Morales-Alfaro v. CoreCivic, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RUBIA MABEL MORALES- Case No.: 3:20-cv-00082-LAB (BGS) ALFARO [12] ORDER RE: Plaintiff, [13] v. 1) CORECIVIC’S MOTION TO [14] EXCLUDE THE EXPERT UNITED STATES OF AMERICA, 15 TESTIMONY OF NOAH AR et al., NATTELL, M.D. [Dkt. 94]; AND [16] Defendants. 17 2) MOTIONS FOR SUMMARY JUDGMENT [Dkt. 92, 95, 99]. [18] 19 Plaintiff Rubia Mabel Morales-Alfaro (“Morales”), an asylum seeker from 20 El Salvador, filed suit against Defendants CoreCivic, Inc. (“CoreCivic”) and the 21 United States of America (“United States”) for claims stemming from the 22 miscarriage she suffered on or about January 15, 2018, while in immigration 23 custody. Morales claims that, but for Defendants’ negligence in denying her 24 adequate care, she would not have miscarried. She maintains that Defendants’ 25 actions follow a pattern and practice of denying asylum seekers adequate medical 26 care during their detention in an effort to deter them from coming to the United 27 States. 28 The parties have each filed separate motions for summary judgment. 1 (Dkt. 92, 95, 99). CoreCivic has additionally filed a motion to exclude the testimony 2 of Morales’s expert, Noah AR Nattell. (Dkt. 94). Having carefully read and 3 considered all materials in support of and in opposition to the respective motions, 4 the Court rules as follows. 5 I. UNDISPUTED MATERIAL FACTS1 6 Morales is a native and citizen of El Salvador. (Dkt. 91, Joint Statement of 7 Undisputed Facts (“JSUF”) ¶ 2). Prior to her travel to and entry into the United 8 States in 2017, she had at least two pregnancies—once in 2006, following which 9 she gave birth to a healthy daughter without complication, and another between 10 late 2016 and January 2017, when she suffered a miscarriage during the first 11 trimester of her pregnancy. (Id. ¶¶ 4–6). 12 In March 2017, Morales and her partner, Miguel Hernandez, left El Salvador 13 and headed to the United States, traveling through Guatemala and Mexico. (Id. 14 ¶ 7). Near the end of June 2017, they arrived in Tijuana, Mexico, where they 15 stayed and worked until December 21, 2017. (Id. ¶ 8). While in Tijuana, Morales 16 became pregnant for a third time. (Id. ¶ 9). On or about December 13, 2017, she 17 confirmed her pregnancy with a pregnancy test at a medical clinic in Tijuana. (Id. 18 ¶ 10). Then, on December 14, 2017, Dr. Sergio Mendez Ochoa at the Tijuana 19 medical clinic performed an obstetric ultrasound, reporting a gestational sac of 8– 20 13 mm in the uterine fundus and a 2 mm fetal pole. (Id. ¶ 12). His report noted 21 that “measurements show 4 week pregnancy with no alterations,” and identified 22 August 22, 2018, as the full-term birth date. (Id. ¶¶ 11–13). Dr. Mendez Ochoa 23 recommended that Morales come back in four weeks or sooner for a follow-up 24 visit given that she’d suffered a miscarriage eight months prior. (Id. ¶ 14). Other 25 than her visit to the Tijuana medical clinic and taking prenatal vitamins, Morales [27] 1 All facts referred to in this section and throughout the Order are undisputed, [28] 1 didn’t receive any prenatal care in Tijuana. (Id. ¶ 15). 2 On the evening of December 21, 2017, Morales and Hernandez unlawfully 3 entered the United States through a hole in the border wall on the Tijuana/San 4 Diego border. (Id. ¶ 16). Morales carried only a backpack containing some 5 personal items, which did not include prenatal vitamins. (Id. ¶ 18). She wore a thin 6 top, sweater, thin leggings, a hat, shoes, and socks, despite the cold temperatures 7 that night. (Id.). Morales was aware her journey would be “risky” and that she’d 8 eventually be arrested, but she thought she would be provided with medical care 9 in the United States and would be quickly released after her arrest. (Id. ¶ 20). She 10 expected to be able to travel by bus to live with her sister in Kansas. (Id. ¶ 20). 11 Approximately ten minutes after crossing the border, Morales was 12 apprehended by two U.S. Border Patrol agents and taken to a Border Patrol 13 station, where she was detained for approximately two days. (Id. ¶¶ 21–22).2 On 14 December 24, 2017, Morales was transferred to Otay Mesa Detention Center 15 (“OMDC”), a minimum security detention facility for U.S. Immigration and Customs 16 Enforcement (“ICE”) and Marshals Service (“USMS”) detainees. (Id. ¶¶ 23–24). 17 At OMDC, she was housed in Alpha Pod, a dorm-style pod housing up to 128 low18 custody female detainees. (Id. ¶ 56). She was assigned to a bottom bunk in a 19 room at the bottom tier of the pod because she was pregnant. (Id. ¶ 58). She was 20 also provided with three sets of clothing, shoes, outerwear, bedding, blankets, 21 linens, a mattress, pillow, and hygiene kit. (Id. ¶ 63). At OMDC, detainees had 22 access to the facility’s commissary where they could purchase various items, 23 including food. (Id. ¶ 68). For instance, between December 28, 2017 and [25] 2 Morales separately alleges in her complaint and testified at her deposition that [26] upon her apprehension at the border, a U.S. Border Patrol agent kicked her “[o]n 27 [her] hip” and “in the back.” (Dkt. 50, Fourth Amended Complaint (“4AC”) ¶ 143; Dkt. 117-8 at 57:7–25). The United States denies this allegation and notes that [28] 1 January 4, 2018, Morales purchased food items like ramen noodles, M&Ms, 2 Oreos, hot chocolate, oatmeal, and Pepsi. (Id. ¶ 69). 3 Morales, like other pregnant detainees, was placed on a “pregnancy diet,” 4 meaning she received extra food with her meals to meet her required caloric 5 intake. (Id. ¶¶ 70–71). All detainees had access to medical, dental, and mental 6 health care provided by ICE Health Services Corps (“IHSC”), and detainees could 7 request such care through the “sick call” process.” (Id. ¶¶ 74–76). Morales 8 received medical care at various times during her detention, including on 9 December 28, 2017, January 10, 2018, and January 15, 2018. (Id. ¶¶ 106–08). 10 On the latter date, security personnel in the dining hall called a medical emergency 11 and Morales was transported offsite to the emergency room at Sharp Chula Vista 12 for a suction dilation and curettage (“D&C”) procedure. (Id. ¶¶ 108–10). The next 13 day, on January 16, 2018, Morales passed a large blood clot, and an ultrasound 14 confirmed she was no longer pregnant. (Id. ¶¶ 111). As a result, her D&C 15 procedure was cancelled. (Id.). 16 In her Fourth Amended Complaint (“4AC”), Morales claims that the 17 conditions at OMDC are deliberately punitive, and that Defendants “have colluded 18 in instituting and implementing policies that are designed to inflict severe harm on 19 Central American immigrants” in an effort to deter them from coming to the United 20 States. (4AC at ¶¶ 2–3). She seeks to hold Defendants liable for their negligent 21 behavior, which she alleges resulted in her miscarriage. Her 4AC alleges five 22 causes of action: one claim under the Federal Tort Claims Act (“FTCA”) against 23 the United States, and four negligence-based claims under California state law 24 against CoreCivic. 25 II. EVIDENTIARY OBJECTIONS 26 CoreCivic has filed two motions to exclude expert testimony under Federal 27 Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 28 579, 589 (1993). (Dkt. 93, 94). Under the Daubert standard, “the trial judge must 1 ensure that any and all scientific testimony or evidence admitted is not only 2 relevant, but reliable.” 509 U.S. at 589. Rule 702 permits the introduction of expert 3 testimony only if: (1) “the expert’s scientific, technical, or other specialized 4 knowledge will help the trier of fact to understand the evidence or to determine a 5 fact in issue,” (2) “the testimony is based on sufficient facts or data,” (3) “the 6 testimony is the product of reliable principles and methods,” and (4) “the expert 7 has reliably applied the principles and methods to the facts of the case.” Fed. R. 8 Evid. 702. The proponent of the expert testimony has the burden of proving the 9 proposed testimony is admissible. Lust ex rel. Lust v. Merrell Dow Pharms., Inc., [10] 89 F.3d 594 , 598 (9th Cir. 1996). “Although the district court must perform a 11 gatekeeping function, a trial court ‘not only has broad latitude in determining 12 whether an expert’s testimony is reliable, but also in deciding how to determine 13 the testimony’s reliability.’” United States v. Gadson, 763 F.3d 1189, 1202 (9th 14 Cir. 2014) (citation omitted) (emphasis in original); see also Daubert, 509 U.S. at 15 597. 16 Because the Court has only considered the testimony of one of the 17 contested experts in deciding the parties’ respective motions for summary 18 judgment, the Court will presently only decide CoreCivic’s motion to exclude the 19 expert testimony of Dr. Noah AR Nattell. (Dkt. 94). 20 A. Motion to Exclude Dr. Noah AR Nattell, MD 21 CoreCivic argues that certain of Dr. Nattell’s opinions should be excluded 22 because they are both improper and unreliable. CoreCivic first contends that 23 Dr. Nattell’s opinions are not the proper subjects of rebuttal, but rather “go to the 24 heart of Plaintiffs’ case and the central question to be decided by the jury—did 25 CoreCivic’s actions/inactions cause Plaintiff’s miscarriage?” (Dkt. 93 at 5). Given 26 that Dr. Nattell discusses the factors contributing to Morales’s miscarriage and 27 whether her pregnancy was viable prior to detention, CoreCivic maintains that 28 Morales should have offered such opinions in her case-in-chief, not in a rebuttal 1 report. (Id.). 2 Dr. Nattell’s expert report was filed in response to CoreCivic’s motion for 3 summary judgment. (Dkt. 117). In his report, he offers an analysis of Morales’s 4 ultrasounds and her pregnancy health, and he also opines on the circumstances 5 surrounding her detainment at OMDC and how this may have affected her 6 pregnancy. Although rebuttal testimony may not present “new facts” or “novel 7 argument,” LaFlamme v. Safeway, Inc., No. 09-cv-514-ECR-VPC, 2010 WL 8 3522378, at *8 (D. Nev. Sept 2, 2010), none of that is actually presented here— 9 only alternative explanations to opinions offered on the same subject matter by 10 Defendants’ expert, Dr. Jessica M. Kingston. Just because Morales could have 11 designated Dr. Nattell as an expert in the first place doesn’t mean the evidence 12 may not be introduced as rebuttal evidence if it refutes the subject matter of 13 Defendants’ expert witness testimony. Hellmann-Blumberg v. Univ. of Pac., No. 14 12-CV-00286-TLN-DAD, 2013 WL 3422699 , at *5 (E.D. Cal. July 8, 2013) 15 (“[A]lthough [Plaintiff] could have used the proposed expert testimony . . . in 16 support of its affirmative defenses, the same testimony may be introduced as 17 rebuttal testimony if it refutes the subject matter of [Defendant]’s expert witness 18 testimony.”). 19 As for whether the opinions rendered by Dr. Nattell are reliable, CoreCivic’s 20 arguments go to the weight of Dr. Nattell’s testimony, not its admissibility. 21 CoreCivic asks the Court to decide that Dr. Nattell’s opinions are wrong, but that 22 isn’t part of the Court’s gatekeeping function. See Alaska Rent-A-Car, Inc. v. Avis 23 Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013); see also Pyramid Techs., 24 Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 814 (9th Cir. 2014) (quoting Primiano 25 v. Cook, 598 F.3d 558, 565 (9th Cir. 2010)) (“The test ‘is not the correctness of 26 the expert’s conclusions but the soundness of his methodology,’ and when an 27 expert meets the threshold established by Rule 702, the expert may testify and 28 the fact finder decides how much weight to give that testimony.”). “Shaky but 1 admissible evidence is to be attacked by cross examination, contrary evidence, 2 and attention to the burden of proof, not exclusion.” Primiano, 598 F.3d at 564 ; 3 see also Daubert, 509 U.S. at 595–96. CoreCivic’s request to exclude Dr. Nattell’s 4 testimony is DENIED. 5 III. SUMMARY JUDGMENT 6 A. Legal Standard 7 Summary judgment is appropriate under Federal Rule of Civil Procedure 8 56(a) where the movant “shows that there is no genuine dispute as to any material 9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 10 56(a). In order to prevail, a party moving for summary judgment must show the 11 absence of a genuine issue of material fact with respect to an essential element 12 of the non-moving party’s claim, or to a defense on which the non-moving party 13 will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 14 317, 323 (1986). Once the movant has made this showing, the burden then shifts 15 to the party opposing summary judgment to identify “specific facts showing there 16 is a genuine issue for trial.” Id. at 324. The party opposing summary judgment 17 must then present affirmative evidence from which a jury could return a verdict in 18 that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). 19 On summary judgment, the Court draws all reasonable factual inferences in 20 favor of the non-movant. Id. at 255 . “Credibility determinations, the weighing of 21 the evidence, and the drawing of legitimate inferences from the facts are jury 22 functions, not those of a judge.” Id. (citation omitted). “The mere existence of a 23 scintilla of evidence in support of the plaintiff’s position will be insufficient; there 24 must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 25 242. The Court does not make credibility determinations or weigh conflicting 26 evidence. Id., 477 U.S. at 255 . Rather, the Court determines whether the record 27 “presents a sufficient disagreement to require submission to a jury or whether it is 28 so one-sided that one party must prevail as a matter of law.” Id. at 251–52. 1 B. Claim Against the United States 2 Morales asserts her only federal claim in this case against the United 3 States—medical negligence brought under the FTCA, 28 U.S.C. § 1346 . She 4 claims that the United States “is responsible for the acts and omissions of health 5 care providers acting within the scope and course of their employment with ICE 6 Health Services Corps, including employees involved in the care and treatment of 7 Ms. Morales-Alfaro.” (4AC ¶ 201). She argues that the United States owed her a 8 duty “to act as reasonably prudent health care providers acting under the same or 9 similar circumstances,” (id. ¶ 202), but that it failed to provide her with timely, 10 effective medical care while she was detained at OMDC, (id. ¶¶ 198–201). She 11 maintains that the United States harmed her in two ways: (1) the United States’ 12 medical negligence was a substantial factor in causing her miscarriage, and 13 (2) the United States’ medical negligence caused her unnecessary suffering. 14 (Dkt. 118 at 22). 15 i. The FTCA 16 The FTCA permits a plaintiff to pursue tort claims, including medical 17 negligence, against the United States. 28 U.S.C. §§ 1346 (b), 2671. “The FTCA 18 authorizes private tort actions against the United States ‘under circumstances 19 where the United States, if a private person, would be liable to the claimant in 20 accordance with the law of the place where the act or omission occurred.’” 21 Jachetta v. United States, 653 F.3d 898, 904 (9th Cir. 2011) (quoting 28 U.S.C. 22 § 1346(b)(1)). Accordingly, “the extent of the United States’ liability under the 23 FTCA is generally determined by reference to state law.” Liebsack v. United 24 States, 731 F.3d 850, 855 (9th Cir. 2013) (quoting Molzof v. United States, 502 25 U.S. 301, 305 (1992)); see also 28 U.S.C. § 2674 . 26 To prevail on a medical malpractice claim under California law, the plaintiff 27 must establish: “(1) the duty of the professional to use such skill, prudence, and 28 diligence as other members of his profession commonly possess and exercise; 1 (2) a breach of that duty; (3) a proximate causal connection between the negligent 2 conduct and the resulting injury; and (4) actual loss or damage resulting from the 3 professional’s negligence.” Tortorella v. Castro, 140 Cal. App. 4th 1 , 3 n.2 (2006). 4 “Because the standard of care in a medical malpractice case is a matter ‘peculiarly 5 within the knowledge of experts,’ expert testimony is required to prove or disprove 6 that the defendant performed in accordance with the standard of care unless the 7 negligence is obvious to a layperson.” Johnson v. Super. Ct., 143 Cal. App. 4th 8 297, 305 (2006) (quoting Sinz v. Owens, 33 Cal. 2d 749, 753 (1949)). 9 Under California law, a plaintiff alleging medical malpractice “must prove the 10 defendant’s negligence was a cause-in-fact of injury.” Jennings v. Palomar 11 Pomerado Health Sys., Inc., 114 Cal. App. 4th 1108, 1118 (2003). The showing 12 must consist of more than mere speculation, as “proffering an expert opinion that 13 there is some theoretical possibility the negligent act could have been a cause-in14 fact of a particular injury is insufficient to establish causation.” Id. (emphasis in 15 original). However, California courts “do not require a heightened standard for 16 causation in medical malpractice cases.” Uriell v. Regents of Univ. of Cal., 234 17 Cal. App. 4th 735, 746 (2015). “Instead, the plaintiff must offer an expert opinion 18 that contains a reasoned explanation illuminating why the facts have convinced 19 the expert, and therefore should convince the jury, that it is more probable than 20 not the negligent act was a cause-in-fact of the plaintiff’s injury.” Jennings, [21] 114 Cal. App. 4th at 1118 (emphasis in original); see also Raven H. v. Gamette, [22] 157 Cal. App. 4th 1017, 1029 (2007) (“The fact of causation is incapable of 23 mathematical proof, since no [person] can say with absolute certainty what would 24 have occurred if the defendant had acted otherwise.”) (quoting Rest. 2d Torts, 25 § 433B, com. b). Accordingly, “[w]hether a defendant’s conduct actually caused 26 an injury is a question of fact that is ordinarily for the jury.” Id. (quoting Osborn v. 27 Irwin Mem’l Blood Bank, 5 Cal. App. 4th 234, 252 (1992)) (internal citations 28 omitted). 1 ii. Medical Negligence 2 The United States moves for summary judgment on the grounds that 3 Morales cannot prove the causation element of her medical negligence claim 4 because Morales’s experts don’t—and can’t—offer any opinion that “delayed 5 medical care or anything else that happened at the OMDC medical clinic caused 6 her miscarriage.” (Dkt. 92 at 9). The Government argues that Morales’s pregnancy 7 had already failed well before she reached the United States, as evidenced by the 8 ultrasound taken at the Tijuana clinic on December 14, 2017. (Id.). 9 Specifically, the United States relies on the expert opinion of Dr. Jessica M. 10 Kingston. Dr. Kingston is board-certified by the American Board of Obstetrics and 11 Gynecology and is currently employed by UC San Diego Health as a Health 12 Sciences Clinical Professor. (Dkt. 92-2, ¶¶ 6–8). Dr. Kingston explains that, in an 13 ultrasound documenting a pregnancy, the gestational sac is the first structure 14 seen by about 4 weeks gestation, followed by the yolk sac3 by approximately 15 5 weeks gestation, the fetal pole by 6 weeks gestation, and fetal heart motion as 16 early as 6 weeks and always by 7 weeks gestation. (Id. ¶ 40). Having reviewed 17 the ultrasound report from Morales’s December 14, 2017 visit to a medical clinic 18 in Tijuana, she notes that the measurements of Morales’s intrauterine gestational 19 sac were reported as measuring between 8–13 mm, with the medical visit report 20 concluding that measurements showed a 4-week pregnancy. (Id. ¶ 42). 21 Dr. Kingston states that the medical visit report doesn’t mention a yolk sac, nor 22 can it be seen on the ultrasound images, and that the report likewise makes no 23 mention of a fetal heartbeat, despite Morales’s deposition testimony otherwise. [25] 3 Dr. Kingston additionally explains that “[a] yolk sac is a structure that develops [26] inside the uterus during pregnancy and is essential to the formation of an embryo 27 in that it provides necessary nutrients to the embryo during the first trimester, as well as other critical biological functions. The yolk sac (or lack thereof) serves as [28] 1 (Id. ¶¶ 42, 46–47). She maintains that “[i]f the pregnancy was measuring at 4 2 weeks, no fetal heartbeat could possibly have been detected.” (Id. ¶ 48). And, 3 notably, although the report described a 2 mm fetal pole, Dr. Kingston states that 4 this isn’t actually visible on the ultrasound images. (Id. ¶ 42). She believes this is 5 further confirmed because the medical visit report doesn’t note the existence of a 6 yolk sac, “which would have developed before the fetal pole in a normal 7 pregnancy.” (Id. ¶ 51). 8 She also suggests that although the ultrasound showed a pregnancy 9 measuring at around 4–5 weeks gestation, Morales was actually 6 weeks and 10 3 days pregnant based on her last reported menstrual cycle, a discrepancy she 11 believes could be indicative of early pregnancy loss. (Id. ¶¶ 44–45). Taking into 12 account this discrepancy as to Morales’s gestational age, Dr. Kingston concludes 13 that, “to a reasonable degree of medical probability, Ms. Morales-Alfaro’s clinical 14 course and ultrasound studies demonstrate that the ultrasound performed on 15 December 14, 2017 was indicative of early pregnancy failure and this was 16 definitively confirmed when her second ultrasound was performed 4 weeks later 17 on January 10, 2018.” (Id. ¶ 59). She found that, “[o]n December 14, 2017, 18 Ms. Morales-Alfaro’s pregnancy should have measured at approximately 6 19 weeks, 3 days. Not only did she measure at only 4 weeks, but the ultrasound did 20 not show an embryo, which is suspicious for impending pregnancy loss.” (Id. 21 ¶ 54). She states that the “discrepancy could be indicative of early pregnancy loss 22 because it shows that the pregnancy was not developing as expected in 23 accordance with the gestational age based on her [last menstrual period].” (Id. 24 ¶ 45). Moreover, she states: [25] Ms. Morales-Alfaro had a formal ultrasound 4 weeks later 26 at Sharp Chula Vista Medical Center on January 10, 2017 when she was evaluated for vaginal bleeding. Based on [27] the December 14, 2017 ultrasound, her gestational age 28 was 8 weeks. However, the January 10, 2018 ultrasound 1 performed at the hospital measured her pregnancy at only 6 weeks gestation and no fetal heartbeat was seen. [2] Further, no yolk sac was seen on the January 10, 2018 3 ultrasound. 4 (Id. ¶ 54). She further notes that “[t]he fact that a yolk sac was never demonstrated 5 on any ultrasound done for Ms. Morales-Alfaro is additional evidence of a failed 6 pregnancy.” (Id. ¶ 56). 7 Dr. Kingston found that the circumstances during Morales’s detention that 8 are cited as contributing to her miscarriage—including the use of restraints and 9 being deprived of adequate nutrition, sunlight, feminine hygiene products, and 10 adequate clothing—had no effect on her pregnancy. (See e.g., id. ¶ 75 11 (“Ms. Morales-Alfaro’s medical records document that a daily prenatal vitamin was 12 prescribed, and there is no indication that Ms. Morales-Alfaro was not provided 13 with regular meals.”); id. ¶ 79 (“The availability of feminine hygiene products (or 14 lack thereof) has no medical relation to pregnancy loss.”); id. (“[T]he use of 15 restraints, without more, would have had no effect on her pregnancy.”); id. ¶ 80 16 (“There is no documented study showing that lack of sunlight or cold temperatures 17 have any impact on pregnancy and/or pregnancy loss. . . . [To] impact a woman’s 18 pregnancy, [] these conditions would need to cause extreme, severe, and 19 constant deprivation of necessary life-sustaining measures.”)). Dr. Kingston 20 concludes, “to a reasonable degree of medical probability, that Ms. Morales21 Alfaro[] . . . was experiencing pregnancy failure prior to being apprehended by US 22 Border Patrol agents on December 22, 2017,” (id. ¶ 61), and nothing could have 23 been done by clinicians at OMDC to prevent her pregnancy loss, (id. ¶ 88 (“Even 24 though clinicians at OMDC were aware of Ms. Morales-Alfaro’s symptoms and her 25 concern for miscarriage, there are no medical or surgical interventions that could 26 or would have prevented her pregnancy loss.”)). 27 In response, Morales argues that during her immigration custody, beginning 28 with the moment she first presented herself to Border Patrol agents, she 1 consistently expressed that she was pregnant, she’d been kicked by a Border 2 Patrol agent, and she was in pain, and that medical staff failed to provide her with 3 timely obstetric care, causing her nearly two weeks of unnecessary pain and 4 suffering. (Dkt. 118 at 16). She explains that a physician’s assistant who saw her 5 at the OMDC clinic twice sent urgent requests that she be seen by an obstetrician, 6 but none of those appointments ever happened. (Id. at 27). She argues that the 7 “lack of care, combined with symptoms of a high risk pregnancy gave her 8 pregnancy no chance.” (Id.). And, notably, she concedes that “[w]hile early 9 intervention *may* not have been able to prevent this miscarriage, the reality is 10 that the United States provided *no* prenatal medical care, not to mention the 11 specialty care mandated by the PBNDS and NCCHC.” (Id. (emphasis in original)). 12 She concludes that, “[e]ven if the Defendants could show no factual dispute about 13 the causation of her miscarriage, which they cannot, the Defendants cannot 14 account for letting Ms. Morales suffer for twelve days, while her miscarriage 15 symptoms worsened.” (Id. at 28 (emphasis in original)). 16 In its Reply, the United States points out that Morales attempts to carve out 17 a new basis of harm, separate from the one seemingly alleged in her 4AC and 18 throughout this case. (Dkt. 123 at 2 (“In this case, Ms. Morales’ medical expert 19 finds that this denial of basic prenatal care caused an injury distinct from the 20 miscarriage.”)). While the 4AC is threadbare as to the specific factual allegations 21 supporting her medical negligence claim, (see 4AC ¶¶ 198–203), her fifth cause 22 of action re-alleges and incorporates all previous allegations made in the 23 complaint relating to Defendants’ negligence as a direct and proximate cause of 24 Morales’s miscarriage. There is no indication, other than for the first time in her 25 Opposition, that Morales’s medical negligence claim is intended to hold the United 26 States liable for injuries distinct from her miscarriage. Indeed, both the allegations 27 in the 4AC and Morales’s own deposition testimony indicate otherwise. (See Dkt. 28 117-8 at 146:5–7 (“BY MR. BETTWY: Q. So is -- is it the loss of your 1 baby that has caused you all of your trauma? A. Yes.”)). Given this history, the 2 Court declines to consider this new basis of liability. See Wasco Prods., Inc. v. 3 Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“[T]he necessary factual 4 averments are required with respect to each material element of the underlying 5 legal theory. . . . Simply put, summary judgment is not a procedural second 6 chance to flesh out inadequate pleadings.”) (internal citation and quotation marks 7 omitted). 8 Second, as to the contested causation element of her medical negligence 9 claim, Morales cites to the opinions of her two experts, Dr. Jose A. Spencer and 10 Dr. Noah AR Nattell. Dr. Spencer is a licensed medical physician in Texas and 11 New Mexico and is board certified in diagnostic radiology. (Dkt. 117-6). With 12 respect to the sonogram taken on December 14, 2017 at the Tijuana medical 13 clinic, Dr. Spencer briefly notes in his report the measurements of the gestational 14 sac and the crown rump length, stating that “the sonographer has profiled an 15 apparent embryo with a crown rump length of 0.23 cm.” (Id. at 4). His report 16 doesn’t discuss whether the images reveal the existence of a fetal pole at this 17 stage, nor does he mention a fetal heartbeat. And with little other analysis, he 18 concludes that these “findings are consistent with early intrauterine gestation.” 19 (Id.). As to the sonogram taken from Morales’s January 10, 2018 medical visit, 20 Dr. Spencer notes that the sonogram reveals “a well formed intrauterine 21 gestational sac containing a single embryo with a sonographic gestational age of 22 approximately 6W0d +- 0W4D.” (Id. at 1). He also states that “[n]o fetal heart tones 23 are profiled suggesting embryonic demise in utero.” (Id.). 24 Dr. Nattell is a board-certified Obstetrician and Gynecologist, and currently 25 serves as a Director of Women’s Health for Integrated Correctional Health 26 Services in Los Angeles County’s Department of Health Services while 27 maintaining Voluntary Professorship at USC Keck School of Medicine in the 28 department of Obstetrics and Gynecology. (Dkt. 117-7). Dr. Nattell opines in his 1 report on the correlation between early pregnancy loss and stress, adverse 2 childhood experience, police violence, and maternal physical harm. (Id. at 3). For 3 instance, he states that “there is little research on the effect of police violence as 4 described by Ms. Morales-Alfaro on pregnancy outcomes, but maternal physical 5 harm such as being shoved or kicked has undoubtedly resulted in poor obstetrical 6 outcomes including spontaneous abortion, fetal demise, and preterm delivery.” 7 (Id.). He admits he did not view the images from Morales’s December 14, 2017 8 ultrasound, and instead relied on the analysis from Dr. Spencer’s report to 9 conclude that the measurements in the medical visit report, combined with the 10 disputed fact that Morales heard a fetal heartbeat during that visit, are all 11 suggestive of a normally developing pregnancy. (Id. at 3–4). Focusing on the 12 clinical course taken in Morales’s circumstances, Dr. Nattell ultimately finds that, 13 “[t]hough the overall pregnancy outcome may not have been altered had care 14 been provided expeditiously, the patient would have endured less uncertainty and 15 potentially less pain.” (Id. at 6). 16 Notably absent from both of these two expert rebuttal reports is any opinion 17 regarding whether the United States’ medical negligence caused Morales’s 18 miscarriage. There is much discussion about the adequacy and timeliness of 19 medical care provided to Morales during the duration of her custody, but none of 20 it suggests whether a different clinical course would have altered the outcome of 21 her pregnancy. See White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990) (noting 22 that conduct is an actual cause of injury “only if the injury would not have occurred 23 ‘but for’ that conduct”). Similarly, while Morales disputes the United States’ 24 contention that her pregnancy had failed even before she was transferred to 25 OMDC, she offers no expert testimony or evidence to actually rebut the testimony 26 provided by the United States’ expert. See Keenan v. Allan, 91 F.3d 1275 , 1279 27 (9th Cir. 1996) (quotation omitted) (holding that it’s not the task of the district court 28 “to scour the record in search of a genuine issue of triable fact”); Nelson v. Pima 1 Cmty. Coll., 83 F.3d 1075 , 1081–82 (9th Cir. 1996) (“[M]ere allegation and 2 speculation do not create a factual dispute for purposes of summary judgment.”). 3 Neither of Morales’s experts rebut Dr. Kingston’s conclusions about the absence 4 of a fetal pole and yolk sac in the December 14, 2017 ultrasound. Although 5 Dr. Nattell briefly suggests that the discrepancies in the gestational age may be 6 attributed to an irregular menstrual cycle or inaccurate recollection of her last 7 period, he provides no other explanation or analysis regarding how this affects the 8 measurements reported in the medical visit report and the viability of the 9 pregnancy at that stage. Expert opinions made with no factual basis are not 10 enough to defeat summary judgment. See Guidroz-Brault v. Mo. Pac. R. Co., 254 11 F.3d 825 , 830–31 (9th Cir. 2001) (rejecting expert opinions on summary judgment 12 where “there was no factual basis for the [expert’s] assumption”). The Court finds 13 that this failure to present the necessary evidence is itself dispositive. Having 14 reviewed the record in detail, the Court finds no evidence to support Morales’s 15 claim regarding the United States. 16 Although the question of whether a defendant’s conduct actually caused an 17 injury is ordinarily left for the jury to decide, Morales hasn’t presented specific facts 18 that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, [19] 477 U.S. at 248 (1986) (noting “Rule 56(e)’s provision that a party opposing a 20 properly supported motion for summary judgment ‘may not rest upon the mere 21 allegations or denials of his pleading, but . . . must set forth specific facts showing 22 that there is a genuine issue for trial’”) (citation omitted) (alteration in original). 23 Even if a triable issue exists as to whether Morales was afforded proper care, she 24 fails to establish causation, an essential element of her claim. Because Morales 25 has failed to meet her burden of showing the existence of a genuine dispute as to 26 material fact, the Court GRANTS the United States’ motion for summary judgment 27 as to her fifth cause of action for medical negligence. 28 // 1 C. Claims Against CoreCivic 2 The 4AC alleges four negligence-based causes of action against CoreCivic: 3 negligence, negligent infliction of emotional distress, negligent supervision and 4 training of employees, and respondeat superior liability. CoreCivic seeks 5 summary judgment on all four of these claims on the grounds there is no evidence 6 it breached its duty of care by maintaining unsuitable living conditions or failing to 7 provide adequate medical care, and Morales hasn’t established that CoreCivic’s 8 negligence was the cause of her miscarriage. 9 However, the Court has already granted summary judgment as to the only 10 remaining federal claim in this case, and all that remains are Morales’s four state11 law claims. Because these claims are encompassed by this Court’s supplemental 12 jurisdiction, the Court may decline to exercise jurisdiction if it has dismissed all 13 claims over which it has original jurisdiction. See Sanford v. MemberWorks, Inc., [14] 625 F.3d 550, 561 (9th Cir. 2010) (citing 28 U.S.C. § 1367 (c)(3)). “[I]n the usual 15 case in which all federal-law claims are eliminated before trial, the balance of 16 factors to be considered under the pendent jurisdiction doctrine—judicial 17 economy, convenience, fairness, and comity—will point toward declining to 18 exercise jurisdiction over the remaining state-law claims.” Id. (citation omitted) 19 (alterations in original). The Court finds this to be “the usual case,” and accordingly 20 declines to exercise supplemental jurisdiction and DISMISSES Morales’s state 21 law claims WITHOUT PREJUDICE. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 IV. CONCLUSION 2 The Court GRANTS the United States’ motion for summary judgment as to 3 ||Morales’s fifth cause of action for medical negligence. (Dkt. 92). The Court 4 ||declines to exercise supplemental jurisdiction over Morales’s remaining state law 5 ||claims and DISMISSES those claims WITHOUT PREJUDICE to refiling in state 6 ||court. All remaining pending motions are DENIED AS MOOT. The Clerk is 7 directed to enter judgment accordingly and terminate this case. 8 IT IS SO ORDERED. [9] 10 ||Dated: February 24, 2023 laud Ae (Buywy 11 Honorable Larry Alan Burns 42 United States District Judge