(Ps) Van Den Heuvel v. Sinclair, et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.May 4, 2017

UNITED STATES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT PAGE 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PHILLIP A. TALBERT United States Attorney VICTORIA L. BOESCH Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 victoria.boesch@usdoj.gov Attorneys for the United States IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JEAN MARC VAN DEN HEUVEL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. CASE NO. 2:15-cv-01698-TLN-EFB (PS) UNITED STATES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT DATE: June 7, 2017 TIME: 10:00 a.m. JUDGE: Hon. Edmund F. Brennan CTRM: 8, 13th Floor PLEASE TAKE NOTICE that the United States hereby moves for summary judgment in the above-captioned case under Fed. R. Civ. P. 56 for the reasons stated in the attached Memorandum of Points and Authorities. Since Plaintiff proceeds with this case pro se, the United States refers him to Eastern District (Cal.) Local Rule 230(c), which provides: (c) Opposition and Non-Opposition. Opposition, if any, to the granting of the motion shall be in writing and shall be filed and served not less than fourteen (14) days preceding the noticed (or continued) hearing date. A responding party who has no opposition to the granting of the motion shall serve and file a statement to that effect, specifically designating the motion in question. No party will be entitled to be heard in opposition to Case 2:15-cv-01698-TLN-EFB Document 42 Filed 05/04/17 Page 1 of 3 UNITED STATES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT PAGE 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a motion at oral arguments if opposition to the motion has not been timely filed by that party. See L.R. 135. Respectfully submitted, PHILLIP A. TALBERT United States Attorney Dated: May 4, 2017 By: /s/ Victoria L. Boesch VICTORIA L. BOESCH Assistant United States Attorney Attorneys for the United States Case 2:15-cv-01698-TLN-EFB Document 42 Filed 05/04/17 Page 2 of 3 UNITED STATES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT PAGE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAIL The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Eastern District of California and is a person of such age and discretion to be competent to serve papers; that on May 4, 2017, she served a copy of UNITED STATES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s) and address(es) stated below, which is/are the last known address(es), and by depositing said envelope and its contents in the United States Mail at Sacramento, California. Addressee(s): JEAN MARC VAN DEN HEUVEL 5356 Reservoir Road Georgetown, CA 95634 /s/ Pamela Beauvais PAMELA BEAUVAIS Case 2:15-cv-01698-TLN-EFB Document 42 Filed 05/04/17 Page 3 of 3 UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING MOTION FOR SUMMARY JUDGMENT PAGE 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PHILLIP A. TALBERT United States Attorney VICTORIA L. BOESCH Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 victoria.boesch@usdoj.gov Attorneys for the United States IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JEAN MARC VAN DEN HEUVEL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. CASE NO. 2:15-cv-01698-TLN-EFB (PS) UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING MOTION FOR SUMMARY JUDGMENT DATE: June 7, 2017 TIME: 10:00 a.m. JUDGE: Hon. Edmund F. Brennan CTRM: 8, 13th Floor I. INTRODUCTION Pro Se Plaintiff Jean Marc Van Den Heuvel alleges dental malpractice during a September 13, 2013 root canal treatment on tooth #3 at the Shingle Springs Health and Wellness Center, a federally funded clinic. Plaintiff proceeds under the Federal Tort Claims Act (the “FTCA”), pursuant to which California’s law generally determines the scope of potential liability. Plaintiff has not disclosed expert testimony to support his allegation that a violation of the applicable standard of care caused him injury. Because California law requires expert testimony to prove both a standard of care violation and causation, Plaintiff’s claim fails. The United States is therefore entitled to summary judgment. Case 2:15-cv-01698-TLN-EFB Document 42-1 Filed 05/04/17 Page 1 of 5 UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING MOTION FOR SUMMARY JUDGMENT PAGE 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. BACKGROUND Plaintiff alleges that he received negligent dental work from Dr. Phoenix Sinclair at the Shingle Springs clinic in connection with a root canal treatment on September 13, 2013. ECF No. 10 at 1-2, 10.1 At the September 2016 scheduling conference for the case, the Court explained to the Plaintiff that he would have to comply with Federal Rule of Civil Procedure 26 and that he needed expert testimony to support his claim. Boesch Decl. Ex. A (Scheduling Conference Transcript) at 4:18-5:3, 5:10-13, 7:23- 9:17. The Court cautioned Plaintiff “that you need to get moving on that because this is - you’re alleging professional negligence and to be able to prevail on that claim, it’s going to require expert medical testimony.” Id. at 9:12-15. Plaintiff indicated that he understood this requirement. Id. at 9:16- 17 (“Well I had no idea, but I know now.”) At Plaintiff’s October 2016 deposition, Plaintiff confirmed that he had received a copy of Rule 26 and that he understood that his expert disclosures were due to defense counsel on December 19, 2016. Boesch Decl. Ex. B (Plaintiff Depo. at 94:17-97:18); see also id. Ex. C (September 21, 2016 correspondence providing Plaintiff a copy of Rule 26). Nonetheless, Plaintiff failed to disclose expert reports to support his claim. Boesch Decl. ¶ 2, ECF No. 38. III. SUMMARY JUDGMENT STANDARD “The court shall grant summary judgment if the movant shows that 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. P. 56(a). Rule 56 aims to “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) Advisory Committee Note on 1963 amendments).2 Initially, the moving party bears the burden of identifying those portions of the “the pleadings, depositions, answers to interrogatories, and admissions on 1 See also ECF 11 at 1 (Civil cover sheet referring to root canal gone wrong.); ECF No. 12 at 2 (Court’s IFP screening order stating that “it appears that the first amended complaint alleges that defendant Dr. Phoenix Sinclair and other unidentified employees of defendant Shingle Springs Health and Wellness Center provided plaintiff with negligent dental work on September 13, 2013.”); ECF No. 24 at 1 (Joint Status Report stating that the “case concerns root canal treatment by Dr. Phoenix Sinclair received by pro se Plaintiff Jean Marc Van Den Heuvel on September 13, 2013, on tooth #3 at the Shingle Springs Health and Wellness Center in Placerville, CA.”). 2 Though Rule 56 was revised effective December 10, 2010, the Advisory Committee Notes to those amendments state that “[t]he standard for granting summary judgment remains unchanged.” Case 2:15-cv-01698-TLN-EFB Document 42-1 Filed 05/04/17 Page 2 of 5 UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING MOTION FOR SUMMARY JUDGMENT PAGE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 file, together with the affidavits, if any,” that it believes demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). “Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing Home Pension Fund, Local 144 v. Oracle Corp., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325). Accordingly, a court must grant summary judgment “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., 477 U.S. at 322. IV. ANALYSIS The FTCA generally renders the United States liable for negligence by its employees that occurs within the scope of federal employment. 28 U.S.C. §§ 1346(b) & 2674, see also ECF No. 19 (United States’ substitution as defendant for deemed federal employees Phoenix Sinclair, D.D.S. and Shingle Springs Health and Wellness Center). Within limitations imposed by the FTCA, the United States is liable in tort as a private individual would be under like circumstances. Id. The law of the state where the negligence occurred generally governs the scope of the United States’ liability. Id. Here, the alleged medical malpractice occurred in Placerville, California, and so California law applies. Under California law, Plaintiff bears the burden of proving: (1) Dr. Sinclair’s duty to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise (the standard of care), (2) a breach of that duty, (3) a causal connection between the breach and a resulting injury, and (4) actual loss or damage resulting from Dr. Sinclair’s negligence. See Avivi v. Centro Medico Urgente Med. Ctr., 159 Cal. App. 4th 463, 468 n.2 (2008); Gami v. Mullikin Medical Center, 18 Cal. App. 4th 870, 877 (1993); Budd v. Nixen, 6 Cal. 3d 195, 200 (1971). Because the appropriate manner to conduct root canal treatment is not “within the common knowledge of the layman,” Plaintiff must carry his burden by presenting expert testimony that Dr. Sinclair’s root canal treatment breached the applicable standard of care and that that breach caused Plaintiff injury. See MacLellan v. Cty. of Alameda, No. C 12-5795 MMC, 2014 WL 934360, at *9 (N.D. Cal. Mar. 5, 2014) (citing Powell v. Kleinman, 151 Cal.App.4th 112, 123 (2007)). Because Plaintiff has failed to disclose expert opinions demonstrating a breach of the Case 2:15-cv-01698-TLN-EFB Document 42-1 Filed 05/04/17 Page 3 of 5 UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING MOTION FOR SUMMARY JUDGMENT PAGE 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relevant standard of care or that such a breach caused any injury, he cannot raise a triable issue of fact. Id. Plaintiff’s failure to raise a triable issue of fact mandates summary judgment for the United States. V. CONCLUSION For the foregoing reasons, the Court should grant summary judgment for the United States. Respectfully submitted, PHILLIP A. TALBERT United States Attorney Dated: May 4, 2017 By: /s/ Victoria L. Boesch VICTORIA L. BOESCH Assistant United States Attorney Attorneys for the United States Case 2:15-cv-01698-TLN-EFB Document 42-1 Filed 05/04/17 Page 4 of 5 UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING MOTION FOR SUMMARY JUDGMENT PAGE 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAIL The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Eastern District of California and is a person of such age and discretion to be competent to serve papers; that on May 4, 2017, she served a copy of UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING MOTION FOR SUMMARY JUDGMENT by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s) and address(es) stated below, which is/are the last known address(es), and by depositing said envelope and its contents in the United States Mail at Sacramento, California. Addressee(s): JEAN MARC VAN DEN HEUVEL 5356 Reservoir Road Georgetown, CA 95634 /s/ Pamela Beauvais PAMELA BEAUVAIS Case 2:15-cv-01698-TLN-EFB Document 42-1 Filed 05/04/17 Page 5 of 5 WARNING TO PRO SE PLAINTIFF REGARDING MOTION FOR SUMMARY JUDGMENT PAGE 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PHILLIP A. TALBERT United States Attorney VICTORIA L. BOESCH Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 victoria.boesch@usdoj.gov Attorneys for the United States IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JEAN MARC VAN DEN HEUVEL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. CASE NO. 2:15-cv-01698-TLN-EFB (PS) WARNING TO PRO SE PLAINTIFF REGARDING MOTION FOR SUMMARY JUDGMENT DATE: June 7, 2017 TIME: 10:00 a.m. JUDGE: Hon. Edmund F. Brennan CTRM: 8, 13th Floor TO: PLAINTIFF JEAN MARC VAN DEN HEUVEL WARNING The Court Requires This Notice to You The United States has made a motion for summary judgment seeking to have your case against it dismissed. If granted by the Court, that motion for summary judgment under Federal Rule of Civil Procedure 56 will end your case against the United States. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact. That means that if there is no real dispute about any fact that would affect the result of your case, the party asking for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a summary judgment motion supported by declarations (or other Case 2:15-cv-01698-TLN-EFB Document 42-2 Filed 05/04/17 Page 1 of 3 WARNING TO PRO SE PLAINTIFF REGARDING MOTION FOR SUMMARY JUDGMENT PAGE 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, then the Court may enter summary judgment against you. If the Court grants summary judgment, your case will be dismissed and there will be no trial. Local Rule 260(b) of the District Court also requires, in addition, that as a part of your opposition to a motion for summary judgment you reproduce the itemized facts in the Statement of Undisputed Facts, admit those facts that are undisputed, deny those that are disputed, and include with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission or other document relied upon in support of that denial. The Local Rule also requires you to file with the Court all evidentiary documents cited in the opposing papers. If you assert a need for discovery as a basis for denial of the summary judgment motion, the Local Rule requires you to specify the particular facts or issues on which you seek discovery. Respectfully submitted, PHILLIP A. TALBERT United States Attorney Dated: May 4, 2017 By: /s/ Victoria L. Boesch VICTORIA L. BOESCH Assistant United States Attorney Attorneys for the United States Case 2:15-cv-01698-TLN-EFB Document 42-2 Filed 05/04/17 Page 2 of 3 WARNING TO PRO SE PLAINTIFF REGARDING MOTION FOR SUMMARY JUDGMENT PAGE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAIL The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Eastern District of California and is a person of such age and discretion to be competent to serve papers; that on May 4, 2017, she served a copy of WARNING TO PRO SE PLAINTIFF REGARDING MOTION FOR SUMMARY JUDGMENT by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s) and address(es) stated below, which is/are the last known address(es), and by depositing said envelope and its contents in the United States Mail at Sacramento, California. Addressee(s): JEAN MARC VAN DEN HEUVEL 5356 Reservoir Road Georgetown, CA 95634 /s/ Pamela Beauvais PAMELA BEAUVAIS Case 2:15-cv-01698-TLN-EFB Document 42-2 Filed 05/04/17 Page 3 of 3 UNITED STATES’ STATEMENT OF UNDISPUTED FACTS SUPPORTING MOTION FOR SUMMARY JUDGMENT PAGE 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PHILLIP A. TALBERT United States Attorney VICTORIA L. BOESCH Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 victoria.boesch@usdoj.gov Attorneys for the United States IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JEAN MARC VAN DEN HEUVEL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. CASE NO. 2:15-cv-01698-TLN-EFB (PS) UNITED STATES’ STATEMENT OF UNDISPUTED FACTS SUPPORTING MOTION FOR SUMMARY JUDGMENT DATE: June 7, 2017 TIME: 10:00 a.m. JUDGE: Hon. Edmund F. Brennan CTRM: 8, 13th Floor Pursuant to Local Rule 260 of the United States District Court for the Eastern District of California, the United States hereby submits the following Statement of Undisputed Facts in support of its Motion for Summary Judgment. No. Undisputed Statement of Fact Supporting Evidence 1. Plaintiff failed to disclose expert reports regarding the standard of care and causation to support his claim of medical malpractice in this case. Boesch Decl. ¶ 2, ECF No. 38. Case 2:15-cv-01698-TLN-EFB Document 42-3 Filed 05/04/17 Page 1 of 3 UNITED STATES’ STATEMENT OF UNDISPUTED FACTS SUPPORTING MOTION FOR SUMMARY JUDGMENT PAGE 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, PHILLIP A. TALBERT United States Attorney Dated: May 4, 2017 By: /s/ Victoria L. Boesch VICTORIA L. BOESCH Assistant United States Attorney Attorneys for the United States Case 2:15-cv-01698-TLN-EFB Document 42-3 Filed 05/04/17 Page 2 of 3 UNITED STATES’ STATEMENT OF UNDISPUTED FACTS SUPPORTING MOTION FOR SUMMARY JUDGMENT PAGE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAIL The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Eastern District of California and is a person of such age and discretion to be competent to serve papers; that on May 4, 2017, she served a copy of UNITED STATES’ STATEMENT OF UNDISPUTED FACTS SUPPORTING MOTION FOR SUMMARY JUDGMENT by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s) and address(es) stated below, which is/are the last known address(es), and by depositing said envelope and its contents in the United States Mail at Sacramento, California. Addressee(s): JEAN MARC VAN DEN HEUVEL 5356 Reservoir Road Georgetown, CA 95634 /s/ Pamela Beauvais PAMELA BEAUVAIS Case 2:15-cv-01698-TLN-EFB Document 42-3 Filed 05/04/17 Page 3 of 3 BOESCH DECLARATION SUPPORTING UNITED STATES’ MOTION FOR SUMMARY JUDGMENT PAGE 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PHILLIP A. TALBERT United States Attorney VICTORIA L. BOESCH Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 victoria.boesch@usdoj.gov Attorneys for the United States IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JEAN MARC VAN DEN HEUVEL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. CASE NO. 2:15-cv-01698-TLN-EFB (PS) DECLARATION OF VICTORIA L. BOESCH SUPPORTING UNITED STATES’ MOTION FOR SUMMARY JUDGMENT DATE: June 7, 2017 TIME: 10:00 a.m. JUDGE: Hon. Edmund F. Brennan CTRM: 8, 13th Floor I, Victoria L. Boesch, declare as follows: 1. I am an Assistant United States Attorney for the Eastern District of California and I represent the United States of America in Jean Marc Van Den Heuvel v. United States of America, No. 2:15-cv-01698-TLN-EFB (PS). 2. I have received no expert reports from Plaintiff Van Den Heuvel to support allegations that Dr. Sinclair’s root canal treatment fell below the applicable standard of care or that a breach in the standard of care caused injury to Plaintiff. 3. Attached as Exhibit A is a transcript of the September 21, 2016 scheduling conference that I attended for this case. 4. Attached as Exhibit B are excerpts from the transcript of Plaintiff Van Den Heuvel’s October Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 1 of 54 BOESCH DECLARATION SUPPORTING UNITED STATES’ MOTION FOR SUMMARY JUDGMENT PAGE 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27, 2016 deposition that I attended. 5. Attached as Exhibit C is an email with attachments that I sent to Plaintiff Van Den Heuvel on September 21, 2016. Executed this 4th day of May, 2017. /s/ Victoria L. Boesch Victoria L. Boesch Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 2 of 54 EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 3 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA --o0o-- JEAN MARC VAN den HEUVEL, ) Case No. 2:15-cv-01698-TLN-EFB ) Plaintiff, ) Sacramento, California ) Wednesday, September 21, 2016 vs. ) 10:10 A.M. ) UNITED STATES OF AMERICA, ) Hearing re: initial et al., ) scheduling conference. ) Defendants. ) ) TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE APPEARANCES: For Plaintiff: JEAN MARC VAN den HEUVEL, Pro Se 5356 Reservoir Road Georgetown, CA 95634 For Defendant USA: VICTORIA L. BOESCH U.S. Attorney's Office 501 I Street, Suite 10-100 Sacramento, CA 95814 (916) 554-2700 Court Recorder: (UNMONITORED) U.S. District Court 501 I Street, Suite 4-200 Sacramento, CA 95814 (916) 930-4193 Transcription Service: Petrilla Reporting & Transcription 5002 - 61st Street Sacramento, CA 95820 (916) 455-3887 Proceedings recorded by electronic sound recording; transcript produced by transcription service. EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 4 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 SACRAMENTO, CALIFORNIA, WED., SEPTEMBER 21, 2016, 10:10 A.M. THE CLERK: Calling Civil Case 15-01698-TLN, Van den Heuvel v. Sinclair, et al. Your Honor, we're on calendar today for initial scheduling conference. THE COURT: All right. Let's have your appearances please. MS. BOESCH: Good morning, Your Honor. Victoria Boesch on behalf of the United States. THE COURT: Good morning, Ms. Boesch. And you're Mr. Van den Heuvel? MR. VAN den HEUVEL: Correct, Mr. Van Den Heuvel; Jean Marc Van den Heuvel. THE COURT: All right. And good morning. MR. VAN den HEUVEL: Good morning to you. THE COURT: Okay. We have this on for a status conference. This was -- all right. This is an action for alleged negligent dental treatment that occurred at the Shingle Springs Health and Wellness Center, and was this originally filed against the dentist and the U.S. substituted in place? MS. BOESCH: Yes, Your Honor. THE COURT: All right. I have your joint report. It doesn't appear that there's any issue as to jurisdiction or venue. I see that the government does anticipate a motion for summary judgment. I won't schedule that now. Instead I'll EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 5 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 just give you a deadline for completion of all dispositive motions and you can file that motion whenever you think that that's appropriate to do so. As to initial disclosures, you're anticipating the initial disclosures to be completed by September 27, is that correct? MS. BOESCH: Yes, Your Honor. MR. VAN den HEUVEL: Well you know, did you receive my statement that was dropped off yesterday? THE COURT: I have before me only the joint report. Did you file something in addition to that? MR. VAN den HEUVEL: I dropped off an additional response to Ms. Victoria Boesch's statement yesterday. THE COURT: Did you give the government a copy of that? MR. VAN den HEUVEL: I did. I went up to the 10th floor and hand delivered it myself. Yeah. So it's just -- THE COURT: Just a minute. Nic, does it show on the docket? THE CLERK: Yes, sir. THE COURT: Can you print that? MR. VAN den HEUVEL: What I'd like to ask Your Honor is somehow to streamline this case because of course I had the stroke and then I also, I'm a carpenter and -- THE COURT: Why don't you give me a moment. Let me EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 6 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 read what you dropped off. MR. VAN den HEUVEL: Yeah. (Pause.) THE COURT: All right. Setting aside the argumentative language, this appears to be just a request that we get this thing scheduled on a track that is as expeditious as possible and that's what I intend to do. It might not be as fast as you'd like, but we're going to do the best we can. MR. VAN den HEUVEL: Well that's life and I understand that, and what I'd like to -- because I started this in the Superior Court of California in Cameron Park. THE COURT: Yeah. Let me get to the scheduling issues and we'll try to get you a schedule. MR. VAN den HEUVEL: Okay. Thank you, Your Honor. THE COURT: All right. Now I was on initial disclosures. Ms. Boesch, you anticipate having completed the government's initial disclosures and serve them by September 27, is that right? MS. BOESCH: Yes, Your Honor. We had agreed that we could exchange them by that date. THE COURT: All right. And Mr. Van -- would you pronounce your last name again? MR. VAN den HEUVEL: Van den Heuvel? THE COURT: Van den Hoovel [sic]? MR. VAN den HEUVEL: Yeah. Van den Heuvel. That EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 7 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 means from the hill in Flemish. THE COURT: Okay. I'm going to do the best I can with that. MR. VAN den HEUVEL: Van den means from the and Heuvel is hill. THE COURT: All right. Now you're required under Rule 26 to disclose witnesses and exhibits that you know of or are aware of. Have you done that yet or do you -- MR. VAN den HEUVEL: Well they're -- in the initial reports all I have is a doctor's statements that I went to for the care of the problematic dental root canal that Dr. Sinclair tried to perform and that went terribly wrong. THE COURT: Okay. I don't need all the details, just I need to know whether you're working on that. MR. VAN den HEUVEL: Yeah. So I don't know what it takes to -- what steps have to go to bring those causes to the court and it's just written reports. THE COURT: Okay. Have you looked at Rule 26 of the Federal Rules of Civil Procedure? MR. VAN den HEUVEL: No. THE COURT: All right. You need to do that. Even though you're representing yourself you still have to comply with the rules. MR. VAN den HEUVEL: Yeah. I'm learning slowly, but I'm becoming -- EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 8 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 THE COURT: All right. Go to the library, read Rule 26 and you need to comply with it. MR. VAN den HEUVEL: Okay. THE COURT: I'm going to set a deadline for the initial disclosures. They're to be completed by September 27. MR. VAN den HEUVEL: That's this month, that's in a few days. THE COURT: Yes. It's coming up. MR. VAN den HEUVEL: Yeah. THE COURT: All right. Now as to disclosure of expert witnesses, I'm going to set some deadlines for those and then I'm going to talk to you a little bit about what you're supposed to do. MR. VAN den HEUVEL: Thank you. THE COURT: All right. The plaintiff's expert disclosures are to be made by November 18, 2016. The defense expert disclosures are to be done by December 16, and rebuttal disclosures by January 20, 2017. MR. VAN den HEUVEL: Can you print out -- excuse me. Can you print out those statements for me that you're -- because I don't have a pencil or a pen to write with right now. THE COURT: Would you give him a pen? Thank you. Do you have a piece of paper in front of you? MR. VAN den HEUVEL: I have paper. Yeah. THE COURT: All right. My clerk is handing you a EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 9 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 pen. MR. VAN den HEUVEL: Thank you, sir. Okay. So what's the first one? THE COURT: All right. Well let's back up. I gave you a deadline for initial disclosures; that's September 27, 2016. Your expert disclosures have to be made by November 18 -- MR. VAN den HEUVEL: September 16th? I have a hard time writing that, so -- THE COURT: Well let me make it easier for you. You're going to receive a written order that will have all these dates in it. MR. VAN den HEUVEL: Oh, I will. So that's good to be aware of. So you're going to kindly mail that to my address? THE COURT: Yes. MR. VAN den HEUVEL: Okay. THE COURT: That'll be mailed to whatever address of record we have. MR. VAN den HEUVEL: Then I won't fight with my hand right now in writing. THE COURT: All right. Now what you're required to do in the expert disclosures is to disclose to the government who your expert witness is, or witnesses if there's more than EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 10 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 one, and whoever that person is that you disclose has to have a report that's prepared and sets forth whatever their expert opinions are as to your case, and all of that's to be done by November 18. In addition to that, your expert should be fully prepared and ready for deposition on November 18. MR. VAN den HEUVEL: I don't think that's going to be possible. They're professional working doctors. THE COURT: Have you already consulted with an expert? MR. VAN den HEUVEL: Well I tried to. The dental industry is kind of -- it's kind of a brotherhood and they -- THE COURT: All right. Well let me just say this, if you need more time we'll try to adjust the date and give you more time. MR. VAN den HEUVEL: I appreciate that. It's a pleasant new surprise for me today, so I'm willing to go abide by the orders of the Court, but -- THE COURT: Well you see on the one hand you're asking for an expeditious schedule and you want this case on a fast track, but on the other hand you're telling me that you want more time to get things done. So if you want more time I'm going to give that to you -- MR. VAN den HEUVEL: Exactly. THE COURT: -- but I want you to understand that to EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 11 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 do that, that means it's going to take a little longer to get this case scheduled. MR. VAN den HEUVEL: Well I don't mind that because I have other legal battles going on at the same time, so the more time that you can present for me, that would be gracious and in my favor. So we'll take it slow -- THE COURT: How much additional time do you need to be able to disclose an expert witness? MR. VAN den HEUVEL: Well as much time as you're willing to put in for me to get it together. Yeah. THE COURT: Well if you need more time I can extend that by 30 days. Does that give you enough time if I move it to the end of December? MR. VAN den HEUVEL: Well that would be fine. That will be the time line that I have to comply to. THE COURT: All right. Nic, if we add 30 days to that it takes us to what date? THE CLERK: It would be December 19th, sir. MR. VAN den HEUVEL: And you're going to send me a printout of that there? THE COURT: Yes. And Nic, if we add 30 days to the defendants' disclosure that takes us to what date? THE CLERK: That would be January 19th. MR. VAN den HEUVEL: Okay. EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 12 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 THE COURT: And the rebuttal disclosure, if we added 30 days to it? THE CLERK: February 21st. The 20th's on a holiday, sir. THE COURT: All right. And I -- on the first one you said December what date? THE CLERK: Nineteenth, sir. THE COURT: All right. Then I'm revising the schedule for disclosure of experts as follows. The plaintiff's will be due December 19, the defendants' is due January 19 and the rebuttal is due February 21. And I want to caution you that you need to get moving on that because this is -- you're alleging professional negligence and to be able to prevail on that claim, it's going to require expert medical testimony. MR. VAN den HEUVEL: Well I had no idea, but I know now. THE COURT: All right. Now let's talk about the discovery cutoff date. I was going to impose February 24, but I need to add 30 days to that. Nic, what would 30 days later be? THE CLERK: March 24th, sir. THE COURT: March 24? THE CLERK: Yes, sir. THE COURT: All right. Your discovery cutoff date EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 13 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 will be March 24, 2017. MR. VAN den HEUVEL: Okay. THE COURT: And when you receive the order, read it carefully because it's going to tell you what that means and it's important that you understand that all discovery has to be completed and any motions to compel discovery have to have already been filed, and heard and decided by the Court and the order complied with; that all has to be done by March 24, 2017. All right. Let's set a dispositive law and motion date. I was going to go with May 11, but let's add 30 days to that. THE CLERK: June 12th, sir. THE COURT: All right. Your law and motion cutoff date is June 12. That will be the deadline for hearing any motions to -- motions for summary judgment, motions for dismissal; any dispositive motion. All right. Your final pretrial conference, that will be on October 5, 2017 at 2:00 p.m. and this is not a consent case, so that will be before Judge -- is it Judge Nunley, is that correct? MS. BOESCH: I believe that is correct, Your Honor. THE COURT: All right. And that's in courtroom two -- courtroom No. 2. All right. And your trial date is December 4, 2017 at 9:00 a.m. also in courtroom No. 2 and that's also before EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 14 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Judge Nunley. And the plaintiff indicates that there was a jury demand -- or at least the joint report indicates that there was a jury demand, but this is -- the exclusive remedy here is under the Federal Tort Claims Act, is that right? MS. BOESCH: That is correct, Your Honor. THE COURT: All right. So there's no waiver of immunity for a jury trial. This case will be a bench trial before Judge Nunley. All right. Your report indicates that an early settlement conference might be useful, and if you both request it I will set you for a settlement conference. What is your view of that, Mr. -- MR. VAN den HEUVEL: That would be fine. THE COURT: All right. I don't -- MS. BOESCH: Your Honor, if I might? The United States is certainly willing to participate in a settlement conference. I want to make sure that we're clear, because Mr. Van den Heuvel is representing himself, we don't see any evidence of negligence here and so I just don't want to set up any false expectations. We are happy to come, but we want to be clear. MR. VAN den HEUVEL: Well I'm going to get it together for the Court. I'm going to do -- I'm going to follow the orders and to have it here by the date of the -- EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 15 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 THE COURT: Have there been any -- without going into any details at all, I don't want you disclose any kind of numbers to me, but have there been any offers and counter offers? Have you gotten that far along yet? MS. BOESCH: No, Your Honor. MR. VAN den HEUVEL: No. THE COURT: All right. Well if there's some possibility or there's some likelihood that a settlement conference would prove productive I'd like to get you on for an early settlement conference. On the other hand, I hate to impose on a colleague if there's no chance at all of the case settling. MR. VAN den HEUVEL: That would be fine with me. THE COURT: Well which? MR. VAN den HEUVEL: The settlement conference. Yeah. I'm agreeable to all things. THE COURT: Ms. Boesch? MS. BOESCH: Yes, Your Honor, we're willing to come to the conference. THE COURT: All right. Then I will -- if you like, you can waive my disqualification to serving as the settlement judge as I'm assigned on the case. If you don't want to do that, that's fine. I can ask one of the other magistrate judges to hear the settlement conference. I'm happy to do it either way. EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 16 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 MR. VAN den HEUVEL: I like you. MS. BOESCH: We like you too, Your Honor. The United States -- THE COURT: I don't take it personally. MS. BOESCH: -- would prefer to use a judge who will not have to make decisions on the case. THE COURT: Okay. Then we'll assign it to another magistrate judge for the settlement conference. I'll get a date for that and we'll include that in the order. MS. BOESCH: Thank you, Your Honor. THE COURT: All right. Is there anything else that we should be addressing this morning? MR. VAN den HEUVEL: Oh, I don't have any requests. I just want to wish you a good day today. THE COURT: All right. Likewise. Thank you. MR. VAN den HEUVEL: Yeah. MS. BOESCH: Thank you, Your Honor. MR. VAN den HEUVEL: And thank you for your time today. (Whereupon the hearing in the above-entitled matter was adjourned at 10:27 a.m.) --o0o-- EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 17 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 CERTIFICATE I certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the above- entitled matter. /s/ Jennifer Barris February 16, 2017 Jennifer Barris, Transcriber AAERT CET*668 EXHIBIT A Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 18 of 54 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 19 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 - - - - - - - - - - - - - 5 JEAN MARC VAN DEN HEUVEL, ) 6 Plaintiff, ) CASE NO. 7 V. ) 2:15-cv-01698 TLN EFB 8 UNITED STATES OF AMERICA, ) 9 Defendant. ) 10 - - - - - - - - - - - - - 11 12 13 14 DEPOSITION OF JEAN MARC VAN DEN HEUVEL 15 THURSDAY, OCTOBER 27, 2016 16 17 18 19 20 21 BEHMKE REPORTING AND VIDEO SERVICES, INC. 22 BY: DEBRA P. CODIGA, CSR NO. 5647 23 160 SPEAR STREET, SUITE 300 24 SAN FRANCISCO, CALIFORNIA 94105 25 (415) 597-5600 1 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 20 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 2 3 4 5 6 7 8 Deposition of JEAN MARC VAN DEN HEUVEL, taken 9 on behalf of Defendant, at U.S. Department of Justice, 10 United States Attorney's Office, Eastern District of 11 California, 501 I Street, Suite 10-100, Sacramento, 12 California, commencing at 9:50 A.M. on THURSDAY, 13 OCTOBER 27, 2016, before Debra P. Codiga, Certified 14 Shorthand Reporter No. 5647, pursuant to Notice of 15 Deposition. 16 17 18 19 20 21 22 23 24 25 2 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 21 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 APPEARANCES OF COUNSEL: 2 FOR PLAINTIFF JEAN MARC VAN DEN HEUVEL: 3 JEAN MARC VAN HEUVEL, IN PRO SE 4 5356 Reservoir Road 5 Georgetown, California 95634 6 Telephone: (530) 346-7776 7 Email: jeanmarc57@juno.com 8 9 FOR DEFENDANT UNITED STATES OF AMERICA: 10 U.S. DEPARTMENT OF JUSTICE 11 UNITED STATES ATTORNEY'S OFFICE 12 EASTERN DISTRICT OF CALIFORNIA 13 BY: VICTORIA L. BOESCH, ASSISTANT U.S. ATTORNEY 14 501 I Street, Suite 10-100 15 Sacramento, California 95814 16 Telephone: (916) 554-2700 17 Email: victoria.boesch@usdoj.gov 18 19 ALSO PRESENT: 20 MILTON TOPPINGS, COURT SECURITY OFFICER 21 JAY Van DYCK, COURT SECURITY OFFICER 22 STEVE WEINRICH, COURT SECURITY OFFICER 23 24 25 3 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 22 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 INDEX 2 THURSDAY, OCTOBER 27, 2016 3 JEAN MARC VAN DEN HEUVEL PAGE 4 Examination by MS. BOESCH 7 5 6 7 --o0o-- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 23 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 EXHIBITS 2 JEAN MARC VAN DEN HEUVEL 3 Number Description Page 4 Exhibit 1 Order to Show Cause, USDC No. 5 2:15-cv-1698-KJM-KJN PS - 31 pages 49 6 Exhibit 2 Claim for Damage, Injury, or Death 7 dated 12/3/14 - 1 page 80 8 Exhibit 3 Claim for Damage, Injury, or Death 9 dated 8/4/15 - 2 pages 82 10 Exhibit 4 Letter from Jean Marc Van den Heuvel 11 to "Dear administrator" dated 12 12/24/14, "Subject: Tooth #3 13 several items," - 3 pages 85 14 Exhibit 5 Letter from Jean Marc Van den Heuvel 15 to "Dear Sirs or Madams" dated 16 1/29/15, "Subject: Dental Work @ 17 Tribal Clinic," with attachment, 18 - 2 pages 89 19 Exhibit 6 Disclosures Concerning Dental Case 20 Order By The Judge Kendal J. Newman, 21 USDC Case No. 2:15-cv-01698-KJM-KJN, 22 - 2 pages 90 23 24 25 5 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 24 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 EXHIBITS - (CONTINUED) 2 JEAN MARC VAN DEN HEUVEL 3 Number Description Page 4 Exhibit 7 Plaintiff's Requested Monetary 5 Statements & Justified Measures of 6 Stated Listed Injuries & Justified 7 Values of Case, USDC Case No. 8 2:15-cv-01698-TLN - 3 pages 97 9 Exhibit 8 Trial Brief Small Claims Case No. 10 PS 6220140050 dated 4/11/14 - 2 pages 101 11 Exhibit 9 Plaintiff's Claim and Order to Go to 12 Small Claims Court No. PS620140050 13 - 5 pages 103 14 Exhibit 10 Letter from Kasey Lonbaken, RN, 15 Executive Director, to Jean Marc 16 Van den Heuvel, "RE: Service at 17 Tribal Health Clinic," dated 18 11/26/13 - 1 page 103 19 20 21 22 23 24 25 6 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 25 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 THURSDAY, OCTOBER 27, 2016; 9:50 A.M. 2 3 JEAN MARC VAN DEN HEUVEL, 4 having been first duly sworn testified, as follows: 5 6 (Milton Topping, Court Security Officer, is 7 present.) 8 THE WITNESS: What do you want to know? 9 EXAMINATION 10 BY MS. BOESCH: 11 Q. Okay. To begin, Mr. Van den Heuvel, I'm just 12 going to go through sort of some of the ground rules of 13 a deposition so we both understand the same thing. 14 Okay? 15 A. Well ... 16 Q. Okay. Let me actually first have you just 17 state and spell your name for the record. 18 A. My name is Jean Marc Van den Heuvel. And it's 19 spelled J-e-a-n; new word, capital M-a-r-c; another new 20 word, capital V-a-n; new word, small d-e-n; another new 21 word, capital H-e-u-v-e-l. 22 Q. Okay. Thank you. 23 A. Yeah. 24 Q. So have you ever had your deposition taken 25 before? 7 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 26 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 said earlier. 2 You said "you have their statements," and I 3 think what you mean by that is that we went over the 4 letters from those dentists that are attached to your 5 complaint. 6 Is that what you're referring to when you say 7 "their statements"? 8 A. Yeah. 9 Q. Okay. 10 A. Yeah. 11 Q. And you don't have any other statements from 12 them that you've not provided to me, do you? 13 A. No. 14 Q. Okay. I just want to make sure that we're 15 talking about the same thing. 16 So you can put aside Exhibit 6. 17 And you recall, Mr. Van den Heuvel, I gave you 18 a copy of Federal Rule of Civil Procedure 26? Do you 19 remember that? 20 A. I remember that. I haven't been able to 21 process it, you know. I haven't looked at it very 22 closely because I was busy with this unlawful detainer. 23 Q. You understand that you -- 24 A. I can put this away too? 25 Q. You can put that in that pile, yes. 94 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 27 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 You understand that, as the judge mentioned at 2 our status conference, expert testimony is required to 3 prove a dental malpractice claim. 4 You understand that; right? 5 A. Yeah. 6 Q. And you understand that Federal Rule of Civil 7 Procedure 26 covers the requirements for expert 8 witnesses; right? 9 A. Well, I don't understand that because I -- 10 I've just admitted to you I haven't had a chance to 11 review it because my life has been an ongoing, you 12 know, dramatic movie. 13 Q. Fair enough. And I'm not asking you -- 14 A. Yeah. 15 Q. -- to -- 16 A. Okay. 17 Q. -- to tell me what it requires right here. 18 A. Well, you're -- you're telling me the content 19 of it is in your -- is -- is in there, and it's 20 describing what is -- what the requirements of the 21 Rule 26 are. 22 And I'm -- I'm answering that I -- that, with 23 all due respect, I haven't had a chance to even look at 24 that because I've been busy fighting a different -- 25 different battles in different arenas. Okay? 95 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 28 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 Q. So fair enough. I'm not asking you -- 2 A. Yeah. 3 Q. -- the content of Rule 26. 4 A. Yeah. 5 Q. You may remember the judge, at our status 6 conference, told you both that expert testimony is 7 required and that Rule 26 is where you find the rules 8 for that. 9 Do you remember that? 10 A. I -- I remember that. Yeah. 11 Q. Okay. And so all I'm trying to establish is 12 that you know that Rule 26 establishes the rules for 13 expert testimony; is that right? 14 A. If you say. Yeah. If you're say -- if you're 15 implying that. Yeah. 16 Q. And I just want to establish that I've given 17 you a copy of Rule 26. 18 A. Yeah. 19 Q. Correct? 20 A. Yeah. You have it. I have it. You -- you 21 have given it to me. Yeah. 22 Q. Okay. And you understand that your expert 23 disclosures in this case are due December 19th, 2016; 24 correct? 25 A. Thanks for the reminder. 96 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 29 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 Q. All right. So I'm going to hand you a 2 document. 3 Did you have a document you wanted to look at? 4 A. I'm going to go write that down on 5 December 26th. 6 Q. I think it was December 19th. 7 A. Oh, December 19th. 8 Q. So that's in the court's scheduling order is 9 where I'm getting that date from. 10 A. Disclosures -- oh, gosh. I forgot the "l." I 11 have a -- I put letters before other letters because of 12 my stroke. This medical -- medical reviews thereof 13 due -- what time is it due at United States court? 14 Q. So expert disclosures. You're disclosing them 15 to me. 16 A. Oh, I'm disclosing them to you, Victoria 17 Boesch. 18 Q. Correct. 19 A. Okay. So that's a long time away. I hope we 20 can maybe settle it before then so we can get -- maybe 21 you can do some Christmas shopping. 22 Q. So right now I'm going to hand you a document 23 that I've marked as Exhibit 7. 24 (Exhibit 7 marked.) 25 BY MS. BOESCH: 97 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 30 of 54 BEHMKE REPORTING AND VIDEO SERVICES, INC. (415) 597-5600 1 REPORTER'S CERTIFICATE 2 3 I hereby certify that the witness in the 4 foregoing deposition, 5 JEAN MARC VAN DEN HEUVEL, 6 was by me duly sworn to testify to the truth, the whole 7 truth, and nothing but the truth, in the 8 within-entitled cause; that said deposition was taken 9 at the time and place herein named; that the testimony 10 of the witness was reported by me, a duly certified 11 shorthand reporter; that it was thereafter transcribed 12 into typewriting; and that the transcript is a true 13 record of the testimony given. 14 Pursuant to Federal Rule 30(e), transcript 15 review was requested. 16 I further certify that I am not financially 17 interested in the action, nor a relative or employee of 18 any attorney or any party to the action. 19 Dated: November 7, 2016 20 21 22 23 DEBRA P. CODIGA, CSR #5647 24 STATE OF CALIFORNIA 25 113 EXHIBIT B Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 31 of 54 EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 32 of 54 1 Boesch, Victoria (USACAE) From: Boesch, Victoria (USACAE) Sent: Wednesday, September 21, 2016 11:42 AM To: jeanmarc57@juno.com Subject: Van Den Heuvel v. United States Attachments: 9.21.16 Ltr to VDH re Rule 26 & Depo.pdf; Rule 26 Duty to Disclose General Provisions Governing Discovery.pdf Please see the attached correspondence. Victoria L. Boesch | Assistant United States Attorney | Eastern District of California Robert T. Matsui United States Courthouse | 501 I Street, Suite 10‐100 | Sacramento, CA 95814 t 916‐554‐2743 | f 916‐554‐2900 | e Victoria.Boesch@usdoj.gov CONFIDENTIALITY NOTICE: This communication with its contents and attachments, if any, may contain confidential, law enforcement sensitive, privileged attorney/client communications or work products, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this email in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 33 of 54 U.S. DEPARTMENT OF JUSTICE United States Attorney Eastern District of California Phillip A. Talbert Acting United States Attorney 501 I Street, Suite 10-100 Phone 916/554-2700 Sacramento, CA 95814 Fax 916/554-2900 TTD 916/554-2855 September 21, 2016 VIA ELECTRONIC MAIL & U.S. MAIL Jean Marc Van Den Heuvel 4131 Zdolsek Place Greenwood, CA 95635 Jeanmarc57@juno.com Re: Van Den Heuvel v. United States, 2:15-cv-1698-KJM-KJN PS (E.D. Cal.) Dear Mr. Van Den Heuvel: I write to follow up on our discussion after the court status conference today. As discussed, I would like to set a mutually convenient date for your deposition. I propose October 27 or October 28 at 10 a.m. Please let me know whether one of these dates will work for you. As the Judge stated during our hearing today, the initial disclosures that we are to exchange next week on September 27, 2016, are governed by Federal Rule of Civil Procedure 26. As a courtesy, I include a copy of that rule and refer you to Rule 26(a)(1). It describes initial disclosures and states that they are to include (1) witnesses you may use to support your claim, (2) documents you may use to support your claim, and (3) a computation of any damages that you claim. Also as a courtesy, I note that Rule 26(a)(2) governs the requirements for the expert disclosures that the Judge spoke about during our hearing today. I can be reached at (916) 554-2743. Thank you. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 34 of 54 2 By: Sincerely, PHILLIP A. TALBERT Acting United States Attorney /s/ Victoria L. Boesch Encl. As stated. Victoria L. Boesch Assistant United States Attorney EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 35 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 United States Code Annotated Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos) Title V. Disclosures and Discovery (Refs & Annos) Federal Rules of Civil Procedure Rule 26 Rule 26. Duty to Disclose; General Provisions Governing Discovery Currentness (a) Required Disclosures. (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 36 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 (ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure: (i) an action for review on an administrative record; (ii) a forfeiture action in rem arising from a federal statute; (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence; (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision; EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 37 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 (v) an action to enforce or quash an administrative summons or subpoena; (vi) an action by the United States to recover benefit payments; (vii) an action by the United States to collect on a student loan guaranteed by the United States; (viii) a proceeding ancillary to a proceeding in another court; and (ix) an action to enforce an arbitration award. (C) Time for Initial Disclosures--In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure. (D) Time for Initial Disclosures--For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. (E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 38 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 39 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure. (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e). (3) Pretrial Disclosures. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 40 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 (A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment: (i) the name and, if not previously provided, the address and telephone number of each witness--separately identifying those the party expects to present and those it may call if the need arises; (ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and (iii) an identification of each document or other exhibit, including summaries of other evidence--separately identifying those items the party expects to offer and those it may offer if the need arises. (B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made--except for one under Federal Rule of Evidence 402 or 403--is waived unless excused by the court for good cause. (4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served. (b) Discovery Scope and Limits. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 41 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. (2) Limitations on Frequency and Extent. (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 42 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). (3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved; or EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 43 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 (ii) a contemporaneous stenographic, mechanical, electrical, or other recording--or a transcription of it--that recites substantially verbatim the person’s oral statement. (4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 44 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions. (5) Claiming Privilege or Protecting Trial-Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 45 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 (i) expressly make the claim; and (ii)describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. (c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending -- or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 46 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses. (d) Timing and Sequence of Discovery. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 47 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. (2) Early Rule 34 Requests. (A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served. (B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference. (3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 48 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 (e) Supplementing Disclosures and Responses. (1) In General. A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due. (f) Conference of the Parties; Planning for Discovery. (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable--and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). (2) Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 49 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on: (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; (C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including -- if the parties agree on a procedure to assert these claims after production -- whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502; (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 50 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 (4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule: (A) require the parties’ conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties’ conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. (g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name--or by the party personally, if unrepresented--and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 51 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. (2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention. (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation. CREDIT(S) (Amended December 27, 1946, effective March 19, 1948; January 21, 1963, effective July 1, 1963; February 28, 1966, effective July 1, 1966; March 30, 1970, effective July 1, 1970; April 29, 1980, effective August 1, 1980; April 28, 1983, effective August 1, 1983; March 2, 1987, effective August 1, 1987; April 22, 1993, effective December 1, 1993; April 17, 2000, effective December 1, 2000; April 12, 2006, effective December 1, 2006; April 30, 2007, effective December 1, 2007; April 28, 2010, effective December 1, 2010; April 29, 2015, effective December 1, 2015.) Fed. Rules Civ. Proc. Rule 26, 28 U.S.C.A., FRCP Rule 26 Including Amendments Received Through 8-1-16 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 52 of 54 Rule 26. Duty to Disclose; General Provisions Governing Discovery, FRCP Rule 26 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 18 EXHIBIT C Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 53 of 54 BOESCH DECLARATION SUPPORTING UNITED STATES’ MOTION FOR SUMMARY JUDGMENT PAGE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAIL The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Eastern District of California and is a person of such age and discretion to be competent to serve papers; that on May 4, 2017, she served a copy of DECLARATION OF VICTORIA L. BOESCH SUPPORTING UNITED STATES’ MOTION FOR SUMMARY JUDGMENT by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s) and address(es) stated below, which is/are the last known address(es), and by depositing said envelope and its contents in the United States Mail at Sacramento, California. Addressee(s): JEAN MARC VAN DEN HEUVEL 5356 Reservoir Road Georgetown, CA 95634 /s/ Pamela Beauvais PAMELA BEAUVAIS Case 2:15-cv-01698-TLN-EFB Document 42-4 Filed 05/04/17 Page 54 of 54