[00:00:09] Speaker 04:
Good morning.

[00:00:11] Speaker 04:
My name is Joy Bertrand.

[00:00:12] Speaker 04:
I represent the plaintiff appellant, Rubio Morales Alfaro.

[00:00:18] Speaker 04:
I would like to allocate 12 minutes to my opening argument and save eight minutes for rebuttal.

[00:00:23] Speaker 04:
I'll keep an eye on the clock.

[00:00:25] Speaker 04:
Okay, thank you.

[00:00:34] Speaker 04:
A woman walks up the beach just north of Tijuana looking for a CBP officer.

[00:00:39] Speaker 04:
to surrender to and ask for asylum.

[00:00:45] Speaker 04:
She has with her a backpack that has a couple snacks and a bottle of water and a pregnancy test and an ultrasound that she had received about a week before confirming she's pregnant.

[00:01:00] Speaker 04:
And she does find that CBP officer who she says shoved her to the ground and kicked her in the flank.

[00:01:09] Speaker 04:
When she is presented at the first of two immigration detention centers, she tells them immediately, I'm pregnant, they kick me, and I'm worried.

[00:01:21] Speaker 04:
I'm in pain and I'm scared for my baby.

[00:01:23] Speaker 04:
I think I need a doctor.

[00:01:26] Speaker 04:
And that is what sets off the events of this case.

[00:01:30] Speaker 03:
Because... Counsel, where is your client now?

[00:01:34] Speaker 03:
Is in Arkansas?

[00:01:37] Speaker 03:
Okay.

[00:01:38] Speaker 03:
I had a question about whether the forward-looking claims here for injunctive relief are moot because in order for her to bring those forward-looking claims, she would have to be in the exact same facility under the exact same conditions

[00:02:03] Speaker 03:
And I don't, it doesn't sound like that is the case.

[00:02:08] Speaker 03:
Not currently, no.

[00:02:09] Speaker 04:
She's currently out of custody.

[00:02:12] Speaker 04:
The government asked that the court take judicial notice and the court granted that request that there is a warrant that's been issued for her deportation warrant.

[00:02:22] Speaker 04:
And we supplemented that with new information that there's been a request to quash that.

[00:02:29] Speaker 04:
I'm not an immigration lawyer so I will tell you that's the extent of my knowledge about that proceeding.

[00:02:33] Speaker 04:
But I guess I would say, Your Honor, Melendrez versus Arpaio talks about this standing issue and forward-looking claims such as what Ms.

[00:02:46] Speaker 04:
Morello-Sofaro has brought here.

[00:02:48] Speaker 04:
And I would proffer to the court that she has a couple of reasons why she has standing to bring that claim.

[00:02:56] Speaker 04:
First, there's a real risk.

[00:03:00] Speaker 04:
that she could return.

[00:03:02] Speaker 04:
And she could return to, I can't guarantee where she would go, but there is a risk she could return to this facility.

[00:03:08] Speaker 01:
But where is that pleaded?

[00:03:11] Speaker 04:
It's pledged from the outset in her third, well, starting with her first amendment.

[00:03:16] Speaker 01:
That the same detention center operated by CoreCivic, that she's pleaded that she is likely to end up in the exact same place even though she's now in Arkansas.

[00:03:27] Speaker 03:
he's in arkansas now your honor that's correct i don't know where she'll end up she could end up in a ondc in san diego she could end up anywhere in the nation well that's why it's speculative that she would have it melendrez was all about one place this is about an infinite or very large number possible places if she is in fact re uh... re detained as opposed to

[00:03:56] Speaker 03:
removed.

[00:04:00] Speaker 04:
I would also suggest to the court that the relief that she was seeking, the prospective relief that she seeks does not apply simply to OMDC because what she talks about in her complaint starting with the First Amendment amended complaint and through the third amended is this is the condition

[00:04:22] Speaker 04:
Or pregnant women in immigration detention.

[00:04:25] Speaker 04:
This is a system-wide problem where ICE does not provide the care, the medical care necessary for the serious medical need and that these conditions go beyond simply the medical care and go into issues of unconstitutionally punitive conditions.

[00:04:45] Speaker 01:
So why isn't that more of a

[00:04:47] Speaker 01:
Practice and policy claim that I don't think is before us I mean so we're wearing your complaint should we look to find the best allegations we can rely on to find that she's still facing likelihood of these injuries She discusses this in the from the outside at let's I'm going to work off of the third amended complaint because that was the most recent one and that's the one that the district court made the rule 12 rulings on

[00:05:19] Speaker 04:
She discusses in her third amended complaint more than just a pattern, a policy.

[00:05:26] Speaker 04:
She's not simply objecting to a policy.

[00:05:30] Speaker 04:
She's saying this is what is in practice in these immigration detention centers.

[00:05:36] Speaker 04:
And she cites, for example, the Wolf litigation that happened in Arizona, where the Arizona District Court found those immigration detention conditions to be unconstitutionally punitive.

[00:05:50] Speaker 01:
So I'm sorry what what in the complaint shows that that your client is still facing likely injury from these conditions you'd said that she does in fact allege that she's likely to be back in this or perhaps some similar facility but where should we where can we find that in the complaint I didn't see it so I'm asking for your help with a site

[00:06:21] Speaker 04:
The third amended complaint discusses specifically the risk of her returning to immigration custody, and I believe cites the statistics about the odds of receiving asylum.

[00:06:33] Speaker 04:
And if she didn't receive the asylum, then she's back in immigration custody.

[00:06:37] Speaker 01:
OK, so it alleges custody generally, not here.

[00:06:40] Speaker 03:
Correct.

[00:06:40] Speaker 03:
And immigration custody could be brief.

[00:06:43] Speaker 03:
If she's actually removed from the country, she wouldn't be in detention.

[00:06:49] Speaker 03:
assuming that she is re-arrested.

[00:06:54] Speaker 04:
Your Honor, it could be brief and it could be lengthy.

[00:06:57] Speaker 04:
With what was the status of the case in 2021 when the third amended complaint was being evaluated, taking that complaint and the four corners of that complaint, she was saying, I'm not on a bond right now seeking asylum.

[00:07:16] Speaker 04:
That could change.

[00:07:17] Speaker 04:
It could change very quickly.

[00:07:18] Speaker 04:
And I could end up back in immigration detention facing these same conditions that are a national problem.

[00:07:24] Speaker 04:
I experienced, she says, I experienced these at the initial detention center outside of Tijuana and then at the Oten Mesa Detention Center.

[00:07:34] Speaker 04:
And so she can say, I don't know that this asylum claim is going to work.

[00:07:42] Speaker 04:
I don't know if it's going to be accepted.

[00:07:44] Speaker 04:
And then I may end up back.

[00:07:46] Speaker 04:
in custody facing these same conditions.

[00:07:49] Speaker 01:
How have you, under the, turning out a summary judgment piece of it, have you pleaded enough, or did you show enough, I'm sorry, summary judgment to meet the California standard for causation and negligence, reasonable medical probability?

[00:08:10] Speaker 01:
Where is that?

[00:08:11] Speaker 01:
I'm sorry, not did you plead it.

[00:08:12] Speaker 01:
Did you establish it on summary judgment?

[00:08:14] Speaker 01:
Did you come forward with evidence?

[00:08:16] Speaker 01:
You have expert reports.

[00:08:19] Speaker 01:
Do the experts anywhere opine that it's probable that the negligence caused her harm?

[00:08:26] Speaker 01:
Yes.

[00:08:26] Speaker 01:
And where would we find that?

[00:08:27] Speaker 04:
I would refer the court to Dr. Natel's report.

[00:08:30] Speaker 04:
And this is volume two of the excerpts of the record at 72 through 75 is when he's

[00:08:39] Speaker 04:
Flashes out his opinion and there's two kinds of harm being discussed here your honor there's first that the miscarriage itself and whether or not.

[00:08:50] Speaker 04:
This could have been avoided and the first thing he says is that while the overall pregnancy may not have been altered had care been provided expeditiously.

[00:09:02] Speaker 04:
The patient would have endured less uncertainty and potentially less pain.

[00:09:09] Speaker 04:
That's at 75.

[00:09:11] Speaker 04:
And he says she was exposed to unrelenting stress and acute physical trauma upon her arrival in the United States, which are reasonable contributing factors to the pregnancy loss at 72 of the record.

[00:09:24] Speaker 04:
That establishes, under California law,

[00:09:29] Speaker 04:
that there is a reasonable certainty that at the least had the United States and core civic provided Ms.

[00:09:40] Speaker 04:
Morales Alfaro with any obstetric care, any specialty care, that her damages would not be the same.

[00:09:53] Speaker 04:
She would have

[00:09:55] Speaker 04:
Maybe if she had been provided that emergency care upon intake on December 22nd, maybe this miscarriage would not have happened.

[00:10:04] Speaker 04:
But then they let her suffer for 12 days.

[00:10:07] Speaker 04:
And that's where Dr. Natal says, that pain is not to be discounted.

[00:10:14] Speaker 04:
And that is its own injury.

[00:10:17] Speaker 04:
And the pain, the worry, the wondering,

[00:10:22] Speaker 04:
Let's say this miscarriage, once it started, wasn't going to stop.

[00:10:27] Speaker 04:
Emergency care would have allowed her to at least know that and would have relieved her of the pain.

[00:10:33] Speaker 04:
And that's what the United States and CoreCivic really cannot run from, particularly at the Rule 56 stage, where the inferences and the facts have to be given to the plaintiff here.

[00:10:48] Speaker 04:
Dr. Nattel's

[00:10:50] Speaker 04:
Opinion and the the factual record itself of the nurses even saying I'm I'm gonna ask for a doctor You're gonna get a doctor.

[00:10:58] Speaker 04:
I want you to have an I'm putting in an urgent request that never happens So even the people on site trying to treat her are recognizing that we can't do anything more I think that the combination of the facts and

[00:11:14] Speaker 04:
In the record and her medical records are in the third volume of the excerpts of record and they're quite lengthy but starting from the outset you have the nurses saying we're going to get you a doctor we're going to get you seen we have I believe it's nurse Rosenblatt saying I'm putting in an urgent request for an OB consult never happens.

[00:11:36] Speaker 04:
And the other standard that I think the court may find helpful to consider when looking at the California medical malpractice standard is the government's own standards for pregnancy care in detention.

[00:11:54] Speaker 04:
And that's their own ICE national standards that also bind them to the standards established by the National Commission for Correctional Health Care.

[00:12:05] Speaker 04:
And in those standards, they are required to provide this care.

[00:12:11] Speaker 04:
This isn't optional.

[00:12:12] Speaker 04:
It's not discretionary.

[00:12:14] Speaker 04:
When a high-risk pregnancy presents, they are required to get high-risk pregnancy care, specialty care, even if it's off-site.

[00:12:26] Speaker 04:
None of that happened here.

[00:12:28] Speaker 04:
That combination certainly at least creates the inference that we have met the burden under the medical malpractice standard for California.

[00:12:40] Speaker 04:
I would like to briefly address the other Rule 12 ruling because the court touched on it a little bit in discussing the policy and practice type claim.

[00:12:49] Speaker 04:
And that is the issue of discretionary immunity that is one of the bases that the district court uses to dismiss the constitutional claims in the third amended complaint.

[00:13:02] Speaker 02:
I thought that was the basis for dismissal of the FTCA claims.

[00:13:08] Speaker 04:
I believe you're correct about that as well.

[00:13:10] Speaker 02:
Discretionary function exception to the FTCA.

[00:13:14] Speaker 04:
Yes.

[00:13:17] Speaker 04:
Her claims are rooted in specific acts that occurred to her under the FTCA.

[00:13:23] Speaker 04:
She's not saying this policy is bad and you should change the policy.

[00:13:27] Speaker 04:
She is saying this policy was implemented and in implementing this policy or not implementing the very policies that they've established under the PBNDS and the National Correctional Health Care Standards harm me.

[00:13:44] Speaker 04:
had they followed their standards, I would have been in a different situation.

[00:13:50] Speaker 01:
Do those FTCA claims rise and fall with the causation of the other tort claims?

[00:14:02] Speaker 01:
In other words, if the district court erred with respect to the discretionary function doctrine,

[00:14:13] Speaker 01:
You then went to summary judgment on what appeared to be parallel tort claims.

[00:14:21] Speaker 01:
Similar.

[00:14:21] Speaker 01:
Any difference between that that would change the result of the summary judgment claims as to the dismissed claims?

[00:14:33] Speaker 04:
I don't believe so, Your Honor.

[00:14:35] Speaker 04:
And with regard to the summary judgment claim, I'm keeping an eye on the clock here and being careful.

[00:14:40] Speaker 04:
I just want to make one quick note.

[00:14:42] Speaker 04:
And that is the government and core civics extreme position that in essence there was no pregnancy.

[00:14:48] Speaker 04:
This blighted ovum explanation is that there's just an egg or like a rogue egg that has gotten loose in the uterus.

[00:14:56] Speaker 04:
It doesn't have an embryo and it will be absorbed into the body.

[00:15:01] Speaker 04:
The facts presented

[00:15:02] Speaker 04:
And the expert opinions presented by Dr. Spencer in particular directly contradict that assertion.

[00:15:09] Speaker 04:
And we see between the first ultrasound and then the second ultrasound taken in January, the crown rump length of the embryo growing.

[00:15:21] Speaker 04:
We see it continuing to develop.

[00:15:23] Speaker 04:
And we also have in the record confirmation of a heartbeat.

[00:15:26] Speaker 04:
If this was simply a blighted ovum, there'd be no heartbeat.

[00:15:29] Speaker 04:
I'm going to step back and reserve the rest of my time for rebuttal.

[00:15:32] Speaker 04:
Thank you.

[00:15:33] Speaker 02:
Thank you, Your Honor.

[00:15:37] Speaker 02:
So we're going to hear from Ms.

[00:15:38] Speaker 02:
Sotomayor first on behalf of the United States.

[00:15:47] Speaker 05:
May it please the court?

[00:15:49] Speaker 05:
Good morning, Your Honors.

[00:15:51] Speaker 05:
Assistant United States Attorney Stephanie Sotomayor on behalf of the United States.

[00:15:55] Speaker 05:
I'd like to reserve 10 minutes for the COEPLE course civic, please.

[00:16:00] Speaker 05:
I'll watch the clock.

[00:16:01] Speaker 05:
All right.

[00:16:02] Speaker 05:
Thank you.

[00:16:04] Speaker 05:
This is a medical negligence case where plaintiff's own expert has admitted that the overall pregnancy outcome may not have been altered had care been provided sooner.

[00:16:14] Speaker 05:
That's at 2ER72.

[00:16:17] Speaker 05:
There exists no issue for trial on that topic.

[00:16:22] Speaker 05:
The district court correctly ruled that the appellant did not prove negligence by the United States caused miscarriage.

[00:16:30] Speaker 05:
In order for her claim to succeed, the appellant had to establish actual cause.

[00:16:35] Speaker 05:
That some negligence by the United States caused her miscarriage.

[00:16:39] Speaker 03:
Council, what if the negligence consisted of not the cause of the miscarriage, but the cause of the suffering that accompanied it?

[00:16:57] Speaker 03:
For example, if someone has appendicitis, obviously the government doesn't necessarily cause that, but if it's left untreated for too long and the person suffers a lot more than they would have had to, isn't that possible for that to be a negligence claim?

[00:17:17] Speaker 05:
Sure, Your Honor.

[00:17:18] Speaker 05:
But in this case, the plaintiff, with regard to the United States, the plaintiff only pleads that pain and suffering damages as they pertain to that medical negligence claim causing the miscarriage.

[00:17:33] Speaker 03:
I'm not sure I understand your answer.

[00:17:36] Speaker 03:
If she is pleading that the negligence caused unnecessary pain and suffering, regardless of whether there was causation of the miscarriage, you're saying that's not part of the pleading?

[00:17:51] Speaker 05:
Correct, Your Honor.

[00:17:51] Speaker 05:
So my understanding is that the plaintiff has pled one claim in her Fourth Amendment complaint against the United States, and that's medical negligence causing the miscarriage.

[00:18:02] Speaker 05:
And one of the damages resulting from that was the pain and suffering correlated to the miscarriage.

[00:18:08] Speaker 05:
And there is no standalone claim for pain and suffering.

[00:18:16] Speaker 05:
And back to actual cause, the appellant had to prove using competent expert testimony and to a reasonable degree of medical certainty that in the absence of the United States' negligence, she would not have had the miscarriage.

[00:18:31] Speaker 05:
She failed to do this.

[00:18:33] Speaker 02:
Do you agree that the lack of care to a pregnant woman was contrary to the stated policies for treatment of pregnant detainees?

[00:18:44] Speaker 05:
I believe in this case, she did receive proper care and I think it did comport with ISIS standards and policies.

[00:18:59] Speaker 05:
In this case, it wasn't the United States burden to disprove causation.

[00:19:03] Speaker 01:
I'm sorry, back on the, I guess the tort claim and the...

[00:19:08] Speaker 01:
That was dismissed on that basis.

[00:19:12] Speaker 01:
And so then we're looking at a different standard of review.

[00:19:15] Speaker 01:
So while it may or may not have come out at summary judgment about whether they followed it, I believe the complaint read in the light most favorable of the plaintiff, why couldn't that be taken to establish a violation that's not subject to the discretionary function doctrine?

[00:19:36] Speaker 05:
I apologize, I'm not sure I understand the question.

[00:19:40] Speaker 01:
So the allegations were that they didn't follow the policy.

[00:19:47] Speaker 01:
And the tort claims against the government were dismissed on sovereign immunity grounds because of discretionary function.

[00:20:01] Speaker 01:
But haven't we said that if it's a failure to follow the policy that that isn't covered by sovereign immunity and doesn't the complaint plead as much?

[00:20:12] Speaker 05:
Yes, Your Honor, and that is true.

[00:20:15] Speaker 05:
But with regards to the discretionary function exemption, in this case, plaintiff alleges that ICE didn't follow certain policies or standards but doesn't actually point to specific policies that ICE didn't follow.

[00:20:30] Speaker 05:
And so with regards to the DFE, the United States isn't liable for the actions it took in this case because those were discretionary acts.

[00:20:40] Speaker 05:
And there's an exception to that exception where if there's a directive that the United States employee didn't follow, then perhaps the DFE wouldn't apply.

[00:20:55] Speaker 05:
But that's not an allegation plaintiff makes here.

[00:21:04] Speaker 03:
I'm not sure why I'm looking at the third amended complaint and paragraphs

[00:21:14] Speaker 03:
Part of paragraph 220, where there are specific detention standards, and she specifies the provision of food, water, hygiene products, the shackling of pregnant women's sleep and medical care.

[00:21:32] Speaker 03:
And you were just saying that wasn't sufficiently precise.

[00:21:36] Speaker 03:
Why isn't that specific enough?

[00:21:39] Speaker 05:
Oh, and my apologies.

[00:21:40] Speaker 05:
I should clarify on that note, too.

[00:21:43] Speaker 05:
One point on that is plaintiff's own experts don't point to any of the items you just listed as having resulted in her miscarriage.

[00:21:52] Speaker 03:
That goes to summary judgment, but that has nothing to do with the pleading standard.

[00:21:59] Speaker 03:
I'm asking about the pleadings, dismissal on the pleadings.

[00:22:04] Speaker 03:
Why isn't that sufficiently precise for the purpose of withstanding a motion to dismiss for lack of specificity, which is what you're arguing?

[00:22:16] Speaker 05:
I understand, Your Honor.

[00:22:18] Speaker 05:
So it is a part of the ICE policies that you are not to shackle pregnant

[00:22:24] Speaker 05:
inmates that is correct and I believe some of the items you listed as well, the other items you listed.

[00:22:32] Speaker 05:
But my understanding is in this case the DFE does apply still because all of the ways in which the, all of these behaviors were

[00:22:47] Speaker 05:
done while Plaintiff was being held in detention, which was run by CoreCivic, and the United States supervision of CoreCivic in its operation of OMDC, that was a discretionary act.

[00:23:09] Speaker 01:
Plaintiff has noted that the claims that were dismissed

[00:23:15] Speaker 01:
The federal tort claims that were dismissed are parallel to the remaining claims that went to summary judgment.

[00:23:26] Speaker 01:
So I think you'd suggested there was a lack of causation.

[00:23:29] Speaker 01:
The district court didn't dismiss on those grounds.

[00:23:32] Speaker 01:
Why could we affirm

[00:23:38] Speaker 01:
on the dismissal of those claims on the alternative ground that they would have been granted summary judgment.

[00:23:49] Speaker 05:
I believe, and please correct me if I'm mistaken, are you referring to the NIED claim, the negligent infliction of control?

[00:23:54] Speaker 01:
No.

[00:23:55] Speaker 01:
I mean, I think that you have a parallel set of claims, the claims that preceded that you've just said don't meet the causation standard on summary judgment because of expert affidavits.

[00:24:03] Speaker 01:
But then you have the same tort claims that were, the constitutional tort claims that were,

[00:24:08] Speaker 01:
I'm sorry, the claims 6, 10, and 11.

[00:24:14] Speaker 01:
The other claim, the FTCA claims, if those are roughly the similar, district court maybe erroneously dismisses them under the discretionary function doctrine.

[00:24:23] Speaker 01:
But the parallel claims go to summary judgment.

[00:24:27] Speaker 01:
I think you were asking us, there's no causation for the FTCA claims even if it got the discretionary function doctrine wrong.

[00:24:34] Speaker 01:
Can we do that?

[00:24:35] Speaker 05:
I believe so, Your Honor, because we still have that issue where plaintiff's experts haven't proven causation.

[00:24:41] Speaker 01:
But not on these particular claims, because they weren't at issue in summary judgment, the FDCA claims.

[00:24:46] Speaker 05:
I believe that's correct, Your Honor.

[00:24:50] Speaker 01:
But we can anyway, because they're the same claims or similar claims, and we have failed proof.

[00:24:56] Speaker 05:
Correct.

[00:24:57] Speaker 05:
So I believe that the FDCA claims

[00:25:00] Speaker 05:
The court's ruling on that issue, the negligence causing miscarriage issue, mooted the DFE claims, so.

[00:25:12] Speaker 05:
And I am running short on time, Your Honors.

[00:25:15] Speaker 05:
If there are no further questions, I will give the remainder of my time.

[00:25:21] Speaker 01:
Do you have a case for us on the point you just made?

[00:25:26] Speaker 01:
That a grant of summary judgment on similar claims with the same elements moots an erroneous dismissal of those parallel claims?

[00:25:36] Speaker 05:
I do not, but I'm happy to brief that issue for your honor.

[00:25:40] Speaker 05:
Okay.

[00:25:41] Speaker 05:
Thank you.

[00:25:55] Speaker 00:
Good morning, Your Honors.

[00:25:56] Speaker 00:
Kevin Nguyen on behalf of Court Civic.

[00:25:59] Speaker 00:
If I may, I'd like to take a moment to briefly respond to plaintiff's suggestions that defendants took an extreme position in this case by pointing out the fact that the evidence was undisputed.

[00:26:14] Speaker 00:
Her miscarriage was not viable from the very beginning.

[00:26:17] Speaker 00:
That's not true.

[00:26:20] Speaker 00:
Corcivic acknowledges that a miscarriage is an extremely traumatic experience and sympathizes that no one should ever have to experience it.

[00:26:31] Speaker 00:
But as plaintiff's doctors told her,

[00:26:34] Speaker 00:
Unfortunately, miscarriages are common in the first trimester and sometimes they can happen spontaneously through no fault of her own or anyone else's and that's what the record in this case showed.

[00:26:52] Speaker 00:
The district court was correct to dismiss all claims because plaintiff failed to meet her burden at the summary judgment stage to prove causation.

[00:27:04] Speaker 00:
miscarriage aside why isn't there causation why do is there not at least a tribal issues to causation of the pain and suffering The district court correctly ruled that that was a new theory of liability that plaintiff did not pursue throughout the litigation we didn't conduct any discovery on it because that was never really her her claims and

[00:27:26] Speaker 00:
But even if she had pled such a claim, she felt to establish causation for it.

[00:27:35] Speaker 00:
I think council just explained that this claim of an independent harm was based on a 12-day delay in receiving specialty care.

[00:27:47] Speaker 00:
But the record is undisputed that Korsvik was not responsible for the provision of medical care.

[00:27:55] Speaker 00:
The United States was.

[00:27:58] Speaker 00:
The United States plaintiff stipulated that the United States was responsible for not only the medical care, but also the medical decisions related to that care, which includes whether and when plaintiff receives specialty care

[00:28:16] Speaker 03:
Council, I want to go back to your statement that there's no separate allegation about pain and suffering.

[00:28:27] Speaker 03:
I mean, I'm looking at the fourth amended complaint.

[00:28:31] Speaker 03:
For example, paragraph 180, the repeated breaches of these duties, which were discussed previously, caused Ms.

[00:28:41] Speaker 03:
Morales pain, suffering, and emotional distress.

[00:28:45] Speaker 03:
And, you know, there are other, let's see, there are other things here, too, that are similar.

[00:28:55] Speaker 03:
So I'm not sure why that doesn't suffice to put that issue before the court.

[00:29:04] Speaker 00:
That was never the theory of liability that plaintiff pursued, but even if she had a good... Well, that's in the pleadings.

[00:29:13] Speaker 00:
Certainly at the summary judgment stage your honor She can't merely rely on the allegations and her complaint or parties can't rely on the pleadings That's true.

[00:29:25] Speaker 03:
So you're saying that there's no evidence that she suffered Pain or anxiety I thought that dr. Natal's Letter does discuss that to some extent and

[00:29:41] Speaker 00:
A couple of points, Your Honor, on that.

[00:29:44] Speaker 00:
She testified at her deposition that all her pain and suffering, which are parasitic damages to the miscarriage, arose from the miscarriage itself.

[00:29:56] Speaker 00:
There is no other evidence from her that she suffered any independent

[00:30:01] Speaker 00:
harm from the miscarriage.

[00:30:03] Speaker 00:
She could have submitted a declaration.

[00:30:05] Speaker 00:
It was as simple as that.

[00:30:07] Speaker 00:
But there was no evidence of that because that was not her claim.

[00:30:12] Speaker 00:
With respect to Dr. Natal's expert report, I believe he referred to certain emotional stressors, which included her horrible experience in Guatemala with gang violence, the alleged kick in the abdomen by a Border Patrol officer, which he referred to as police violence, and then this general allegation or general

[00:30:42] Speaker 00:
Well, his conclusion that she was incarcerated.

[00:30:44] Speaker 00:
So it's the fact of her incarceration.

[00:30:47] Speaker 00:
But it was never based on any evidence.

[00:30:50] Speaker 00:
And he didn't offer that opinion to a reasonable degree of medical certainty.

[00:30:54] Speaker 00:
He didn't refer to any of the alleged conditions that plaintiff claimed the course of a breach.

[00:31:02] Speaker 00:
There was no reference to restraints.

[00:31:06] Speaker 00:
The record was undisputed that she was not restrained, Your Honor.

[00:31:12] Speaker 00:
There was no reference to cold temperatures, and that made it impossible for her to sleep in edible foods.

[00:31:19] Speaker 00:
She was on a pregnancy diet.

[00:31:22] Speaker 00:
She had access to blankets.

[00:31:23] Speaker 00:
The evidence, I believe, was undisputed that the temperatures were comfortable.

[00:31:28] Speaker 00:
But if they weren't comfortable for her, they could have been made comfortable.

[00:31:33] Speaker 00:
But she never complained or raised that issue to anyone.

[00:31:40] Speaker 00:
So I think her other allegations about the conditions were that she was placed in restrictive, well, she had restrictive movement, but the record was undisputed that she wasn't placed in restrictive housing, but rather a dorm stalled room.

[00:31:59] Speaker 00:
where she was free to move around the housing unit from 5 a.m.

[00:32:03] Speaker 00:
to about 9.30, which is count before bedtime.

[00:32:09] Speaker 00:
And detainees can't move around after bedtime for obvious reasons, for safety and security.

[00:32:16] Speaker 00:
And during the daytime, she had access to, unfettered access to outdoor recreation in the attached rec yard.

[00:32:26] Speaker 00:
And I think the other issue was feminine hygiene, I think sanitary pads.

[00:32:33] Speaker 00:
The record was also undisputed that they were available for free as needed.

[00:32:40] Speaker 00:
So he didn't offer any opinions that on those conditions, much less that those conditions caused her any harm independent of the miscarriage.

[00:32:50] Speaker 01:
Mr. Wen, on the mootness question, is there anything in the record

[00:32:56] Speaker 01:
that identifies how many or where there are other detention facilities that CoreCivic is managing?

[00:33:10] Speaker 00:
CoreCivic manages, I don't know if it's in the record, but CoreCivic does manage several dozen facilities all across the United States.

[00:33:21] Speaker 00:
But on the moodness point, Your Honor,

[00:33:26] Speaker 00:
Her claim would be unmoved or not moved only if she were to be placed at OMDC, the same detention facility, and pregnant and subject to the same allegedly punitive conditions.

[00:33:45] Speaker 00:
There's no evidence that those conditions existed at other facilities.

[00:33:51] Speaker 00:
I think there were some

[00:33:54] Speaker 00:
some government reports and news articles that plaintiffs cited.

[00:34:00] Speaker 00:
But those reports were largely relevant because they involved other facilities, other detainees, and other time periods.

[00:34:12] Speaker 00:
And nothing contained in those reports was evidence of causation for either miscarriage or any other harm independent of the miscarriage.

[00:34:28] Speaker 00:
I see my time is running low.

[00:34:30] Speaker 00:
If there are any questions the panel has, I'd be glad to answer them at this time.

[00:34:57] Speaker 04:
First, starting regarding the miscarriage.

[00:35:01] Speaker 04:
I would note that the United States and CoreCivic are subject to different standards here.

[00:35:06] Speaker 04:
The United States, because they had to be sued for Judge Burns under a medical negligence standard, is subject to the medical negligence standards.

[00:35:12] Speaker 04:
I do believe those have been met for Rule 56 purposes.

[00:35:17] Speaker 04:
But CoreCivic is subject only to a general negligence standard.

[00:35:20] Speaker 04:
They kind of want to piggyback with the United States, but the standard for them is different and it's less demanding.

[00:35:28] Speaker 04:
And as to both standards, I would note that what the plaintiff does not have to do is show that this conduct was the sole factor.

[00:35:37] Speaker 04:
It has to show it was a substantial factor.

[00:35:40] Speaker 04:
And those are California jury instructions 400 and 430.

[00:35:45] Speaker 04:
And 431 of the jury instructions also allows for the jury to consider independent causes of the same injury.

[00:35:54] Speaker 04:
To me that makes me think of a law school bar exam on proximate cause, right?

[00:36:00] Speaker 04:
It doesn't have to be the sole factor.

[00:36:03] Speaker 04:
And it does nothing to address the pain, suffering, emotional distress claim.

[00:36:08] Speaker 04:
The defendants are saying she hasn't claimed it.

[00:36:10] Speaker 04:
I, while we were talking with my colleagues, pulled up the third amended complaint and paragraphs 72 through 75 specifically discuss the PBNDES as it applies to pregnancy health care in these detention facilities.

[00:36:27] Speaker 04:
And the fourth amended complaint discusses those same standards at paragraphs 54 through 56.

[00:36:32] Speaker 04:
They're discussed extensively through the summary judgment briefing as well.

[00:36:37] Speaker 04:
And Miss Morales Alfaro, when deposed by the defendants, by my count, mentions the physical pain that this caused 16 times.

[00:36:49] Speaker 03:
Well, this is an indefinite reference.

[00:36:53] Speaker 03:
If it's the miscarriage that caused the pain,

[00:36:57] Speaker 03:
then there has to be causation related to the miscarriage.

[00:37:03] Speaker 03:
If the pain is separate from that, that's a different story.

[00:37:08] Speaker 03:
What did she testify to?

[00:37:12] Speaker 04:
She testified that as the miscarriage was occurring, she was repeatedly reporting pain, that she was experiencing the pain.

[00:37:20] Speaker 04:
And as the court used the appendicitis example, this is as if she'd come in and said, hey, I think my appendix

[00:37:27] Speaker 04:
or gallbladder or whatever hurts, if they said, we're going to get you emergency care and let that last for 12 days, that suffering and that additional danger to her is a separate consideration.

[00:37:43] Speaker 04:
And Dr. Natal talks about that in his report.

[00:37:46] Speaker 04:
They don't have to have caused the appendicitis to have caused her the pain and suffering of refusing her care.

[00:37:52] Speaker 03:
What is the relevance of CoreCivics' argument that they cannot themselves offer care if they have to go through the United States?

[00:38:10] Speaker 04:
I don't think it is, it may be relevant, I don't believe it's an accurate assertion.

[00:38:16] Speaker 04:
And that's because they have three different ways that they're required to ensure this care.

[00:38:20] Speaker 04:
First is the Woods versus Olson lawsuit where they agreed that they, CoreCivic, would ensure that the standards required under the National Correctional Healthcare Standards and PBNDES are met for medical care.

[00:38:35] Speaker 04:
CoreCivic bound itself to that.

[00:38:37] Speaker 04:
CoreCivic's operating agreement

[00:38:39] Speaker 04:
with the United States regarding that facility requires them, not the United States, to ensure that these healthcare standards are met.

[00:38:49] Speaker 04:
And the healthcare standards themselves require correctional officers to be trained

[00:39:00] Speaker 04:
it put in the discussion here this is the standard PC 04 health training for correctional officers and the discussion there says because correctional personnel are often the first to respond to problems they must be aware of the potential for emergencies that may arise know the proper response to life-threatening situations and understand their part in the early detection of illness and injury and then they specifically

[00:39:27] Speaker 04:
Carve out.

[00:39:28] Speaker 04:
Correctional staff should receive additional training on these special health topics, if relevant to the services provided by the facility, pregnancy, and labor considerations.

[00:39:38] Speaker 04:
They accepted these standards.

[00:39:39] Speaker 04:
They said under three different circumstances, yes, that's our job.

[00:39:46] Speaker 04:
They cannot contract it away.

[00:39:47] Speaker 04:
These are non-delegable duties.

[00:39:50] Speaker 04:
They remain responsible for this healthcare.

[00:39:52] Speaker 04:
They're able to call 911.

[00:39:54] Speaker 04:
They're able to get an ambulance if they need to.

[00:39:56] Speaker 02:
I just I know you're over your time, but okay, so she's not detained now, right?

[00:40:02] Speaker 04:
That's correct.

[00:40:03] Speaker 04:
Your honor.

[00:40:04] Speaker 02:
So is she out on bond or what?

[00:40:05] Speaker 02:
What is the situation?

[00:40:07] Speaker 02:
I know you I mean, I think the fugitive Disentilement Doctrine is off the table because she filed a motion to reopen Is that correct?

[00:40:15] Speaker 02:
That's correct.

[00:40:16] Speaker 02:
Your honor.

[00:40:16] Speaker 02:
Okay, so she's filed a motion to reopen and

[00:40:20] Speaker 02:
There's no threat of her being detained It could be denied and there's nothing to say that once the proceedings are reopened and she appears before an immigration judge and presents her asylum case But that's going to be accepted that she has a order of removal correct That's what was issued with the warrant Okay Right does anyone else have any questions?

[00:40:44] Speaker 02:
Okay.

[00:40:46] Speaker 02:
Thank you, counsel.

[00:40:48] Speaker 02:
Thank you.

[00:40:50] Speaker 02:
Morales versus the United States is submitted and decision of the court is adjourned for today.

[00:40:57] Speaker 02:
Thank you very much, counsel.

[00:40:59] Speaker 02:
Thank you.

[00:41:13] Speaker 02:
This court for this session stands adjourned.