United States District Court, C.D. California
Present: The Honorable CHRISTINA A. SNYDER Judge.
CIVIL MINUTES - GENERAL
(IN CHAMBERS) - DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(Filed July 27, 2016, Dkt. 78)
MOTION FOR SECOND DEPOSITION (Filed December 19, 2016, Dkt.
INTRODUCTION AND PROCEDURAL HISTORY
August 4, 2015, plaintiff Robert Garber, proceeding pro se,
filed the instant action against defendants the United States
of America, the Department of Health and Human Services
("HHS"), Roland Giedraitis ("Dr.
Giedraitis"), Grace Hardy ("Dr. Hardy"), and
the Northeast Valley Health Corporation ("NVHC").
Dkt. 1. On October 28, 2015, the United States Attorney for
the Central District of California filed a notice of
substitution indicating that the United States of America was
the appropriate defendant in this case. Dkt. 16. Accordingly,
on November 3, 2015, the Court ordered the caption in this
case corrected to name only the United States of America as
the defendant in this action. Dkt. 22.
November 18, 2015, plaintiff filed a Second Amended Complaint
("SAC"), in which he asserts claims for (1) medical
malpractice: (2) negligence; and (3) aiding and abetting.
Dkt. 29. On February 9, 2016, the Court dismissed plaintiffs
claim for "aiding and abetting." Dkt. 36. In brief,
plaintiff alleges that between 2011 and 2014, he sustained
injuries as a result of negligent dental care performed by
Dr. Giedraitis and Dr. Hardy at the NVHC.
27, 2016, the United States filed a motion for summary
judgment. Dkt. 78. The Government's motion relies, in
part, upon a declaration by Dr. Kenneth Jacobs ("Dr.
Jacobs") in which Dr. Jacobs states that plaintiffs
dental care satisfied the appropriate standard of care for
dental treatment. On October 24, 2016, the Court held oral
argument on defendant's motion. At that time, Garber had
not yet filed an opposition. Instead, Garber sought to depose
Dr. Jacobs. See Dkt. 72. The Court granted a
continuance to plaintiff.
December 14, 2016, plaintiff conducted a deposition of Dr.
Jacobs. Thereafter, on December 19, 2016, plaintiff filed a
motion requesting a second deposition of Dr. Jacobs. Dkt.
128. On December 21, 2016, the United States filed an
opposition. Dkt. 129. On December 22, 2016, the Court took
plaintiffs motion for a second deposition under submission,
pending plaintiffs preparation and submission of a deposition
transcript. Dkt. 130. On December 27, 2016, plaintiff filed a
reply in support of his motion for a second deposition. Dkt.
January 23, 2017, plaintiff filed a memorandum in opposition
to the Government's motion for summary judgment, dkt.
136, as well as a number of exhibits, dkt. 140. On January 30,
2017, the defendant filed a reply in support of its motion
for summary judgment. Dkt. 143.
February 6, 2017, the Court distributed a draft order,
tentatively granting summary judgment. Thereafter, the Court
invited oral argument on the foregoing motions. Plaintiff
commenced oral argument in response to the Court's
tentative ruling; however, because of health concerns,
plaintiffs oral argument was cut short and the hearing
abruptly ended. As a result, the Court took defendant's
motion for summary judgment under submission and granted
plaintiff until March 20, 2017, to file a supplemental brief
addressing the Court's tentative order. Dkt. 145. On
February 17, 2017, plaintiff filed a "declaration in
lieu of supplemental brief, " in which plaintiff stated
that he would not file any further briefing in opposition to
the motion for summary judgment. Dkt. 147.
carefully considered the parties' arguments, the Court
finds and concludes as follows.
where otherwise noted, the following facts are undisputed.
claims stem from his dental treatment by a federally funded
nonprofit, Northeast Valley Health Corporation. In or around
2001, plaintiff became a dental patient at NVHC, which
provides comprehensive dental and medical care to the
uninsured, indigent, and medically vulnerable. After his
first dental examination, NVHC staff noted that plaintiff had
a severe periodontal disease, which typically causes bone
loss and subsequent tooth loss.
1976, plaintiff received a removable partial upper denture
("PUD"). A partial upper denture consists of
prosthetic teeth attached to a base which are anchored for
stability to the natural teeth still in a person's mouth.
A removable PUD attaches to natural teeth with either a
precision attachment or clasps. A precision attachment is an
interlocking mechanism in which the PUD and natural teeth are
attached by the connection of male and female parts on each
side of the mouth. When a PUD is attached via a precision
attachment, the user may hear the two parts click into one
another. In contrast, a clasp is cast as part of a PUD
framework. Clasps permit a dentist to more easily make
adjustments. Clasps are less expensive to create, install,
and alter than precision attachments. Plaintiffs original PUD
was designed with precision attachments.
became a patient at NVHC, NVHC staff told plaintiff that his
periodontal disease would cause further bone loss, requiring
serial modifications to his PUD. By the time plaintiff became
a patient at NVHC, his PUD had already exceeded its normal
service-life. NVHC staff notified plaintiff that the
many requisite modifications would eventually make his PUD
unserviceable. NVHC dentists and hygienists repeatedly told
plaintiff to replace his PUD with a full denture because of
his poor dental health and ongoing bone loss. Plaintiff
insisted upon retaining his PUD.
does not, itself, fabricate or alter PUDs. Instead, an NVHC
dentist takes an impression of the patient's mouth where
the prosthetic will be placed and sends a request for PUD
alterations or fabrication to an independent contractor at a
PUD originally relied upon a precision attachment in the
upper right and left sides of plaintiff s jaw. The male
portions of the precision attachments were on the PUD and the
female portions were in plaintiffs mouth. Specifically, the
precision attachment on the upper right side locked into
place by connecting with a bar, or mini-bridge, between two
of plaintiff s teeth. The precision attachment on the upper
left side of the PUD interlocked with a ring between two of
plaintiff s teeth on the upper left portion of his
January 23, 2009, Dr. Giedraitis extracted one of the teeth
to which plaintiffs mini-bridge had been attached because it
was, "hopeless . . . [and] floating in perio[dontal]
abscess." Giedraitis Decl. ¶ 12. In order to remove
the tooth. Dr. Giedraitis had to cut the mini-bridge in the
upper right side of plaintiff s jaw. After removing plaintiffs
natural tooth, Dr. Giedraitis placed an order with NVHC's
contract laboratory to add a prosthetic tooth to the PUD.
NVHC records indicate that Dr. Giedraitis's
"plan" was to "add a wire clasp on 6" to
replace the former precision attachment on that side of
plaintiffs mouth. Nietscu Ex. A US0004.
February 26, 2009, Dr. Giedraitis returned the modified PUD
to plaintiff. On March 19, 2009, plaintiff visited NVHC
complaining that his PUD was loose. Dr. Giedraitis assessed
plaintiff as requiring a new clasp or precision attachment.
Plaintiff told Dr. Giedraitis that he did not want a clasp
because it did not look good and that plaintiff would proceed
with his existing PUD.
October 13, 2011, plaintiff visited NVHC for an appointment
with Dr. Giedraitis. During the October 13, 2011 appointment,
Dr. Giedraitis placed an order to add new wire clasps to the
PUD on tooth six and tooth eleven. Dr. Giedraitis avers that
he placed the order for two new clasps because the existing
clasp and precision attachment had stopped working. Dr.
Giedraitis took an impression of plaintiff s mouth so that
the lab could add the appropriate clasps. Dr. Giedraitis did
not explain to plaintiff that the clasps were necessary
because the precision attachment could not be repaired.
October 20, 2011, plaintiff returned to NVHC to retrieve the
altered PUD. Dr. Hardy, with whom plaintiff met on October
20, 2011, adjusted the clasps to properly fit on plaintiffs
teeth and delivered the PUD to plaintiff. After receiving the
altered PUD plaintiff became very upset that the PUD now had
two clasps in place of its former attachments.
January 10, 2013, Dr. Giedraitis extracted tooth number six
because of plaintiffs periodontal disease. After the
extraction of tooth six, to which the PUD had been clasped.
Dr. Giedraitis ordered the laboratory to add a new clasp at
tooth two for stability and to add a prosthetic tooth in the
place of tooth six. Plaintiff received the newly repaired PUD
on February 7, 2013.
December 5, 2013, plaintiff visited NVHC to pursue assistance
with pain relating to the clasp on tooth eleven. Dr.
Giedraitis took impressions and sent the PUD for repair. On
December 12, 2013, Dr. Giedraitis returned the PUD to
plaintiff with clasps at tooth two and eleven, but realized
that it still had problems. Dr. Giedraitis noted that the PUD
needed a new clasp at tooth two and that the newly repaired
clasp on tooth eleven was injuring plaintiffs gum. Dr.
Giedraitis took another impression of plaintiff s mouth and
sent the PUD for additional repairs. On December 19, 2013,
Dr. Giedraitis delivered the PUD back to plaintiff.
December 20, 2013, plaintiff returned to NVHC as an
emergency, walk-in patient complaining of pain. Dr.
Giedraitis noted that plaintiffs gums around tooth eleven
were inflamed and possibly infected. Dr. Giedraitis
recommended that plaintiff install a new removable partial
denture since his outdated PUD was in
disrepair.Plaintiff refused and insisted that NVHC
repair the precision attachments on his PUD or install a new
precision attachment. Dr. Giedraitis told plaintiff that NVHC
could not repair or install precision attachments and that
plaintiff should visit ...