[00:00:00] Speaker 02:
And the last case we have is the state of Jotina Carter versus Cambridge Sarah Holdings, case number 24-3071.

[00:00:08] Speaker 02:
Good morning.

[00:00:13] Speaker 04:
May it please the court?

[00:00:16] Speaker 02:
Give me one moment, counsel, while I think counsel is setting up at the table.

[00:00:39] Speaker 02:
Okay, I think we're ready to begin.

[00:00:41] Speaker 04:
Okay, yeah.

[00:00:42] Speaker 04:
Good morning.

[00:00:42] Speaker 04:
May it please the court, Chijoke Ikonte, for the plaintiff's appellant, estate of Jatana et al.

[00:00:50] Speaker 04:
I'd like to reserve two minutes for a bottle.

[00:00:54] Speaker 04:
Okay.

[00:00:54] Speaker 04:
The district court – the court should reverse the grant of summary judgment.

[00:01:00] Speaker 04:
because in granting summary judgment, the district court failed to follow the other case and the cellotex.

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In other case, the court stated that a party opposing a motion for summary judgment would not need to present any evidence if the

[00:01:28] Speaker 04:
moving party had failed to present any admissible evidence.

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Also in the cellotext, where the court said summary judgment can be granted, if the initial, if the party moving for summary judgment had met its birthing by showing through the pleadings, discovery responses, answers to interrogatories, that evidence does not exist to support the claims in the lawsuit.

[00:01:56] Speaker 04:
that it's not, that standard was not met in this case.

[00:02:02] Speaker 04:
Further, the district court heard in ignoring the fact that the plaintiffs in this case invoked the doctrine of res ipsa loquitur in arguing that COVID-19 or coronavirus

[00:02:20] Speaker 04:
does not just get infected without an affirmative act or something that was done by a party.

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Does this cross ignore that?

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Also, though there is no counter cross appeal in this case, but if the court would want to address the issue of COVID-19,

[00:02:42] Speaker 04:
Our position is that the district court properly ignored any arguments that relates to COVID-19 because simply what was involved in this case were inaction.

[00:02:56] Speaker 02:
Mr. Ikwonte, is it fair to say that the record doesn't shed light on where Ms.

[00:03:04] Speaker 02:
Carter was exposed to COVID-19?

[00:03:10] Speaker 02:
I mean, do we know if it happened at the nursing home versus Kaiser or somewhere else?

[00:03:17] Speaker 02:
Is there any way to know one way or the other where the transmission occurred?

[00:03:24] Speaker 04:
Yes, you know, one thing we know, I mean, it's at this stage, summary judgment stage, one thing we know was that when Ms.

[00:03:31] Speaker 04:
Carter was admitted to the facility, she was COVID-19 negative.

[00:03:38] Speaker 04:
By the time she got to Kaiser and was tested on April 14, she was now COVID-19 positive.

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The distress that led to her being transported to Kaiser occurred on April 13.

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So somehow between when she was admitted into the facility in

[00:03:59] Speaker 04:
March, on March 19, and when she was transported to Kaiser, she got COVID-19.

[00:04:06] Speaker 04:
There is no dispute that during that period, Ms.

[00:04:11] Speaker 04:
Carter was under the exclusive control of the facility.

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Also, the record, if you look at page volume five of the

[00:04:25] Speaker 04:
respondents' excerpts.

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If you look at page 1193, 1201, and 1203, they did acknowledge that Ms.

[00:04:36] Speaker 04:
Carter was receiving therapy in her room because some patient had been exposed to COVID-19.

[00:04:45] Speaker 04:
The record did not say that Ms.

[00:04:46] Speaker 04:
Carter was receiving

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therapy in her room because she was COVID-19 positive.

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So as at March 19 and the period following March 19, she was not COVID-19.

[00:04:58] Speaker 04:
So she must have, I mean, at this stage, if we make that inference, I got into a place, I did not have COVID-19, I was there for a period of time, was diagnosed with COVID-19, then I think a fair inference from that was that she contracted COVID-19 in that facility.

[00:05:17] Speaker 03:
Does that mean that anybody at the facility was negligent?

[00:05:25] Speaker 04:
The matter of transmission of COVID-19 at that point, yes, because of the mode of transmission,

[00:05:36] Speaker 04:
of COVID-19.

[00:05:38] Speaker 04:
She has to have been exposed to COVID-19.

[00:05:42] Speaker 04:
The mechanism of COVID-19 transmission at that time is that you have to have contact with someone that has COVID-19, which was why at that period, people were wearing masks.

[00:05:54] Speaker 04:
There was issue of distance.

[00:05:58] Speaker 04:
You know, you don't get, I think it was three feet away.

[00:06:02] Speaker 04:
during that period.

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So yes, there has to be some negligence on the part of someone in the facility for that to have occurred.

[00:06:10] Speaker 03:
Well, do you know if is there anything in the record that shows that any of the workers at the facility who dealt with Ms.

[00:06:22] Speaker 03:
Carter either didn't wear a mask or had COVID or

[00:06:31] Speaker 03:
You know, something that shows that there was some duty of care that they breached.

[00:06:41] Speaker 04:
What we do know was there was a mass, there was COVID-19 in the facility during that period that resulted in fatalities.

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I mean, that's part of the record at that point.

[00:07:01] Speaker 04:
During that period of time, there was an infection that occurred.

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And as a result of that, some people who were infected actually died.

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So we know that happened during that period.

[00:07:22] Speaker 03:
But what you're saying is that they're responsible because she contacted

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She contracted COVID-19 while in the facility.

[00:07:32] Speaker 03:
That's really what your claim comes down to.

[00:07:34] Speaker 04:
The claims come down to the fact that they did not take care of her.

[00:07:42] Speaker 04:
There was inaction on their part, which resulted in her contracting COVID-19, because you don't just get COVID-19.

[00:07:49] Speaker 04:
And also, during the period she was there, there was a widespread COVID-19 infection in the facility that resulted in fatality.

[00:07:58] Speaker 03:
Well, what do you contend they should have done

[00:08:01] Speaker 03:
while she was there to avoid COVID.

[00:08:10] Speaker 04:
During the period that she was there, I mean, the record did not really show, but one of the things that they could have taken a step in prevention of COVID-19 was to minimize contact with anybody who has COVID-19.

[00:08:25] Speaker 04:
I mean, the fact that there was a widespread

[00:08:28] Speaker 04:
COVID-19 that resulted in fatality in the facility means they should have taken some affirmative steps to protect those vulnerable people who were in the facility.

[00:08:39] Speaker 01:
I mean, if we don't have that record.

[00:08:41] Speaker 01:
Respect to her roommates, I thought the record showed that Robbie Carter didn't have any information that any of the roommates ever had COVID-19.

[00:08:53] Speaker 01:
Is there anything in the record that

[00:08:56] Speaker 01:
supports her proximity to anyone with COVID-19?

[00:09:01] Speaker 04:
Well, none of our roommates had COVID.

[00:09:05] Speaker 04:
We do not have anything to show that any of our roommates had COVID-19.

[00:09:10] Speaker 04:
But it still goes back to what we were saying.

[00:09:13] Speaker 04:
How did she contract COVID-19?

[00:09:15] Speaker 04:
One, we're saying we can make the inference at this stage.

[00:09:19] Speaker 04:
Listen, there was a widespread COVID-19 in that facility resulting in fatalities.

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She was exposed to the staff members of that facility that were taking care of her.

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And during that period, she was not allowed visits from family members.

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So clearly, all her contacts were with the staff or the employee of the facility.

[00:09:46] Speaker 01:
So I credit your argument that they had a duty to this patient, of course, and to all of their residents.

[00:09:56] Speaker 01:
But then what was the breach of

[00:09:59] Speaker 01:
the duty.

[00:10:00] Speaker 01:
Is there any testimony that shows that their mitigation plan was insufficient given the state of COVID knowledge at the time or anything else that would show that the facility breached a duty of care?

[00:10:23] Speaker 04:
the state of the discovery in the case.

[00:10:26] Speaker 04:
We're saying there was a liberal resisting of discovery in providing that, but we did point out in one of the exhibits there that they, sorry, we did point out that the records, the policies and procedures they had in place was not really up to date at that point.

[00:10:52] Speaker 04:
I can see my time is up.

[00:10:56] Speaker 02:
Thank you.

[00:10:56] Speaker 02:
Let me see.

[00:10:58] Speaker 02:
We'll give you a little time for a bottle.

[00:11:00] Speaker 04:
Thank you.

[00:11:09] Speaker 00:
Good morning, your honors.

[00:11:10] Speaker 00:
May it please the court, Lon McIntyre, on behalf of the defendant and appellee, Cambridge Sierra Holdings.

[00:11:18] Speaker 00:
In this case, the case obviously involves the unfortunate death of Jotina Carter, who is a patient at the skilled nursing facility during the very early days of the COVID-19 pandemic.

[00:11:32] Speaker 00:
Unfortunately, she contracted COVID-19.

[00:11:36] Speaker 00:
The record doesn't establish where or how she contacted it.

[00:11:41] Speaker 00:
But on the evidence that was presented in this case, summary judgment was

[00:11:45] Speaker 00:
was properly granted and should be affirmed.

[00:11:48] Speaker 00:
With respect to the lack of evidence that was the basis for the summary judgment motion, the record sheds no light on really where Ms.

[00:11:59] Speaker 00:
Carter contracted COVID-19.

[00:12:02] Speaker 00:
We have medical records in the record that establish that at no point in time was she ever diagnosed with COVID-19.

[00:12:11] Speaker 00:
The facility had

[00:12:14] Speaker 00:
standing orders to observe her and take any precautions and use PPE as indicated.

[00:12:24] Speaker 00:
That's at SER 1380.

[00:12:27] Speaker 00:
They also ordered labs or COVID-19 testing if indicated or ordered on that same date, and that was at the beginning of her admission to the facility.

[00:12:40] Speaker 03:
When she arrived at the facility,

[00:12:44] Speaker 03:
Do records show that she was not tested or that she was or was not tested positive?

[00:12:51] Speaker 00:
The records show that there was no positive test at any time during her residency at the facility.

[00:12:57] Speaker 00:
And in fact, at the time that she transferred to, was transferred to Kaiser, the records established that her vital signs were normal.

[00:13:05] Speaker 00:
She was under no respiratory distress that could be a symptom of COVID.

[00:13:10] Speaker 00:
We just simply don't know whether she contracted.

[00:13:13] Speaker 01:
Where else would, you know, here's this individual.

[00:13:17] Speaker 01:
in this closed, she's like in a closed environment, correct?

[00:13:23] Speaker 01:
And even crediting that the Cambridge tries to do everything they can to prevent COVID, she arguably has no COVID symptoms or tests before she leaves.

[00:13:39] Speaker 01:
But then when she arrives at Kaiser, she does.

[00:13:44] Speaker 01:
So given the timing for

[00:13:47] Speaker 01:
contracting and showing symptoms.

[00:13:49] Speaker 01:
Is there any other explanation?

[00:13:52] Speaker 00:
Well, it could be that she contracted it from the paramedics who transferred her to the hospital.

[00:13:58] Speaker 00:
She could have contracted it.

[00:13:59] Speaker 01:
I mean, instantaneously upon admission, she's tested positive, right?

[00:14:05] Speaker 00:
I believe the day she arrived, she did test positive.

[00:14:09] Speaker 01:
So she goes from the facility into an ambulance or transport

[00:14:15] Speaker 01:
She arrives at Kaiser, she tests positive.

[00:14:19] Speaker 00:
I think that the point here is that there in fact is no evidence to establish exactly where she contracted it.

[00:14:26] Speaker 00:
It is possible that she contracted it in her transfer.

[00:14:29] Speaker 03:
It would be a reasonable inference that she contracted it at the facility.

[00:14:33] Speaker 00:
I don't know that it is, but more importantly, there's no evidence that that was the result of any negligence on the part of the facility.

[00:14:42] Speaker 01:
That seems to me to be the real question because she, you know, there didn't seem to be anywhere else she got it unless it, you know, came from heaven or something.

[00:14:49] Speaker 01:
So there she is and now she has COVID.

[00:14:52] Speaker 01:
So the question is really negligence.

[00:14:56] Speaker 01:
It boils down to negligence, obligation, duty of care, doesn't it?

[00:15:00] Speaker 00:
Yes, I mean I think that is the ultimate issue is that there was no evidence of any negligence on the part of the facility we have the medical records that indicate that she never tested positive although she was ordered to be observed and watched for any kind of symptoms and

[00:15:19] Speaker 00:
We have the deposition testimony of the three plaintiffs, the heirs, who indicated that they don't know how she got it.

[00:15:28] Speaker 00:
They don't know if her mother was ever in a room with a COVID positive roommate.

[00:15:33] Speaker 00:
They don't know if her mother was ever in contact with a COVID positive person at any time.

[00:15:38] Speaker 00:
They simply don't know how she got it.

[00:15:40] Speaker 00:
And in fact, Tracy Scott testified that no one in the family had ever suggested that she got it at the facility.

[00:15:47] Speaker 00:
We have the medical records establishing no sign of COVID.

[00:15:52] Speaker 00:
We also have the allegations of the third amended complaint, which are that she tested positive at the hospital.

[00:16:02] Speaker 00:
on 4-14-20, which I think could be an inference that she contracted it at the hospital.

[00:16:09] Speaker 00:
The other thing we have in evidence is that the facility had a COVID-19 mitigation manual and had an extensive robust infection prevention and control program.

[00:16:20] Speaker 00:
And plaintiffs, we have absolute absence of any discovery responses from plaintiffs to support that there was a breach of the duty of care that there was any negligence that occurred at the facility.

[00:16:32] Speaker 00:
They didn't respond to interrogatories that were propounded.

[00:16:36] Speaker 00:
And with respect to the request for admissions that were propounded, they simply responded, admit or deny, but without any factual basis, which under Federal Rule of Civil Procedure 36 can be a basis for deeming those requests for admissions to have been admitted.

[00:16:52] Speaker 00:
We also, you know, we contend that the expert and non-expert declarations were improperly excluded, but certainly in any event, even if the experts were properly excluded, the non-expert declarations should not have been.

[00:17:09] Speaker 00:
It was not part of their objections to or statements in response to the separate statement of facts.

[00:17:15] Speaker 00:
Both of those individuals Mr.. De Jesus and Mr.. Campbell Testified about the robust infection prevention protocol and the use of PPE and the fact that you know I mean those were excluded because of the failure to Identify them in rule 26 disclosures is that right is that issue even before us?

[00:17:35] Speaker 02:
I mean there's no cross-appeal is that something we would even consider I?

[00:17:39] Speaker 00:
I think we do consider it because they were evidentiary objections that were made at the summary judgment motion, and the court were contending that the court abused its discretion in making those evidentiary rulings.

[00:17:50] Speaker 03:
I thought the district would say, well, I'm not ruling.

[00:17:52] Speaker 03:
That doesn't make any difference to my ruling anyway.

[00:17:56] Speaker 03:
Isn't that what the district court said?

[00:17:57] Speaker 03:
Correct.

[00:17:58] Speaker 00:
Correct.

[00:17:58] Speaker 00:
The district court did not rely on it.

[00:18:01] Speaker 01:
So it's a wash.

[00:18:02] Speaker 01:
Yeah.

[00:18:02] Speaker 00:
Yeah.

[00:18:03] Speaker 03:
But I mean, I think they do constitute, if improperly excluded... Well, all you have to do in this sort of situation is show that they can't, you know, they have to come forward with some evidence to show that they can make their burden.

[00:18:18] Speaker 03:
Right.

[00:18:18] Speaker 03:
Right?

[00:18:19] Speaker 03:
And they did not.

[00:18:20] Speaker 03:
We should... So they didn't take any depositions of the caretakers who had control over her or...?

[00:18:26] Speaker 00:
Correct.

[00:18:28] Speaker 00:
Their sole and exclusive response to the summary judgment motion was that the supporting declarations were improper and should be excluded.

[00:18:36] Speaker 00:
The court did exclude them, and they made no further attempt to rebut.

[00:18:41] Speaker 03:
Well, they argued that the presumption, or the evidentiary presumption of race, if so, should apply.

[00:18:50] Speaker 00:
Yes, they made that legal argument.

[00:18:51] Speaker 03:
The district court said they didn't meet the three-part.

[00:18:54] Speaker 03:
They didn't satisfy the three-part test.

[00:18:55] Speaker 00:
That's correct.

[00:18:56] Speaker 00:
Yes, and the district court was correct on that with that.

[00:18:59] Speaker 00:
I think there's also another basis for affirming the summary judgment motion that we addressed in the briefing, and that's the issue of Prep Act immunity.

[00:19:08] Speaker 00:
And we do contend that, in this case, that plaintiffs' claims are about alleged inadequacies in the facility's infection control program, how much PPE was used, testing, whether it was properly or timely used, treatment, the manner and allocation of the infection control program, which includes covered countermeasures under the PREP Act.

[00:19:35] Speaker 00:
and we contend that those allegations fall squarely within the immunity provisions of the PREP Act.

[00:19:43] Speaker 00:
We are a covered person, this Court, in the Maney v. Brown decision, extended PREP Act immunity to program planners, which we are.

[00:19:53] Speaker 00:
The facility is considered to be a program planner in that it

[00:19:58] Speaker 00:
administers a program for application of administration of a countermeasure in their facility.

[00:20:06] Speaker 00:
And as this court said in the Mayne decision, immunity applies to policy level failure to administer claims.

[00:20:14] Speaker 00:
And we think that both, that that conclusion is absolutely appropriate.

[00:20:19] Speaker 00:
The statutory text supports the broad scope of the PREP Act immunity provision.

[00:20:25] Speaker 00:
Administration is broadly defined.

[00:20:28] Speaker 00:
Covered persons are broadly defined.

[00:20:30] Speaker 00:
All claims for loss is broadly defined.

[00:20:34] Speaker 00:
The term relating to in the statute that provides for immunity is also broadly defined.

[00:20:39] Speaker 00:
And as this court said in many, Congress used terms that plainly and unambiguously defined the broad scope of immunity.

[00:20:49] Speaker 02:
There was also an elder abuse claim, but I think that's not before us now, is it?

[00:20:55] Speaker 00:
I agree.

[00:20:56] Speaker 00:
It's been abandoned.

[00:20:57] Speaker 00:
It wasn't opposed in the opposition to the summary judgment motion.

[00:21:02] Speaker 00:
It was not raised on appeal.

[00:21:05] Speaker 00:
Unless the court has any other questions.

[00:21:09] Speaker 00:
I don't think so.

[00:21:09] Speaker 00:
Okay.

[00:21:10] Speaker 00:
Thank you, Your Honor.

[00:21:11] Speaker 02:
Thank you, counsel.

[00:21:13] Speaker 02:
Mr. Ikuente, we'll give you a couple of minutes for rebuttal.

[00:21:16] Speaker 04:
Okay, Your Honor.

[00:21:17] Speaker 04:
I think one of the issues we look at is what is our obligation when a party for moving for summary judgment fails to meet its initial burden.

[00:21:29] Speaker 04:
In striking the evidence that the party submitted in terms of form of their declaration,

[00:21:35] Speaker 04:
and they are both by experts and non-expert, we're left with nothing.

[00:21:42] Speaker 04:
And do we still have an obligation then to make an affirmative difference in terms of opposing the summary judgment?

[00:21:51] Speaker 04:
I think that going by our decades in cell ethics, we actually are not required to do anything and the court need not go further in

[00:22:01] Speaker 04:
evaluating the evidence that was presented since the moving party had failed to meet its initial burden.

[00:22:07] Speaker 04:
So we do not have any evidence that they have presented to either negate an element of our claim.

[00:22:15] Speaker 04:
for them to go forward with the summary judgment motion.

[00:22:23] Speaker 04:
Also, in terms of the elder abuse, we argued that since they failed, the moving party failed to meet its obligation under the law.

[00:22:37] Speaker 04:
then we are not required to make any affirmative showing.

[00:22:41] Speaker 04:
So I think that the court should look at it also.

[00:22:43] Speaker 04:
What is our obligation?

[00:22:44] Speaker 04:
What is the obligation of the non-moving party when the moving party fails to meet its initial burden?

[00:22:54] Speaker 04:
With that, I submit.

[00:22:56] Speaker 04:
Unless the court has any additional questions, I'll submit.

[00:22:58] Speaker 02:
Any questions?

[00:22:59] Speaker 02:
No.

[00:23:00] Speaker 02:
Thank you, counsel.

[00:23:01] Speaker 02:
Thank you both for your helpful arguments.

[00:23:02] Speaker 02:
The matter will stand submitted, and court is adjourned.