and treatment for the period ten years before your ObTape surgery to the present. Name (Specialty) Address and Telephone Number Approx. Dates / Years of Visits Reason/Procedure Performed Lela Emad, MD Gynecologist 500 Doyle Park Dr. Suite 103 Santa Rosa, CA 95405 (707) 579-1386 1998 - 2011 Annual checks; cystoscopy, incision of Ob Tape, cystocele repair, mesh erosion repair Robert E. James, MD Urologist 3883 Airway Dr. Suite 203 Santa Rosa, CA 95403 (707) 521-7766 2005 Stress urinary incontinence, cystocele repair, incision of Ob Tape Jennifer T. Lee, MD Family Medicine 3883 Airway Dr. Suite 202 Santa Rosa, CA 95403 (707) 521-7777 2011 - present Primary care Susan Dehnad, MD Gynecologist 3883 Airway Dr. Suite 165 Santa Rosa, CA 95403 (707) 521-8930 2012 Gynecology, urology, mesh related injuries Rita Melkonian, MD Obstetrician- Gynecologist 101 Casa Buena Drive Corte Madera, CA 94925 (415) 924-3530 2013 Estrogen therapy, vagina tissue massage, mesh related injuries Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 9 of 24 9 2. Identify each pharmacy, drugstore or any other facility or supplier (including but not limited to mail order pharmacies) where you ever received any prescription medication for the period ten years before your ObTape surgery to the present. Name of Pharmacy/Supplier Address and Telephone Number of Pharmacy/Supplier Approx. Dates/Years You Used Pharmacy/Supplier Safeway 1799 Marlow Road Santa Rosa, CA 95401 Tel: (707) 528-3062 1999 - present Curascript 6272 Lee Vista Boulevard Orlando, FL 32822 Tel: (407) 852-4903 2012 - 2013 Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 10 of 24 10 V. MEDICAL BACKGROUND 1. Current Height: 5’2” 2. Please state your weight at the following times: (a) Current: 202 lbs. (b) Time of implant: 169 lbs. (c) Time of explant/excision surgery (if any): 189 lbs. 3. Smoking History (a) Have you ever smoked cigarettes? Yes _X__ No _____ State amount smoked: __4 cigarettes__ per day for __11____ years, during the years ___1976_________ to _____1987________. 4. Other Conditions (a) To the best of your knowledge, have you ever experienced or been diagnosed with any of the following conditions from the time beginning ten years before your ObTape surgery to the present? Please select Yes or No for each condition. For each condition for which you answer Yes, please provide the additional information requested in the table following this chart: Condition Experienced or Diagnosed Yes No Don’t Know 1. Abnormal pap smear X 2. Autoimmune disease X 3. Bacterial vaginosis X 4. Cervical cancer X 5. Cystocele X 6. Diabetes X 7. Endometriosis X 8. Gestational diabetes X 9. Hormone deficiency X 10. Hypertension/high blood pressure X 11. Interstitial cystitis X 12. Obesity X 13. Ovarian cancer X 14. Pelvic inflammatory disease X 15. Polycystic ovary disease X 16. Rectocele X 17. Stress urinary incontinence X Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 11 of 24 11 18. Thyroid disorder X 19. Toxic shock syndrome X 20. Urethral erosion X 21. Urinary tract infection X 22. Urge incontinence X 23. Uterine cancer X 24. Vaginal erosion X 25. Vaginal infection X 26. Venereal disease X 27. Yeast infection X (b) For each condition for which you answered Yes in the previous chart, please provide the information requested below: Condition You Experienced Approximate Date of Onset Name, Address and Telephone Number of Treating Physician (if any) Treatment Received Endometriosis Do not recall Do not recall None Urinary Incontinence 2005 Lela Emad, MD 500 Doyle Park Drive Suite 103 Santa Rosa, CA 95405 (707) 579-1386 Incision of an ObTape suburethral sling Urinary tract infection Several in 2005 Lela Emad, MD 500 Doyle Park Drive Suite 103 Santa Rosa, CA 95405 (707) 579-1386 Antibiotics Vaginal infections Several in 2005 Lela Emad, MD 500 Doyle Park Drive Suite 103 Santa Rosa, CA 95405 (707) 579-1386 Antibiotics Yeast infections Several in 2005 Lela Emad, MD 500 Doyle Park Drive Suite 103 Santa Rosa, CA 95405 (707) 579-1386 Antibiotics Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 12 of 24 12 VI. MEDICATIONS 1. List all of the medications (prescription and over the counter) you currently take. Medication Dose / Frequency / Dates of Use Physician Ordering Pharmacy Dispensing Purpose Ambien 10 mg. one per day Jennifer T. Lee, MD Safeway Sleep aid Elavil 25 mg. one per day Jennifer T. Lee, MD Safeway Pain 2. To the best of your recollection, are there any prescription medications other than those identified that you have taken on a regular basis for any duration of more than two months for the period ten years before your ObTape surgery to the present? Yes _____ No __X___ If Yes, please identify the medication(s), the doctor(s) who prescribed it, the approximate dates/years you have taken this medication, and why it was given to you: Medication Dose/ Frequency/Dates of Use Physician Ordering Pharmacy Dispensing Purpose N/A Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 13 of 24 13 VII. IMPLANT AND EXCISION/REMOVAL 1. Describe the condition for which the ObTape was implanted: Stress urinary incontinence, and cystocele repair. 2. Before the implantation of the ObTape, did you receive non-surgical treatment for your stress urinary incontinence? Yes No X (a) State the period during which you received non-surgical treatment: N/A (b) State the nature of the non-surgical treatment (e.g., physical therapy, medication, injections): N/A (c) State the name and address of all doctors or health care providers involved in your non-surgical treatment: N/A 3. Did you see, read or rely upon any documents or other information from Mentor in making your decision to have the ObTape implanted? Yes ___ No _X__ (a) If Yes, identify each document/source of information. N/A (b) When did you read the document/receive the information? N/A (c) How did you obtain the document or information? N/A (d) Do you have the document or written information in your possession? If so, please produce a copy of it together with your answers to the Plaintiff Fact Sheet. Yes No X I don’t know Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 14 of 24 14 4. Have you had any communications with any present or former employee of Mentor or concerning ObTape or matters in any way related to this lawsuit? Yes No X If Yes, for each, please state: Date of Communication Name of Person with Whom You Communicated Mode of Communication (In Person, By Phone, By Email, By Mail) Do you have a writing or recording? (IF SO, PLEASE ATTACH) N/A If the communication was by phone or in-person, please tell us what was said: 5. N/A Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 15 of 24 15 VIII. INJURIES & DAMAGES 1. Are you claiming any physical injuries or illness as a result of the ObTape? Yes __X___ No _____ If Yes, please describe in detail the following: (a) The physical injuries or illness claimed and when the symptoms began: The Ob Tape that was implanted eroded and I had an additional procedure to have it removed. All of this has caused great amounts physical pain and scar tissue. The doctors have recommended physical therapy to help, but it just continues to be extremely painful. For timing of symptoms, see medical records. (b) Are those injuries or illnesses continuing? Yes __X___ No _____ (c) Provide the name and address of each health care provider that you have seen for these problems: Condition You Experienced Name, Address and Telephone Number of Health Care Provider Pain Susan Dehnad, MD 3883 Airway Drive, Suite 165 Santa Rosa, CA 95403 Tel: (707) 521-8930 Pain Rita Melkonian, MD 101 Casa Buena Drive Corte Madera, CA 94925 Tel: (415) 924-3530 Mesh erosion, pain Lela Emad, MD 500 Doyle Park Drive, Suite 103 Santa Rosa, CA 95405 Tel: (707) 579-1386 Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 16 of 24 16 2. Have you ever been hospitalized as a result of any of these conditions? Yes _X_ No _____ If Yes, please provide the following information: (i) Approximate date(s) of hospital admission: 5/7/2010 (ii) Approximate date(s) of discharge: 5/7/2010 (iii) Hospital names(s) and address(es): The Surgery Center of Santa Rosa; 1111 Sonoma Avenue – Lower Level, Santa Rosa, CA 95405 3. Do you claim any psychological or psychiatric injury (other than garden variety emotional distress) as a consequence of having the ObTape? Yes _____ No __X___ If Yes, please state the following as it pertains to your treatment for any psychiatric and/or psychological condition(s): Condition Name and Address of Mental Healthcare Provider (if any) Approx. Dates/Years of Treatment/Visits (if any) N/A 4. Are you making a claim for lost wages or lost earning capacity? Yes _____ No __X___ (a) If Yes, describe your claim and attach your W-2 forms for the relevant years. Your description should include the total amount of time (and amount of income) which you have lost or will lose from work as a result of any condition which you claim or believe was caused by the ObTape, and an explanation of how those amounts were calculated: N/A (b) If you claim a loss of earnings, state your earned income from work for the following years: Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 17 of 24 17 YEAR INCOME 2012 $ 2011 $ 2010 $ 2009 $ 2008 $ 2007 $ 2006 $ 2005 $ 2004 $ 2003 $ 5. Is your spouse claiming loss of consortium? Yes __X___ No _____ 6. Is your spouse claiming physical injury from the ObTape? Yes _____ No __X___ If Yes, please describe in detail the following: (a) The physical injuries claimed and the approximate date of treatment for each injury, and identify the name and address of each health care provider that your spouse has seen for these problems: Condition Spouse Experienced Approximate Date of Treatment Name, Address and Telephone Number of Health Care Provider (if any) N/A Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 18 of 24 18 IX. MEDICAL AND OUT-OF-POCKET EXPENSES 1. State the amount of medical expenses, by provider, which you have incurred, including amounts billed to insurers and other third party payors, which are related to any condition which you claim or believe was caused by the ObTape for which you seek recovery in this action: Name and Address of Provider Dates of Treatment Description of Treatment Amount of Medical Expenses Susan Dehnad, MD Sutter Pacific Medical Foundation 3883 Airway Drive, Suite 165 Santa Rosa, CA 95403 2012 - 2013 Gynecologist $300.00/ out of pocket Will supplement full amount of medical expenses Rita Melkonian, MD 101 Casa Buena Drive Corte Madera, CA 94925 2012 - 2013 Estrogen vagina tissue massage $300.00/ out of pocket Will supplement full amount of medical expenses Surgery Center of Santa Rosa 1111 Sonoma Avenue Lower Level Santa Rosa, CA 95405 5/7/2010 Removal of eroded mesh with a cystoscopy Will supplement $ $ For any expenses claimed above, have they been reimbursed by any third party? Yes _X_ No _____ If Yes, identify which expenses, the amount reimbursed and the date reimbursed. All of the above medical expenses that are not – out of pocket expenses – have been reimbursed to the provider by my insurance company. Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 19 of 24 19 FACT WITNESSES Please identify all persons whom you believe possess information concerning you injury(ies) and current medical conditions, other than your healthcare providers, and please state their name, address, and relationship to you: Name: Joseph Owen Address: 1 1 2 5 L e v i Relationship to you: Husband Name: Nikki Foley Address: 1 1 2 6 L e v i Relationship to you: Neighbor Name: Alex Preisinger Address: 1 1 2 5 L e v i Relationship to you: Son Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 20 of 24 20 X. DOCUMENT DEMANDS These document requests are not intended to seek attorney client communications, or attorney work product materials. In addition, these requests do not encompass or seek information about expert witnesses or communications with and/or from experts or proposed trial exhibits or trial materials which may be subject to disclosure at a later date in accordance with subsequent Court Order or rule. Thus, if you have any of the following in your possession which is not protected as set forth above, please provide a copy of it with this Plaintiff Fact Sheet. REQUEST NO. 1: All medical records (including, but no limited to, all charts, hospital records, consent forms, treating physician records, photographs, videotapes/DVDs, drawings, Xrays, ultrasounds, MRIs, CT scans, radiographs, angiograms, blood tests, laboratory reports, prescriptions, spirometry tests, electrocardiograms, urine tests, blood gases tests, psychometric tests, neuropsychological tests, stress tests, notes, telephone messages) from any physician, hospital, clinic, health care provider, pharmacy, psychiatrist, psychologist, counselor or therapist created since 1990 reflecting, referring or relating to Plaintiff. REQUEST NO. 2: All medical bills for which plaintiff seeks recovery in this lawsuit, as well as all documents relating to third-party payments of medical bills. REQUEST NO. 3: All records of any other expenses (including, but not limited to, nursing services, outpatient care, home health care, lost wages, etc.) allegedly incurred as a result of the injuries alleged in the complaint. REQUEST NO. 4: All photographs and videos of plaintiff’s surgery and all photographs and videos of plaintiff which show plaintiff’s condition since the date of the original implantation. REQUEST NO. 5: Any documents including but not limited to literature, warnings or informed consent forms received by you from surgeons, physicians, or other health care professionals who have treated you for any condition related to ObTape. Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 21 of 24 21 XI. AUTHORIZATIONS Complete and sign the Authorization attached as Exhibit A. Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 22 of 24 Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 23 of 24 Case 4:13-cv-00438-CDL Document 37-6 Filed 07/25/16 Page 24 of 24 Exhibit D Case 4:13-cv-00438-CDL Document 37-7 Filed 07/25/16 Page 1 of 6 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA 2 COLUMBUS DIVISION 3 ) 4 ) IN RE MENTOR CORP. OBTAPE ) MDL Case No. 2004 5 TRANSOBTURATOR SLING PRODUCTS ) LIABILITY LITIGATION ) Indiv. Case No. 6 ) 4:13-cv-00438 _______________________________) (0wen) 7 8 9 - - - - 10 11 12 DEPOSITION OF MICHELE OWEN 13 Monday, May 23, 2016 14 15 16 17 18 19 20 REPORTED BY: René Markarian, CSR 5606 21 22 23 24 25 Job No. CS2297193 Page 1 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-7 Filed 07/25/16 Page 2 of 6 Page 2 1 APPEARANCES: 2 FOR MICHELE OWEN: 3 Heard Robins Cloud LLP 4 Attorneys At Law 2000 West Loop Square, 22nd Floor 5 Houston, Texas 77027 By: Rebecca L. Phillips, Esq. 6 7 FOR MENTOR WORLDWIDE: 8 Tucker Ellis LLP Attorneys At Law 9 950 Main Avenue, Suite 1100 Cleveland, Ohio 44113-7213 10 By: Zachary Adams, Esq. and 11 Tucker Ellis LLP Attorneys at Law 12 515 South Flower Street Forty Second Floor 13 Los Angeles, California 90071-2223 By: Monee Takla Hanna, Esq. 14 15 THE VIDEOGRAPHER: 16 Mike Tunick 17 18 19 20 21 22 23 24 25 Page 3 1 I-N-D-E-X 2 3 Examination by: Page: 4 Mr. Adams 6 5 Ms. Phillips 118 6 7 8 Further Examination by: 9 Mr. Adams 121 10 11 12 Exhibits: Page: 13 Exhibit 1 Document entitled, "Plaintiff 26 Fact Sheet" 14 Exhibit 2 Document entitled, "Plaintiff's 27 15 Responses to Defendant Mentor Worldwide LLC's First Set of 16 Interrogatories to Plaintiff Michele Owen" 17 Exhibit 3 Document entitled, "Responses 27 18 and Objections to Defendant's First Set of Requests for 19 Production to Plaintiff Michele Owen" 20 Exhibit 4 Document entitled, "Woman's 41 21 Ob/Gyn Medical Group," dated 11/13/01, Bates OBT Owen M 22 00050 23 Exhibit 5 Document to Lela Emad, M.D., 61 from Donald Van Glesen, M.D., 24 dated November 24, 2004, Bates OBT Owen M 00061 25 Page 4 1 Exhibits: (Continued) Page: 2 Exhibit 6 Document entitled, "New Patient 76 Evaluation," dated 1/04/05, Bates 3 PLF_Owen_M_00162 4 Exhibit 7 Document entitled, "Office 78 Visit," dated January 25, 2005, 5 Bates OBT Owen M 00017 6 Exhibit 8 Medical record dated March 01, 79 2005, Bates OBT Owen M 00014 7 Exhibit 9 Medical record dated March 29, 89 8 2005, Bates OBT Owen M 00013 9 Exhibit 10 Document entitled, "Authorization 94 For Use And/Or Disclosure of 10 Member/Patient Health Information," Bates OBT Owen M 00077 11 Exhibit 11 Medical record dated 5/18/2012, 106 12 Bates OBT Owen M 00157 and 00158 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 1 At the offices of Redwood Reporting, 3510 Unocal 2 Place, Suite 115, Santa Rosa, California, on Monday, May 3 23, 2016, commencing at the hour of 8:58 a.m., thereof, 4 before René Markarian, a Certified Shorthand Reporter, 5 personally appeared 6 MICHELE OWEN, 7 who, having been first duly sworn, testified as follows: 8 - - - 9 THE VIDEOGRAPHER: All right. Good morning. We 10 are on the record at 8:58 a.m. It is -- this is the video 11 recorded deposition of Michele Owen. My name is Mike 12 Tunick. I'm here with -- we're here at Redwood Reporting 13 in Santa Rosa, California. We're here on behalf of 14 Veritext Legal Solutions at the request of counsel for the 15 defense, I believe. Correct? Deposition is of Michele 16 Owen in the matter of Michele Owen versus Mentor Corp., et 17 all, case number 4:13-cv-00438. 18 If we can now have our attorneys present please 19 introduce yourselves. 20 MR. ADAMS: Zach Adams from Tucker Ellis on 21 behalf of Mentor Worldwide. 22 MS. HANNA: Monee Hanna from Tucker Ellis on 23 behalf of Mentor Worldwide LLC. 24 MS. PHILLIPS: And Rebecca Phillips on behalf of 25 Ms. Owen. 2 (Pages 2 - 5) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-7 Filed 07/25/16 Page 3 of 6 Page 22 1 Q. And did you have any treatment for that fall? 2 A. Yes. 3 Q. What did you have done? 4 A. I think it was called a discectomy. 5 Q. A discectomy? 6 A. Where they drain the fluid out. 7 Q. So it was a surgical procedure? 8 A. I wasn't out during it, because I see the -- I 9 saw the line like go in, where you could watch it on the 10 TV. 11 Q. Sure. 12 A. And they put in like a loose needle. And I 13 guess? 14 Q. So you weren't unconscious for the procedure? 15 A. No. Because I remember that, so I think not. 16 Q. Okay. And so the pain in your hip probably 17 started, you'd say, in the 1980s with this back injury you 18 had? 19 MS. PHILLIPS: Objection to form. 20 BY MR. ADAMS: 21 Q. When do you think -- when do you think the pain 22 in your hip started? 23 A. Probably in that area of time. 24 Q. And between then and your ObTape procedure, was 25 it constant? Page 23 1 A. It was more my back, because it was my tailbone. 2 Q. Sure. But at any point, did the pain in your hip 3 go away? 4 MS. PHILLIPS: Objection to form. 5 THE WITNESS: My back pain I don't -- you could 6 contribute the back and hips. I don't know. It was back 7 pain. It was my tailbone. 8 BY MR. ADAMS: 9 Q. Okay. Let's talk about the pain going to your 10 left foot. When did that begin? 11 A. I don't remember exact dates. 12 Q. If you can -- 13 A. But it was -- I don't remember. I know -- it's 14 been there so long that I -- I don't remember the exact 15 date. 16 Q. Okay. Can you ballpark it? No? 17 A. The hip pain has been there, and it got -- it 18 is -- I don't know. I don't remember. I'm trying to 19 think back on the years, and I don't remember. 20 Q. Did you ever seek any treatment for the pain 21 going from your hip down your left leg? 22 A. Yes. 23 Q. What kind of treatment? 24 A. Pain specialist, medication. 25 Q. Do you remember the names of any of them? Page 24 1 A. I didn't get to take any of them. 2 Q. I'm sorry. Do you remember the names of the 3 physicians you saw at the pain specialist? 4 A. Dr. Duncan, Max Duncan. 5 Q. And did Dr. Duncan prescribe you any type of 6 treatment? 7 A. He couldn't figure out what was going on. He 8 didn't know why I was having so much pain. 9 Q. Okay. Did he ever -- strike that. 10 Did he run any tests on you to see if he could 11 figure out what type of pain you had? 12 A. I think it's called nerve conduction. 13 Q. Nerve conduction test. And what were the results 14 of that test? 15 A. Inconclusive. 16 Q. Inconclusive. So after the nerve conduction 17 test, did he prescribe any medication to try and help with 18 the pain? 19 A. I don't remember, but if he did, I didn't take 20 them. 21 Q. And is there a reason you wouldn't have taken 22 them? 23 A. I was trying not to take anti-inflammatories. 24 Q. Okay. Was there a reason you weren't trying to 25 take anti-inflammatories? Page 25 1 A. Because I heard they were really bad for my 2 liver. 3 Q. And did Dr. Duncan ever prescribe any type of 4 physical therapy? 5 A. I don't remember. I don't remember. 6 Q. Is there anything else you can remember that 7 Dr. Duncan prescribed to try and treat the pain going down 8 your left leg? 9 A. All I remember is it was inconclusive, so it was 10 almost like, to me, a waste. 11 Q. A waste. 12 A. Because nothing happened. He couldn't figure out 13 what was wrong with me. 14 Q. Sure, sure. So other than your inability and 15 pain during sex, and the pain in your hips, and the pain 16 going down to your left foot, are there any other symptoms 17 that you attribute to ObTape today? 18 A. No. Just my hips and sex. 19 Q. All right. You understand that your attorneys 20 have filed certain documents for your lawsuit, correct? 21 A. Yes. 22 Q. Sure. And did you review any of those materials 23 before they were filed, or did you leave that to your 24 attorneys? 25 A. I left it to the attorneys. 7 (Pages 22 - 25) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-7 Filed 07/25/16 Page 4 of 6 Page 90 1 normal. She denies any stress or urge incontinence. Her 2 pelvic pain is resolving as is the vaginal discharge. 3 She offered no complaints." 4 Did I read that correctly? 5 A. Yes. 6 Q. And under Impression I have "Satisfactory 7 postoperative course." Did I read that correctly? 8 A. Yes. 9 Q. Recommendations, I have "She will gradually 10 resume her normal activities," and "Return visit in 4-6 11 weeks at which time, a repeat pelvic examination will be 12 completed." Did I read that correctly? 13 A. Yes. 14 Q. And can you read the name of the signature there 15 for me? 16 A. Robert E. James. 17 Q. Now, you don't remember this visit, correct? 18 A. No. 19 Q. I'll represent to you that the record shows that 20 you never followed up with Dr. James after this visit. 21 A. Okay. 22 Q. Do you remember why you wouldn't have followed up 23 with him? 24 A. We were done. 25 Q. Okay. So you felt no need to follow-up with him Page 91 1 after March 29th, 2005? 2 A. No. I had Dr. Emad, so -- 3 Q. Okay. So now the record gets a little fuzzy here 4 between 2005 and 2010. We have no medical records 5 between, I think, October of 2005 and March of 2010. 6 So did you see any doctors between these two 7 dates? 8 A. I -- with me, I'd probably say yes. 9 Q. Okay. Let's go year-by-year. 10 In 2006, do you remember which doctors you saw? 11 A. No. 12 Q. Do you remember any symptoms you were 13 experiencing in 2006? 14 MS. PHILLIPS: Objection to form and foundation. 15 THE WITNESS: No, I don't remember. 16 BY MR. ADAMS: 17 Q. Do you remember any reasons you would have sought 18 medical treatment in 2006? 19 A. I have no recall. 20 Q. Okay. Did you see any doctors in 2007? 21 A. I don't know. 22 Q. Okay. Do you remember any reasons you would have 23 sought medical treatment in 2007? 24 A. I don't remember 2007. 25 Q. Did you see any doctors in 2008? Page 92 1 A. I know -- I can't remember. 2 Q. Okay. Do you remember any reasons you would have 3 sought medical treatment in 2008? 4 A. No. If you have something, I'd like to see it, 5 because I don't remember. 6 Q. The record does not have anything. 7 A. I don't remember. This is a long time ago. 8 Q. Did you see any doctors in 2009? 9 A. Not that I recall. I don't know. 10 Q. Do you recall any reasons you would have sought 11 medical treatment in 2009? 12 A. I don't know what year -- no, I don't know. 13 Q. Okay. Now I'd like to start talking about when 14 you really began noticing complications. 15 When did you begin noticing complications that 16 you attribute to ObTape? 17 A. I don't know what day it was, but it had to be 18 within the year of 2010, because I felt an object inside 19 of me. 20 Q. Can you describe that feeling? 21 A. I couldn't describe it to you until I heard it 22 from my doctor. That made more sense. 23 Q. Which doctor was that? 24 A. Emad. And she said that pretend this is a 25 hammock, and the hammock rolled up. And what I was Page 93 1 feeling was the rolled up hammock on my right side of my 2 vagina stuck there. And I was just like "There's 3 something not right." So I called the doctor. 4 Q. Okay. And at that time did you believe ObTape to 5 be the reason you were having the rolled-up hammock 6 feeling? 7 MS. PHILLIPS: Objection to form. 8 THE WITNESS: Can you rephrase the question? 9 MR. ADAMS: Could you repeat, please. 10 (Record read) 11 THE WITNESS: I didn't know what it was until I 12 saw the doctor. 13 BY MR. ADAMS: 14 Q. Okay. And what did Dr. Emad tell you aside from 15 describing the hammock scenario? 16 A. That it has to be removed. 17 Q. The sling, you mean? 18 A. Yeah. 19 Q. So Dr. Emad attributed the pain you were having 20 to ObTape in 2010? 21 A. Yes. 22 Q. Okay. And you were told you needed to have the 23 surgery to remove the ObTape? 24 A. Yes. 25 Q. Did Dr. Emad offer any reasons why she believed 24 (Pages 90 - 93) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-7 Filed 07/25/16 Page 5 of 6 Page 94 1 the ObTape would be causing that pain? 2 A. She said it eroded. 3 Q. Eroded. Okay. And did she describe at all what 4 a vaginal erosion is? 5 A. Basically the hammock rolled up, and it was 6 stuck -- eroded to the side of my vagina. 7 Q. And whenever you started experiencing this 8 hammock feeling, did you do any research on your own about 9 the complication? 10 A. No. 11 Q. No. Okay. Were you provided any literature by 12 Dr. Emad or another medical provider about it? 13 A. Not that I recall. 14 Q. Before we go any further, I want to bring another 15 document out. 16 (Deposition Exhibit 10 was marked for 17 identification) 18 BY MR. ADAMS: 19 Q. What I'm handing to you and your counsel is an 20 Authorization For Use and/Or Disclosure Member Patient 21 Health Information marked as Exhibit 10. 22 And at this point I'm sure you know the drill, 23 but I'd ask that you kind of follow along as I read it and 24 make sure I'm reading everything correctly. Does that 25 sound good? Page 95 1 A. Yes. 2 Q. So here I have "Disclose: Judith 3 McCarthy-Kaiser," correct? 4 A. Yes. 5 Q. And then here I have Authorize: Dr. Emad Women's 6 Medical." Did I read that correctly? 7 A. Yes. 8 Q. And then down here it says "If requesting your 9 records for yourself specify facilities," and you put in 10 "Kaiser Permanente for Michele Owen," correct? 11 A. Yes. 12 Q. And then down here it says "Specify the records 13 to be disclosed," and you wrote 14 Hysterectomy surgery." Correct? 15 A. Yes. 16 Q. And then below that it says "The recipient may 17 use health information on this form for the following 18 purposes: Look over surgery records for mesh used in 19 bladder raising." Did this read that correctly? 20 A. Yes. 21 Q. And above the signature line, is that your 22 signature? 23 A. Yes. 24 Q. And above the date line it says September 23rd, 25 2008, correct? Page 96 1 A. Yes. 2 Q. And is this your handwriting? 3 A. Yes. 4 Q. And do you remember filling this out? 5 A. No. 6 Q. Okay. So do you remember why you would have 7 wanted Dr. Emad's records disclosed to Dr. McCarthy? 8 A. No, because I don't remember who Dr. McCarthy is. 9 I don't remember. 10 Q. Okay. And do you remember what you meant by 11 "look over surgery records for mesh used in bladder 12 raising"? 13 A. Do I know what I meant by it? 14 Q. Yes. Whenever you filled that in, what were you 15 referring to? 16 A. Looking over the records for the mesh. 17 Q. Okay. So was there any reason why you wanted 18 Dr. McCarthy to look over your surgery records? 19 A. I don't remember Dr. McCarthy. And I would -- I 20 have no idea. I don't remember. This is '08, so I was 21 there somewhere in '08. 22 Q. And I notice that this is Kaiser Permanente, and 23 previous you'd seen Dr. Emad at Women's Medical. 24 Did you have an insurance change at all in 2008, 25 let's say, until present? Page 97 1 A. Yeah, it seems that way. 2 Q. And do you remember what your insurance changed 3 to? 4 A. I think it went back and forth from Blue Cross to 5 Kaiser and Blue Cross again. 6 Q. And do you remember the dates of the switches? 7 A. No. 8 Q. Okay. And do you remember why the switches were 9 made? 10 A. My husband, job change. 11 Q. And so you're on your husband's medical 12 insurance? 13 A. Yes. 14 Q. All right. And just to be clear, you don't 15 remember -- strike that. 16 Do you remember filling this form out? 17 A. I actually don't. 18 Q. Okay. So you don't remember any of the contents 19 of this document? 20 A. I don't remember the name Judith McCarthy. 21 Q. Okay. But it is your handwriting? 22 A. Yes. 23 Q. Okay. So the record shows that you had part of 24 your sling removed on May 7th, 2010 by Dr. Emad, correct? 25 A. That's correct. 25 (Pages 94 - 97) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00438-CDL Document 37-7 Filed 07/25/16 Page 6 of 6 Exhibit E Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 1 of 9 U.S. Bankruptcy Court Northern District of California (Santa Rosa) Bankruptcy Petition #: 11-12760 CLOSED Assigned to: Judge Alan Jaroslovsky Chapter 13 Voluntary Asset Debtor disposition: Standard Discharge Joint debtor disposition: Standard Discharge Date filed: 07/21/2011 Date terminated: 01/06/2015 Debtor discharged: 10/29/2014 Joint debtor discharged: 10/29/2014 Plan confirmed: 10/05/2011 341 meeting: 08/30/2011 Debtor Joseph Thomas Owen, II . 95401 SONOMA-CA SSN / ITIN: x represented by Reginald R. Hindley Law Offices of Reginald R. Hindley 718 Orchard St. Santa Rosa, CA 95404 (707) 575-3700 Email: hindleylaw@gmail.com Joint Debtor Michele Rainone Owen 95401 SONOMA-CA SSN / ITIN: xxx aka Michele Rainone Owen aka Michele Rainone represented by Reginald R. Hindley (See above for address) Trustee David Burchard P.O. Box 8059 Foster City, CA 94404 (650) 345-7801 U.S. Trustee Office of the U.S. Trustee / SR 235 Pine Street Suite 700 San Francisco, CA 94104 Filing Date # Docket Text 1 Chapter 13 Voluntary Petition, Fee Amount $274. Page 1 of 8CANB Live Database 6/23/2016https://ecf.canb.uscourts.gov/cgi-bin/DktRpt.pl?918871055001685-L_1_0-1 Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 2 of 9 07/21/2011 (48 pgs) Filed by Joseph Thomas Owen II, Michele Rainone Owen. Order Meeting of Creditors due by 08/22/2011. Chapter 13 Plan due by 08/4/2011. (Hindley, Reginald) (Entered: 07/21/2011) 07/21/2011 2 (7 pgs) Creditor Matrix Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 07/21/2011) 07/21/2011 3 (1 pg) Disclosure of Compensation of Attorney for Debtor in the Amount of $ 4600 Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 07/21/2011) 07/21/2011 4 Statement of Social Security Number. Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 07/21/2011) 07/21/2011 5 (10 pgs) Chapter 13 Statement of Current Monthly and Disposable Income (Form 22C) Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 07/21/2011) 07/21/2011 6 (14 pgs) Payment Advices Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 07/21/2011) 07/21/2011 7 (8 pgs) Chapter 13 Plan Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (RE: related document(s)1 Voluntary Petition (Chapter 13) filed by Debtor Joseph Thomas Owen, Joint Debtor Michele Rainone Owen). (Hindley, Reginald) (Entered: 07/21/2011) 07/21/2011 8 (2 pgs) Certificate of Credit Counseling Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 07/21/2011) 07/21/2011 Receipt of filing fee for Voluntary Petition (Chapter 13)(11-12760) [misc,volp13] ( 274.00). Receipt number 13892142, amount $ 274.00 (U.S. Treasury) (Entered: 07/21/2011) 9 Meeting of Creditors with Certificate of Service Page 2 of 8CANB Live Database 6/23/2016https://ecf.canb.uscourts.gov/cgi-bin/DktRpt.pl?918871055001685-L_1_0-1 Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 3 of 9 07/22/2011 (13 pgs; 4 docs) ((RE: related document(s)7 Chapter 13 Plan filed by Debtor Joseph Thomas Owen, Joint Debtor Michele Rainone Owen). 341(a) meeting to be held on 8/30/2011 at 02:00 PM Santa Rosa U.S. Trustee Office for 7, Objection to Dischargeability due by 10/31/2011 for 7, Proofs of Claims due by 11/28/2011 for 7, Last day to object to confirmation is 8/30/2011 for 7, Confirmation Hearing scheduled for 9/28/2011 at 01:30 PM at Santa Rosa Courtroom - Jaroslovsky. (Burchard, David (db)) (Entered: 07/22/2011) 07/27/2011 10 (2 pgs) Request for Notice with proof of service Filed by Creditor American Home Mortgage Servicing, Inc (Buckley, Lawrence) (Entered: 07/27/2011) 07/27/2011 11 (8 pgs) BNC Certificate of Mailing - Meeting of Creditors. (RE: related document(s)9 Meeting of Creditors Chapter 13). Service Date 07/27/2011. (Admin.) (Entered: 07/27/2011) 07/27/2011 12 (10 pgs) BNC Certificate of Mailing - Chapter 13 Plan. (RE: related document(s)9 Meeting of Creditors Chapter 13). Service Date 07/27/2011. (Admin.) (Entered: 07/27/2011) 07/28/2011 13 (2 pgs) Notice of Chapter 13 Plan Deficiencies with Certificate of Mailing (dz). (Burchard, David (db)) (Entered: 07/28/2011) 08/26/2011 14 (4 pgs) Motion to Avoid Lien with PNC Bank FKA National City Bank And Declaration of Debtor(s); Exhibit "A" Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 08/26/2011) 08/26/2011 15 (2 pgs) Notice of Hearing On Motion to Value and Avoid Lien of PNC Bank FKA National City Bank, (RE: related document(s)14 Motion to Avoid Lien with PNC Bank FKA National City Bank And Declaration of Debtor). Hearing scheduled for 9/28/2011 at 01:30 PM at Santa Rosa Courtroom - Jaroslovsky. Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 08/26/2011) 16 (3 pgs) Certificate of Service (RE: related document(s)14 Motion to Avoid Lien, 15 Notice of Hearing). Filed Page 3 of 8CANB Live Database 6/23/2016https://ecf.canb.uscourts.gov/cgi-bin/DktRpt.pl?918871055001685-L_1_0-1 Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 4 of 9 08/26/2011 by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 08/26/2011) 09/01/2011 17 (8 pgs) First Amended Chapter 13 Plan Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (RE: related document(s)7 Chapter 13 Plan filed by Debtor Joseph Thomas Owen, Joint Debtor Michele Rainone Owen). (Hindley, Reginald) (Entered: 09/01/2011) 09/06/2011 18 (2 pgs) Financial Management Course Certificate. Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 09/06/2011) 09/21/2011 19 (44 pgs; 3 docs) Objection to Confirmation of Plan of Debtors' First Amended Chapter 13 Plan Filed by Creditor PNC Bank, NA successor-in-interest to National City Bank (Attachments: 1 Declaration 2 Certificate of Service) (Solomon, Richard) (Entered: 09/21/2011) 09/21/2011 20 (5 pgs; 2 docs) Withdrawal of Documents of Objection to Confirmation of Debtors' First Amended Chapter 13 Plan (RE: related document(s)19 Objection to Confirmation of the Plan). Filed by Creditor PNC Bank, NA successor-in-interest to National City Bank (Attachments: 1 Certificate of Service) (Solomon, Richard) (Entered: 09/21/2011) 09/28/2011 Hearing Held (related document(s): 17 Amended Chapter 13 Plan) (After Hearing; Plan confirmed) (Appearances: David Burchard and Ryan Henderson) (ta) (Entered: 09/30/2011) 09/28/2011 Hearing Held (related document(s): 14 Motion to Avoid Lien with PNC Bank) (After Hearing; Motion granted) (Appearances: David Burchard and Ryan Henderson) (ta) (Entered: 09/30/2011) 09/29/2011 21 (3 pgs; 3 docs) Transfer of Claim. (#4). Transfer Agreement 3001 (e) 2 Transferor: Chase Bank USA, N.A. (Claim No. 4) To CR Evergreen II, LLC. Filed by Creditor CR Evergreen II, LLC. (Kane, Steven) (Entered: 09/29/2011) 22 (3 pgs; 3 docs) Transfer of Claim. (#1). Transfer Agreement 3001 (e) 2 Transferor: FIA CARD SERVICES, N.A. Page 4 of 8CANB Live Database 6/23/2016https://ecf.canb.uscourts.gov/cgi-bin/DktRpt.pl?918871055001685-L_1_0-1 Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 5 of 9 09/30/2011 (Claim No. 1) To CR Evergreen II, LLC. Filed by Creditor CR Evergreen II, LLC. (Kane, Steven) (Entered: 09/30/2011) 10/05/2011 23 (2 pgs) Order Valuing and Avoiding Lien (Related Doc # 14) (kl) (Entered: 10/05/2011) 10/05/2011 24 (1 pg) Order Confirming Chapter 13 Plan (RE: related document(s) 17 Amended Chapter 13 Plan filed by Debtor Joseph Thomas Owen, Joint Debtor Michele Rainone Owen). (kl) (Entered: 10/05/2011) 10/06/2011 25 (2 pgs) BNC Certificate of Mailing (RE: related document (s)21 Transfer of Claim). Service Date 10/06/2011. (Admin.) (Entered: 10/06/2011) 10/09/2011 26 (2 pgs) BNC Certificate of Mailing (RE: related document (s)22 Transfer of Claim). Service Date 10/09/2011. (Admin.) (Entered: 10/09/2011) 12/17/2011 27 (7 pgs; 3 docs) Joint Transfer of Claim. (#4). Transfer Agreement 3001 (e) 2 Transferor: CR Evergreen II, LLC (Claim No. 4) To East Bay Funding, LLC. Filed by Creditor East Bay Funding, LLC. (Gaines, Susan) (Entered: 12/17/2011) 12/22/2011 28 (3 pgs) BNC Certificate of Mailing (RE: related document (s) 27 Transfer of Claim). Notice Date 12/22/2011. (Admin.) (Entered: 12/22/2011) 02/16/2012 29 (7 pgs; 3 docs) Joint Transfer of Claim. (#1). Transfer Agreement 3001 (e) 2 Transferor: CR Evergreen II, LLC (Claim No. 1) To PYOD LLC. Filed by Creditor PYOD LLC. (Gaines, Susan) (Entered: 02/16/2012) 02/19/2012 30 (3 pgs) BNC Certificate of Mailing (RE: related document (s) 29 Transfer of Claim). Notice Date 02/19/2012. (Admin.) (Entered: 02/19/2012) 03/31/2012 31 (4 pgs; 3 docs) Joint Transfer of Claim. (#5). Transfer Agreement 3001 (e) 2 Transferor: Chase Bank USA, N.A. (Claim No. 5) To Portfolio Recovery Associates, LLC. Filed by Creditor Portfolio Recovery Associates, LLC. (Garcia, Dolores) (Entered: 03/31/2012) 32 Joint Transfer of Claim. (#6). Transfer Agreement Page 5 of 8CANB Live Database 6/23/2016https://ecf.canb.uscourts.gov/cgi-bin/DktRpt.pl?918871055001685-L_1_0-1 Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 6 of 9 03/31/2012 (4 pgs; 3 docs) 3001 (e) 2 Transferor: Chase Bank USA, N.A. (Claim No. 6) To Portfolio Recovery Associates, LLC. Filed by Creditor Portfolio Recovery Associates, LLC. (Garcia, Dolores) (Entered: 03/31/2012) 04/06/2012 33 (3 pgs) BNC Certificate of Mailing (RE: related document (s) 31 Transfer of Claim). Notice Date 04/06/2012. (Admin.) (Entered: 04/06/2012) 04/06/2012 34 (3 pgs) BNC Certificate of Mailing (RE: related document (s) 32 Transfer of Claim). Notice Date 04/06/2012. (Admin.) (Entered: 04/06/2012) 05/21/2012 35 (4 pgs; 3 docs) Transfer of Claim. (#4). Transfer Agreement 3001 (e) 2 Transferor: East Bay Funding, LLC (Claim No. 4) To Portfolio Recovery Assocs., LLC. Filed by Creditor Portfolio Recovery Assocs., LLC. (Garcia, Dolores) (Entered: 05/21/2012) 05/24/2012 36 (3 pgs) BNC Certificate of Mailing (RE: related document (s) 35 Transfer of Claim). Notice Date 05/24/2012. (Admin.) (Entered: 05/24/2012) 07/22/2013 37 (10 pgs; 3 docs) Transfer of Claim. (#8). Transfer Agreement 3001 (e) 2 Transferor: Deutsche Bank National Trust Co. (Claim No. 8) To Deutsche Bank National Trust Company c/o. Fee Amount $25 Filed by Creditor Ocwen Loan Servicing, LLC. (Kelly, Letron) (Entered: 07/22/2013) 07/22/2013 Receipt of filing fee for Transfer of Claim(11- 12760) [claims,trclm] ( 25.00). Receipt number 20436964, amount $ 25.00 (re: Doc# 37 Transfer of Claim) (U.S. Treasury) (Entered: 07/22/2013) 07/25/2013 38 (3 pgs) BNC Certificate of Mailing (RE: related document (s) 37 Transfer of Claim). Notice Date 07/25/2013. (Admin.) (Entered: 07/25/2013) 09/23/2014 39 (4 pgs; 2 docs) Debtor's Certification in Support of Discharge and Notice of Opportunity for Hearing. Initiating party to obtain hearing date and time upon timely filed request or objection. Filed by Debtor Joseph Thomas Owen II, Joint Debtor Michele Rainone Owen (Hindley, Reginald) (Entered: 09/23/2014) Page 6 of 8CANB Live Database 6/23/2016https://ecf.canb.uscourts.gov/cgi-bin/DktRpt.pl?918871055001685-L_1_0-1 Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 7 of 9 09/26/2014 40 (4 pgs) BNC Certificate of Mailing (RE: related document (s) 39 Debtor's Certification in Support of Discharge). Notice Date 09/26/2014. (Admin.) (Entered: 09/26/2014) 10/07/2014 41 (1 pg) Accounting of Chapter 13 Plan Payments. The Trustee represents that all the payments owed by the above named debtor(s) in the Chapter 13 Case and confirmed by the Court, have been paid . (Burchard, David (cm)) (Entered: 10/07/2014) 10/28/2014 42 (2 pgs) Notice of Plan Completion and Request for Discharge . (Burchard, David (cm)) (Entered: 10/28/2014) 10/29/2014 43 (4 pgs; 2 docs) Order Discharging Debtor After Completion of Chapter 13 Plan (ds) (Entered: 10/29/2014) 10/31/2014 44 (5 pgs) BNC Certificate of Mailing (RE: related document (s) 43 Order Discharging 13 Debtor After Plan Completion). Notice Date 10/31/2014. (Admin.) (Entered: 10/31/2014) 11/19/2014 45 (4 pgs) Trustee's Final Report and Account and Notice of Filing, Plan Completion [With Proof of Service] . Objections to Trustee Final Account due by 12/19/2014. (Burchard, David (jk)) (Entered: 11/19/2014) 12/24/2014 46 (3 pgs; 2 docs) Order Discharging Chapter 13 Trustee and Final Decree (RE: related document(s)45 Trustee's Chapter 13/12 Final Report and Notice). (ds) (Entered: 12/24/2014) 12/26/2014 47 (3 pgs) BNC Certificate of Mailing - Order Discharging Trustee and Final Decree. (RE: related document(s) 46 Order Discharging Chapter 13 Trustee and Final Decree). Notice Date 12/26/2014. (Admin.) (Entered: 12/26/2014) 01/06/2015 Bankruptcy Case Closed. (ds) (Entered: 01/06/2015) PACER Service Center Page 7 of 8CANB Live Database 6/23/2016https://ecf.canb.uscourts.gov/cgi-bin/DktRpt.pl?918871055001685-L_1_0-1 Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 8 of 9 Transaction Receipt 06/23/2016 12:28:23 PACER Login: te0441:2768340:0 Client Code: 012813-001798/cme Description: Docket Report Search Criteria: 11-12760 Fil or Ent: filed Doc From: 0 Doc To: 99999999 Term: included Headers: included Format: html Page counts for documents: included Billable Pages: 4 Cost: 0.40 Page 8 of 8CANB Live Database 6/23/2016https://ecf.canb.uscourts.gov/cgi-bin/DktRpt.pl?918871055001685-L_1_0-1 Case 4:13-cv-00438-CDL Document 37-8 Filed 07/25/16 Page 9 of 9 Exhibit F Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 1 of 49 }bk1{Form .VluntayPei B1 (Official Form 1)(4/10) United States Bankruptcy Court Voluntary Petition Name of Debtor (if individual, enter Last, First, Middle): All Other Names used by the Debtor in the last 8 years (include married, maiden, and trade names): Last four digits of Soc. Sec. or Individual-Taxpayer I.D. (ITIN) No./Complete EIN (if more than one, state all) Street Address of Debtor (No. and Street, City, and State): County of Residence or of the Principal Place of Business: Mailing Address of Debtor (if different from street address): Location of Principal Assets of Business Debtor (if different from street address above): Name of Joint Debtor (Spouse) (Last, First, Middle): All Other Names used by the Joint Debtor in the last 8 years (include married, maiden, and trade names): Last four digits of Soc. Sec. or Individual-Taxpayer I.D. (ITIN) No./Complete EIN (if more than one, state all) Street Address of Joint Debtor (No. and Street, City, and State): County of Residence or of the Principal Place of Business: Mailing Address of Joint Debtor (if different from street address): ZIP Code ZIP Code ZIP Code ZIP Code Type of Debtor (Form of Organization) (Check one box) Individual (includes Joint Debtors) See Exhibit D on page 2 of this form. Corporation (includes LLC and LLP) Partnership Other (If debtor is not one of the above entities, check this box and state type of entity below.) Filing Fee (Check one box) Full Filing Fee attached Filing Fee to be paid in installments (applicable to individuals only). Must attach signed application for the court's consideration certifying that the debtor is unable to pay fee except in installments. Rule 1006(b). See Official Form 3A. Filing Fee waiver requested (applicable to chapter 7 individuals only). Must attach signed application for the court's consideration. See Official Form 3B. Nature of Business (Check one box) Health Care Business Single Asset Real Estate as defined in 11 U.S.C. § 101 (51B) Railroad Stockbroker Commodity Broker Clearing Bank Other Tax-Exempt Entity (Check box, if applicable) Debtor is a tax-exempt organization under Title 26 of the United States Code (the Internal Revenue Code). Chapter of Bankruptcy Code Under Which the Petition is Filed (Check one box) Chapter 7 Chapter 9 Chapter 11 Chapter 12 Chapter 13 Chapter 15 Petition for Recognition of a Foreign Main Proceeding Chapter 15 Petition for Recognition of a Foreign Nonmain Proceeding Nature of Debts (Check one box) Debts are primarily consumer debts, Debts are primarily defined in 11 U.S.C. § 101(8) as business debts. "incurred by an individual primarily for a personal, family, or household purpose." Chapter 11 DebtorsCheck one box: Debtor is a small business debtor as defined in 11 U.S.C. § 101(51D). Debtor is not a small business debtor as defined in 11 U.S.C. § 101(51D). Check if: Debtor’s aggregate noncontingent liquidated debts (excluding debts owed to insiders or affiliates) are less than $2,343,300 (amount subject to adjustment on 4/01/13 and every three years thereafter). Check all applicable boxes: A plan is being filed with this petition. Acceptances of the plan were solicited prepetition from one or more classes of creditors, in accordance with 11 U.S.C. § 1126(b). THIS SPACE IS FOR COURT USE ONLYStatistical/Administrative Information Debtor estimates that funds will be available for distribution to unsecured creditors. Debtor estimates that, after any exempt property is excluded and administrative expenses paid, there will be no funds available for distribution to unsecured creditors. Estimated Number of Creditors 1- 50- 100- 200- 1,000- 5,001- 10,001- 25,001- 50,001- OVER 49 99 199 999 5,000 10,000 25,000 50,000 100,000 100,000 Estimated Assets $0 to $50,001 to $100,001 to $500,001 $1,000,001 $10,000,001 $50,000,001 $100,000,001 $500,000,001 More than $50,000 $100,000 $500,000 to $1 to $10 to $50 to $100 to $500 to $1 billion $1 billion million million million million million Estimated Liabilities $0 to $50,001 to $100,001 to $500,001 $1,000,001 $10,000,001 $50,000,001 $100,000,001 $500,000,001 More than $50,000 $100,000 $500,000 to $1 to $10 to $50 to $100 to $500 to $1 billion $1 billion million million million million million Northern District of California Owen, Joseph Thomas II Owen, Michele Rainone AKA Michele Rainone Owen; AKA Michele Rainone xxx-xx-1213 Sonoma xxx-xx-7565 Sonoma 95401 95401 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 1 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 2 of 49 B1 (Official Form 1)(4/10) Page 2 Voluntary Petition (This page must be completed and filed in every case) Name of Debtor(s): All Prior Bankruptcy Cases Filed Within Last 8 Years (If more than two, attach additional sheet) Location Case Number: Date Filed: Where Filed: Location Case Number: Date Filed: Where Filed: Pending Bankruptcy Case Filed by any Spouse, Partner, or Affiliate of this Debtor (If more than one, attach additional sheet) Name of Debtor: Case Number: Date Filed: District: Relationship: Judge: Exhibit A (To be completed if debtor is required to file periodic reports (e.g., forms 10K and 10Q) with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 and is requesting relief under chapter 11.) Exhibit A is attached and made a part of this petition. Exhibit C Does the debtor own or have possession of any property that poses or is alleged to pose a threat of imminent and identifiable harm to public health or safety? Yes, and Exhibit C is attached and made a part of this petition. No. Exhibit D (To be completed by every individual debtor. If a joint petition is filed, each spouse must complete and attach a separate Exhibit D.) Exhibit D completed and signed by the debtor is attached and made a part of this petition. If this is a joint petition: Exhibit D also completed and signed by the joint debtor is attached and made a part of this petition. Information Regarding the Debtor - Venue (Check any applicable box) Debtor has been domiciled or has had a residence, principal place of business, or principal assets in this District for 180 days immediately preceding the date of this petition or for a longer part of such 180 days than in any other District. There is a bankruptcy case concerning debtor's affiliate, general partner, or partnership pending in this District. Debtor is a debtor in a foreign proceeding and has its principal place of business or principal assets in the United States in this District, or has no principal place of business or assets in the United States but is a defendant in an action or proceeding [in a federal or state court] in this District, or the interests of the parties will be served in regard to the relief sought in this District. Certification by a Debtor Who Resides as a Tenant of Residential Property (Check all applicable boxes) Landlord has a judgment against the debtor for possession of debtor's residence. (If box checked, complete the following.) (Name of landlord that obtained judgment) (Address of landlord) Debtor claims that under applicable nonbankruptcy law, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after the judgment for possession was entered, and Debtor has included in this petition the deposit with the court of any rent that would become due during the 30-day period after the filing of the petition. Debtor certifies that he/she has served the Landlord with this certification. (11 U.S.C. § 362(l)). Exhibit B (To be completed if debtor is an individual whose debts are primarily consumer debts.) I, the attorney for the petitioner named in the foregoing petition, declare that I have informed the petitioner that [he or she] may proceed under chapter 7, 11, 12, or 13 of title 11, United States Code, and have explained the relief available under each such chapter. I further certify that I delivered to the debtor the notice required by 11 U.S.C. §342(b). X Signature of Attorney for Debtor(s) (Date) Owen, Joseph Thomas II Owen, Michele Rainone - None - - None - July 13, 2011/s/ Reginald R. Hindley Reginald R. Hindley 113144 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 2 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 3 of 49 B1 (Official Form 1)(4/10) Page 3 Voluntary Petition (This page must be completed and filed in every case) Name of Debtor(s): Signatures Signature(s) of Debtor(s) (Individual/Joint) I declare under penalty of perjury that the information provided in this petition is true and correct. [If petitioner is an individual whose debts are primarily consumer debts and has chosen to file under chapter 7] I am aware that I may proceed under chapter 7, 11, 12, or 13 of title 11, United States Code, understand the relief available under each such chapter, and choose to proceed under chapter 7. [If no attorney represents me and no bankruptcy petition preparer signs the petition] I have obtained and read the notice required by 11 U.S.C. §342(b). I request relief in accordance with the chapter of title 11, United States Code, specified in this petition. X Signature of Debtor X Signature of Joint Debtor Telephone Number (If not represented by attorney) Date Signature of Attorney* X Signature of Attorney for Debtor(s) Printed Name of Attorney for Debtor(s) Firm Name Address Telephone Number Date *In a case in which § 707(b)(4)(D) applies, this signature also constitutes a certification that the attorney has no knowledge after an inquiry that the information in the schedules is incorrect. Signature of Debtor (Corporation/Partnership) I declare under penalty of perjury that the information provided in this petition is true and correct, and that I have been authorized to file this petition on behalf of the debtor. The debtor requests relief in accordance with the chapter of title 11, United States Code, specified in this petition. X Signature of Authorized Individual Printed Name of Authorized Individual Title of Authorized Individual Date Signature of a Foreign Representative I declare under penalty of perjury that the information provided in this petition is true and correct, that I am the foreign representative of a debtor in a foreign proceeding, and that I am authorized to file this petition. (Check only one box.) I request relief in accordance with chapter 15 of title 11. United States Code. Certified copies of the documents required by 11 U.S.C. §1515 are attached. Pursuant to 11 U.S.C. §1511, I request relief in accordance with the chapter of title 11 specified in this petition. A certified copy of the order granting recognition of the foreign main proceeding is attached. X Signature of Foreign Representative Printed Name of Foreign Representative Date Signature of Non-Attorney Bankruptcy Petition Preparer I declare under penalty of perjury that: (1) I am a bankruptcy petition preparer as defined in 11 U.S.C. § 110; (2) I prepared this document for compensation and have provided the debtor with a copy of this document and the notices and information required under 11 U.S.C. §§ 110(b), 110(h), and 342(b); and, (3) if rules or guidelines have been promulgated pursuant to 11 U.S.C. § 110(h) setting a maximum fee for services chargeable by bankruptcy petition preparers, I have given the debtor notice of the maximum amount before preparing any document for filing for a debtor or accepting any fee from the debtor, as required in that section. Official Form 19 is attached. Printed Name and title, if any, of Bankruptcy Petition Preparer Social-Security number (If the bankrutpcy petition preparer is not an individual, state the Social Security number of the officer, principal, responsible person or partner of the bankruptcy petition preparer.)(Required by 11 U.S.C. § 110.) Address X Date Signature of Bankruptcy Petition Preparer or officer, principal, responsible person,or partner whose Social Security number is provided above. Names and Social-Security numbers of all other individuals who prepared or assisted in preparing this document unless the bankruptcy petition preparer is not an individual: If more than one person prepared this document, attach additional sheets conforming to the appropriate official form for each person. A bankruptcy petition preparer’s failure to comply with the provisions of title 11 and the Federal Rules of Bankruptcy Procedure may result in fines or imprisonment or both 11 U.S.C. §110; 18 U.S.C. §156. Owen, Joseph Thomas II Owen, Michele Rainone /s/ Joseph Thomas Owen, II Joseph Thomas Owen, II /s/ Michele Rainone Owen Michele Rainone Owen July 13, 2011 /s/ Reginald R. Hindley Reginald R. Hindley 113144 Law Offices of Reginald R. Hindley 718 Orchard Street Santa Rosa, CA 95404 Email: Hindley.Law@earthlink.net 707-575-3700 Fax: 707-575-3020 July 13, 2011 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 3 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 4 of 49 B 1D (Official Form 1, Exhibit D) (12/09) United States Bankruptcy Court Northern District of California In re Joseph Thomas Owen, II Michele Rainone Owen Case No. Debtor(s) Chapter 13 EXHIBIT D - INDIVIDUAL DEBTOR'S STATEMENT OF COMPLIANCE WITH CREDIT COUNSELING REQUIREMENT Warning: You must be able to check truthfully one of the five statements regarding credit counseling listed below. If you cannot do so, you are not eligible to file a bankruptcy case, and the court can dismiss any case you do file. If that happens, you will lose whatever filing fee you paid, and your creditors will be able to resume collection activities against you. If your case is dismissed and you file another bankruptcy case later, you may be required to pay a second filing fee and you may have to take extra steps to stop creditors' collection activities. Every individual debtor must file this Exhibit D. If a joint petition is filed, each spouse must complete and file a separate Exhibit D. Check one of the five statements below and attach any documents as directed. 1. Within the 180 days before the filing of my bankruptcy case, I received a briefing from a credit counseling agency approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit counseling and assisted me in performing a related budget analysis, and I have a certificate from the agency describing the services provided to me. Attach a copy of the certificate and a copy of any debt repayment plan developed through the agency. 2. Within the 180 days before the filing of my bankruptcy case, I received a briefing from a credit counseling agency approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit counseling and assisted me in performing a related budget analysis, but I do not have a certificate from the agency describing the services provided to me. You must file a copy of a certificate from the agency describing the services provided to you and a copy of any debt repayment plan developed through the agency no later than 14 days after your bankruptcy case is filed. 3. I certify that I requested credit counseling services from an approved agency but was unable to obtain the services during the seven days from the time I made my request, and the following exigent circumstances merit a temporary waiver of the credit counseling requirement so I can file my bankruptcy case now. [Summarize exigent circumstances here.] If your certification is satisfactory to the court, you must still obtain the credit counseling briefing within the first 30 days after you file your bankruptcy petition and promptly file a certificate from the agency that provided the counseling, together with a copy of any debt management plan developed through the agency. Failure to fulfill these requirements may result in dismissal of your case. Any extension of the 30-day deadline can be granted only for cause and is limited to a maximum of 15 days. Your case may also be dismissed if the court is not satisfied with your reasons for filing your bankruptcy case without first receiving a credit counseling briefing. Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 4 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 5 of 49 B 1D (Official Form 1, Exhibit D) (12/09) - Cont. Page 2 4. I am not required to receive a credit counseling briefing because of: [Check the applicable statement.] [Must be accompanied by a motion for determination by the court.] Incapacity. (Defined in 11 U.S.C. § 109(h)(4) as impaired by reason of mental illness or mental deficiency so as to be incapable of realizing and making rational decisions with respect to financial responsibilities.); Disability. (Defined in 11 U.S.C. § 109(h)(4) as physically impaired to the extent of being unable, after reasonable effort, to participate in a credit counseling briefing in person, by telephone, or through the Internet.); Active military duty in a military combat zone. 5. The United States trustee or bankruptcy administrator has determined that the credit counseling requirement of 11 U.S.C. § 109(h) does not apply in this district. I certify under penalty of perjury that the information provided above is true and correct. Signature of Debtor: /s/ Joseph Thomas Owen, II Joseph Thomas Owen, II Date: July 13, 2011 Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 5 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 6 of 49 B 1D (Official Form 1, Exhibit D) (12/09) United States Bankruptcy Court Northern District of California In re Joseph Thomas Owen, II Michele Rainone Owen Case No. Debtor(s) Chapter 13 EXHIBIT D - INDIVIDUAL DEBTOR'S STATEMENT OF COMPLIANCE WITH CREDIT COUNSELING REQUIREMENT Warning: You must be able to check truthfully one of the five statements regarding credit counseling listed below. If you cannot do so, you are not eligible to file a bankruptcy case, and the court can dismiss any case you do file. If that happens, you will lose whatever filing fee you paid, and your creditors will be able to resume collection activities against you. If your case is dismissed and you file another bankruptcy case later, you may be required to pay a second filing fee and you may have to take extra steps to stop creditors' collection activities. Every individual debtor must file this Exhibit D. If a joint petition is filed, each spouse must complete and file a separate Exhibit D. Check one of the five statements below and attach any documents as directed. 1. Within the 180 days before the filing of my bankruptcy case, I received a briefing from a credit counseling agency approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit counseling and assisted me in performing a related budget analysis, and I have a certificate from the agency describing the services provided to me. Attach a copy of the certificate and a copy of any debt repayment plan developed through the agency. 2. Within the 180 days before the filing of my bankruptcy case, I received a briefing from a credit counseling agency approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit counseling and assisted me in performing a related budget analysis, but I do not have a certificate from the agency describing the services provided to me. You must file a copy of a certificate from the agency describing the services provided to you and a copy of any debt repayment plan developed through the agency no later than 14 days after your bankruptcy case is filed. 3. I certify that I requested credit counseling services from an approved agency but was unable to obtain the services during the seven days from the time I made my request, and the following exigent circumstances merit a temporary waiver of the credit counseling requirement so I can file my bankruptcy case now. [Summarize exigent circumstances here.] If your certification is satisfactory to the court, you must still obtain the credit counseling briefing within the first 30 days after you file your bankruptcy petition and promptly file a certificate from the agency that provided the counseling, together with a copy of any debt management plan developed through the agency. Failure to fulfill these requirements may result in dismissal of your case. Any extension of the 30-day deadline can be granted only for cause and is limited to a maximum of 15 days. Your case may also be dismissed if the court is not satisfied with your reasons for filing your bankruptcy case without first receiving a credit counseling briefing. Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 6 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 7 of 49 B 1D (Official Form 1, Exhibit D) (12/09) - Cont. Page 2 4. I am not required to receive a credit counseling briefing because of: [Check the applicable statement.] [Must be accompanied by a motion for determination by the court.] Incapacity. (Defined in 11 U.S.C. § 109(h)(4) as impaired by reason of mental illness or mental deficiency so as to be incapable of realizing and making rational decisions with respect to financial responsibilities.); Disability. (Defined in 11 U.S.C. § 109(h)(4) as physically impaired to the extent of being unable, after reasonable effort, to participate in a credit counseling briefing in person, by telephone, or through the Internet.); Active military duty in a military combat zone. 5. The United States trustee or bankruptcy administrator has determined that the credit counseling requirement of 11 U.S.C. § 109(h) does not apply in this district. I certify under penalty of perjury that the information provided above is true and correct. Signature of Debtor: /s/ Michele Rainone Owen Michele Rainone Owen Date: July 13, 2011 Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 7 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 8 of 49 }bk1{Form 6.Suayfchedls United States Bankruptcy Court Northern District of California In re , Debtors Case No. Chapter 13 Joseph Thomas Owen, II, Michele Rainone Owen B6 Summary (Official Form 6 - Summary) (12/07) Indicate as to each schedule whether that schedule is attached and state the number of pages in each. Report the totals from Schedules A, B, D, E, F, I, and J in the boxes provided. Add the amounts from Schedules A and B to determine the total amount of the debtor’s assets. Add the amounts of all claims from Schedules D, E, and F to determine the total amount of the debtor’s liabilities. Individual debtors must also complete the "Statistical Summary of Certain Liabilities and Related Data" if they file a case under chapter 7, 11, or 13. SUMMARY OF SCHEDULES ATTACHED NO. OFNAME OF SCHEDULE ASSETS LIABILITIES OTHER (YES/NO) SHEETS A - Real Property B - Personal Property C - Property Claimed as Exempt D - Creditors Holding Secured Claims E - Creditors Holding Unsecured Priority Claims F - Creditors Holding Unsecured Nonpriority Claims G - Executory Contracts and Unexpired Leases H - Codebtors I - Current Income of Individual Debtor(s) J - Current Expenditures of Individual Debtor(s) Total Number of Sheets of ALL Schedules Total Assets Total Liabilities (Total of Claims on Schedule E) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes 1 315,000.00 4 38,604.00 2 575,429.692 0.002 86,539.009 1 1 1 4,785.76 2 4,714.50 25 353,604.00 661,968.69 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 8 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 9 of 49 }bk1{Form 6.StaiscluyfCenLdRD United States Bankruptcy Court Northern District of California In re , Debtors Case No. Chapter 13 Joseph Thomas Owen, II, Michele Rainone Owen Form 6 - Statistical Summary (12/07) STATISTICAL SUMMARY OF CERTAIN LIABILITIES AND RELATED DATA (28 U.S.C. § 159) If you are an individual debtor whose debts are primarily consumer debts, as defined in § 101(8) of the Bankruptcy Code (11 U.S.C.§ 101(8)), filing a case under chapter 7, 11 or 13, you must report all information requested below. Check this box if you are an individual debtor whose debts are NOT primarily consumer debts. You are not required to report any information here. This information is for statistical purposes only under 28 U.S.C. § 159. Summarize the following types of liabilities, as reported in the Schedules, and total them. Type of Liability Amount Domestic Support Obligations (from Schedule E) Taxes and Certain Other Debts Owed to Governmental Units (from Schedule E) Claims for Death or Personal Injury While Debtor Was Intoxicated (from Schedule E) (whether disputed or undisputed) Student Loan Obligations (from Schedule F) Domestic Support, Separation Agreement, and Divorce Decree Obligations Not Reported on Schedule E Obligations to Pension or Profit-Sharing, and Other Similar Obligations (from Schedule F) TOTAL State the following: Average Income (from Schedule I, Line 16) Average Expenses (from Schedule J, Line 18) Current Monthly Income (from Form 22A Line 12; OR, Form 22B Line 11; OR, Form 22C Line 20 ) State the following: 1. Total from Schedule D, "UNSECURED PORTION, IF ANY" column 2. Total from Schedule E, "AMOUNT ENTITLED TO PRIORITY" column 3. Total from Schedule E, "AMOUNT NOT ENTITLED TO PRIORITY, IF ANY" column 4. Total from Schedule F 5. Total of non-priority unsecured debt (sum of 1, 3, and 4) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy 0.00 0.00 0.00 0.00 0.00 0.00 0.00 4,785.76 4,714.50 7,490.92 260,429.69 0.00 0.00 86,539.00 346,968.69 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 9 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 10 of 49 }bk1{Schedul A-RaPropty In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen B6A (Official Form 6A) (12/07) Except as directed below, list all real property in which the debtor has any legal, equitable, or future interest, including all property owned as a cotenant, community property, or in which the debtor has a life estate. Include any property in which the debtor holds rights and powers exercisable for the debtor's own benefit. If the debtor is married, state whether husband, wife, both, or the marital community own the property by placing an "H," "W," "J," or "C" in the column labeled "Husband, Wife, Joint, or Community." If the debtor holds no interest in real property, write "None" under "Description and Location of Property." Do not include interests in executory contracts and unexpired leases on this schedule. List them in Schedule G - Executory Contracts and Unexpired Leases. If an entity claims to have a lien or hold a secured interest in any property, state the amount of the secured claim. See Schedule D. If no entity claims to hold a secured interest in the property, write "None" in the column labeled "Amount of Secured Claim." If the debtor is an individual or if a joint petition is filed, state the amount of any exemption claimed in the property only in Schedule C - Property Claimed as Exempt. Description and Location of Property Nature of Debtor'sInterest in Property Husband, Wife, Joint, or Community Current Value of Debtor's Interest in Property, without Deducting any Secured Claim or Exemption Amount of Secured Claim continuation sheets attached to the Schedule of Real Property SCHEDULE A - REAL PROPERTY Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy 0 Singe Family Residence Location: 1125 Levine Dr., Santa Rosa CA 95401 Purchased in 2003 for $420,000 3 Bedrooms 2 1/2 Bath 1908 sq. ft. 1st Mortgage $526,976 2nd Mortgage $48,586 No Equity Fee simple C 315,000.00 575,429.69 Sub-Total > (Total of this page)315,000.00 Total > (Report also on Summary of Schedules) 315,000.00 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 10 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 11 of 49 }bk1{Schedul B-Prsonapty In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen B6B (Official Form 6B) (12/07) Except as directed below, list all personal property of the debtor of whatever kind. If the debtor has no property in one or more of the categories, place an "x" in the appropriate position in the column labeled "None." If additional space is needed in any category, attach a separate sheet properly identified with the case name, case number, and the number of the category. If the debtor is married, state whether husband, wife, both, or the marital community own the property by placing an "H," "W," "J," or "C" in the column labeled "Husband, Wife, Joint, or Community." If the debtor is an individual or a joint petition is filed, state the amount of any exemptions claimed only in Schedule C - Property Claimed as Exempt. Do not list interests in executory contracts and unexpired leases on this schedule. List them in Schedule G - Executory Contracts and Unexpired Leases. If the property is being held for the debtor by someone else, state that person's name and address under "Description and Location of Property." If the property is being held for a minor child, simply state the child's initials and the name and address of the child's parent or guardian, such as "A.B., a minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. §112 and Fed. R. Bankr. P. 1007(m). Type of Property N O N E Description and Location of Property Husband, Wife, Joint, or Community Current Value of Debtor's Interest in Property, without Deducting any Secured Claim or Exemption continuation sheets attached to the Schedule of Personal Property SCHEDULE B - PERSONAL PROPERTY Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy 3 1. Cash on hand Cash on Hand C 50.00 2. Checking, savings or other financial accounts, certificates of deposit, or shares in banks, savings and loan, thrift, building and loan, and homestead associations, or credit unions, brokerage houses, or cooperatives. Redwood Credit Union Santa Rosa Checking and Savings Account #7649 C 1,300.00 Redwood Credit Union Checking and Savings Account # 4614 C 4,237.00 Redwoood Credt Union Checking and Savings Account # 5582 C 857.00 3. Security deposits with public utilities, telephone companies, landlords, and others. X 4. Household goods and furnishings, including audio, video, and computer equipment. Household Furnishings C 3,500.00 Misc. Collections C 100.00 Storage Container Located on parents Property is filled with misc household furniture and goods C 800.00 5. Books, pictures and other art objects, antiques, stamp, coin, record, tape, compact disc, and other collections or collectibles. X 6. Wearing apparel. Clothing C 900.00 Jewelry C 1,000.00 7. Furs and jewelry. X 8. Firearms and sports, photographic, and other hobby equipment. Misc Sports Equipment and personal Firearms C 800.00 Sub-Total > (Total of this page) 13,544.00 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 11 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 12 of 49 B6B (Official Form 6B) (12/07) - Cont. Type of Property N O N E Description and Location of Property Husband, Wife, Joint, or Community Current Value of Debtor's Interest in Property, without Deducting any Secured Claim or Exemption Sheet of continuation sheets attached to the Schedule of Personal Property SCHEDULE B - PERSONAL PROPERTY (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen Debtor has registered in his name 5 Ruger .22 pistols, 5 Sauage Arms .22 Rifles, 5 Marlin . 243 Rifles, and 5 Remington 12 Gauge shotguns, that are used in his capacity as Boy Scout Master and were purchased for the Boy Scout Troop with a grant from the NRA. The firearms are stored in a gun safe that was also purchased with the grant. Debtors interest in the Fire Arms is $0. The firearms are only registered in his name because firearms have to be registered to a specific person and not an entitiy. C 0.00 9. Interests in insurance policies. Name insurance company of each policy and itemize surrender or refund value of each. X 10. Annuities. Itemize and name each issuer. X 11. Interests in an education IRA as defined in 26 U.S.C. § 530(b)(1) or under a qualified State tuition plan as defined in 26 U.S.C. § 529(b)(1). Give particulars. (File separately the record(s) of any such interest(s). 11 U.S.C. § 521(c).) 401 k Retirement plan C 8,000.00 12. Interests in IRA, ERISA, Keogh, or other pension or profit sharing plans. Give particulars. X 13. Stock and interests in incorporated and unincorporated businesses. Itemize. X 14. Interests in partnerships or joint ventures. Itemize. X 15. Government and corporate bonds and other negotiable and nonnegotiable instruments. X 16. Accounts receivable. X 17. Alimony, maintenance, support, and property settlements to which the debtor is or may be entitled. Give particulars. X Sub-Total > (Total of this page) 8,000.00 1 3 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 12 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 13 of 49 B6B (Official Form 6B) (12/07) - Cont. Type of Property N O N E Description and Location of Property Husband, Wife, Joint, or Community Current Value of Debtor's Interest in Property, without Deducting any Secured Claim or Exemption Sheet of continuation sheets attached to the Schedule of Personal Property SCHEDULE B - PERSONAL PROPERTY (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 18. Other liquidated debts owed to debtor including tax refunds. Give particulars. His Way LP a debt consolidation company that has filed for Ch 7 bankruptcy owes Debtors $3987. C 10.00 19. Equitable or future interests, life estates, and rights or powers exercisable for the benefit of the debtor other than those listed in Schedule A - Real Property. X 20. Contingent and noncontingent interests in estate of a decedent, death benefit plan, life insurance policy, or trust. X 21. Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims. Give estimated value of each. X 22. Patents, copyrights, and other intellectual property. Give particulars. X 23. Licenses, franchises, and other general intangibles. Give particulars. X 24. Customer lists or other compilations containing personally identifiable information (as defined in 11 U.S.C. § 101(41A)) provided to the debtor by individuals in connection with obtaining a product or service from the debtor primarily for personal, family, or household purposes. X 25. Automobiles, trucks, trailers, and other vehicles and accessories. 2005 Toyota Corolla Sport with 104,000 miles C 8,300.00 2001 Dodge Ram 1500 Quad Cab with a short bed V8 SLT 2wd with 156,000 C 3,600.00 1998 Toyota Camry LE with 146,000 miles Purchased July 19 2011. Debtor has transferred the funds to purchase this vehicle to the seller. The title for the vehicle has not been transferred into the debtors names because it is still being processed, however debtors are the equitable owners of the vehicle. C 4,900.00 Sub-Total > (Total of this page) 16,810.00 2 3 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 13 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 14 of 49 B6B (Official Form 6B) (12/07) - Cont. Type of Property N O N E Description and Location of Property Husband, Wife, Joint, or Community Current Value of Debtor's Interest in Property, without Deducting any Secured Claim or Exemption Sheet of continuation sheets attached to the Schedule of Personal Property SCHEDULE B - PERSONAL PROPERTY (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 26. Boats, motors, and accessories. 2 Open air Trailers for hauling personal belongings behind a vehicle C 200.00 27. Aircraft and accessories. X 28. Office equipment, furnishings, and supplies. X 29. Machinery, fixtures, equipment, and supplies used in business. X 30. Inventory. X 31. Animals. X 32. Crops - growing or harvested. Give particulars. X 33. Farming equipment and implements. X 34. Farm supplies, chemicals, and feed. X 35. Other personal property of any kind not already listed. Itemize. JosephOwen.com C 50.00 Sub-Total > (Total of this page) 250.00 3 3 Total > (Report also on Summary of Schedules) 38,604.00 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 14 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 15 of 49 }bk1{Schedul C-ProptyaimsEx In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen B6C (Official Form 6C) (4/10) Debtor claims the exemptions to which debtor is entitled under: Check if debtor claims a homestead exemption that exceeds (Check one box) $146,450. (Amount subject to adjustment on 4/1/13, and every three years thereafter with respect to cases commenced on or after the date of adjustment.)11 U.S.C. §522(b)(2) 11 U.S.C. §522(b)(3) Description of Property Specify Law ProvidingEach Exemption Value of Claimed Exemption Current Value of Property Without Deducting Exemption continuation sheets attached to Schedule of Property Claimed as Exempt SCHEDULE C - PROPERTY CLAIMED AS EXEMPT Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy 1 Cash on Hand Cash on Hand 50.00C.C.P. § 703.140(b)(5) 50.00 Checking, Savings, or Other Financial Accounts, Certificates of Deposit Redwood Credit Union Santa Rosa Checking and Savings Account #7649 1,300.00C.C.P. § 703.140(b)(5) 1,300.00 Redwood Credit Union Checking and Savings Account # 4614 4,237.00C.C.P. § 703.140(b)(5) 4,237.00 Redwoood Credt Union Checking and Savings Account # 5582 857.00C.C.P. § 703.140(b)(5) 857.00 Household Goods and Furnishings Household Furnishings 3,500.00C.C.P. § 703.140(b)(3) 3,500.00 Misc. Collections 100.00C.C.P. § 703.140(b)(5) 100.00 Storage Container Located on parents Property is filled with misc household furniture and goods 800.00C.C.P. § 703.140(b)(3) 800.00 Wearing Apparel Clothing 900.00C.C.P. § 703.140(b)(3) 900.00 Jewelry 1,000.00C.C.P. § 703.140(b)(4) 1,000.00 Firearms and Sports, Photographic and Other Hobby Equipment Misc Sports Equipment and personal Firearms 800.00C.C.P. § 703.140(b)(5) 800.00 Interests in an Education IRA or under a Qualified State Tuition Plan 401 k Retirement plan 8,000.00C.C.P. § 703.140(b)(10)(E) 8,000.00 Other Liquidated Debts Owing Debtor Including Tax Refund His Way LP a debt consolidation company that has filed for Ch 7 bankruptcy owes Debtors $3987. 10.00C.C.P. § 703.140(b)(5) 10.00 Automobiles, Trucks, Trailers, and Other Vehicles 2005 Toyota Corolla Sport with 104,000 miles 8,300.00C.C.P. § 703.140(b)(2) 3,525.00 C.C.P. § 703.140(b)(5) 4,775.00 2001 Dodge Ram 1500 Quad Cab with a short bed V8 SLT 2wd with 156,000 3,600.00C.C.P. § 703.140(b)(5) 3,600.00 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 15 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 16 of 49 B6C (Official Form 6C) (4/10) -- Cont. Description of Property Specify Law ProvidingEach Exemption Value of Claimed Exemption Current Value of Property Without Deducting Exemption Sheet of continuation sheets attached to the Schedule of Property Claimed as Exempt SCHEDULE C - PROPERTY CLAIMED AS EXEMPT (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 1998 Toyota Camry LE with 146,000 miles Purchased July 19 2011. Debtor has transferred the funds to purchase this vehicle to the seller. The title for the vehicle has not been transferred into the debtors names because it is still being processed, however debtors are the equitable owners of the vehicle. 4,900.00C.C.P. § 703.140(b)(5) 4,900.00 Boats, Motors and Accessories 2 Open air Trailers for hauling personal belongings behind a vehicle 200.00C.C.P. § 703.140(b)(5) 200.00 Other Personal Property of Any Kind Not Already Listed JosephOwen.com 50.00C.C.P. § 703.140(b)(5) 50.00 1 1 Total: 38,604.00 38,604.00 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 16 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 17 of 49 }bk1{Schedul D-CritosHngam AMOUNT OF CLAIM WITHOUT DEDUCTING VALUE OF COLLATERAL DATE CLAIM WAS INCURRED, NATURE OF LIEN, AND DESCRIPTION AND VALUE OF PROPERTY SUBJECT TO LIEN C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME AND MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Value $ Account No. Value $ Account No. Value $ Account No. Value $ Subtotal _____ continuation sheets attached (Total of this page) UNSECURED PORTION, IF ANY B6D (Official Form 6D) (12/07) State the name, mailing address, including zip code, and last four digits of any account number of all entities holding claims secured by property of the debtor as of the date of filing of the petition. The complete account number of any account the debtor has with the creditor is useful to the trustee and the creditor and may be provided if the debtor chooses to do so. List creditors holding all types of secured interests such as judgment liens, garnishments, statutory liens, mortgages, deeds of trust, and other security interests. List creditors in alphabetical order to the extent practicable. If a minor child is a creditor, the child's initials and the name and address of the child's parent or guardian, such as "A.B., a minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. §112 and Fed. R. Bankr. P. 1007(m). If all secured creditors will not fit on this page, use the continuation sheet provided. If any entity other than a spouse in a joint case may be jointly liable on a claim, place an "X" in the column labeled "Codebtor" ,include the entity on the appropriate schedule of creditors, and complete Schedule H - Codebtors. If a joint petition is filed, state whether the husband, wife, both of them, or the marital community may be liable on each claim by placing an "H", "W", "J", or "C" in the column labeled "Husband, Wife, Joint, or Community". If the claim is contingent, place an "X" in the column labeled "Contingent". If the claim is unliquidated, place an "X" in the column labeled "Unliquidated". If the claim is disputed, place an "X" in the column labeled "Disputed". (You may need to place an "X" in more than one of these three columns.) Total the columns labeled "Amount of Claim Without Deducting Value of Collateral" and "Unsecured Portion, if Any" in the boxes labeled "Total(s)" on the last sheet of the completed schedule. Report the total from the column labeled "Amount of Claim" also on the Summary of Schedules and, if the debtor is an individual with primarily consumer debts, report the total from the column labeled "Unsecured Portion" on the Statistical Summary of Certain Liabilities and Related Data. Check this box if debtor has no creditors holding secured claims to report on this Schedule D. SCHEDULE D - CREDITORS HOLDING SECURED CLAIMS Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 1 xxxxxx5706 2003-2011 First Mortgage Singe Family Residence Location: anta Rosa CA 95401 Purchased in 2003 for $420,000 3 Bedrooms 2 1/2 Bath 1908 sq. ft. 1st Mortgage $526,976 Creditor #: 1 American Home Mortgage Box 631730 Irving, TX 75063-1730 C 526,975.47 211,975.47315,000.00 0031415706 Additional notice to: American Home Mortgage Notice Only American Home Mortgage Servicing Inc. P.O. Box 660029 Dallas, TX 75266-0029 228 Notice Only HOA Singe Family Residence Location: , Santa Rosa CA 95401 Purchased in 2003 for $420,000 3 Bedrooms 2 1/2 Bath 1908 sq. ft. 1st Mortgage $526,976 Creditor #: 2 Home Owners Association 2239 Pinelico Way Santa Rosa, CA 95401 C 0.00 0.00315,000.00 xxxx-xxxx-xxxx-2188 11/2007-present Second Mortgage Singe Fam Location: , Santa Rosa CA 95401 Purchased in 2003 for $420,000 3 Bedrooms 2 1/2 Bath 1908 sq. ft. 1st Mortgage $526,976 Creditor #: 3 PNC Bank Box 5570 Cleveland, OH 44101-0570 C 48,454.22 48,454.22315,000.00 575,429.69 260,429.69 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 17 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 18 of 49 B6D (Official Form 6D) (12/07) - Cont. AMOUNT OF CLAIM WITHOUT DEDUCTING VALUE OF COLLATERAL DATE CLAIM WAS INCURRED, NATURE OF LIEN, AND DESCRIPTION AND VALUE OF PROPERTY SUBJECT TO LIEN C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME AND MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions.) Account No. Value $ Account No. Value $ Account No. Value $ Account No. Value $ Account No. Value $ Subtotal Sheet _____ of _____ continuation sheets attached to (Total of this page)Schedule of Creditors Holding Secured Claims UNSECURED PORTION, IF ANY SCHEDULE D - CREDITORS HOLDING SECURED CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 4469-6183-2053-2188 Additional notice to: PNC Bank Notice Only PNC Bank P5-PCLC-02-k 2730 Liberty Avenue Pittsburgh, PA 15222 xxx-xxx-xx8-000 Notice Only Property Tax Singe Fam Location: Santa Rosa CA 95401 Purchased in 2003 for $420,000 3 Bedrooms 2 1/2 Bath 1908 sq. ft. 1st Mortgage $526,976 Creditor #: 4 Sonoma County Property Tax 585 Fiscal Dr. Room 100F Santa Rosa, CA 95403 C 0.00 0.00315,000.00 0.00 0.00 1 1 575,429.69 260,429.69Total (Report on Summary of Schedules) Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 18 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 19 of 49 }bk1{Schedul E-CritosHngUPyam B6E (Official Form 6E) (4/10) A complete list of claims entitled to priority, listed separately by type of priority, is to be set forth on the sheets provided. Only holders of unsecured claims entitled to priority should be listed in this schedule. In the boxes provided on the attached sheets, state the name, mailing address, including zip code, and last four digits of the account number, if any, of all entities holding priority claims against the debtor or the property of the debtor, as of the date of the filing of the petition. Use a separate continuation sheet for each type of priority and label each with the type of priority. The complete account number of any account the debtor has with the creditor is useful to the trustee and the creditor and may be provided if the debtor chooses to do so. If a minor child is a creditor, state the child's initials and the name and address of the child's parent or guardian, such as "A.B., a minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. §112 and Fed. R. Bankr. P. 1007(m). If any entity other than a spouse in a joint case may be jointly liable on a claim, place an "X" in the column labeled "Codebtor," include the entity on the appropriate schedule of creditors, and complete Schedule H-Codebtors. If a joint petition is filed, state whether the husband, wife, both of them, or the marital community may be liable on each claim by placing an "H," "W," "J," or "C" in the column labeled "Husband, Wife, Joint, or Community." If the claim is contingent, place an "X" in the column labeled "Contingent." If the claim is unliquidated, place an "X" in the column labeled "Unliquidated." If the claim is disputed, place an "X" in the column labeled "Disputed." (You may need to place an "X" in more than one of these three columns.) Report the total of claims listed on each sheet in the box labeled "Subtotals" on each sheet. Report the total of all claims listed on this Schedule E in the box labeled "Total" on the last sheet of the completed schedule. Report this total also on the Summary of Schedules. Report the total of amounts entitled to priority listed on each sheet in the box labeled "Subtotals" on each sheet. Report the total of all amounts entitled to priority listed on this Schedule E in the box labeled "Totals" on the last sheet of the completed schedule. Individual debtors with primarily consumer debts report this total also on the Statistical Summary of Certain Liabilities and Related Data. Report the total of amounts not entitled to priority listed on each sheet in the box labeled "Subtotals" on each sheet. Report the total of all amounts not entitled to priority listed on this Schedule E in the box labeled "Totals" on the last sheet of the completed schedule. Individual debtors with primarily consumer debts report this total also on the Statistical Summary of Certain Liabilities and Related Data. Check this box if debtor has no creditors holding unsecured priority claims to report on this Schedule E. TYPES OF PRIORITY CLAIMS (Check the appropriate box(es) below if claims in that category are listed on the attached sheets) Domestic support obligations Claims for domestic support that are owed to or recoverable by a spouse, former spouse, or child of the debtor, or the parent, legal guardian, or responsible relative of such a child, or a governmental unit to whom such a domestic support claim has been assigned to the extent provided in 11 U.S.C. § 507(a)(1). Extensions of credit in an involuntary case Claims arising in the ordinary course of the debtor's business or financial affairs after the commencement of the case but before the earlier of the appointment of a trustee or the order for relief. 11 U.S.C. § 507(a)(3). Wages, salaries, and commissions Wages, salaries, and commissions, including vacation, severance, and sick leave pay owing to employees and commissions owing to qualifying independent sales representatives up to $11,725* per person earned within 180 days immediately preceding the filing of the original petition, or the cessation of business, whichever occurred first, to the extent provided in 11 U.S.C. § 507(a)(4). Contributions to employee benefit plans Money owed to employee benefit plans for services rendered within 180 days immediately preceding the filing of the original petition, or the cessation of business, whichever occurred first, to the extent provided in 11 U.S.C. § 507(a)(5). Certain farmers and fishermen Claims of certain farmers and fishermen, up to $5,775* per farmer or fisherman, against the debtor, as provided in 11 U.S.C. § 507(a)(6). Deposits by individuals Claims of individuals up to $2,600* for deposits for the purchase, lease, or rental of property or services for personal, family, or household use, that were not delivered or provided. 11 U.S.C. § 507(a)(7). Taxes and certain other debts owed to governmental units Taxes, customs duties, and penalties owing to federal, state, and local governmental units as set forth in 11 U.S.C. § 507(a)(8). Commitments to maintain the capital of an insured depository institution Claims based on commitments to the FDIC, RTC, Director of the Office of Thrift Supervision, Comptroller of the Currency, or Board of Governors of the Federal Reserve System, or their predecessors or successors, to maintain the capital of an insured depository institution. 11 U.S.C. § 507 (a)(9). Claims for death or personal injury while debtor was intoxicated Claims for death or personal injury resulting from the operation of a motor vehicle or vessel while the debtor was intoxicated from using alcohol, a drug, or another substance. 11 U.S.C. § 507(a)(10). * Amount subject to adjustment on 4/01/13, and every three years thereafter with respect to cases commenced on or after the date of adjustment. continuation sheets attached SCHEDULE E - CREDITORS HOLDING UNSECURED PRIORITY CLAIMS Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 1 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 19 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 20 of 49 B6E (Official Form 6E) (4/10) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, AND MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions.) DATE CLAIM WAS INCURRED AMOUNT AND CONSIDERATION FOR CLAIM OF CLAIM Account No. Account No. Account No. Account No. Account No. SubtotalSheet _____ of _____ continuation sheets attached to (Total of this page)Schedule of Creditors Holding Unsecured Priority Claims TYPE OF PRIORITY AMOUNT NOT ENTITLED TO PRIORITY, IF ANY AMOUNT ENTITLED TO PRIORITY SCHEDULE E - CREDITORS HOLDING UNSECURED PRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen Taxes and Certain Other Debts Owed to Governmental Units Notice Only Creditor #: 1 Franchise Tax Board Box 2952 Sacramento, CA 95812-2952 C 0.00 0.00 0.00 Notice Only Creditor #: 2 IRS Ogden, UT 84201-0030 C 0.00 0.00 0.00 0.00 0.00 0.001 1 0.00 0.00 0.00Total (Report on Summary of Schedules) Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 20 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 21 of 49 }bk1{Schedul F-CritosHngUNpyam C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Subtotal _____ continuation sheets attached (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM B6F (Official Form 6F) (12/07) State the name, mailing address, including zip code, and last four digits of any account number, of all entities holding unsecured claims without priority against the debtor or the property of the debtor, as of the date of filing of the petition. The complete account number of any account the debtor has with the creditor is useful to the trustee and the creditor and may be provided if the debtor chooses to do so. If a minor child is a creditor, state the child's initials and the name and address of the child's parent or guardian, such as "A.B., a minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. §112 and Fed. R. Bankr. P. 1007(m). Do not include claims listed in Schedules D and E. If all creditors will not fit on this page, use the continuation sheet provided. If any entity other than a spouse in a joint case may be jointly liable on a claim, place an "X" in the column labeled "Codebtor," include the entity on the appropriate schedule of creditors, and complete Schedule H - Codebtors. If a joint petition is filed, state whether the husband, wife, both of them, or the marital community may be liable on each claim by placing an "H," "W," "J," or "C" in the column labeled "Husband, Wife, Joint, or Community." If the claim is contingent, place an "X" in the column labeled "Contingent." If the claim is unliquidated, place an "X" in the column labeled "Unliquidated." If the claim is disputed, place an "X" in the column labeled "Disputed." (You may need to place an "X" in more than one of these three columns.) Report the total of all claims listed on this schedule in the box labeled "Total" on the last sheet of the completed schedule. Report this total also on the Summary of Schedules and, if the debtor is an individual with primarily consumer debts, report this total also on the Statistical Summary of Certain Liabilities and Related Data. Check this box if debtor has no creditors holding unsecured claims to report on this Schedule F. S/N:35114-110510 SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 8 xxxx-xxxxxx-xx0004 Notice Only Credit CardCreditor #: 1 American Express Po Box 001 Los Angeles, CA 90096-8000 C 0.00 xxxx-xxxxxx-x1935 Opened 6/02/07 Last Active 3/01/11 Creditor #: 2 Amexdsnb 9111 Duke Blvd Mason, OH 45040 W 0.00 377481704791935 Additional notice to: Amexdsnb Notice Only American Express PO Box 183084 Columbus, OH 43218-3084 xxxxxxxxxxxx8349 Opened 6/13/01 Last Active 4/01/10 ChargeAccountCreditor #: 3 Bank Of America Po Box 17054 Wilmington, DE 19850 C 28,145.00 28,145.00 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 21 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 22 of 49 B6F (Official Form 6F) (12/07) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Account No. Sheet no. _____ of _____ sheets attached to Schedule of Subtotal Creditors Holding Unsecured Nonpriority Claims (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 4264294131616890 Additional notice to: Bank Of America Notice Only Bank of America Box 301200 Los Angeles, CA 90030-1200 Additional notice to: Bank Of America Notice Only Fia Card Services P.O. Box 22021 Greensboro, NC 27420 50564996 Additional notice to: Bank Of America Notice Only First Source Advantage LLC P.O. Box 628 Buffalo, NY 14240-0628 8888200963 Additional notice to: Bank Of America Notice Only Northstar Location Services Attn: Financial Services Dept. 4285 Genessee St. Cheektowaga, NY 14225 9456183 Additional notice to: Bank Of America Notice Only Sunrise Credit Services Inc. PO Box 9100 Farmingdale, NY 11735-9100 0.00 1 8 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 22 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 23 of 49 B6F (Official Form 6F) (12/07) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Account No. Sheet no. _____ of _____ sheets attached to Schedule of Subtotal Creditors Holding Unsecured Nonpriority Claims (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen xxxxxxxxxxxx0923 Opened 6/13/01 Last Active 9/19/08 CreditCardCreditor #: 4 Bk Of Amer Po Box 17054 Wilmington, DE 19850 C 0.00 xxxxxxxxxxxx1863 Opened 4/28/05 Last Active 2/01/10 ChargeAccountCreditor #: 5 Cap One Po Box 85520 Richmond, VA 23285 C 16,753.00 MW 214468 Additional notice to: Cap One Notice Only Legal Recovery Law Offices Inc. Attn: Mark Walsh 5030 Camino de la Siesta Ste. 340 San Diego, CA 92108 xxxxxxxxxxxx6596 Opened 8/19/04 Last Active 2/01/10 ChargeAccountCreditor #: 6 Chase Po Box 15298 Wilmington, DE 19850 C 18,571.00 4266841198496596 Additional notice to: Chase Notice Only Countrywide PO Box 94014 Palatine, IL 60094-4014 35,324.00 2 8 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 23 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 24 of 49 B6F (Official Form 6F) (12/07) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Account No. Sheet no. _____ of _____ sheets attached to Schedule of Subtotal Creditors Holding Unsecured Nonpriority Claims (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen MW213255 Additional notice to: Chase Notice Only Shedrick O Davis III 300 S. Grand Avenue, 4th Floor Los Angeles, CA 90071 xxxxxxxxxxxx2634 Opened 1/17/06 Last Active 2/01/10 ChargeAccountCreditor #: 7 Chase Po Box 15298 Wilmington, DE 19850 C 9,161.00 Additional notice to: Chase Notice Only Client Services INC 3451 Harry Truman Blvd. Saint Charles, MO 63301-3236 Additional notice to: Chase Notice Only MRS Associates 1930 Olney Avenue Cherry Hill, NJ 08003 4388567017202634 Additional notice to: Chase Notice Only United PO Box 94014 Palatine, IL 60094-4014 9,161.00 3 8 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 24 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 25 of 49 B6F (Official Form 6F) (12/07) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Account No. Sheet no. _____ of _____ sheets attached to Schedule of Subtotal Creditors Holding Unsecured Nonpriority Claims (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen xxxxxxxxxxxx3278 Opened 12/15/05 Last Active 2/01/10 ChargeAccountCreditor #: 8 Chase Po Box 15298 Wilmington, DE 19850 C 5,074.00 4266841198496596 Additional notice to: Chase Notice Only Amazon PO Box 94014 Palatine, IL 60094-4014 MW 213255 Additional notice to: Chase Notice Only Shedrick O Davis III 300 S. Grand Avenue, 4th Floor Los Angeles, CA 90071 xxxxxxxxx3458 Opened 8/18/99 MortgageCreditor #: 9 Chase 3990 S Babcock St Melbourne, FL 32901 C 0.00 xxxxxxxxxxxx1041 Opened 11/01/95 Last Active 4/01/03 CreditCardCreditor #: 10 Chase Na 800 Brooksedge Blv Westerville, OH 43081 C 0.00 5,074.00 4 8 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 25 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 26 of 49 B6F (Official Form 6F) (12/07) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Account No. Sheet no. _____ of _____ sheets attached to Schedule of Subtotal Creditors Holding Unsecured Nonpriority Claims (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen xxxxxx8732 Opened 8/01/95 Last Active 10/01/02 CreditCardCreditor #: 11 Chevron Pob 5010 Room 1242 Concord, CA 94524 W 0.00 xxxxxxxxxxxx xxx xxxxxxxx8624 Opened 12/01/89 Last Active 7/07/00 Creditor #: 12 Citi Po Box 6241 Sioux Falls, SD 57117 W 0.00 xxxxxxxxxxxx5196 Opened 4/11/07 Last Active 1/13/10 ChargeAccountCreditor #: 13 Discover Fin Svcs Llc Po Box 15316 Wilmington, DE 19850 C 8,335.00 MW213928 Additional notice to: Discover Fin Svcs Llc Notice Only Zwicker & Associates 1320 Willow Pass Rd Ste 730 Concord, CA 94520 xxxxxxxxxxx1527 Opened 10/01/08 Last Active 3/21/11 Creditor #: 14 Fnb Omaha Po Box 3412 Omaha, NE 68103 W 0.00 8,335.00 5 8 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 26 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 27 of 49 B6F (Official Form 6F) (12/07) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Account No. Sheet no. _____ of _____ sheets attached to Schedule of Subtotal Creditors Holding Unsecured Nonpriority Claims (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen 4418409242991140 Additional notice to: Fnb Omaha Notice Only First National Bank of Omaha Po Box 2557 Omaha, NE 68103-2557 xxxxxxxxxxxx6477 Opened 12/18/86 Last Active 2/24/97 ChargeAccountCreditor #: 15 Gemb/Jcp Po Box 984100 El Paso, TX 79998 W 0.00 Notice Only Debt ManagementCreditor #: 16 His Way LLP PO BOx Drawer 5307 Jasper, TX 75951 C 0.00 Additional notice to: His Way LLP Notice Only Maida Law Firm 4320 Calder Ave Beaumont, TX 77706-4631 xxxxxxxxxxxx7917 Opened 7/27/03 Last Active 1/06/05 Creditor #: 17 Hsbc Bank Po Box 5253 Carol Stream, IL 60197 C 0.00 0.00 6 8 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 27 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 28 of 49 B6F (Official Form 6F) (12/07) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Account No. Sheet no. _____ of _____ sheets attached to Schedule of Subtotal Creditors Holding Unsecured Nonpriority Claims (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen xxxxxxxxxxxx2980 Opened 4/09/99 Last Active 7/01/99 ChargeAccountCreditor #: 18 Hsbc/Bsbuy Po Box 15519 Wilmington, DE 19850 W 0.00 xxxx1975 8/20/2010 Creditor #: 19 JNR Adjustment Co. 1735 S. Semoran Blvd STE 1347 Winter Park, FL 32792 C 500.00 xxxxxxxx7652 Opened 12/06/08 Last Active 12/17/10 ChargeAccountCreditor #: 20 Kohls/Capone N56 W 17000 Ridgewood Dr Menomonee Falls, WI 53051 W 0.00 xxxxxxxxx6020 Opened 6/02/07 Last Active 6/07/10 ChargeAccountCreditor #: 21 Mcydsnb 9111 Duke Blvd Mason, OH 45040 W 0.00 xxxxxx0001 Opened 2/22/06 Last Active 8/09/08 AutomobileCreditor #: 22 Redwood Credit Union 3033 Cleveland Ave Ste 1 Santa Rosa, CA 95403 C 0.00 500.00 7 8 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 28 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 29 of 49 B6F (Official Form 6F) (12/07) - Cont. C O D E B T O R C O N T I N G E N T U N L I Q U I D A T E D D I S P U T E D Husband, Wife, Joint, or Community H W J C CREDITOR'S NAME, MAILING ADDRESS INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.) Account No. Account No. Account No. Account No. Account No. Sheet no. _____ of _____ sheets attached to Schedule of Subtotal Creditors Holding Unsecured Nonpriority Claims (Total of this page) DATE CLAIM WAS INCURRED AND CONSIDERATION FOR CLAIM. IF CLAIM IS SUBJECT TO SETOFF, SO STATE. AMOUNT OF CLAIM SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS (Continuation Sheet) Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen Notice Only Creditor #: 23 Redwood Credit Union Box 6104 Santa Rosa, CA 95404 X C 0.00 xxxxxxxxxxxx4080 Opened 7/01/95 Last Active 8/26/04 ChargeAccountCreditor #: 24 Thd/Cbsd Po Box 6497 Sioux Falls, SD 57117 C 0.00 xxxxxxxxxxxxxxx0278 Opened 11/03/04 Last Active 5/12/10 ChargeAccountCreditor #: 25 Webbank/Dfs 1 Dell Way Round Rock, TX 78682 H 0.00 0.00 8 8 86,539.00 Total (Report on Summary of Schedules) Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 29 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 30 of 49 }bk1{Schedul G-ExtoryCnasUpiL In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen B6G (Official Form 6G) (12/07) Describe all executory contracts of any nature and all unexpired leases of real or personal property. Include any timeshare interests. State nature of debtor's interest in contract, i.e., "Purchaser", "Agent", etc. State whether debtor is the lessor or lessee of a lease. Provide the names and complete mailing addresses of all other parties to each lease or contract described. If a minor child is a party to one of the leases or contracts, state the child's initials and the name and address of the child's parent or guardian, such as "A.B., a minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. §112 and Fed. R. Bankr. P. 1007(m). Check this box if debtor has no executory contracts or unexpired leases. Name and Mailing Address, Including Zip Code, of Other Parties to Lease or Contract Description of Contract or Lease and Nature of Debtor's Interest. State whether lease is for nonresidential real property. State contract number of any government contract. continuation sheets attached to Schedule of Executory Contracts and Unexpired Leases SCHEDULE G - EXECUTORY CONTRACTS AND UNEXPIRED LEASES Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy 0 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 30 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 31 of 49 }bk1{Schedul H-Cotrs In re , Debtors Case No.Joseph Thomas Owen, II, Michele Rainone Owen B6H (Official Form 6H) (12/07) Provide the information requested concerning any person or entity, other than a spouse in a joint case, that is also liable on any debts listed by debtor in the schedules of creditors. Include all guarantors and co-signers. If the debtor resides or resided in a community property state, commonwealth, or territory (including Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington, or Wisconsin) within the eight year period immediately preceding the commencement of the case, identify the name of the debtor's spouse and of any former spouse who resides or resided with the debtor in the community property state, commonwealth, or territory. Include all names used by the nondebtor spouse during the eight years immediately preceding the commencement of this case. If a minor child is a codebtor or a creditor, state the child's initials and the name and address of the child's parent or guardian, such as "A.B., a minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. §112 and Fed. R. Bankr. P. 1007(m). Check this box if debtor has no codebtors. NAME AND ADDRESS OF CODEBTOR NAME AND ADDRESS OF CREDITOR continuation sheets attached to Schedule of Codebtors SCHEDULE H - CODEBTORS Software Copyright (c) 1996-2011 - CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy 0 Alex Preisinger 415 Beatty Medford, OR 97501 Redwood Credit Union Box 6104 Santa Rosa, CA 95404 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 31 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 32 of 49 B6I (Official Form 6I) (12/07) In re Joseph Thomas Owen, II Michele Rainone Owen Case No. Debtor(s) SCHEDULE I - CURRENT INCOME OF INDIVIDUAL DEBTOR(S) The column labeled "Spouse" must be completed in all cases filed by joint debtors and by every married debtor, whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed. Do not state the name of any minor child. The average monthly income calculated on this form may differ from the current monthly income calculated on Form 22A, 22B, or 22C. Debtor's Marital Status: DEPENDENTS OF DEBTOR AND SPOUSE Married RELATIONSHIP(S): Son AGE(S): 15 years Employment: DEBTOR SPOUSE Occupation Instructor Retail Management Name of Employer LM Training Solution, Inc. Oil Stop Inc. How long employed 2 months 10 months Address of Employer P.O. Box 33003 Lakeland, FL 33807-3003 5665 Redwood Dr. Ste. 6 Rohnert Park, CA 94928 INCOME: (Estimate of average or projected monthly income at time case filed) DEBTOR SPOUSE 1. Monthly gross wages, salary, and commissions (Prorate if not paid monthly) $ 4,582.00 $ 1,463.00 2. Estimate monthly overtime $ 0.00 $ 0.00 3. SUBTOTAL $ 4,582.00 $ 1,463.00 4. LESS PAYROLL DEDUCTIONS a. Payroll taxes and social security $ 917.00 $ 300.23 b. Insurance $ 0.00 $ 0.00 c. Union dues $ 0.00 $ 0.00 d. Other (Specify): Employee Service $ 0.00 $ 15.01 OSSP $ 27.00 $ 0.00 5. SUBTOTAL OF PAYROLL DEDUCTIONS $ 944.00 $ 315.24 6. TOTAL NET MONTHLY TAKE HOME PAY $ 3,638.00 $ 1,147.76 7. Regular income from operation of business or profession or farm (Attach detailed statement) $ 0.00 $ 0.00 8. Income from real property $ 0.00 $ 0.00 9. Interest and dividends $ 0.00 $ 0.00 10. Alimony, maintenance or support payments payable to the debtor for the debtor's use or that of dependents listed above $ 0.00 $ 0.00 11. Social security or government assistance (Specify): $ 0.00 $ 0.00 $ 0.00 $ 0.00 12. Pension or retirement income $ 0.00 $ 0.00 13. Other monthly income (Specify): $ 0.00 $ 0.00 $ 0.00 $ 0.00 14. SUBTOTAL OF LINES 7 THROUGH 13 $ 0.00 $ 0.00 15. AVERAGE MONTHLY INCOME (Add amounts shown on lines 6 and 14) $ 3,638.00 $ 1,147.76 16. COMBINED AVERAGE MONTHLY INCOME: (Combine column totals from line 15) $ 4,785.76 (Report also on Summary of Schedules and, if applicable, on Statistical Summary of Certain Liabilities and Related Data) 17. Describe any increase or decrease in income reasonably anticipated to occur within the year following the filing of this document: Joseph Owen started a new job on May 2 and his new income wil be significantly lower than the previous months of income. Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 32 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 33 of 49 B6J (Official Form 6J) (12/07) In re Joseph Thomas Owen, II Michele Rainone Owen Case No. Debtor(s) SCHEDULE J - CURRENT EXPENDITURES OF INDIVIDUAL DEBTOR(S) Complete this schedule by estimating the average or projected monthly expenses of the debtor and the debtor's family at time case filed. Prorate any payments made bi-weekly, quarterly, semi-annually, or annually to show monthly rate. The average monthly expenses calculated on this form may differ from the deductions from income allowed on Form 22A or 22C. Check this box if a joint petition is filed and debtor's spouse maintains a separate household. Complete a separate schedule of expenditures labeled "Spouse." 1. Rent or home mortgage payment (include lot rented for mobile home) $ 1,923.00 a. Are real estate taxes included? Yes X No b. Is property insurance included? Yes X No 2. Utilities: a. Electricity and heating fuel $ 110.00 b. Water and sewer $ 126.00 c. Telephone $ 0.00 d. Other See Detailed Expense Attachment $ 211.00 3. Home maintenance (repairs and upkeep) $ 100.00 4. Food $ 700.00 5. Clothing $ 80.00 6. Laundry and dry cleaning $ 30.00 7. Medical and dental expenses $ 250.00 8. Transportation (not including car payments) $ 550.00 9. Recreation, clubs and entertainment, newspapers, magazines, etc. $ 100.00 10. Charitable contributions $ 0.00 11. Insurance (not deducted from wages or included in home mortgage payments) a. Homeowner's or renter's $ 0.00 b. Life $ 0.00 c. Health $ 0.00 d. Auto $ 82.00 e. Other $ 0.00 12. Taxes (not deducted from wages or included in home mortgage payments) (Specify) $ 0.00 13. Installment payments: (In chapter 11, 12, and 13 cases, do not list payments to be included in the plan) a. Auto $ 0.00 b. Other Homeowners Association (HOA) $ 12.50 c. Other $ 0.00 14. Alimony, maintenance, and support paid to others $ 0.00 15. Payments for support of additional dependents not living at your home $ 0.00 16. Regular expenses from operation of business, profession, or farm (attach detailed statement) $ 0.00 17. Other See Detailed Expense Attachment $ 440.00 18. AVERAGE MONTHLY EXPENSES (Total lines 1-17. Report also on Summary of Schedules and, if applicable, on the Statistical Summary of Certain Liabilities and Related Data.) $ 4,714.50 19. Describe any increase or decrease in expenditures reasonably anticipated to occur within the year following the filing of this document: -NONE- 20. STATEMENT OF MONTHLY NET INCOME a. Average monthly income from Line 15 of Schedule I $ 4,785.76 b. Average monthly expenses from Line 18 above $ 4,714.50 c. Monthly net income (a. minus b.) $ 71.26 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 33 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 34 of 49 B6J (Official Form 6J) (12/07) In re Joseph Thomas Owen, II Michele Rainone Owen Case No. Debtor(s) SCHEDULE J - CURRENT EXPENDITURES OF INDIVIDUAL DEBTOR(S) Detailed Expense Attachment Other Utility Expenditures: Cellular Phone/Pagers $ 138.00 TV $ 33.00 Internet $ 30.00 Garbage $ 10.00 Total Other Utility Expenditures $ 211.00 Other Expenditures: Hardware, Cleaning Supplies and Household Supplies $ 80.00 Pet Care $ 50.00 Personal Care, Hygiene & Fitness: Services and Supplies $ 75.00 Medication and Vitamins $ 100.00 Parking/Bridge Toll/Bus/Taxi $ 20.00 Bank Charges/PO Box/Postage $ 15.00 Vacation/Travel/Gift Giving $ 100.00 Total Other Expenditures $ 440.00 Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 34 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 35 of 49 B6 Declaration (Official Form 6 - Declaration). (12/07) United States Bankruptcy Court Northern District of California In re Joseph Thomas Owen, II Michele Rainone Owen Case No. Debtor(s) Chapter 13 DECLARATION CONCERNING DEBTOR'S SCHEDULES DECLARATION UNDER PENALTY OF PERJURY BY INDIVIDUAL DEBTOR I declare under penalty of perjury that I have read the foregoing summary and schedules, consisting of 27 sheets, and that they are true and correct to the best of my knowledge, information, and belief. Date July 13, 2011 Signature /s/ Joseph Thomas Owen, II Joseph Thomas Owen, II Debtor Date July 13, 2011 Signature /s/ Michele Rainone Owen Michele Rainone Owen Joint Debtor Penalty for making a false statement or concealing property: Fine of up to $500,000 or imprisonment for up to 5 years or both. 18 U.S.C. §§ 152 and 3571. Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 35 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 36 of 49 B7 (Official Form 7) (04/10) United States Bankruptcy Court Northern District of California In re Joseph Thomas Owen, II Michele Rainone Owen Case No. Debtor(s) Chapter 13 STATEMENT OF FINANCIAL AFFAIRS This statement is to be completed by every debtor. Spouses filing a joint petition may file a single statement on which the information for both spouses is combined. If the case is filed under chapter 12 or chapter 13, a married debtor must furnish information for both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed. An individual debtor engaged in business as a sole proprietor, partner, family farmer, or self-employed professional, should provide the information requested on this statement concerning all such activities as well as the individual's personal affairs. To indicate payments, transfers and the like to minor children, state the child's initials and the name and address of the child's parent or guardian, such as "A.B., a minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. § 112; Fed. R. Bankr. P. 1007(m). Questions 1 - 18 are to be completed by all debtors. Debtors that are or have been in business, as defined below, also must complete Questions 19 - 25. If the answer to an applicable question is "None," mark the box labeled "None." If additional space is needed for the answer to any question, use and attach a separate sheet properly identified with the case name, case number (if known), and the number of the question. DEFINITIONS "In business." A debtor is "in business" for the purpose of this form if the debtor is a corporation or partnership. An individual debtor is "in business" for the purpose of this form if the debtor is or has been, within six years immediately preceding the filing of this bankruptcy case, any of the following: an officer, director, managing executive, or owner of 5 percent or more of the voting or equity securities of a corporation; a partner, other than a limited partner, of a partnership; a sole proprietor or self-employed full-time or part-time. An individual debtor also may be "in business" for the purpose of this form if the debtor engages in a trade, business, or other activity, other than as an employee, to supplement income from the debtor's primary employment. "Insider." The term "insider" includes but is not limited to: relatives of the debtor; general partners of the debtor and their relatives; corporations of which the debtor is an officer, director, or person in control; officers, directors, and any owner of 5 percent or more of the voting or equity securities of a corporate debtor and their relatives; affiliates of the debtor and insiders of such affiliates; any managing agent of the debtor. 11 U.S.C. § 101. None 1. Income from employment or operation of business State the gross amount of income the debtor has received from employment, trade, or profession, or from operation of the debtor's business, including part-time activities either as an employee or in independent trade or business, from the beginning of this calendar year to the date this case was commenced. State also the gross amounts received during the two years immediately preceding this calendar year. (A debtor that maintains, or has maintained, financial records on the basis of a fiscal rather than a calendar year may report fiscal year income. Identify the beginning and ending dates of the debtor's fiscal year.) If a joint petition is filed, state income for each spouse separately. (Married debtors filing under chapter 12 or chapter 13 must state income of both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) AMOUNT SOURCE $28,985.00 2011 YTD: Husband L-3 Communication $64,225.00 2010: Husband L-3 Communication $67,353.00 2009: Husband L-3 Communication $8,630.00 2011 YTD: Wife Oil Stop Inc. $17,576.00 2010: Wife Oil Stop Inc. $0.00 2009: Wife Oil Stop Inc. $0.00 2011 YTD: Wife CCP $0.00 2010: Wife CCP $23,828.00 2009: Wife CCP Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 36 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 37 of 49 2 AMOUNT SOURCE $7,183.64 2011 YTD: Husband LM Training Solution, Inc. $0.00 2011 YTD: Husband Joseph Owen Computer consulting $0.00 2010: Husband Joseph Owen Computer consulting $4,753.00 2009: Husband Joseph Owen Computer consulting None 2. Income other than from employment or operation of business State the amount of income received by the debtor other than from employment, trade, profession, or operation of the debtor's business during the two years immediately preceding the commencement of this case. Give particulars. If a joint petition is filed, state income for each spouse separately. (Married debtors filing under chapter 12 or chapter 13 must state income for each spouse whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) AMOUNT SOURCE $0.00 2011 YTD: Both Rental $1,010.00 2010: Both Rental $3,200.00 2009: Both Rental None 3. Payments to creditors Complete a. or b., as appropriate, and c. a. Individual or joint debtor(s) with primarily consumer debts. List all payments on loans, installment purchases of goods or services, and other debts to any creditor made within 90 days immediately preceding the commencement of this case unless the aggregate value of all property that constitutes or is affected by such transfer is less than $600. Indicate with an (*) any payments that were made to a creditor on account of a domestic support obligation or as part of an alternative repayment schedule under a plan by an approved nonprofit budgeting and credit counseling agency. (Married debtors filing under chapter 12 or chapter 13 must include payments by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF CREDITOR DATES OF PAYMENTS AMOUNT PAID AMOUNT STILL OWING American Home Mortgage Box 631730 Irving, TX 75063-1730 Monthly $1,923.00 $526,975.47 None b. Debtor whose debts are not primarily consumer debts: List each payment or other transfer to any creditor made within 90 days immediately preceding the commencement of the case unless the aggregate value of all property that constitutes or is affected by such transfer is less than $5,850*. If the debtor is an individual, indicate with an asterisk (*) any payments that were made to a creditor on account of a domestic support obligation or as part of an alternative repayment schedule under a plan by an approved nonprofit budgeting and credit counseling agency. (Married debtors filing under chapter 12 or chapter 13 must include payments and other transfers by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF CREDITOR DATES OF PAYMENTS/ TRANSFERS AMOUNT PAID OR VALUE OF TRANSFERS AMOUNT STILL OWING None c. All debtors: List all payments made within one year immediately preceding the commencement of this case to or for the benefit of creditors who are or were insiders. (Married debtors filing under chapter 12 or chapter 13 must include payments by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF CREDITOR AND RELATIONSHIP TO DEBTOR DATE OF PAYMENT AMOUNT PAID AMOUNT STILL OWING * Amount subject to adjustment on 4/01/13, and every three years thereafter with respect to cases commenced on or after the date of adjustment. Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 37 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 38 of 49 3 None 4. Suits and administrative proceedings, executions, garnishments and attachments a. List all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) CAPTION OF SUIT AND CASE NUMBER NATURE OF PROCEEDING COURT OR AGENCY AND LOCATION STATUS OR DISPOSITION Chase Bank USA, N.A. v Michele Owen MCV213255 Contract Superior Court of California 600 Administration Drive, Rm. 109-J Santa Rosa, CA 95408 Pending Capital One Bank USA NA v Michele R Owen MCV 214468 Contract Superior Court of California 600 Administration Drive, Rm. 109-J Santa Rosa, CA 95408 Pending Discover Bank v Michele Owen MCV-213928 Contract Superior Court of California 600 Administration Drive, Rm. 109-J Santa Rosa, CA 95408 Pending None b. Describe all property that has been attached, garnished or seized under any legal or equitable process within one year immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning property of either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF PERSON FOR WHOSE BENEFIT PROPERTY WAS SEIZED DATE OF SEIZURE DESCRIPTION AND VALUE OF PROPERTY None 5. Repossessions, foreclosures and returns List all property that has been repossessed by a creditor, sold at a foreclosure sale, transferred through a deed in lieu of foreclosure or returned to the seller, within one year immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning property of either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF CREDITOR OR SELLER DATE OF REPOSSESSION, FORECLOSURE SALE, TRANSFER OR RETURN DESCRIPTION AND VALUE OF PROPERTY None 6. Assignments and receiverships a. Describe any assignment of property for the benefit of creditors made within 120 days immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include any assignment by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF ASSIGNEE DATE OF ASSIGNMENT TERMS OF ASSIGNMENT OR SETTLEMENT None b. List all property which has been in the hands of a custodian, receiver, or court-appointed official within one year immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning property of either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF CUSTODIAN NAME AND LOCATION OF COURT CASE TITLE & NUMBER DATE OF ORDER DESCRIPTION AND VALUE OF PROPERTY Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 38 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 39 of 49 4 None 7. Gifts List all gifts or charitable contributions made within one year immediately preceding the commencement of this case except ordinary and usual gifts to family members aggregating less than $200 in value per individual family member and charitable contributions aggregating less than $100 per recipient. (Married debtors filing under chapter 12 or chapter 13 must include gifts or contributions by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF PERSON OR ORGANIZATION RELATIONSHIP TO DEBTOR, IF ANY DATE OF GIFT DESCRIPTION AND VALUE OF GIFT Alex Preisinger 415 Beatty St. Medford, OR 97501 Son 5/3/11 $450 Alex Preisinger 415 Beatty St. Medford, OR 97501 Son 6/3/11 $200 None 8. Losses List all losses from fire, theft, other casualty or gambling within one year immediately preceding the commencement of this case or since the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include losses by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) DESCRIPTION AND VALUE OF PROPERTY DESCRIPTION OF CIRCUMSTANCES AND, IF LOSS WAS COVERED IN WHOLE OR IN PART BY INSURANCE, GIVE PARTICULARS DATE OF LOSS None 9. Payments related to debt counseling or bankruptcy List all payments made or property transferred by or on behalf of the debtor to any persons, including attorneys, for consultation concerning debt consolidation, relief under the bankruptcy law or preparation of the petition in bankruptcy within one year immediately preceding the commencement of this case. NAME AND ADDRESS OF PAYEE DATE OF PAYMENT, NAME OF PAYOR IF OTHER THAN DEBTOR AMOUNT OF MONEY OR DESCRIPTION AND VALUE OF PROPERTY Law Offices of Reginald R. Hindley 718 Orchard Street Santa Rosa, CA 95404 4/8/11, 4/20/11 $2,400.00 plus Filing Fee None 10. Other transfers a. List all other property, other than property transferred in the ordinary course of the business or financial affairs of the debtor, transferred either absolutely or as security within two years immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include transfers by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF TRANSFEREE, RELATIONSHIP TO DEBTOR DATE DESCRIBE PROPERTY TRANSFERRED AND VALUE RECEIVED Private Party None 3/21/11 2004 Harley Davidson sold for $12,000 Private Party None March 8, 2011 Double Wide 1981 Banebridge Mobile Home $30,223 The money went to replace a broken dishwasher and refrigerator. Part of the money was also used to fix plumbing leaks in the house and replace a broken fence. Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 39 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 40 of 49 5 None b. List all property transferred by the debtor within ten years immediately preceding the commencement of this case to a self-settled trust or similar device of which the debtor is a beneficiary. NAME OF TRUST OR OTHER DEVICE DATE(S) OF TRANSFER(S) AMOUNT OF MONEY OR DESCRIPTION AND VALUE OF PROPERTY OR DEBTOR'S INTEREST IN PROPERTY None 11. Closed financial accounts List all financial accounts and instruments held in the name of the debtor or for the benefit of the debtor which were closed, sold, or otherwise transferred within one year immediately preceding the commencement of this case. Include checking, savings, or other financial accounts, certificates of deposit, or other instruments; shares and share accounts held in banks, credit unions, pension funds, cooperatives, associations, brokerage houses and other financial institutions. (Married debtors filing under chapter 12 or chapter 13 must include information concerning accounts or instruments held by or for either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF INSTITUTION TYPE OF ACCOUNT, LAST FOUR DIGITS OF ACCOUNT NUMBER, AND AMOUNT OF FINAL BALANCE AMOUNT AND DATE OF SALE OR CLOSING None 12. Safe deposit boxes List each safe deposit or other box or depository in which the debtor has or had securities, cash, or other valuables within one year immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include boxes or depositories of either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF BANK OR OTHER DEPOSITORY NAMES AND ADDRESSES OF THOSE WITH ACCESS TO BOX OR DEPOSITORY DESCRIPTION OF CONTENTS DATE OF TRANSFER OR SURRENDER, IF ANY None 13. Setoffs List all setoffs made by any creditor, including a bank, against a debt or deposit of the debtor within 90 days preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.) NAME AND ADDRESS OF CREDITOR DATE OF SETOFF AMOUNT OF SETOFF None 14. Property held for another person List all property owned by another person that the debtor holds or controls. NAME AND ADDRESS OF OWNER DESCRIPTION AND VALUE OF PROPERTY LOCATION OF PROPERTY Boy Scouts of America 2240 Professional Dr Santa Rosa, CA 95403 Debtor has registered in his name 5 Ruger .22 pistols, 5 Sauage Arms .22 Rifles, 5 Marlin . 243 Rifles, and 5 Remington 12 Gauge shotguns, that are used in his capacity as Boy Scout Master and were purchased for the Boy Scout Troop with a grant from the NRA. The fire arms are stored in a gunsafe that was also purchased with the grant. Estimated Value $4250 Debtors interest in the Fire Arms is $0. Debtor's Residence Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 40 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 41 of 49 6 None † 15. Prior address of debtor If the debtor has moved within three years immediately preceding the commencement of this case, list all premises which the debtor occupied during that period and vacated prior to the commencement of this case. If a joint petition is filed, report also any separate address of either spouse. ADDRESS NAME USED DATES OF OCCUPANCY Joe and Michele Owen 1/06-4/09 None „ 16. Spouses and Former Spouses If the debtor resides or resided in a community property state, commonwealth, or territory (including Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington, or Wisconsin) within eight years immediately preceding the commencement of the case, identify the name of the debtor’s spouse and of any former spouse who resides or resided with the debtor in the community property state. NAME 17. Environmental Information. For the purpose of this question, the following definitions apply: "Environmental Law" means any federal, state, or local statute or regulation regulating pollution, contamination, releases of hazardous or toxic substances, wastes or material into the air, land, soil, surface water, groundwater, or other medium, including, but not limited to, statutes or regulations regulating the cleanup of these substances, wastes, or material. "Site" means any location, facility, or property as defined under any Environmental Law, whether or not presently or formerly owned or operated by the debtor, including, but not limited to, disposal sites. "Hazardous Material" means anything defined as a hazardous waste, hazardous substance, toxic substance, hazardous material, pollutant, or contaminant or similar term under an Environmental Law None „ a. List the name and address of every site for which the debtor has received notice in writing by a governmental unit that it may be liable or potentially liable under or in violation of an Environmental Law. Indicate the governmental unit, the date of the notice, and, if known, the Environmental Law: SITE NAME AND ADDRESS NAME AND ADDRESS OF GOVERNMENTAL UNIT DATE OF NOTICE ENVIRONMENTAL LAW None „ b. List the name and address of every site for which the debtor provided notice to a governmental unit of a release of Hazardous Material. Indicate the governmental unit to which the notice was sent and the date of the notice. SITE NAME AND ADDRESS NAME AND ADDRESS OF GOVERNMENTAL UNIT DATE OF NOTICE ENVIRONMENTAL LAW None „ c. List all judicial or administrative proceedings, including settlements or orders, under any Environmental Law with respect to which the debtor is or was a party. Indicate the name and address of the governmental unit that is or was a party to the proceeding, and the docket number. NAME AND ADDRESS OF GOVERNMENTAL UNIT DOCKET NUMBER STATUS OR DISPOSITION Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 41 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 42 of 49 7 None † 18 . Nature, location and name of business a. If the debtor is an individual, list the names, addresses, taxpayer identification numbers, nature of the businesses, and beginning and ending dates of all businesses in which the debtor was an officer, director, partner, or managing executive of a corporation, partner in a partnership, sole proprietor, or was self-employed in a trade, profession, or other activity either full- or part-time within six years immediately preceding the commencement of this case, or in which the debtor owned 5 percent or more of the voting or equity securities within six years immediately preceding the commencement of this case. If the debtor is a partnership, list the names, addresses, taxpayer identification numbers, nature of the businesses, and beginning and ending dates of all businesses in which the debtor was a partner or owned 5 percent or more of the voting or equity securities, within six years immediately preceding the commencement of this case. If the debtor is a corporation, list the names, addresses, taxpayer identification numbers, nature of the businesses, and beginning and ending dates of all businesses in which the debtor was a partner or owned 5 percent or more of the voting or equity securities within six years immediately preceding the commencement of this case. NAME LAST FOUR DIGITS OF SOCIAL-SECURITY OR OTHER INDIVIDUAL TAXPAYER-I.D. NO. (ITIN)/ COMPLETE EIN ADDRESS NATURE OF BUSINESS BEGINNING AND ENDING DATES Joseph Owen Computer Consulting 7565 5401 Computer Consulting 2007-2009 None „ b. Identify any business listed in response to subdivision a., above, that is "single asset real estate" as defined in 11 U.S.C. § 101. NAME ADDRESS The following questions are to be completed by every debtor that is a corporation or partnership and by any individual debtor who is or has been, within six years immediately preceding the commencement of this case, any of the following: an officer, director, managing executive, or owner of more than 5 percent of the voting or equity securities of a corporation; a partner, other than a limited partner, of a partnership, a sole proprietor, or self-employed in a trade, profession, or other activity, either full- or part-time. (An individual or joint debtor should complete this portion of the statement only if the debtor is or has been in business, as defined above, within six years immediately preceding the commencement of this case. A debtor who has not been in business within those six years should go directly to the signature page.) None „ 19. Books, records and financial statements a. List all bookkeepers and accountants who within two years immediately preceding the filing of this bankruptcy case kept or supervised the keeping of books of account and records of the debtor. NAME AND ADDRESS DATES SERVICES RENDERED None „ b. List all firms or individuals who within the two years immediately preceding the filing of this bankruptcy case have audited the books of account and records, or prepared a financial statement of the debtor. NAME ADDRESS DATES SERVICES RENDERED None „ c. List all firms or individuals who at the time of the commencement of this case were in possession of the books of account and records of the debtor. If any of the books of account and records are not available, explain. NAME ADDRESS None „ d. List all financial institutions, creditors and other parties, including mercantile and trade agencies, to whom a financial statement was issued by the debtor within two years immediately preceding the commencement of this case. NAME AND ADDRESS DATE ISSUED Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 42 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 43 of 49 8 None 20. Inventories a. List the dates of the last two inventories taken of your property, the name of the person who supervised the taking of each inventory, and the dollar amount and basis of each inventory. DATE OF INVENTORY INVENTORY SUPERVISOR DOLLAR AMOUNT OF INVENTORY (Specify cost, market or other basis) None b. List the name and address of the person having possession of the records of each of the two inventories reported in a., above. DATE OF INVENTORY NAME AND ADDRESSES OF CUSTODIAN OF INVENTORY RECORDS None 21 . Current Partners, Officers, Directors and Shareholders a. If the debtor is a partnership, list the nature and percentage of partnership interest of each member of the partnership. NAME AND ADDRESS NATURE OF INTEREST PERCENTAGE OF INTEREST None b. If the debtor is a corporation, list all officers and directors of the corporation, and each stockholder who directly or indirectly owns, controls, or holds 5 percent or more of the voting or equity securities of the corporation. NAME AND ADDRESS TITLE NATURE AND PERCENTAGE OF STOCK OWNERSHIP None 22 . Former partners, officers, directors and shareholders a. If the debtor is a partnership, list each member who withdrew from the partnership within one year immediately preceding the commencement of this case. NAME ADDRESS DATE OF WITHDRAWAL None b. If the debtor is a corporation, list all officers, or directors whose relationship with the corporation terminated within one year immediately preceding the commencement of this case. NAME AND ADDRESS TITLE DATE OF TERMINATION None 23 . Withdrawals from a partnership or distributions by a corporation If the debtor is a partnership or corporation, list all withdrawals or distributions credited or given to an insider, including compensation in any form, bonuses, loans, stock redemptions, options exercised and any other perquisite during one year immediately preceding the commencement of this case. NAME & ADDRESS OF RECIPIENT, RELATIONSHIP TO DEBTOR DATE AND PURPOSE OF WITHDRAWAL AMOUNT OF MONEY OR DESCRIPTION AND VALUE OF PROPERTY None 24. Tax Consolidation Group. If the debtor is a corporation, list the name and federal taxpayer identification number of the parent corporation of any consolidated group for tax purposes of which the debtor has been a member at any time within six years immediately preceding the commencement of the case. NAME OF PARENT CORPORATION TAXPAYER IDENTIFICATION NUMBER (EIN) Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 43 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 44 of 49 9 None 25. Pension Funds. If the debtor is not an individual, list the name and federal taxpayer-identification number of any pension fund to which the debtor, as an employer, has been responsible for contributing at any time within six years immediately preceding the commencement of the case. NAME OF PENSION FUND TAXPAYER IDENTIFICATION NUMBER (EIN) Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 44 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 45 of 49 10 DECLARATION UNDER PENALTY OF PERJURY BY INDIVIDUAL DEBTOR I declare under penalty of perjury that I have read the answers contained in the foregoing statement of financial affairs and any attachments thereto and that they are true and correct. Date July 13, 2011 Signature /s/ Joseph Thomas Owen, II Joseph Thomas Owen, II Debtor Date July 13, 2011 Signature /s/ Michele Rainone Owen Michele Rainone Owen Joint Debtor Penalty for making a false statement: Fine of up to $500,000 or imprisonment for up to 5 years, or both. 18 U.S.C. §§ 152 and 3571 Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 45 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 46 of 49 B 201A (Form 201A) (12/09) WARNING: Effective December 1, 2009, the 15-day deadline to file schedules and certain other documents under Bankruptcy Rule 1007(c) is shortened to 14 days. For further information, see note at bottom of page 2 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA NOTICE TO CONSUMER DEBTOR(S) UNDER § 342(b) OF THE BANKRUPTCY CODE In accordance with § 342(b) of the Bankruptcy Code, this notice to individuals with primarily consumer debts: (1) Describes briefly the services available from credit counseling services; (2) Describes briefly the purposes, benefits and costs of the four types of bankruptcy proceedings you may commence; and (3) Informs you about bankruptcy crimes and notifies you that the Attorney General may examine all information you supply in connection with a bankruptcy case. You are cautioned that bankruptcy law is complicated and not easily described. Thus, you may wish to seek the advice of an attorney to learn of your rights and responsibilities should you decide to file a petition. Court employees cannot give you legal advice. Notices from the bankruptcy court are sent to the mailing address you list on your bankruptcy petition. In order to ensure that you receive information about events concerning your case, Bankruptcy Rule 4002 requires that you notify the court of any changes in your address. If you are filing a joint case (a single bankruptcy case for two individuals married to each other), and each spouse lists the same mailing address on the bankruptcy petition, you and your spouse will generally receive a single copy of each notice mailed from the bankruptcy court in a jointly-addressed envelope, unless you file a statement with the court requesting that each spouse receive a separate copy of all notices. 1. Services Available from Credit Counseling Agencies With limited exceptions, § 109(h) of the Bankruptcy Code requires that all individual debtors who file for bankruptcy relief on or after October 17, 2005, receive a briefing that outlines the available opportunities for credit counseling and provides assistance in performing a budget analysis. The briefing must be given within 180 days before the bankruptcy filing. The briefing may be provided individually or in a group (including briefings conducted by telephone or on the Internet) and must be provided by a nonprofit budget and credit counseling agency approved by the United States trustee or bankruptcy administrator. The clerk of the bankruptcy court has a list that you may consult of the approved budget and credit counseling agencies. Each debtor in a joint case must complete the briefing. In addition, after filing a bankruptcy case, an individual debtor generally must complete a financial management instructional course before he or she can receive a discharge. The clerk also has a list of approved financial management instructional courses. Each debtor in a joint case must complete the course. 2. The Four Chapters of the Bankruptcy Code Available to Individual Consumer Debtors Chapter 7: Liquidation ($245 filing fee, $39 administrative fee, $15 trustee surcharge: Total Fee $299) Chapter 7 is designed for debtors in financial difficulty who do not have the ability to pay their existing debts. Debtors whose debts are primarily consumer debts are subject to a "means test" designed to determine whether the case should be permitted to proceed under chapter 7. If your income is greater than the median income for your state of residence and family size, in some cases, the United States trustee (or bankruptcy administrator), the trustee, or creditors have the right to file a motion requesting that the court dismiss your case under § 707(b) of the Code. It is up to the court to decide whether the case should be dismissed. Under chapter 7, you may claim certain of your property as exempt under governing law. A trustee may have the right to take possession of and sell the remaining property that is not exempt and use the sale proceeds to pay your creditors. The purpose of filing a chapter 7 case is to obtain a discharge of your existing debts. If, however, you are found to have committed certain kinds of improper conduct described in the Bankruptcy Code, the court may deny your discharge and, if it does, the purpose for which you filed the bankruptcy petition will be defeated. Even if you receive a general discharge, some particular debts are not discharged under the law. Therefore, you may still be responsible for most taxes and student loans; debts incurred to pay nondischargeable taxes; domestic support and property settlement obligations; most fines, penalties, forfeitures, and criminal restitution obligations; certain debts which are not properly listed in your bankruptcy papers; and debts for death or personal injury caused by operating a motor vehicle, vessel, or aircraft while intoxicated from alcohol or drugs. Also, if a creditor can prove that a debt arose from fraud, breach of fiduciary duty, or theft, or from a willful and malicious injury, the bankruptcy court may determine that the debt is not discharged. Chapter 13: Repayment of All or Part of the Debts of an Individual with Regular Income ($235 filing fee, $39 administrative fee: Total fee $274) Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 46 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 47 of 49 Form B 201A, Notice to Consumer Debtor(s) Page 2 Chapter 13 is designed for individuals with regular income who would like to pay all or part of their debts in installments over a period of time. You are only eligible for chapter 13 if your debts do not exceed certain dollar amounts set forth in the Bankruptcy Code. Under chapter 13, you must file with the court a plan to repay your creditors all or part of the money that you owe them, using your future earnings. The period allowed by the court to repay your debts may be three years or five years, depending upon your income and other factors. The court must approve your plan before it can take effect. After completing the payments under your plan, your debts are generally discharged except for domestic support obligations; most student loans; certain taxes; most criminal fines and restitution obligations; certain debts which are not properly listed in your bankruptcy papers; certain debts for acts that caused death or personal injury; and certain long term secured obligations. Chapter 11: Reorganization ($1000 filing fee, $39 administrative fee: Total fee $1039) Chapter 11 is designed for the reorganization of a business but is also available to consumer debtors. Its provisions are quite complicated, and any decision by an individual to file a chapter 11 petition should be reviewed with an attorney. Chapter 12: Family Farmer or Fisherman ($200 filing fee, $39 administrative fee: Total fee $239) Chapter 12 is designed to permit family farmers and fishermen to repay their debts over a period of time from future earnings and is similar to chapter 13. The eligibility requirements are restrictive, limiting its use to those whose income arises primarily from a family-owned farm or commercial fishing operation. 3. Bankruptcy Crimes and Availability of Bankruptcy Papers to Law Enforcement Officials A person who knowingly and fraudulently conceals assets or makes a false oath or statement under penalty of perjury, either orally or in writing, in connection with a bankruptcy case is subject to a fine, imprisonment, or both. All information supplied by a debtor in connection with a bankruptcy case is subject to examination by the Attorney General acting through the Office of the United States Trustee, the Office of the United States Attorney, and other components and employees of the Department of Justice. WARNING: Section 521(a)(1) of the Bankruptcy Code requires that you promptly file detailed information regarding your creditors, assets, liabilities, income, expenses and general financial condition. Your bankruptcy case may be dismissed if this information is not filed with the court within the time deadlines set by the Bankruptcy Code, the Bankruptcy Rules, and the local rules of the court. The documents and the deadlines for filing them are listed on Form B200, which is posted at http://www.uscourts.gov/bkforms/bankruptcy_forms.html#procedure. Many filing deadlines change on December 1, 2009. Of special note, 12 rules that set 15 days to act are amended to require action within 14 days, including Rule 1007(c), filing the initial case papers; Rule 3015(b), filing a chapter 13 plan; Rule 8009(a), filing appellate briefs; and Rules 1019, 1020, 2015, 2015.1, 2016, 4001, 4002, 6004, and 6007. Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 47 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 48 of 49 B 201B (Form 201B) (12/09) United States Bankruptcy Court Northern District of California In re Joseph Thomas Owen, II Michele Rainone Owen Case No. Debtor(s) Chapter 13 CERTIFICATION OF NOTICE TO CONSUMER DEBTOR(S) UNDER § 342(b) OF THE BANKRUPTCY CODE Certification of Debtor I (We), the debtor(s), affirm that I (we) have received and read the attached notice, as required by § 342(b) of the Bankruptcy Code. Joseph Thomas Owen, II Michele Rainone Owen X /s/ Joseph Thomas Owen, II July 13, 2011 Printed Name(s) of Debtor(s) Signature of Debtor Date Case No. (if known) X /s/ Michele Rainone Owen July 13, 2011 Signature of Joint Debtor (if any) Date Instructions: Attach a copy of Form B 201 A, Notice to Consumer Debtor(s) Under § 342(b) of the Bankruptcy Code. Use this form to certify that the debtor has received the notice required by 11 U.S.C. § 342(b) only if the certification has NOT been made on the Voluntary Petition, Official Form B1. Exhibit B on page 2 of Form B1 contains a certification by the debtor's attorney that the attorney has given the notice to the debtor. The Declarations made by debtors and bankruptcy petition preparers on page 3 of Form B1 also include this certification. Software Copyright (c) 1996-2011 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case: 11-12760 Doc# 1 Filed: 07/21/11 Entered: 07/21/11 14:16:56 Page 48 of 48 Case 4:13-cv-00438-CDL Document 37-9 Filed 07/25/16 Page 49 of 49 Exhibit G Case 4:13-cv-00438-CDL Document 37-10 Filed 07/25/16 Page 1 of 5 Moore v. Fred's Stores of Tennessee, Inc., Not Reported in F.Supp.2d (2006) 2006 WL 2374768 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Grassmueck v. Johnson Controls Battery Group, Inc., D.Or., July 2, 2007 2006 WL 2374768 Only the Westlaw citation is currently available. United States District Court, M.D. Georgia, Columbus Division. Joseph MOORE, individually and on behalf of those similarly situated, Plaintiff, v. FRED'S STORES OF TENNESSEE, INC., Defendant. No. 4:05–CV–133 (CDL). | Aug. 16, 2006. Attorneys and Law Firms Benjamin E. Baker, Roman Ashley Shaul, William H. Robertson, V., Montgomery, AL, for Plaintiff. Charles A. Powell, IV, Fern H. Singer, Baker Donelson Bearman Caldwell & Berkowitz, P.C., Birmingham, AL, Lamar Clinton Crosby, Jr ., Five Concourse Parkway, Atlanta, GA, for Defendant. ORDER CLAY D. LAND, District Judge. *1 Plaintiff's failure to disclose his claims asserted in this lawsuit in his previously filed Chapter 7 bankruptcy case has complicated the present proceedings. The Court presently has several pending motions which depend preliminarily upon a determination as to whether the Plaintiff or the Chapter 7 bankruptcy trustee is the proper party to pursue the claims. For the following reasons, the Court finds that Plaintiff is judicially estopped from pursuing these claims, that Plaintiff does not have standing to pursue these claims, and that the trustee has failed to carry her burden of establishing standing to pursue her claims. Therefore, Defendant's Motion for Summary Judgment as to Plaintiff's claims (Doc. 28) is granted and Plaintiff's motion to substitute the bankruptcy trustee is denied (Doc. 35). The Court further finds that Plaintiff should not be allowed to amend his Complaint to substitute the opt-in plaintiffs as the named plaintiffs to pursue the collective action. The claims of the opt-in plaintiffs shall be dismissed without prejudice and the entire action shall be dismissed. BACKGROUND On November 21, 2005, Plaintiff Joseph Moore brought this action pursuant to the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 201 et seq. Moore claims that Defendant Fred's Stores of Tennessee, Inc., violated § 207 of the FLSA by improperly classifying employees as “exempt” and failing to compensate those employees for overtime. Moore brought this action under FLSA § 216(b) individually and on behalf of others similarly situated. On February 28, 2006, while the present action was pending, Moore filed a petition for relief under Chapter 7 of the federal bankruptcy laws. See In re Moore, No. 06–40114 (Bankr.M.D.Ga.2006). Moore failed to disclose this action or any of the claims asserted in it to the bankruptcy court or his creditors on his initial disclosure of assets. Upon learning of Plaintiff's bankruptcy and failure to disclose these claims, Defendant filed a motion in this Court on April 19, 2006, to dismiss Moore's claims (or in the alternative for summary judgment) for lack of standing and based upon the doctrine of judicial estoppel. Moore subsequently amended his bankruptcy schedule to disclose this FLSA action. He also entered into an agreement with the bankruptcy trustee whereby the trustee agreed to exempt up to $5,000.00 of any recovery that she made on the claims asserted in this lawsuit. In other words, the trustee agreed to allow Plaintiff to retain $5,000.00 of any recovery made on Plaintiff's FLSA claim. The issues presently before the Court are: 1) whether Plaintiff is prevented from pursuing his FLSA claims in this lawsuit based upon the doctrine of judicial estoppel and/or his otherwise lack of standing; 2) whether the bankruptcy trustee should be substituted at this time as the real party in interest to pursue Plaintiff's FLSA claims; and 3) whether this action should proceed as a collective action based upon the Court's rulings on the foregoing issues. DISCUSSION Case 4:13-cv-00438-CDL Document 37-10 Filed 07/25/16 Page 2 of 5 Moore v. Fred's Stores of Tennessee, Inc., Not Reported in F.Supp.2d (2006) 2006 WL 2374768 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 I. Can Plaintiff Proceed With His Claims? *2 Plaintiff cannot continue the pursuit of his claims in this lawsuit if his failure to disclose these claims in his bankruptcy proceedings judicially estops him from maintaining those claims, or if he otherwise lacks standing to bring those claims because they belong to the bankruptcy trustee. The Court finds that for both of these reasons Plaintiff cannot maintain his FLSA claims in this lawsuit, and Defendant's Motion for Summary Judgment as to those claims must be granted. “Judicial estoppel is an equitable doctrine invoked at a court's discretion,” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002) (citation omitted), that “precludes a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” Barger v. City of Cartersville, 348 F.3d 1289, 1293 (11th Cir.2003) (internal quotation marks and citation omitted). The doctrine “protect[s] the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Burnes, 291 F.3d at 1285 (citation and internal quotation marks omitted). In order for judicial estoppel to apply, the court must first find that “a party's allegedly inconsistent positions [ ] have been made under oath in a prior proceeding.” Barger, 348 F.3d at 1293. Next, the court must find that the inconsistencies were “calculated to make a mockery of the judicial system.” Id. at 1294. In other words, the party must have taken inconsistent positions and must have intended to take those inconsistent positions. Here, it is undisputed that Moore failed to initially disclose this lawsuit or his FLSA claims in his statement of financial affairs submitted to the bankruptcy court under oath. He took a position under oath in the bankruptcy proceeding (the absence of any FLSA claim) that is inconsistent with his pursuit of those claims in this present proceeding. He is therefore judicially estopped from pursuing those FLSA claims in this proceeding if the Court finds that he purposefully and intentionally failed to disclose the claims in the bankruptcy proceeding. “For purposes of judicial estoppel, intent is a purposeful contradiction—not simple error or inadvertence.” Barger, 348 F .3d at 1294. It is not enough that a claim is accidentally concealed from the bankruptcy estate. Instead, the concealment must be deliberate. This intent, of “deliberate or intentional manipulation[,] can be inferred from the record.” Burnes, 291 F.3d at 1287. As a debtor, Moore had a duty to “disclose all assets, or potential assets, to the bankruptcy court.” Id. at 1286. This includes pending lawsuits. In fact, the statement of financial assets specifically asked Moore to “[l]ist all suits and administrative proceedings to which [he] is or was a party within one year immediately preceding the filing of [his] bankruptcy case.” (Doc. 28, Ex. D (emphasis in original).) In that statement, Moore did disclose two lawsuits to which he or his wife was a party, but he failed to disclose this lawsuit. *3 This omission could not have been inadvertent. See Burnes, 291 F.3d at 1287 (“[T]he debtor's failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.”); Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir.2003). The present lawsuit was filed on November 21, 2005, and he filed his bankruptcy petition only three months later on February 28, 2006. Furthermore, Plaintiff made no attempt to amend his bankruptcy schedule to disclose the claims in this action until after Defendant filed a Motion to Dismiss the present action for lack of standing and because of judicial estoppel. See Barger, 348 F.3d at 1297 (explaining that amending the schedule after the defendant has filed for summary judgment “deserves no favor” because it suggests that “a debtor should consider disclosing potential assets only if he is caught concealing them”) (citation omitted). Under these circumstances, Plaintiff is judicially estopped from asserting these claims. Even if Plaintiff were not judicially estopped from asserting these claims, he would still be unable to pursue them because he lacks standing. Plaintiff's claims became property of the bankruptcy estate upon the filing of Plaintiff's bankruptcy petition. Thus, the claims could only be pursued by the trustee. See Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004). Defendant's Motion for Summary Judgment must therefore be granted because (1) Plaintiff lacks standing to assert his claims in this lawsuit, and (2) because he is judicially estopped from pursuing those claims. Case 4:13-cv-00438-CDL Document 37-10 Filed 07/25/16 Page 3 of 5 Moore v. Fred's Stores of Tennessee, Inc., Not Reported in F.Supp.2d (2006) 2006 WL 2374768 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 II. Can the Bankruptcy Trustee Pursue Plaintiff's FLSA Claims? After receiving Defendant's Motion to Dismiss based upon judicial estoppel and lack of standing, Plaintiff's attorneys began scurrying around to find a way to rescue Plaintiff's claims. They now seek to substitute the trustee so that the trustee can pursue the Plaintiff's FLSA claims. Although the record is not entirely clear, a fair reading of that record reveals that the bankruptcy trustee for some reason agreed to exempt $5,000.00 of any claim that Plaintiff may have in this lawsuit. The ultimate effect of that exemption would be to permit Plaintiff to recover all or a portion of his FLSA claim notwithstanding his failure to disclose the claim in a timely manner in the bankruptcy proceeding. Moreover, enforcement of that agreement would be contrary to the purposes of the doctrine of judicial estoppel. Therefore, it is clear that in light of this Court's finding that Plaintiff is judicially estopped from pursuing his FLSA claims, the bankruptcy trustee cannot be allowed to pursue such claims if the result of that pursuit would be for the Plaintiff to benefit in any way from any such recovery by the trustee. See Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1273 n. 4 (11th Cir.2004)(recognizing that judicial estoppel against the debtor may also limit a trustee's recovery to “prevent an undeserved windfall from devolving on the non-disclosing debtor”). *4 The next question then becomes whether the bankruptcy trustee should be substituted in this action as the plaintiff to pursue the FLSA claims only for the benefit of the bankruptcy estate and its creditors. It is clear that when a debtor files a bankruptcy petition, all of the debtor's property becomes property of the bankruptcy estate. See 11 U.S.C. § 541. The bankruptcy code, however, does permit a debtor to exempt certain property from distribution. Id. at § 522. If no objection is made to an exemption, the property is exempt and belongs to the debtor. Id. In this case, the Plaintiff did not list his FLSA claim as exempt property when he filed his petition initially. As explained previously, he did not list the claim at all. However, the trustee has now agreed with the debtor that $5, 000. 00 of his FLSA claim shall be exempt. If Plaintiff's FLSA claim is less than the exemption of $5,000.00, then it is clear that it does not belong to the trustee. See Taylor v. Freeland & Kronz, 503 U.S. 638 (1992); Allen v. Green (In re Green), 31 F.3d 1098 (11th Cir.1994). It does not matter whether the debtor had a “colorable basis” for claiming the exemption. Taylor, 503 U.S. at 643– 44. Therefore, even though Plaintiff is judicially estopped from personally recovering on his FLSA claim and thus may not have had a colorable basis for the exemption, this does not void the exemption as to the trustee and permit the trustee to pursue an otherwise exempt claim. Id. The present record is silent as to the total amount of Plaintiff's FLSA claim. Therefore, the issue presently before the Court is whether the trustee has standing to pursue Plaintiff's FLSA claim, with $5,000.00 of the claim being exempt (but not recoverable by the debtor), when the total value of the FLSA claim is unknown at this time. A party seeking to invoke the jurisdiction of the federal court has the burden of establishing that it has standing to pursue its claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). For the trustee to establish standing in this case, she must establish that the FLSA claim she seeks to pursue exceeds the exemption amount of $5,000.00. The record is silent as to the value of the FLSA claim, and it would be sheer speculation to conclude that it exceeds $5,000.00. Therefore, the Court finds that the trustee has failed to establish standing to pursue this claim. Accordingly, Plaintiffs' motion to substitute the bankruptcy trustee as a party is denied. III. Effect of Court's Preceding Rulings on this Collective Action Having dismissed the individual claims of the named Plaintiff and having found that the trustee does not have standing to pursue the claims, the Court finds that this entire collective action should be dismissed. The claims of those persons who have opted-in prior to the date of this Order shall be dismissed without prejudice. See Cameron–Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 n. 2 (11th Cir.2003) (explaining that when a collective action is not conditionally certified the appropriate procedure is to dismiss the opt-in claims without prejudice) (citation omitted); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.2001) (same). 1 CONCLUSION Case 4:13-cv-00438-CDL Document 37-10 Filed 07/25/16 Page 4 of 5 Moore v. Fred's Stores of Tennessee, Inc., Not Reported in F.Supp.2d (2006) 2006 WL 2374768 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 *5 Defendant's Motion for Summary Judgment (Doc. 28) as to Plaintiff's claims is granted. Plaintiffs' motion to substitute the bankruptcy trustee (Doc. 35) is denied. Plaintiff's motion to amend his complaint (Doc. 55) is denied. The claims of the opt-in plaintiffs are dismissed without prejudice, and this entire action is dismissed. IT IS SO ORDERED, this 16th day of August, 2006. All Citations Not Reported in F.Supp.2d, 2006 WL 2374768 Footnotes 1 The Court denies Plaintiff's motion to amend his Complaint to now make these opt-in plaintiffs the named plaintiffs to pursue the collective action. The Court finds that justice does not require such an amendment and given the history of this case the Court has concerns as to whether such an amendment is a contrivance to avoid the effects of judicial estoppel. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00438-CDL Document 37-10 Filed 07/25/16 Page 5 of 5 Exhibit H Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 1 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Schedin v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., D.Minn., August 26, 2011 2004 WL 742038 Only the Westlaw citation is currently available. United States District Court, D. Minnesota. George David JOHNSON and Roberta Johnson, Plaintiffs, v. ZIMMER, INC., Defendant. No. Civ. 02–1328 JTNFLN. | March 31, 2004. Attorneys and Law Firms Robert I. Reardon, Jr. and Robert T. Rimmer, Reardon Law Firm, New London, CT, for plaintiffs. Albert J. Dahm and Michael S. Elvin, Dahm & Elvin, Ft. Wayne, IN; and Kim M. Schmid, Bowman & Brooke, Minneapolis, MN, for defendant. MEMORANDUM OPINION AND ORDER TUNHEIM, J. *1 Defendant Zimmer, Inc. (“Zimmer”) designs and manufactures, among other products, prescription prosthetic devices including the Centralign precoated femoral hip stem. Plaintiff George David Johnson (“Johnson”) received a Centralign hip implant in March 1997. The hip stem loosened, and in 2001 Johnson required a revisionary procedure. Johnson asserts that the Centralign is a defective product that caused the stem to loosen prematurely. He alleges claims of negligence, strict liability, and breach of express and implied warranties. Johnson's wife asserts a claim of loss of consortium. BACKGROUND 1 Johnson was diagnosed in late 1995 with possible degenerative arthritis of the hip. He was eventually referred to an orthopedic surgeon, Dr. Knudsen. Dr. Knudsen examined Johnson and took a series of x-rays on December 13, 1996. The x-rays showed that Johnson's left hip had severely degenerated due to the arthritis, resulting in a complete loss of joint space. Although Johnson was younger than the typical hip replacement candidate, Dr. Knudsen concluded that the severity of Johnson's arthritis and related pain made Johnson an appropriate candidate for surgery. According to Dr. Knudsen, a hip implant could provide a person of Johnson's age relief for 25 to 30 years. Johnson and Dr. Knudsen discussed the risks and benefits of hip replacement surgery, including the possibility that the procedure might fail, might require earlier than anticipated correction, and that the stem attaching the implant to the femur might loosen. Johnson decided to go ahead with the surgery, and signed a consent and release acknowledging that he understood the risks of the procedure. Dr. Knudsen chose to use a Centralign precoated femoral hip stem manufactured by Zimmer. The Centralign is a femoral stem forged from cobalt-chromium-molybdenum alloy with macro-surface texturing on portions of the stem, a collar near the proximal end, Plymethyl Methacrylate (“PMMA”) spacers affixed to the proximal and distal sections of the stem, and PMMA precoating intended for cemented use. According to Zimmer, the PMMA precoating forms a mechanical lock on the implant surface and enhances the adhesive bond between the implant and the bone cement. The Centralign was available in six sizes. Dr. Knudsen determined that Johnson's femur/medullary canal would accommodate a size 3 stem. The size 3 stem is designed for a maximum body weight of 200 pounds. This is specified in the package insert provided by Zimmer. At the time of his operation, Johnson weighed 207 ½ pounds. Dr. Knudsen testified that he would have used the size 3 regardless of the maximum weight indication. It is important that the implant be small enough to allow creation of a sufficient cement mantle. A uniform cement mantle provides the best chance of a good result. It is also important to center the stem in the canal in order to achieve maximum success. A non-continuous cement mantle, one with voids, and/or non-central placement of the stem in the medullary canal can lead to early loosening of the stem. Dr. Knudsen was apparently unable Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 2 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 to centralize the stem in the canal. Rather, the stem was placed in a varus, or inwardly turned, position. *2 Manufacturing records for Johnson's Centralign reflect no design or manufacturing deviations and indicate that the device met specifications in all respects. Dr. Knudsen inspected the Centralign before surgery, and “saw no imperfections in the precoating.” Dr. Knudsen did not see the package insert provided with Johnson's implant because he was “sterile” when it was opened. He also doubts that he had ever seen the package insert that accompanied the Centralign product. Dr. Knudsen performed a cemented total hip replacement on Johnson's left hip on March 6, 1997. The surgery was initially successful, with Dr. Knudsen noting positive progress in the months following surgery. Dr. Knudsen did note a void in Johnson's cement mantle on a post- operative x-ray. In March 1998, Johnson had his final follow up with Dr. Knudsen. Johnson and Dr. Knudsen discussed the Centralign stem and problems that had arisen with its use. Dr. Knudsen was aware of some cases of early loosening of Centralign stems. In January 2001, Johnson began experiencing left hip pain again, and visited a Dr. Welchin. Dr. Welchin x-rayed Johnson's left hip and observed an area that was neither bone, cement, or implant between the cement mantle and the cortical bone. Although he did not believe that the implant was clinically loose, Dr. Welchin nevertheless recommended a revision surgery, which was performed on February 28, 2001. When Dr. Welchin removed Johnson's stem, bone cement remained affixed to a portion of the stem. According to Zimmer, Johnson's stem loosened because of an inadequate cement mantle at the time of initial placement, exacerbated by the placement of the stem in a varus position in the canal and the failure to use a distal centralizer. According to Johnson, the stem design is too small for the patients for whom it is recommended, and the coating and surfacing actually make the cement bond weaker rather than stronger and lead to premature loosening. Research has shown that the phenomenon of prosthesis cement debonding causes higher stresses within the cement mantle, which increases the likelihood of fracturing the cement mantle and causing failure at that interface. The parties and their experts agree that loosening of a cemented femoral component is generally “multifactorial.” Johnson has brought claims of negligence, strict liability, and breach of express and implied warranty, supported in part by expert testimony from Dr. Robert Rose and Dr. Harold Zeliger. Zimmer moved to exclude these experts' testimony. United States Magistrate Judge Franklin L. Noel denied the motion and Zimmer appeals. Zimmer also moves for summary judgment on all claims. The Court will first address Zimmer's appeal, and then turn to Zimmer's motion for summary judgment. ANALYSIS I. MOTION TO EXCLUDE Zimmer moved to exclude the testimony of two of Johnson's experts, Dr. Robert Rose and Dr. Harold Zeliger, as unqualified and unreliable under Federal Rule of Evidence 702. The Magistrate Judge determined that both Dr. Rose and Dr. Zeliger “have information that will assist the trier of fact in understanding the evidence or determining a fact at issue,” and denied Zimmer's motions. However, the Magistrate Judge limited the scope of Dr. Zeliger's testimony. *3 Zimmer is appealing the Magistrate Judge's order to the extent that it admitted any of the expert testimony. Zimmer argues that Johnson's experts are not qualified to offer the proffered opinions because a materials scientist is not qualified to opine on issues of medical causation reserved for physicians or orthopedic device designers and a polymer chemist is not qualified to opine on issues of orthopedic device design and clinical performance. Further, Zimmer argues that the experts' opinions lack “the twin benchmarks of reliability and relevance” because the experts performed no testing and had no methodology, developed the opinions solely for litigation, and never had published or otherwise subjected their opinions to review. A. Standard of Review “The standard of review applicable to an appeal of a magistrate judge's order on a nondispositive issue is extremely deferential.” Reko v. Creative Promotions, Inc., 70 F.Supp.2d 1005, 1007 (D.Minn.1999). This Court will reverse such an order only if it is clearly erroneous or Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 3 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). B. Application The admissibility of expert testimony is governed by Rules 702 and 703 of the Federal Rules of Evidence. Under Rule 702, proposed expert testimony must satisfy three prerequisites to be admitted. See Lauzon v. Senco Prods. Inc., 270 F.3d 681, 686 (8 th Cir.2001) (citations omitted). First, evidence based on scientific, technical, or specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. Second, the proposed witness must be qualified. Third, the proposed evidence must be reliable or trustworthy in the evidentiary sense, so that if the finder of fact accepts it as true, it provides the assistance the finder of fact requires. Id. These requirements reflect the analysis enunciated by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as codified in Rule 702. The district court has a “gatekeeping” obligation to make certain that all testimony admitted under Rule 702 “is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 597–98 (citing Fed.R.Evid. 104(a)). See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 146 (1999) (extending Daubert to technical and other specialized expert testimony). “Trial courts have substantial latitude to determine whether specific expert testimony is reliable.” United States v. Reed & Sons P'ship, 280 F.3d 1212, 1215 (8 th Cir.2002); In re Air Crash at Little Rock, Ark., 291 F.3d 503, 514 (8 th Cir.2002). Trial courts should apply the principle that “[e]xpert testimony is admissible if it is reliable and will help the jury understand the evidence or decide a fact in issue.” Hartley v. Dillard's, Inc., 310 F.3d 1054, 1060 (8 th Cir.2002). “[A]n expert's testimony need not relate directly to the ultimate issue that is to be resolved by the trier of fact, it only need be relevant to evaluating a factual matter.” Smith v. BMW N. Am., Inc., 308 F.3d 913, 919 (8 th Cir.2002); see also Clark v. Heidrick, 150 F.3d 912, 915 (8 th Cir.1998) (experts offering a global understanding of the possible causes of an injury are useful to a jury). *4 The Court's focus should be on whether the testimony is grounded upon scientifically valid reasoning or methodology. United States v. Dico, Inc., 266 F.3d 864, 869 (8 th Cir.2001). “As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929–30 (8 th Cir.2001) (internal citations and quotations omitted). Expert testimony also must be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1055 (8 th Cir.2000). “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered” for the opinion to be useful to the jury. General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). However, doubts regarding usefulness should generally be resolved in favor of admissibility. Clark, 150 F.3d at 915. 1. Dr. Rose It is not disputed that Dr. Rose is extremely well qualified in the fields of materials science and engineering. The Court also notes that Dr. Rose's qualifications include experience with materials science as it relates to bone and the various materials involved in the implant procedure involved in this case. Further, Dr. Rose has relevant experience with hip implants, although not recently. Dr. Rose offers the opinions that the femoral stem of the Centralign implant is defective and failed because “the design geometry of the metal component led to high interface stresses,” there was “inadequate adhesion of the precoat layer due to defects at the metal-polymer interface,” and there was “inadequate adhesion of the precoat layer because it was attacked by monomer during the curing of the cement.” The Magistrate Judge concluded that Dr. Rose's opinions were within his experience and education in materials science and engineering, were based upon sufficient facts and data, are the product of reliable principles and methods, reliably applied to the facts, and are thus admissible. This Court agrees. Zimmer complains that Dr. Rose's opinions are not based in any independent work or testing, and that Dr. Rose failed to adequately explain the data underlying his hypotheses. Dr. Rose testified that his opinions were based Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 4 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 on basic scientific theory and generally accepted and well- documented studies. In Kumho Tire, the Court made clear that the reliability test under Rule 702 is an individualized test whose relevant factors will depend on the type of expertise at issue in a given case. See Kumho Tire, 526 U.S. at 150 (stating that in some cases “the relevant reliability concerns may focus upon personal knowledge or experience.... [T]here are many different kinds of experts, and many different kinds of expertise.”) (citations omitted). Failure to perform independent testing of a well- established principle, or to submit a conclusion based on long-accepted theories to peer review, does not render an opinion unreliable or inadmissible. See Smith v. Ford Motor Co., 215 F.3d 713, 720 (7 th Cir.2000). *5 Dr. Rose applied long established materials science and engineering principles to the materials and shape of Johnson's hip implant. His conclusions that a differently shaped implant might have had lower stresses, that the materials used were not as strong as Zimmer asserts, and that the various materials used may have interacted poorly with each other are clearly related to the question of whether the design of the Centralign implant was defective and unsafe. If Zimmer has information or an expert willing to testify that basic engineering principles do not apply inside the human body or that concepts of materials science proven outside the human body do not hold true inside the human body, Zimmer can certainly confront Dr. Rose with that information at trial and allow the jury to determine the proper answer. Zimmer also complains that Dr. Rose ignored facts and literature contrary to his opinions, and failed to eliminate other possible causes for the failure of Johnson's implant. “The factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.” Bonner, 259 F.3d at 930 (citation omitted). “Questions of conflicting evidence must be left for the jury's determination.” Id. Further, an expert's opinion is not required to resolve an ultimate issue of fact. It need only contribute to the jury's understanding of the issue. Dr. Rose's opinions provide useful information relating to the design of the implant used in this case, and the materials used in manufacturing it. Dr. Rose's opinions also provide a possible explanation for the early failure of Johnson's implant. That Zimmer may have other information or another expert offering entirely contradictory opinions, does not render Dr. Rose's testimony inadmissible. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. 2. Dr. Zeliger It is similarly undisputed that Dr. Zeliger qualifies as an expert in chemistry. The Magistrate Judge determined that Dr. Zeliger's opinion that the PMMA layer precoated onto the femoral stem was unstable was admissible because it is within his field of expertise, based upon sufficient facts or data, and the product of reliable principles and methods applied reliably to the facts. 2 Zimmer's objections to Dr. Zeliger's testimony are similar to those directed at Dr. Rose. For all of the reasons discussed with respect to Dr. Rose's testimony, the Court is unable to discern any meritorious objection to Dr. Zeliger's testimony as narrowed by the Magistrate Judge. Rather, it appears that he was “merely applying well-established [chemistry] techniques to the particular materials at issue in this case.” Smith, 215 F.3d at 720. C. Conclusion In short, the Magistrate Judge's order is not clearly erroneous or contrary to law. The parties submitted extensive briefing, and a lengthy hearing was held on this issue before the Magistrate Judge. During the hearing, the Magistrate Judge made it clear that he understood the language of Rule 702, as amended, to include and reflect Daubert and Kumho Tire. See also Guyer v. Valmet, Inc., 2003 WL 22076608 (D.Minn. Sept. 2, 2003) (Rule 702 requirements codify Daubert analysis). He appropriately considered the content of the opinions presented by Drs. Rose and Zeliger, the basis for the opinions, and their usefulness to a jury. Zimmer's appeal of the Magistrate Judge's order is denied. II. Motion for Summary Judgment A. Standard of Review *6 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Only disputes over facts that might affect the outcome of the suit under Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 5 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Id. The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8 th Cir.1980). However, the nonmoving party may not merely rest upon allegations or denials in its pleadings, but it must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8 th Cir.2002). B. Negligence Johnson's negligence claim rests on four theories: defective design, defective/dangerous manufacture, failure to warn, and failure to train. Zimmer contends that each of these theories fails because Johnson cannot demonstrate causation and, in any event, assumed the risks attendant with the hip implant procedure. Additionally, Zimmer asserts that Johnson cannot make out a prima facie case under any of his theories. 1. Causation Causation is an indispensable element of Johnson's case, regardless of the theory under which he proceeds. J & W Enters., Inc. v. Economy Sales, Inc., 486 N.W.2d 179, 181 (Minn.Ct.App.1992). Zimmer asserts that Johnson cannot, as a matter of law, demonstrate causation because he does not offer medical expert testimony, does not offer any admissible expert testimony, and does not offer evidence excluding other possible causes for failure of product. Under Minnesota law, expert testimony is required to prove causation in cases involving complex medical issues with which a jury is unlikely to have experience. Willert v. Ortho Pharmaceutical Corp., 995 F.Supp. 979, 983 (D.Minn.1998) (citing Stahlberg v. Moe, 166 N.W.2d 340, 345 (Minn.1969)). Although the expert in a medical products liability case may be a medical doctor, this rule does not require the expert to be a medical doctor. Many non-medical doctors work in the field of medical product design and development. Common sense dictates that such persons could qualify as experts concerning their products. In light of the Court's decision above to affirm the Magistrate Judge's order admitting the testimony of Drs. Rose and Zeliger, Johnson has submitted expert testimony regarding causation. *7 Additionally, Zimmer argues that Drs. Rose and Zeliger do not rule out non-product related causes of injury. It is undisputed that other possible causes exist for the loosening of Johnson's implant, including an inadequate cement mantle and suboptimal placement of the implant in the femur. Minnesota law requires a plaintiff to establish a link between the alleged defect and the injury sufficient to allow a jury to conclude that the defect caused the injury. See, e.g., J & W Enters., Inc. v. Econ. Sales, Inc., 486 N.W.2d 179, 181 (Minn.Ct.App.1992). Such a requirement does not necessarily require the plaintiff to exclude all possible other causes. Drs. Knudsen and Welchin both described the surgery as properly performed. Their testimony coupled with the testimony of Drs. Rose and Zeliger concerning the strength of the cement bond and shape of the stem would be sufficient to allow a jury to find for Johnson. 2. Assumed Risk Zimmer also argues that Johnson's negligence claim is barred by the doctrine of primary assumption of risk. Under Minnesota law, the doctrine of primary assumption of risk may operate to relieve a defendant of liability in a products liability action. 3 Andren v. White– Rodgers Co., 465 N.W.2d 102, 105 (Minn.Ct.App.1991). However, “[a]pplication of the primary assumption of risk doctrine is uncommon.” Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N .W.2d 271, 273 (Minn.Ct.App., 1989). Primary assumption of risk can only apply when the plaintiff expressly or implicitly manifests consent to relieve the defendant of that duty. Schneider v. Erickson, 654 Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 6 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 N.W.2d 144, 149 (Minn.Ct.App.2002) (citing Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn.1979)). “[N]ot every deliberate encountering of a known danger ... is reasonably to be interpreted as evidence of such consent.” Iepson v. Noren, 308 N.W.2d 812, 815 (Minn.1981) (quoting Prosser, Handbook of the Law of Torts § 68 (4th ed.1971) (stating that even a jaywalker who dashes in front of speeding cars “does not manifest consent that they shall use no care and run him down. On the contrary, he is insisting that they shall take immediate precautions for his safety.”)). In this case, Zimmer argues that Johnson knew and consented to the “risks of surgery, including the risk that the stem would loosen; that the procedure might fail; and that [he] would need revision surgery.” While Johnson may have consented to the ordinary risks associated with surgery or with a prosthetic implant, there is no evidence that Johnson expressly or implicitly relieved Zimmer of the duty to design and manufacture a safe product or otherwise care for his safety. The doctrine of primary assumption of risk is not applicable in this instance. 3. Defective Design 4 In a products liability case, a plaintiff must demonstrate that (1) the product was in a defective condition unreasonably dangerous for its intended use, (2) the defect existed when the product left the manufacturer's control, and (3) the defect proximately caused the plaintiff's injuries. Patton v. Newmar Corp., 538 N.W.2d 116, 119– 20 (Minn.1995) (citations omitted). A product is “in a defective condition unreasonably dangerous for its intended use” if “the manufacturer fails to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.” Mozes v. Medtronic, Inc., 14 F.Supp.2d 1124, 1127 (D.Minn.1998) (quoting Bilotta v. Kelley Co., 346 N.W.2d 616, 621 (Minn.1984)). Zimmer alleges that Johnson's defective/ dangerous product design claim must fail because (1) any hip prosthesis is inherently unsafe to some degree, but the Centralign is not unreasonably unsafe, and (2) Johnson fails to provide evidence of a safer alternative design. For the following reasons, Zimmer's motion for summary judgment is denied with respect to this theory. a) Unreasonably Dangerous *8 The hallmark of a products liability claim under Minnesota law is proof that a product is “defective” and “unreasonably dangerous.” see Holm v. Sponco, 324 N.W.2d 207, 212–213 (Minn.1982). In determining what constitutes “unreasonably dangerous,” the Minnesota Supreme Court “rejected the ‘consumer expectation’ standard of strict liability in favor of a negligence-like ‘reasonable care’ standard which focuses on the conduct of the manufacturer rather than the condition of the product.” Kociemba v. G.D. Searle & Co., 695 F.Supp. 432, 434 (D.Minn.1988) (citing Holm, 324 N.W.2d at 212–213). The central inquiry of this reasonable care balancing test focuses on whether the manufacturer's choice of design “struck an acceptable balance among several competing factors” including risk and utility to the consumer. 5 6 Bilotta, 346 N.W.2d at 622 (quoting Holm, 324 N.W.2d at 212); see also Kallio v. Ford Motor Co., 407 N.W.2d 92, 98 (Minn.1987). Zimmer argues that the risks associated with the Centralign are so minimal that they cannot outweigh its utility, and even if the risks are great, the potential benefits still outweigh them. Zimmer supports its argument by asserting that the Centralign was developed and manufactured according to the best available state-of-the-art technology and in compliance with guidelines and regulations. Further, according to deposition testimony presented by Zimmer, the Centralign has performed well clinically for a number of doctors in a number of patients. Additionally, according to Zimmer, “the Centralign's specific design features, such as its precoating, surface morphology and centralizers, have demonstrated laboratory and clinical success with the Centralign and other contemporary stems that share these design features.” On the other hand, Johnson's experts have clearly opined that the Centralign is defective and unreasonably dangerous—that is, taking into account the regular occurrence of eventual failure, the Centralign fails within an unacceptably short timeframe because of its unstable PMMA precoat layer and design and shape. Drs. Rose and Zeliger have offered opinions that the failure of Johnson's Centralign implant could be attributable to these defects. As discussed above, it is the province of the jury to consider this conflicting factual evidence Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 7 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 and determine whether the risks are outweighed by the benefits. b) Safer Alternative Design Zimmer also argues that the Centralign is not unreasonably dangerous because Johnson cannot prove the existence of a feasible, alternative design that would have avoided or materially reduced Johnson's injury. Zimmer asserts that Johnson has not offered any evidence of a “safer” prosthetic hip implant—that is, one that is less likely to loosen, or less likely to loosen as quickly as the Centralign. 7 “To establish a prima facie case that [the product in question] was unreasonably dangerous normally requires production of evidence of the existence of a feasible, alternative safer design.” Bruzer v. Danek Medical, Inc., 1999 WL 613329 (D.Minn.1999) (quoting Kallio, 407 N.W.2d at 96). While such evidence is relevant to and may be an important factor in a finding of unreasonable dangerousness, “existence of a safer, practical alternative design is not an element of an alleged defective product design prima facie case.” Kallio, 407 N.W.2d at 97. *9 Johnson has submitted evidence to the effect that the cement/metal interface on Centralign implants debonds, or fails, unacceptably quickly. This result is contrary to Zimmer's representations that the special precoating and texturing of the Centralign “nearly triple the fatigue strength of the cement/metal interface” and result in better clinical outcomes. The logical implication is that a design that did not include the special precoating and texturing might perform better because the cement/metal interface would not debond. Zimmer clearly would have been able to omit the precoating and texturing. Further, Johnson's expert Dr. Rose stated that larger, longer stems would be preferable alternative design features because such a design would “produce less interface stress” making the bonding “less likely to fail.” Dr. Rose identified two actual larger stemmed implants, both of which were also manufactured by Zimmer. Zimmer may have evidence demonstrating that the changes suggested by Johnson's evidence would not have made a difference. However, it is up to a jury, not this Court, to weigh that evidence and decide whether the Centralign was unreasonably dangerous. 4. Failure to Warn 8 In a products liability action based on failure to warn, whether there is a duty to warn of a danger in a product is a question of law. Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn.1986). If a legal duty to warn is found, the factual issues of the adequacy of the warning, breach of the duty, and causation are then considered by the factfinder. Balder v. Haley, 399 N.W.2d 77, 81 (Minn.1987). However, where an adequate warning could not have prevented a plaintiff's injuries, causation does not exist as a matter of law. Id.; see also Hauenstein v. Loctite Corp., 347 N.W.2d 272, 276 (Minn.1984) (if injured plaintiff would not have acted any differently had there been warning, manufacturer's failure to warn is not cause of injury); J & W Enters. v. Econ. Sales, 486 N.W.2d 179, 181 (Minn.Ct.App.1992) (failure to read warning precludes claim that warning was inadequate); Krein v. Raudabough, 406 N.W.2d 315, 320 (Minn.Ct.App.1987) (lack of evidence that plaintiff would have acted differently with warning precludes claim for failure to warn); Marko v. ALCOA, 1994 WL 615004, *2 (Minn.Ct.App.1994) (plaintiff's testimony that it was his practice not to read warning and did not read the warnings included precluded claim for failure to provide sufficiently detailed warning). In the context of the medical field, Minnesota has recognized the learned intermediary theory. Under this theory, a manufacturer can satisfy its duty to warn by supplying the plaintiff's physician with an adequate warning of hazards and risks. See Gray v. Badger Min. Corp., 676 N.W.2d 268, 2004 WL 527781, *6 (Minn. Mar 18, 2004) (recognizing theory for prescription drugs, declining to extend to general employer/employee context); Borka v. Emergency Physicians Prof'l Ass'n, 379 N.W.2d 682 (Minn.Ct.App.1986); Mulder v. Parke Davis & Co., 181 N.W.2d 882 (Minn.1970); Lhotka v. Larson, 238 N.W.2d 870 (Minn.1976); see also Todalen v. U.S. Chem. Co., 424 N.W.2d 73, 79 (Minn.Ct.App.1988), overruled on other grounds by Tyroll v. Private Label Chems ., Inc., 505 N.W.2d 54 (Minn.1993). In this case, any duty to warn that Zimmer may have had could have been satisfied by adequately warning Johnson's physician. *10 Johnson's surgeon, Dr. Knudsen, testified in deposition that he did not either see or share with Johnson any warnings that were included in the Centralign package insert. Dr. Knudsen also testified that he had never, Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 8 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 in any context, seen the warnings provided with the Centralign product. Thus, regardless of any inadequacy of the warnings and instructions included with Johnson's Centralign, causation does not exist as a matter of law. Summary judgment will therefore be granted in favor of Zimmer on this theory. 5. Manufacture Negligence and strict liability are distinct theories in manufacturing flaw cases. Bilotta, 346 N.W.2d at 622. However, under either theory, the focus is on the condition of the product at the time the manufacturer distributes it. Id. The crux of the claim is that the product, as provided to the public, was defective because the manufacturing, assembly, inspection, packaging, or testing processes failed to turn out the product intended by the defendant manufacturer. Swanson v. Timesavers, Inc., 1997 WL 104917, *3 (Minn.Ct.App.1997); see also 4A Minn. Prac., Jury Instru. Guides—Civil CIVJIG 75.30 (4 th ed.). The degree of defect is measured by comparison to a flawless version of the same product. Bilotta, 346 N.W.2d at 622. In this case, there is no evidence that the Centralign implanted in Johnson was in any way flawed. Indeed, his surgeon testified that he visually inspected the Centralign before beginning the procedure and did not notice any flaws. Zimmer presented evidence that its manufacturing and inspection processes were adequate, and that the Centralign implanted in Johnson met specifications. Further, in light of the Magistrate Judge's decision excluding some portions of Dr. Zeliger's testimony, there is no evidence that Zimmer's manufacturing processes were substandard or defective. Thus, Johnson cannot make out a prima facie case of either strict liability or negligent manufacturing. Summary judgment is granted in favor of Zimmer on this theory. 6. Failure to Train Minnesota recognizes three negligent employment causes of action—negligent hiring, negligent retention, and negligent supervision. M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn.Ct.App.1995). Neither party has provided, and the Court has not found, any Minnesota case law recognizing negligent failure to train, apart from a claim for negligent supervision, an independent cause of action outside the context of municipal liability under 42 U.S.C. § 1983. 9 See Langehaug v. Mary T., Inc., 1999 WL 31182, *4 n. 2 (Minn.Ct.App. Jan. 26, 1999); Fletcher v. St. Paul Pioneer Press, (Minn. Ct.App. June 27, 1995); Hermeling v. Montgomery Ward & Co., Inc., 851 F.Supp. 1369, 1381 n. 11 (D.Minn.1994). However, in the event that such a cause of action exists, it necessarily entails the failure of the employer, through inadequate or non-existent training, to take reasonable precautions to prevent the foreseeable misconduct of its employees causing harm to others. See Magnuson, 531 N.W.2d at 856 n. 3 (discussing basis for negligent employment theories). *11 Johnson's complaint asserts that Zimmer “fail[ed] to properly train and instruct its agents, salesmen and distributors in the proper use and/or dangers and limitations in said implant.” In a letter to the Court dated February 25, 2004, Johnson advised the Court that he intended to pursue the claim and would support his allegations through “testimony from, among others, Timothy H. Walker, a Zimmer sales associate, and David Weidenbenner, Zimmer's Director of Brand Management and Commercialization Efforts for Hips.” Walker and Weidenbenner were apparently deposed in connection with similar litigation proceeding in Connecticut. While the parties have agreed to use certain expert deposition testimony taken in the Connecticut proceeding in this action, there is no indication that such an agreement was reached with respect to Walker and Weidenbenner. Further, in response to Zimmer's interrogatories, Johnson did not list either Walker or Weidenbenner as having knowledge relevant to his negligence claims. Finally, there is no evidence before the Court that either Walker and Weidenbenner have any information related to Zimmer's training and supervision of the Zimmer employees involved in providing Johnson's Centralign to his doctor or that any such employee(s) acted improperly. In short, there is not enough evidence before the Court to sustain this theory and summary judgment will be granted accordingly. C. Breach of Warranty To establish any breach of warranty claim, the plaintiff must prove (1) the existence of a warranty; (2) a breach; and (3) proximate cause (a causal link between the breach, i.e. the defective product, and the alleged harm). Peterson v. Bendix Home Sys., Inc., 318 N.W.2d 50, 52–53 (Minn.1982). Mere proof of a warranty and a breach is not sufficient; if the plaintiff fails to prove the element of causation, an otherwise valid action for a breach of warranty will fail. Inter'l Fin. Servs., Inc. v. Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 9 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 Franz, 534 N.W.2d 261, 266 (Minn.1995); Heil v. Standard Chem. Mfg. Co., 223 N.W.2d 37, 42 (Minn.1974). However, circumstantial evidence can be sufficient to show the causal relationship between the product and the subsequent injury. Inter'l Fin. Servs., 534 N.W.2d at 266 (citation omitted); see also Willmar Cookie Co. v. Pippin Pecan Co., 357 N.W.2d 111, 115 (Minn.Ct.App.1984) (circumstantial evidence sufficient to infer reliance on implied warranty). Johnson asserts claims for breach of both express and implied warranties. While no particular words are required to constitute an express warranty, McCormack v. Hankscraft Co., 154 N.W.2d 488, 498 (Minn.1967), Johnson has not provided the Court with any evidence of any representation or statement by Zimmer that might qualify as an express warranty. However, “[a]n implied warranty is imposed by law ... and does not depend upon the affirmative intention of the parties.” Beck v. Spindler, 99 N.W.2d 670, 680 (1959). An implied warranty of merchantability requires that goods be “fit for the ordinary purposes for which such goods are used.” Minn.Stat. § 336.2–314. “This warranty is breached when the product is defective to a normal buyer making ordinary use of the product.” Peterson, 318 N.W.2d at 53. The same evidence that supports Johnson's claims of defective design is also sufficient to support a claim of breach of implied warranty. D. Loss of Consortium *12 Johnson's wife, Roberta, has also brought a claim for loss of consortium. A claim for loss of consortium is necessarily derivative of an underlying tort claim. Kohler v. Fletcher, 442 N.W.2d 169, 173 (Minn.Ct.App.1989) (citing Peters v. Bodin, 65 N.W.2d 917, 922 (Minn.1954)). Because Johnson's claims for defective design survive, so too does his wife's claim for loss of consortium. CONCLUSION For the reasons discussed above, the Court affirms the order of the Magistrate Judge granting in part and denying in part Zimmer's motion to exclude Johnson's experts Drs. Rose and Zeliger. Dr. Rose and Dr. Zeliger will be allowed to testify according to the limitations set forth in the Magistrate Judge's order of August 21, 2003. The Court also grants Zimmer's motion for summary judgment with respect to Johnson's claims of negligent and strict liability failure to warn, negligent and strict liability defective manufacturing, negligent and strict liability failure to train, and breach of express warranty. However, the Court denies Zimmer's motion concerning Johnson's claims of negligent and strict liability defective design, breach of implied warranty, and loss of consortium. Johnson, and his wife, may therefore proceed with these remaining claims. ORDER Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that: 1. Defendant's Motion for Summary Judgment [Docket No. 46] is GRANTED in part and DENIED in part in accordance with the above opinion. 2. The Magistrate Judge's Order denying defendant's motion to exclude testimony of Dr. Rose and granting in part and denying part defendant's motion to exclude testimony of Dr. Zeliger [Docket No. 55] is AFFIRMED. All Citations Not Reported in F.Supp.2d, 2004 WL 742038 Footnotes 1 These facts are gleaned from the submissions of the parties, and should not be taken as findings of the Court. 2 The Magistrate Judge excluded several of Dr. Zeliger's opinions as beyond his chemistry expertise—namely that “the femoral stem was not properly tested prior to introduction, and was not made with appropriate quality control protocols” and that “Zimmer did not comply with regulatory approval requirements.” Johnson has not appealed this portion of the order, and it is therefore affirmed. 3 Secondary assumption of the risk, on the other hand, “is a type of contributory negligence where the plaintiff voluntarily encounters a known and appreciated hazard created by the defendant without relieving the defendant of his duty of care Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 10 of 11 Johnson v. Zimmer, Inc., Not Reported in F.Supp.2d (2004) 2004 WL 742038 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 with respect to such hazard.” Andren v. White–Rodgers Co., 465 N.W.2d 102, 104 (Minn.Ct.App.1991) (citing Armstrong v. Mailand, 284 N.W.2d 343, 349 (Minn.1979)). 4 The Minnesota Supreme Court has determined that strict liability and negligent defective design claims are properly analyzed using the same standard. Bilotta v. Kelley Co., 346 N.W .2d 616, 622 (Minn.1984). The following analysis therefore applies both to Johnson's strict liability defective design claim and to his negligent design claim. 5 This balancing test is included in the Restatement (Second), Torts: Products Liability, § 402A, cmt. k. Section 402A provides in relevant part: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Comment k recognizes that “[t]here are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use” and provides that “the seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use.” 6 The reasonable care balancing test is also present in Section 6(c) of the Restatement (Third) of Torts, Product Liability, which states: A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical device for any class of patients. Minnesota has not adopted the Restatement (Third) of Torts, Products Liability. 7 Zimmer also asserts that “in order to conclude that a cemented femoral component with a different design is “safer,” one would need to control for all those different variables and somehow conclude that another stem in that particular patient, keeping constant all other variables such as the placement of the stem, the quality of the cement mantle, and the patient's activity level, would have lasted a longer number of years.” Such a conclusion would, according to Zimmer, be entirely hypothetical and speculative and thus inadmissible. The Court disagrees. Zimmer's position would essentially eliminate all medical products liability claims by requiring a plaintiff to prove that the defendant had considered a person identical to plaintiff and then designed a product unsafe for that person. That the product must be defective and unreasonably dangerous encompasses the notion that a company cannot reasonably design a product that takes into account and is an optimal fit for every person who might use it. 8 The Minnesota Supreme Court has determined that strict liability and negligent failure to warn claims are properly analyzed using the same standard. Bilotta, 346 N.W.2d at 622. The following analysis therefore applies both to Johnson's strict liability failure to warn claim and to his negligent failure to warn claim. 9 There is similarly no evidence that Minnesota recognizes a strict liability failure to train theory. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00438-CDL Document 37-11 Filed 07/25/16 Page 11 of 11 Exhibit I Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 1 of 9 In re Levaquin Products Liability Litigation, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 4481223 Only the Westlaw citation is currently available. United States District Court, D. Minnesota. IN RE LEVAQUIN PRODUCTS LIABILITY LITIGATION Clifford Straka, Plaintiff, v. Johnson & Johnson, and Janssen Pharmaceuticals, Inc., Defendants. MDL No. 08–1943 (JRT). | Civil No. 08–5742 (JRT). | Sept. 28, 2012. Attorneys and Law Firms Ronald S. Goldser and David M. Cialkowski, Zimmerman Reed, PLLP, Minneapolis, MN, Lewis J. Saul and Kevin M. Fitzgerald, Lewis Saul & Associates, Portland, ME, for plaintiff Straka. Tracy J. Van Steenburgh and Dana M. Lenahan, Nilan Johnson Lewis, PA, Minneapolis, MN, James B. Irwin, Irwin Fritchie Urquhart & Moore, LLC, New Orleans, LA, William V. Essig, Drinker Biddle & Reath LLP, Chicago, IL, for Defendants. MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL JOHN R. TUNHEIM, District Judge. *1 Plaintiff Clifford Straka brought claims against defendants Johnson & Johnson and Janssen Pharmaceuticals, Inc. for failure to warn about certain risks involved in taking Levaquin, specifically the risk of tendon rupture. His case was the third tried in multi-district litigation involving numerous plaintiffs. The jury found that Defendants failed to adequately warn Straka's prescribing physician of the risks associated with Levaquin but that Defendants' failure to warn was not a direct cause of Straka's injuries. Straka now moves for a new trial claiming that the jury's verdict is against the weight of the evidence; that the Court should have excused one of the jurors after she became aware of a business connection with Defendants; and that the Court erred in refusing to give instructions on Straka's theory that Defendants violated Minnesota's senior citizen protection law. Straka also moves for a suspension of the judgment to allow him to bring a motion for civil penalties resulting from violation of Minnesota's consumer protection statutes. The Court will deny both of these motions. BACKGROUND Underlying Events In March 2006, while visiting Arizona, Straka began having symptoms of an upper respiratory infection or inflammation. After taking a course of antibiotics and a course of steroids, on March 27 Straka saw Dr. Katayoun Baniriah. Dr. Baniriah diagnosed Straka with pneumonia and prescribed ten-days of the antibiotic Levaquin. On March 31, Dr. Baniriah saw Straka for a follow-up appointment, and she documented that his breathing and energy levels had improved but recommended that Straka see his physician in Minnesota upon his return home. Straka returned to Minnesota on April 3, day eight of his ten-day course of Levaquin. As he was getting off the plane in Minnesota, late in the evening on April 3, Straka first noted the pain in his ankles, and he began limping. The next day, April 4, Straka saw a physician to follow up on his pneumonia. Straka reported the pain in his ankles and the doctor advised Straka to immediately discontinue Levaquin and restrict his activities. In early May 2006, Straka stepped off a curb and felt a sharp pain in his left ankle. In mid-May, Straka saw an orthopedic surgeon, Dr. Lisa Wasserman who diagnosed Straka with a tear in his left Achilles tendon and prescribed the use of a boot. Dr. Wasserman saw Straka again in early July 2006 and recommended that he transition from the boot to a shoe. Straka began seeing a physical therapist, Rickie Walkden, during this period to assist with his recovery. On July 27, 2006, Straka again visited Dr. Wasserman, this time complaining of pain in his right ankle. Dr. Wasserman diagnosed Straka with a tear in his right Achilles tendon and again prescribed the use of a boot. Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 2 of 9 In re Levaquin Products Liability Litigation, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Trial During trial, Straka presented evidence that Defendants failed to adequately communicate the risks of Levaquin to physicians (either by the warning's placement in the label or other means) and that Defendants failed to warn about the increased risks of Levaquin compared to other drugs in the same family (i.e. other fluoroquinolones). In addition to rebuttal evidence, Defendants presented evidence that Dr. Baniriah could not remember reading the Levaquin label and did not learn of the tendon-associated risks of Levaquin until well after the black box warning was added and a Dear Doctor letter was distributed. Defendants also presented testimony from both Straka and his physical therapist about Straka's exercise regimes, both before and after the diagnosis of each tendon rupture. In addition, Defendants presented evidence about Straka's steroid use and testimony that steroid use can contribute to tendon injury without the use of Levaquin. Juror's Employment *2 After several weeks of trial but before deliberations began, Juror Biorn disclosed to the Court that her company, BM I, does work for Reed Group, the disability insurance carrier for Johnson & Johnson. (See Tr. at 2712:9–13.) Juror Biorn became aware of this connection when she returned to her office on a day the Court was not in session. (Id. at 2563:11–21, 2711:13–2712:1.) While Juror Biorn was reviewing her schedule with her human resources manager, the manager remarked that Johnson & Johnson was in the caption on the schedule and “made reference of that,” saying “I'm surprised he didn't pull you from having a conflict for the fact that we support J & J business.” (Id. at 2711:17–23.) Juror Biorn could not recall having ever worked on a Johnson & Johnson case, and she indicated that she was unaware what proportion of her work came from Reed Group and what proportion of Reed Group's claims came from Johnson & Johnson. (Id.) When asked if her company's connection with Johnson & Johnson would affect her ability to be fair and impartial, Juror Biorn said no. (Id. at 2714:21–25.) Straka moved to remove Juror Biorn on the ground that knowledge of her connection to Johnson & Johnson would have affected the way he used his preemptory strikes. (Id. at 2578:13–16, 2717:4–5.) The Court denied the motion because it found Juror Biorn's connection to be attenuated and because she averred her ability to be fair. (Id. at 2718:3–8.) Straka argues that Juror Biorn should have been excused from the jury. Jury Instructions Straka's complaint alleged that Defendants had violated Minnesota's Consumer Fraud Act, Minn.Stat. § 325F.69, Minnesota's Unfair and Deceptive Trade Practices Act, Minn.Stat. §§ 325D.13, 325D.44 et seq., and Minnesota's False Advertising Act, Minn.Stat. § 325F.67, and therefore that Straka was entitled to recover an additional civil penalty under Minnesota's Senior Citizen and Handicapped Person Consumer Fraud Act (“SCHPCFA”), Minn.Stat. § 325F.71. 1 (See Compl. ¶¶ 171, 177, Oct. 15, 2008, Docket No. 1.) 2 Straka argued at trial that the SCHPCFA established an independent cause of action and asked for a jury instruction regarding Defendants' violation of the Act. The draft instruction told the jury to find a violation of the SCHPCFA if Defendants violated Minnesota's Consumer Fraud Act (a still pending claim), Minnesota's Deceptive Trade Practices Act (a claim that had been dismissed), 3 or Minnesota's False Advertising Act (a claim that had been dismissed). The Court ruled that the SCHPCFA was derivative of Straka's Consumer Fraud Act claim and thus declined to include the requested instruction. Straka argues that the Court committed error by refusing to give this instruction and moves for a new trial in which the Court includes the instruction. Jury's Verdict After three weeks of trial and two days of deliberations, the jury reached a verdict. Although the jury found that Defendants had failed to warn Straka's prescribing physician of the risks associated with Levaquin, 4 it found that Defendants' failure was not the direct cause of Straka's injuries. 5 The jury also found that Defendants had not violated the Consumer Fraud Act. 6 Consequently, the jury awarded no damages to Straka. Straka argues that the jury's causation verdict is against the preponderance of the evidence and that the Court should exercise its discretion to order a new trial. DISCUSSION I. STANDARD OF REVIEW Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 3 of 9 In re Levaquin Products Liability Litigation, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 A. Motion for a New Trial *3 Under Rule 59(a) of the Federal Rules of Civil Procedure, the Court may grant a motion for a new trial “on all or some of the issues....” Fed.R.Civ.P. 59(a)(1). “A new trial is appropriate when the first trial, through a verdict against the weight of the evidence ... or legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir.1996). “The authority to grant a new trial is within the discretion of the district court.” Id. Straka moves for a new trial on the grounds that (1) the jury's verdict is against the weight of the evidence; (2) the Court committed a legal error when it declined to excuse Juror Biorn; and (3) the Court erred in refusing to give the instructions on Straka's theory that Defendants violated Minnesota's senior citizen protection law. B. Motion to Alter or Amend the Judgment Federal Rule of Civil Procedure 59(e) permits a motion to alter or amend a judgment no later than 28 days after it has been entered. Rule 59(e) motions “serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence.” Wells Fargo Bank, N.A. v. WMR e-Pin, LLC, 653 F.3d 702, 714 (8th Cir.2011) (quotation marks and citation omitted). “Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.2006) (quotation marks and citation omitted). Straka moves the Court to suspend the judgment and reopen the case to allow him to bring a motion for a civil penalty because, he argues, the jury's finding that Defendants failed to adequately warn of Levaquin's risks establishes a violation of Minnesota's consumer protection statutes. II. VERDICT'S EVIDENTIARY SUPPORT Straka first moves for a new trial on the ground that the jury's verdict is against the weight of the evidence because the jury's holding that Defendants breached their failure to warn is inconsistent with their determination that Defendants' failure to warn Straka's prescribing physician was not a direct cause of Straka's injuries. With regard to the weight of the evidence, a new trial is warranted if “the verdict was against the great, clear, or overwhelming weight of the evidence.” Frumkin v. Mayo Clinic, 965 F.2d 620, 625 (8th Cir.1992). Further, only if the jury's verdict is so against the great weight of the evidence that it constitutes a miscarriage of justice should a motion for a new trial be granted. Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir.2000). “On a motion for new trial, the district court is entitled to interpret the evidence and judge the credibility of witnesses, but it may not usurp the role of the jury by granting a new trial simply because it believes other inferences and conclusions are more reasonable.” Manus v. Am. Airlines, Inc., 314 F.3d 968, 973–74 (8th Cir.2003) (quotation marks and citation omitted); see also Harris v. Sec'y, U.S. Dep't of the Army, 119 F.3d 1313, 1318 (8th Cir.1997) (“In determining whether a verdict is against the weight of the evidence, the trial court ... can weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict. The district court, however, may not reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” (internal quotation marks and citations omitted)). *4 In products liability cases involving drug side effects, the plaintiff must establish (1) that the drug was capable of causing the plaintiff's injury (general causation); (2) that the drug did, in fact, cause the injury (specific causation); and (3) that a different label or warning would have avoided the plaintiff's injuries (proximate or direct causation). Meade v. Parsley, No. 2:09–CV–00388, 2010 WL 4909435, at * 5 (S.D.W.Va. Nov. 24, 2010); see also In re Prempro Prods. Liab. Litig., 586 F.3d 547, 565 (8th Cir.2009) (noting that as part of a failure to warn claim the plaintiff was required to show specific and proximate causation). The parties do not contest that Levaquin could have caused Straka's tendon ruptures (general causation). The Court will examine whether the jury's verdict could be the result of its finding insufficient proof of either specific causation or proximate causation. A. Specific Causation The plaintiff bears the burden of establishing that Levaquin did, in fact, cause Straka's injury (specific causation). During the trial, Defendants presented evidence of potential non-Levaquin causes of Straka's Achilles tendon ruptures. Defendants suggested that Straka's left Achilles tendon rupture could have been the Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 4 of 9 In re Levaquin Products Liability Litigation, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 result of aggressive exercise or trauma, and produced a range of evidence to support their theories, including the following: Walkden's patient note that Straka was “walking and slipped and tore the left Achilles tendon 90 percent” (Tr. at 603:3–5); Dr. Wasserman's note indicating that Straka's tendon injury occurred when he “stepped awkwardly off a curb” (Aff. of Dana M. Lenahan, Apr. 20, 2012, Ex. I, Docket No. 255); Dr. Zizic's testimony that spontaneous trauma could have caused Straka's left tendon rupture (Tr. at 1369:11–1370:2); and records of Straka's visits to his health club. Defendants suggested that Straka's right Achilles tendon rupture could have been the result of aggressive exercise and physical therapy, and presented the following evidence to support their theory: Walkden's patient note that Straka was doing lunges (Tr. at 703:12–16), an activity one of Straka's physicians said he would not recommend at that stage of recovery (Tr. at 120:10–21); evidence of other physical therapy and activity, such as heel raises (see, e.g ., Tr. 710:22–711:17); evidence of Straka's ongoing steroid use (see Tr. at 1362:22–1363:9); and records of Straka's visits to his health club. Straka, by contrast, provided evidence to support his theory that Levaquin caused his Achilles tendon rupture. Both Straka and Walkden testified that there had been no trauma. Dr. Zizic testified that Levaquin is “a substantial contributing factor to tendinopathy by the damaging of the tendons ...” (Tr. at 1291:10–18; 1293:23–1294:7); that trauma was not a cause of Straka's Achilles tendon tears (Tr. 1315:8–12); and that Levaquin, at Straka's dosage, was “a substantial contributing factor” in his bilateral tendon ruptures (Tr. 1315:18–1316:4). Plaintiffs also entered as evidence the medical records of Straka's treating physicians, which suggested Levaquin was the cause of his tendon ruptures. (summarized at Pl.'s Mem. in Supp. at 21–22, Mar. 16, 2012, Docket No. 251.) *5 The Court concludes that there was sufficient evidence presented at trial to support the jury's finding that Straka's tendon injuries were caused by something other than Levaquin. That is, the above-reviewed evidence offered the jury a sufficient basis to reach “different inferences or conclusion” about the specific cause of Straka's tendon injuries, and the Court will not reweigh the evidence to reach a different conclusion. See Harris, 119 F.3d at 1318. B. Proximate or Direct Causation The plaintiff must also establish that a different label or warning would have avoided the plaintiff's injuries (proximate causation). The jury's verdict could, therefore, be supported by evidence that a different label or warning would not have changed Dr. Baniriah's decision to prescribe Levaquin to Straka. Dr. Baniriah testified that—even though Defendants added a black box warning to the label and issued a Dear Doctor letter several years ago—she only learned of Levaquin's association with tendon injuries in the past year or two. (Tr. at 476:14–20.) Dr. Baniriah also testified that if she had looked at the label at the time of Straka's prescription, the warning—as it was written at the time—would have caught her attention. (Tr. at 475:15–21.) Although Dr. Baniriah testified that if she had known about the increased risk of tendon disorders when Levaquin was prescribed concomitantly with steroids, she “most likely [would have] prescribed another antibiotic” (Tr. at 424:21–425:9), no testimony shows that Dr. Baniriah would have read a different warning or otherwise become aware of it. The Court therefore finds that the jury could reasonably have found that even if Defendants had provided a different label or additional warnings, Dr. Baniriah still would have prescribed Levaquin. This conclusion is not inconsistent with Sterling Drug, Inc. v. Yarrow, 408 F.2d 978 (8th Cir.1969) and Sterling Drug v. Cornish, 370 F.2d 82 (8th Cir.1966), which Straka reads too broadly. 7 In Yarrow and Cornish, the circuit court addressed only whether the warning was adequate; it did not address the issue of proximate causation. 8 Moreover, Straka's theory that an inadequate warning automatically leads to liability is inconsistent with more recent Minnesota law. 9 Indeed, this Court has previously noted that “ ‘[i]f a legal duty to warn is found, the factual issues of the adequacy of the warning, breach of the duty, and causation are ... considered by the factfinder .’ “ In re Levaquin Prods. Liab. Litig., 726 F.Supp.2d 1025, 1034 (D.Minn.2010) (emphasis added) (quoting Johnson, 2004 WL 742038, at * 9). Finally, Straka offered multiple theories that Defendants failed to warn. Straka argued at trial that Defendants failed to warn by (1) not communicating the changed warning in the label and (2) not including in the label Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 5 of 9 In re Levaquin Products Liability Litigation, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 comparative toxicity information. Because Straka cannot rule out the possibility that the jury based its failure- to-warn determination on Defendants' failure to include comparative toxicity information in the label, the jury was free to find that Dr. Baniriah would have prescribed the drug even if that additional information were included. 10 *6 In sum, the Court concludes that the jury had adequate evidentiary support to find that (1) Levaquin was not the specific cause of Straka's tendon injuries and (2) a different label or warning would not have changed Dr. Baniriah's prescription of Levaquin to Straka. Because either of these findings would support the jury's verdict that Defendants breached their duty to warn but that Defendants' failure to warn Straka's prescribing physician was not a direct cause of Straka's injuries, the verdict is not against the weight of the evidence. The Court will deny Straka's motion for a new trial on this ground. III. JUROR BIORN'S EMPLOYMENT Straka next argues that the Court should grant its motion for a new trial because the Court denied its motion to excuse Juror Biorn after she disclosed that her employer provides services to Johnson & Johnson's disability insurance carrier. Straka does not present any evidence of actual bias but instead argues that the doctrine of implied bias required the Court to strike Juror Biorn. The doctrine of implied bias (also referred to in some cases as “implicit bias”) requires a court to strike a juror in “ ‘extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.’ “ Sanders v. Norris, 529 F.3d 787, 792 (8th Cir.2008) (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988)). Eighth Circuit case law is inconsistent with regard to whether juror bias may be implied, see Sanders, 529 F.3d at 791 (acknowledging but declining to resolve the inconsistency), but even circuits that have recognized the doctrine of implied bias limit the applicability of the doctrine to “extreme,” “extraordinary,” or “exceptional” circumstances. 11 Even if implied bias is sometimes applicable, Juror Biorn's circumstances do not warrant it here because they are not “extreme,” “extraordinary,” or “exceptional.” Juror Biorn did not have the type of financial relationship that would require the Court to presume implied bias: she was not employed by Defendants, 12 or even employed by a company that worked directly for Johnson & Johnson. 13 Nor is it “unlikely that the average person could remain impartial in ... deliberations” in Juror Biorn's situation. 14 Sanders, 529 F.3d at 792. Juror Biorn was sufficiently removed from Johnson & Johnson that she did not realize that her company did any work relating to the Defendants until a co-worker recognized it. The Court concludes that its denial of Straka's motion to strike Juror Biorn was not legal error meriting a new trial. IV. SENIOR CITIZEN'S CONSUMER FRAUD ACT CLAIM Straka argues that the Court erred by refusing to give his instruction on the SCHPCFA and that the Court should grant Straka a new trial in which the instruction is given. As at trial, Straka argues that the SCHPCFA establishes an independent cause of action. 15 The Court ruled that the SCHPCFA creates a derivative claim, and declined to include the requested instruction. (Tr. at 2762–64.) *7 The Court's ruling is consistent with (at least some of) the language of the act, the Court's prior rulings in this litigation, and existing case law. As the Court noted at trial, the language of the statute is “entirely unclear,” but the heading referring to a supplemental civil penalty “is instructive to the Court.” (Tr. at 2762–63.) That SCHPCFA claims are derivative is also consistent with the Court's summary judgment order in this case, In re Levaquin Products Litigation, No. 08–5742, 2011 WL 6826415, at * 5 (D.Minn. Dec. 28, 2011) (“Straka's SCHPCFA claim stands or falls with his claim under the [Consumer Fraud Act].”), and in previous cases in the MDL, In re Levaquin Products Litigation, 752 F.Supp.2d 1071, 1079 (D.Minn.2010) (“The parties agree that the plaintiffs' SCHPCFA claims stand or fall with their claims under the other Minnesota consumer protection statutes.”). Because the SCHPCFA creates a derivative claim, there was no error in the Court's refusal to give an instruction on the SCHPCFA claim. In sum, the Court will deny Straka's Rule 59(a) motion for a new trial because it finds the verdict was supported by the evidence, and the Court committed no legal error at trial resulting in a miscarriage of justice. V. CIVIL PENALTIES Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 6 of 9 In re Levaquin Products Liability Litigation, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Straka also moves for a suspension of judgment so that he can bring a motion for a civil penalty for violation of Minnesota's consumer fraud statutes. Straka argues that the jury's determination that Defendants failed to adequately warn of Levaquin's risks supports the Court finding a violation of Minnesota's Consumer Fraud Act, Minn.Stat. § 325F.69; Minnesota's Unfair and Deceptive Trade Practices Act, Minn.Stat. § 325D.44; and Minnesota's False Advertising Act, Minn.Stat. § 325F.67. As described below, the Court finds that Straka has not demonstrated “manifest errors of law or fact” or presented “newly discovered evidence” sufficient to support a suspension of the judgment. Wells Fargo Bank, N.A., 653 F.3d at 714. A. Minnesota's Consumer Fraud Act The jury in its special verdict form found that Defendants had not violated Minnesota's Consumer Fraud Act, Minn.Stat. § 325F.69. Nevertheless, Straka asks the Court to find that the jury's determination that Defendants failed to adequately warn of Levaquin's risks amounts to a violation of that Act. A violation of the Consumer Fraud Act required the plaintiff to show “Defendants misrepresented by omission or concealed material facts regarding Levaquin....” (Jury Instruction No. 22, Docket No. 232.) 16 Equating the jury's answer to Question 1 of the Special Verdict Form with a violation of the Consumer Fraud Act is inconsistent with the jury's answer to Question 3 (the Consumer Fraud Act question) and would improperly read intent into Defendants' conduct that was not implicit in the jury's answer to Question 1. Straka argues that there “is no requirement that the jury make this determination rather than the Court.” (Pl.'s Reply Mem. at 15 .) However, the jury was given a chance to make this determination in Question 3 of the special verdict form. The Court concludes the jury's determination was supported by the evidence and that it would be inappropriate to reinterpret the jury's verdict. B. Violations under the SCHPCFA *8 Straka also claims that the jury's determination that Defendants failed to adequately warn of Levaquin's risks is “sufficient to establish a violation” 17 of Minnesota's Unfair and Deceptive Trade Practices Act and False Advertising Act—and, because Defendants' conduct was perpetrated against one or more senior citizens, this Court should impose a civil penalty for each violation under the SCHPCFA. The Court finds that no conduct prohibited by these acts was implicit in the jury's verdict. 18 Minnesota's Unfair and Deceptive Trade Practices Act defines a series of “deceptive trade practices,” including, for example, passing off goods or services as those of another or causing confusion as to the source or certification of goods. See generally Minn.Stat. § 325D.44, subd. 1. The jury's answer to the special verdict form does not prove that Defendants engaged in any of the prohibited practices. Minnesota's False Advertising Act prevents a person “with intent to sell” merchandise from distributing a writing that “contains any material assertion, representation, or statement of fact which is untrue, deceptive, or misleading....” Minn.Stat. § 325F.67. Nothing in the jury's answer to Question 1 of the special verdict form or the relevant jury instructions indicates that Defendants' failure to warn was necessarily the result of “untrue, deceptive, or misleading” statements. The Court concludes that Straka has not shown how the jury's verdict supports a violation of any of the statutes that would establish liability under the SCHPCFA. In sum, the Court will deny Straka's Rule 59(e) motion because it does not present new evidence or identify a manifest error of law. ORDER Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. Clifford Straka's Motion to Alter or Amend the Judgment [Docket No. 246] is DENIED. 2. Clifford Straka's Motion for a New Trial [Docket No. 244] is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. All Citations Not Reported in F.Supp.2d, 2012 WL 4481223 Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 7 of 9 In re Levaquin Products Liability Litigation, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Footnotes 1 “In addition to any liability for a civil penalty pursuant to sections 325D.43 to 325D.48, regarding deceptive trade practices; 325F.67, regarding false advertising; and 325F.68 to 325F.70, regarding consumer fraud; a person who engages in any conduct prohibited by those statutes, and whose conduct is perpetrated against one or more senior citizens or disabled persons, is liable for an additional civil penalty not to exceed $10,000 for each violation....” Minn.Stat. § 325F.71, subd. 2(a). 2 “Pursuant to Minn.Stat. § 325F.71, subdiv. 4, Plaintiff is entitled to recover all damages arising out of Defendants' violation of Minn.Stat. § 325F.44, subdiv 1, (5) and/or (7), § 325F.67, and/or Minn.Stat. § 325F.69, subdiv. 1.” (Compl.¶ 177.) “Minn.Stat. § 325F.71, subdiv. 2 incorporates Minn. Stat .... § 325F.68–70 regarding consumer fraud and provides special remedies if violations of those statutes are directed against senior citizens or handicapped people [.]” (Id. ¶ 171.) 3 Straka dismissed his claims under Minnesota's Unfair and Deceptive Trade Practices Act, Minn.Stat. §§ 325D.13 and 325D.44 et seq., and Minnesota's False Advertising Act, Minn.Stat. § 325F.67, before trial. (Stipulation, Dec. 2, 2011, Docket No. 58.) 4 The Jury answered “YES” to “Question 1: Did defendants fail to provide reasonably adequate warnings of the risks associated with Levaquin to plaintiff's prescribing physician ... ?” (Special Verdict Form, Jan 26, 2012, Docket No. 240.) 5 The Jury answered “NO” to “Question 2: Was defendants' failure to warn plaintiff's prescribing physician a direct cause of plaintiff's injuries?” (Special Verdict Form.) 6 (Special Verdict Form, Question 4.) 7 Straka suggests that Yarrow and Cornish stand for the proposition that “once the jury determines that a drug manufacturer has failed to make reasonable efforts to attract the doctor's attention, the manufacturer is liable regardless of anything the doctors may or may not have done ....“ (Pl.'s Reply Mem. at 3, May 4, 2012, Docket 273 (internal quotation marks omitted).) 8 In Yarrow, the court held that when “detail men,” on whom the prescribing physician relied for drug information, provided information about the drug but offered no warnings about its dangers, the warnings were inadequate. 408 F.2d at 991– 92. In Cornish, the “sole issue was whether appellant negligently failed to make reasonable efforts to warn appellee's doctors.” 370 F.2d at 85. There was “no question of intervening proximate cause in [that] case.” Id. Neither case precludes an intervening cause from being an issue in another drug product liability case. 9 See, e.g., Johnson v. Zimmer, Inc., No. 02–1328, 2004 WL 742038, at *9 (D.Minn. Mar. 31, 2004) (“[W]here an adequate warning could not have prevented a plaintiff's injuries, causation does not exist as a matter of law.”); Balder v. Haley, 399 N.W.2d 77, 81 (Minn.1987) (where warnings are ignored, there is no causal relationship between the failure to warn and the injury); 27 Minn. Practice Series, Products Liability § 16.7 (“Even if a warning is inadequate, the manufacturer is not liable for failure to warn ... if the physician would have prescribed the drug or device regardless of any additional information or warnings the manufacturer could have supplied.”) 10 If the jury had specifically found that Defendants failed to warn by inadequately communicating the changed warning, then, as in Cornish, evidence that a different label or warning would not have changed the doctor's decision to prescribe Levaquin might not be an issue. But it did not. 11 See United States v. Brooks, 569 F.3d 1284, 1289 (10th Cir.2009); Fields v. Brown, 503 F.3d 755, 766, 769, 771 (9th Cir.2007); Conaway v. Polk, 453 F.3d 567, 587 n. 21 (4th Cir.2006); Johnson v. Luoma, 425 F.3d 318, 326 (6th Cir.2005); Solis v. Cockrell, 342 F.3d 392, 396 (5th Cir.2003); United States v. Greer, 285 F.3d 158, 172 (2d Cir.2000); Amirault v. Fair, 968 F.2d 1404, 1406 (1st Cir.1992); United States v. Calabrese, 942 F.2d 218, 226 n. 3 (3d Cir.1991); Isaacs v. Kemp, 778 F.2d 1482, 1486 n. 7 (11th Cir.1985). 12 Cf. Caterpillar, Inc. v. Sturman Indus., Inc., 387 F.3d 1358, 1372 (Fed.Cir.2004) (finding that a juror whose husband worked for the plaintiff at the time of trial should have been struck for cause under the doctrine of implied bias); United States v. Polichemi, 219 F.3d 698, 704–05 (7th Cir.2000) (finding that a fifteen-year employee of the prosecutor's office working the case should have been struck); Getter v. Wal–Mart Stores, Inc., 66 F.3d 1119, 1122 (10th Cir.1995) (striking a juror for implied bias because the challenged juror owned stock in the defendant's company and his spouse worked for the defendant); Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1468 (10th Cir.1994) (explaining that implied bias would exist where a juror had a direct financial interest in the trial's outcome, such as through employment by a party). 13 In contrast, the type of “extreme situations” that warrant a finding of implied bias “include a revelation that a juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Allen v. Brown Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 8 of 9 In re Levaquin Products Liability Litigation, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 Clinic, PLLP, 531 F.3d 568, 572–73 (8th Cir.2008) (quoting Smith v. Phillips, 455 U.S. 209, 222 (1982) (O'Connor, J., concurring)). 14 Straka makes much of the fact that Juror Biorn's coworker said, “I'm surprised [the Judge] didn't pull you from having a conflict for the fact that we support J & J business.” The coworker's opinion does not change the Court's determination that an average person who did not originally know of the connection with Johnson & Johnson and who believed that only a small portion of her company's business came from Johnson & Johnson could remain impartial See, e.g., United States v. Torres, 128 F.3d 38, 45–47 (2d Cir.1997) (applying an “average man” test to determine implied bias but noting the circuit's refusal to “carve out an overly broad category of presumed bias based on occupational or status relationships”). 15 Straka's position is inconsistent with the position that Plaintiffs previously took in the MDL that SCHPCFA claims are derivative. Indeed, the proposed instruction would have incorporated claims that Straka had agreed to voluntarily dismiss. (See Docket No. 58.) 16 “The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby....” Minn.Stat. § 325F.69, subd. 1 (emphasis added). 17 (See Pl.'s Mem. in Supp. at 49.) 18 The Court also finds it troubling that Straka is attempting to use a post-trial motion to revive claims that were voluntarily dismissed before trial. “Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” Metro. St. Louis Sewer Dist., 440 F.3d at 933. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00438-CDL Document 37-12 Filed 07/25/16 Page 9 of 9 Exhibit J Case 4:13-cv-00438-CDL Document 37-13 Filed 07/25/16 Page 1 of 6 Allstate Ins. Co. v. General Motors Corp., Not Reported in N.W.2d (2005) 2005 WL 264276, 56 UCC Rep.Serv.2d 241 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2005 WL 264276 District Court of Minnesota, Fourth Judicial District, Hennepin County.. ALLSTATE INSURANCE COMPANY, as subrogee of Arnold Gronke, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant. No. PD 04-12393. | Jan. 24, 2005. Attorneys and Law Firms Authony U. Wacker, Minneapolis, MN, for Allstate Insurance Company, as subrogee of Arnold Gronke. Mickey W. Greene, Hanson Marek Bolkom & Greene, Ltd., Minneapolis, MN, for General Motors Corporation. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DUFRESNE, J. *1 The above-entitled matter came duly on for hearing before Judge Mary Steenson DuFresne on January 10, 2005. Based upon the evidence adduced, the argument of counsel, and all of the files, records, and proceedings herein, THE COURT FINDS: 1. Defendant brings this motion for summary judgment and asserts that Plaintiff's claims are barred by Minnesota's adoption of the Uniform Commercial Code's four-year statute of limitations applicable to a breach of warranty as codified in Minnesota Statutes Section 336.2-725. Defendant asserts that Section 336.2-725 requires an action for breach of warranty to be brought within four years of the breach and Plaintiff brought his action on April 23, 2004, more than five years after the warranty on his 1999 Cadillac Seville began and nearly fifteen months after the statute of limitations period expired. Defendant asserts further that the four-year statute of limitations period did not begin tolling when the Cadillac Seville was damaged because its warranty merely covered repair and replacement and did not extend to the Cadillac Seville's future performance. 2. Plaintiff opposes Defendant's motion for summary judgment and asserts, inter alia, that the Cadillac Seville's warranty was an explicit warranty of future performance because it covered the Cadillac Seville for 4 years or 50,000 miles, whichever occurred first. As a warranty of future performance, Plaintiff alleges that the 4- year statute of limitations period did not begin to toll until the Cadillac Seville's axle and rotor plate failed on May 7, 2002; therefore, Plaintiff's April 23, 2004 Summons and Complaint is not barred by Minnesota Statutes Section 336.2-725 because the statute of limitations period does not expire until May 7, 2006. IT IS ORDERED: 1. Let the attached Memorandum of Law be incorporated by reference herein. 2. Defendant's motion for summary judgment is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. I. FACTS Although the parties do not dispute the facts of this matter they have each developed opposing interpretations of how the facts apply to Minnesota Statutes Section 336.2-725(2). Plaintiff's insured, Arnold Gronke, purchased and took delivery of a 1999 Cadillac Seville (the “Cadillac”) on February 5, 1999. The Cadillac was manufactured by Defendant and came with a “New Vehicle Limited Warranty” (the “Warranty”). The Warranty states that Defendant “will provide for repairs to the vehicle during the warranty period[.]” Under the heading “Repairs Covered” the Warranty states that it “covers repairs to correct any vehicle defect related to materials or workmanship occurring during the Warranty period.” The Warranty states further that “[t]he Warranty Period for all coverages begins on the date the vehicle is first delivered or put into use and ends at the expiration Case 4:13-cv-00438-CDL Document 37-13 Filed 07/25/16 Page 2 of 6 Allstate Ins. Co. v. General Motors Corp., Not Reported in N.W.2d (2005) 2005 WL 264276, 56 UCC Rep.Serv.2d 241 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 of the coverage period” and that “[t]he complete vehicle is covered for 4 years or 50,000 miles, whichever comes first [.]” Lastly, and under the heading “Other Terms,” the Warranty states that “[p]erformance of repairs and needed adjustments is the exclusive remedy under this written warranty or any implied warranty. [Defendant] shall not be liable for incidental or consequential damages ... resulting from the breach of this written warranty or any implied warranty.” The Warranty expired by its own terms four years after Mr. Gronke took delivery of the Cadillac on February 5, 2003. *2 Mr. Gronke was involved in an accident on May 7, 2002 while driving the Cadillac westbound on Minnesota Highway 7. Plaintiff alleges in its April 23, 2004 1 Complaint that the Cadillac's left rear axle and rotor plate “broke” and caused the Cadillac to rollover several times and incur damage totaling $29,229.58. Given the fact that Mr. Gronke had covered the Cadillac with one of Plaintiff's automobile insurance policies, Plaintiff paid the cost of the damage to Mr. Gronke and subrogated itself to his claims. II. STATEMENT OF CLAIMS Defendant brings this motion for summary judgment and asserts that Plaintiff's claims are barred by Minnesota's adoption of the Uniform Commercial Code's four-year statute of limitations applicable to a breach of warranty as codified in Minnesota Statutes Section 336.2-725. Defendant asserts that Section 336.2-725 requires an action for breach of warranty to be brought within four years of the breach and Plaintiff brought his action on April 23, 2004, more than five years after the Warranty began and nearly fifteen months after the statute of limitations period expired. Defendant asserts further that the four-year statute of limitations period did not begin tolling when the Cadillac was damaged because the Warranty merely covered repair and replacement and did not extend to the Cadillac's future performance. Plaintiff opposes Defendant's motion for summary judgment and asserts, inter alia, that the Warranty was an explicit warranty of future performance because it covered the Cadillac for 4 years or 50,000 miles, whichever occurred first. As a warranty of future performance, Plaintiff alleges that the 4-year statute of limitations period did not begin to toll until the Cadillac's axle and rotor plate failed on May 7, 2002; therefore. Plaintiff's April 23, 2004 Summons and Complaint is not barred by Minnesota Statutes Section 336.2-725 because the statute of limitations period does not expire until May 7, 2006. III. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate “if the pleadings ... answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. The party moving for summary judgment “has the burden of proof and ... the nonmoving party has the benefit of that view of the evidence which is most favorable to him.” Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn.1955). There is no genuine issue of material fact “ ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” ’ DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 587 (1986)). The nonmoving party must “ ‘do more than simply show that there is some metaphysical doubt as to the material facts.” ’ Id. at 70 (quoting Matsushita, 475 U.S. at 586). A district court's “function on a motion for summary judgment is not to decide issues of fact, but solely to determine whether genuine factual issues exist.” DLH, 566 N.W.2d at 70. This court cannot “weigh the evidence on a motion for summary judgment;” however, “when determining whether a genuine issue of material fact for trial exists, th[is] court is not required to ignore its conclusion that a particular piece of evidence may have no probative value, such that reasonable persons could not draw different conclusions from the evidence presented.” Id. IV. LEGAL ANALYSIS *3 The Uniform Commercial Code's (“U.C.C.”) provision governing statutes of limitations in contracts for sale has been adopted in Minnesota and states, in relevant part, that “[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.” Minn.Stat. § 336.2-725(1) (2004). The parties do not dispute that the sale of the Cadillac was a contract for sale. See Minn.Stat. § 336.2-106(1) (2004) (defining a “contract for sale” as a “present sale of goods Case 4:13-cv-00438-CDL Document 37-13 Filed 07/25/16 Page 3 of 6 Allstate Ins. Co. v. General Motors Corp., Not Reported in N.W.2d (2005) 2005 WL 264276, 56 UCC Rep.Serv.2d 241 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 and a contract to sell goods at a future time” and a “sale” as “the passing of title from the seller to the buyer for a price”). That portion of Section 336.2-725 that the parties have found reason to quarrel over states that [a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. Id. at § 336.2-725(2) (emphasis added). This matter turns on whether or not the Warranty explicitly extends to the future performance of the Cadillsc, Plaintiff asserts that the Warranty's “bumper-to-bumper coverage” for four years or 50,000 miles explicitly warrants the future performance of the Cadillac, and, as such, Defendant's breach did not occur until the left rear axle and rotor plate failed on May 7, 2002. Pursuant to Plaintiff's interpretation of Section 336.2-725(2), the statute of limitations does not expire until May 7, 2006-two full years after Plaintiff brought this action. Contrariwise, Defendant asserts that the Warranty merely covered repair and replacement of the Cadillac's defective parts, if any, and the statute of limitations began tolling when the Cadillac was tendered to Mr. Gronke on February 5, 1999. Pursuant to Defendant's interpretation of Section 336.2-725(2), the four-year statute of limitations expired on February 5, 2003-fifteen months before Plaintiff brought this action. Pursuant to the U.C.C., a “warranty must ‘explicitly extend[ ] to future performance of the goods,’ or else the buyer's breach of warranty action accrues on tender of delivery.” Marvin Lumber and Cedar Co. v. PPG Industries, Inc., 223 F.3d 873, 879 (8th Cir.2000) (quoting Section 336.2-725(2)). Courts throughout the United States have “vigorously enforced the U.C.C.'s statutory explicitness requirement.” Id. (citing Standard Alliance Industries, Inc. v. Black Clawson, Co., 587 F.2d 813, 820 (6th Cir.1978)). In Standard Alliance, the Sixth Circuit Court of Appeals concluded that [m]ost courts have been very harsh in determining whether a warranty explicitly extends to future performance. Emphasizing the word “explicitly,” they have ruled that there must be specific reference to a future time in the warranty. As a result of this harsh construction, most express warranties cannot meet the test and no implied warranties can since, by their very nature, they never “explicitly extend to future performance.” 2 *4 Standard Alliance, 587 F.2d at 820. A warranty explicitly extending to future performance “presents an exception to the normal rule as to when a cause of action for breach of warranty accrues.” Marvin Lumber, 223 F.3d at 878. A warranty of future performance guarantees that a particular product will perform in the future as promised. Church of the Nativity of Our Lord v. WotPro, Inc., 491 N.W.2d 1, 6 (Minn.1992) overruled on other grounds by Ly v. Nystrom, 615 N.W.2d 302, 314 n. 25 (Minn.2000). Warranties of future performance differ from those that merely offer to repair or replace defective parts. Anderson v. Crestliner, Inc., 564 N.W.2d 218, 222 (Minn.Ct.App.1997) (citing Ontario Hydro v. Zallea Systems, Inc., 569 F.Supp. 1261, 1266 (D.Del.1983)). 3 A warranty of future performance “ ‘must expressly provide some form of guarantee that the product will perform in the future as promised.” ’ Id. A warranty to repair or replace “ ‘does not warrant how the goods will perform in the future. Rather, [it] simply provides that if a product fails or becomes defective, the seller will replace or repair within a stated period.” ’ Id. The distinction between these two warranties “ ‘is that a repair or replacement warranty merely provides a remedy if the product becomes defective, while a warranty for future performance guarantees the performance of the product itself for a stated period of time.” ’ Id. (emphasis in original). The warranty in Crestliner concerned a 21-foot fiberglass boat and stated, in relevant part, that “Crestliner warrants ... that each new retail boat ... shall be free from any defect in material or workmanship according to the following guidelines.... The warranty period for Case 4:13-cv-00438-CDL Document 37-13 Filed 07/25/16 Page 4 of 6 Allstate Ins. Co. v. General Motors Corp., Not Reported in N.W.2d (2005) 2005 WL 264276, 56 UCC Rep.Serv.2d 241 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 defects in material or workmanship of the hull and deck structure is 5 years.” Crestliner, 564 N.W.2d at 220. The warranty also indicated that the original purchaser's sole and exclusive remedy was “repair or replace[ment] without charge” of any part covered by the warranty. Id. Holding that the boat's warranty guaranteed that the hull and deck structure would be free from material or workmanship defects for a period of five years, the Court concluded that the warranty “explicitly extends to future performance.” Id. at 221. Unlike the warranty that presented itself for adjudication in Crestliner, and despite Plaintiff's assertion to the contrary, the Warranty does not anywhere state, explicitly or otherwise, that it extends to the Cadillac's future performance or that the Cadillac is guaranteed to be free from defects for four years or 50,000 miles; rather, the Warranty merely states that the Cadillac is covered for “4 years or 50,000 miles, whichever comes first.” The Warranty's four-year or 50,000 mile coverage must be read in conjunction with the explicit recitation that it “covers repairs to correct any vehicle defect related to materials or workmanship occurring during the Warranty Period.” Like the warranty at issue in Ontario Hydro above, the Warranty merely provides the Cadillac's owner with the remedy of “correct[ing] any defect related to materials or workmanship occurring during” the first four years or 50,000 miles. The Warranty merely provided Mr. Gronke with a remedy, not, as Plaintiff asserts, a guarantee of the Cadillac's performance. Although “ ‘[t]he presence of language limiting the remedy to replacement of defective materials, by itself, is [not] determinative of the exact nature of the [W]arrant[y],” ’ Id. at 222 (quoting R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818, 823 (8th Cir.1983)), the Warranty also states under the heading “Other Terms” that “[p]erformance of repairs and needed adjustments is the exclusive remedy[.]” This limiting language, although not dispositive, adds weight to the court's conclusion that the Warranty is one of repair or replacement, not of future performance. V. CONCLUSION *5 The court finds, and the parties agree, that there are no genuine issues of material fact. The court's conclusion that the Cadillac was covered by a repair or replacement warranty is fatal to Plaintiff's claims because Section 336.2-725's four-year statute of limitations began tolling when the Cadillac was tendered to Mr. Gronke on February 5, 1999 and expired on February 5, 2003-fifteen months before Plaintiff commenced this action. Section 336.2-725's statute of limitations for breach of a contract for sale bars Plaintiff's claims and Defendant is, therefore, entitled to judgment as a matter of law. All Citations Not Reported in N.W.2d, 2005 WL 264276, 56 UCC Rep.Serv.2d 241 Footnotes 1 The parties stipulated to amend the Summons and Complaint in August 2004. The Amended Complaint appears to only have removed Plaintiff's claims regarding a 1999 Chevrolet Suburban owned by another one of its insureds named Kimberly Collins. 2 Although not addressed in its motion papers, Plaintiff seemed to assert at oral argument that Defendant's various Cadillac advertising campaigns amounted to implied warranties of future performance. The court does not decide here whether such advertising does amount to an implied warranty but notes in passing that at least two Minnesota courts have concluded that implied warranties do not extend to future performance. See Nelson v. International Harvester Corp., 394 N.W.2d 578, 582 (Minn.Ct.App.1986) overruled on other grounds by Lloyd F. Smith Co., Inc. v. Den-Tal-Ez, Inc., 491 N.W.2d 11, 17 (Minn.1992) (endorsing the rule adopted in courts throughout the country that “the words ‘implied’ and ‘explicit’ are contradictory and it would be illogical to hold that an implied warranty can explicitly extend to future performance”); Muzzy v. E.I du Pont de Nemours & Co., 1993 WL 76191, *2 (Minn.Dist.Ct.1993); See also S & R Associates, L.P. v. Shell Oil Co., 725 A.2d 431, 436 (Del.Super.Ct.1998) (stating that “[a]n implied warranty, by its very nature, cannot extend to future performance because it makes no explicit representations concerning longevity”). 3 The warranty at issue in Ontario Hydro stated, in part, that “[i]f at any time up to twelve ... months ... any defect or deficiency should appear due to faulty workmanship, material or design ... the Company shall restore the Equipment to satisfactory ... condition by making good every such defect[.]” Ontario Hydro, 569 F.Supp.at 1264. Interpreting U.C.C. Section 2-725(2), the Court concluded that the warranty was a repair or replacement warranty because it did not warrant Case 4:13-cv-00438-CDL Document 37-13 Filed 07/25/16 Page 5 of 6 Allstate Ins. Co. v. General Motors Corp., Not Reported in N.W.2d (2005) 2005 WL 264276, 56 UCC Rep.Serv.2d 241 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 how the product-expansion joints-would perform in the future; rather, the warranty merely provided a remedy for repair within one year if the expansion joints were defective. Id. at 1266. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00438-CDL Document 37-13 Filed 07/25/16 Page 6 of 6