WILLIAMS, PINELLI & CULLEN, LLP

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1 1 ANTHONY F. PINELLI (CA Bar No ) WILLIAMS, PINELLI & CULLEN, LLP North Third Street San Jose, California Tele_phone: (408) Facstmile: (408) ARBITRATOR IN THE MA TIER OF THE ARBITRATION BETWEEN v. CASE NO.: 9785 Claimant, ARBITRATOR'S STATEMENT OF DECISION Respondents. 16 A Motion in Limine by Respondents to exclude Claimant from introducing expert 17 testimony having been granted on a showing of good cause and a motion for non-suit having 18 been granted on a showing of good cause due to Claimant's lack of expert testimony to 19 attempt to establish a violation of the standard of care by Respondents as set forth in the 20 Order attached as Exhibit "A", the Arbitrator fin ds in favor of the Respondents, Nothing in this arbitration decision prohibits or restricts the enrollee from discussing or 24 reporting the underlying facts, res ults, terms and conditions of this Decision to the Department 25 of Mannged Health Care. 26 Ill - I - ARBITRATOR'S STATEMENT OF DECISTON

2 Dated: March 28, 2012 WILLIAMS, PINELLI & CULLEN, LLP By: fh.a;~; "; -(2. ANTHONY W. PINELLI ARBITRATOR ARBITRATOR'S STATEMENT OF DECISION

3 EXHIBIT ''A''

4 1 ANTHONY F. PINELLI (CA Bar No ) WILLIAMS, PINELLI & CULLEN, LLP North Third Street San Jose, California Telephone: (408) Facsrmile: (408) ARBITRATOR v. 12 ln THE MA TIER OF THE ARBITRATION BETWEEN Claimant, CASE NO.: 9785 ORDER REMOTION IN LIMINE TO EXCLUDE EXPERTS AND MOTION FOR NON-SUIT Respondents. 16 This matter came on regularly for hearing on March 28, 2012 for a motion in limine by 17 Respondents, 18 (hereinafter "Respondents'') to exclude Claimant from 19 introducing any expert testimony at the Arbitration Hearing set for April 2, Further, 20 Respondents moved for non-suit if the motion in limine was granted. 21 Good cause appearing, the motion was scheduled by the Arbitrator to take place at 8:45 22 a.m. on March 28, 2012 via written notice as Claimant would not accept a call to schedule. 23 Written opposition was requested by the Arbitrator to be served on the Arbitrator and 24 Respondents counsel's office by 5:00p.m. March 27,2012. No written opposition by 25 Claimant was served on either the Arbitrator or Respondents' counsel. 26 Ill ORDER REMOTION IN LIMINE TO EXCLUDE EXPERTS AND MOTION FOR NON-SUIT

5 1 The hearing on the motions were held on March 28, 2012 by conference call initiated by 2 the Arbitrator. Appearing by phone for Respondents was attorney 1 There 3 was no appearance by Claimant after several attempts to contact Claimant. 4 Good cause appearing, Respondents' motion in limine to exclude Claimant from 5 introduction of expert witness testimony at the hearing is granted, Claimant having not 6 tfmety (or everfserving a. disclosure of experfwitnesses as required by CCP 2034 et seq ~ Good cause appearing, Respondents' motion for non-suit is granted on the grounds that 8 Claimant is required to provide expert testimony to prove Claimant's case for medical 9 malpractice against Respondents (Simmons v. West Covina Medical Clinic (1989) 212 CA3d ; Budd v. Nixon (1971) 6 C3d 195; Jones v. Ortho Pharmaceutical (1985) 163 CA3d 396) 11 and Claimant has provided no written authority or oral argument as to why the Arbitration 12 Hearing can proceed without expert testimony. 13 Jt is so ordered Dated: March 28, WILLIAMS, PINELLI & CULLEN, LLP ' ) /~~~~v.:-~ ~--}- /... By: l ;, t. -~_,.-)~..v. ANTHONY f.: PINELLI ARBITRATOR "'_.,... ~ ORDER REMOTION IN LIMINE TO EXCLUDE EXPERTS AND MOTION FOR NON-SUIT

6 ANTHONY F. PINELLI (CA Bar No ) WILLIAMS, PINELLI & CULLEN, LLP North Third Street San Jose, California Tele_phone: ( 408) Facsimile: ( 408) ARBITRATOR v. IN THE MATTER OF THE ARBITRATION BETWEEN Claimant, CASE NO.: 9785 ORDER RE MOTION IN LIMINE TO EXCLUDE EXPERTS AND MOTION FOR NON-SUIT Respondents This matter came on regularly for hearing on March 28, 2012 for a motion in limine by 17 Respondents, 18 (hereinafter "Respondents") to exclude Claimant from 19 introducing any expert testimony at the Arbitration Hearing set for April 2, Further, 20 Respondents moved for non-suit if the motion in limine was granted. 21 Good cause appearing, the motion was scheduled by the Arbitrator to take place at 8:45 22 a.m. on March 28, 2012 via written notice as Claimant would not accept a call to schedule. 23 Written opposition was requested by the Arbitrator to be served on the Arbitrator and 24 Respondents counsel's office by 5:00p.m. March 27, No written opposition by 25 Claimant was served on either the Arbitrator or Respondents' counsel. 26 Ill - I - ORDER REMOTION IN LIMINE TO EXCLUDE EXPERTS AND MOTION POR NON-SUIT

7 The hearing on the motions were held on March 28, 2012 by conference call initiated by 2 the Arbitrator. Appearing by phone for Respondents was attorney There 3 was no appearance by Claimant after several attempts to contact Claimant. 4 Good cause appearing, Respondents' motion in limine to exclude Claimant from 5 introduction of expert witness testimony at the hearing is granted, Claimant having not 6 timely (or ever) serving a disclosure of expert witnesses as required by CCP 2034 et seq. 7 Good cause appearing, Respondents' motion for non-suit is granted on the grounds that 8 Claimant is required to provide expert testimony to prove Claimant's case for medical 9 malpractice against Respondents (Simmons v. West Covina Medical Clinic (1989) 212 CA3d ; Buddv. Nixon (1971) 6 C3d 195; Jones v. Ortho Pharmaceutical (1985) 163 CA3d 396) 11 and Claimant has provided no written authority or oral argument as to why the Arbitration 12 Hearing can proceed without expert testimony. 13 It is so ordered Dated: March 28, WILLIAMS, PINELLI & CULLEN, LLP I 'rzij,'., ' ). l '/ d;;-~.---- / ~... I; t;-,i ;'" ):.. :.t /.'L..- - B y {.',.... ANTHONY { ;PINELLI ARBITRATOR ORDER RE MOTION ln LlMINE TO EXCLUDE EXPERTS AND MOTION FOR NON-SUIT

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14 5 ARBITRATOR ORDER GRANTING SUMMARY JUDGMENT MOTION ON BEHALF OF RESPONDENT 1-18 Claimant's cause of action accrued in the late Fall of 2008 when it was discovered that 19 glass fragments remained in claimant's arms after emergency room treatment on November 23, The evidence presented indicates that Claimant was aware of glass fragments having been 21 left in his arms and had treatment to remove the glass in the later part of 2008 when glass 22 fragments were removed on two occasions. The Notice of Arbitration filed in this matter last 23 year indicates that Petitioner's claim was for treatment rendered in the emergency room in for failure to remove the glass. Therefore, the cause of action accrued in the late Fall, early 25 Winter of2008 and a Notice of Arbitration was required to be filed within one year of that time. 26 The citation to C. C.P is with respectto claims that accrue while a person is incarcerated. 17 and for Respondent and moving party. 16 for hearing on July 12, Present on conference call were claimant's counsel,. 15 The Motion for Summary Judgment by came on regularly Respondent Claimant, 11 v. ORDER GRANTING SUMMARY JUDGMENT MOTION ON BEHALF OF RESPONDENT 9 CASENO.: IN THE MA TIER OF THE ARBITRATION BETWEEN ANTHONY F. PINELLI (CA Bar No ) WILLIAMS, PINELLI & CULLEN, LLP North Third Street San Jose, California Tele:phone: (408) 288~3868 Facsimile: (408)

15 1 v. ( 1999) 20 Cal 4th 928 dealt with an incarcerated person 2 who was injured while in custody. Here, Mr.. 3 while he was in custody in cause of action accrued in 2008, not 4 As for the discovery ofthe injury, there are ample verified facts that support Claimant's 5 knowledge that the emergency room treatment was the basis of Petitioner's potential claim. 6 There are no verified facts to the contrary. The medical chart itself reflects Petitioner's 7 knowledge that he was aware that glass remained in his arms after the emergency room 8 treatment. Further, Petitioner made a claim for injury in or about the time of injury to and 9 discussed the matter with personnel. It is clear from the record presented that this was 10 not an allegation that remained hidden or was undiscoverable by Petitioner. On the contrary, it 11 appears Petitioner was aware of the facts surrounding his potential claim and it appears he may 12 have acted upon it at the time of the cause of action or chose not to act upon knowledge that he 13 had available to him upon reasonable inquiry. 14 Wherefore, the Motion for Summary Judgment by Respondent 15 is hereby GRANTED pursuant to C.C.P based on the verified, uncontroverted 16 facts in support thereof. 17 Nothing in this arbitration decision prohibits or restricts the enrollee from discussing or 18 reporting the underlying facts, results, terms and conditions of this Decision to the Department 19 of Managed Health Care Dated: July 16, WILLIAMS, PINELLI & CULLEN, LLP -2- AN~INELLI ARBITRATOR ORDER GRANTING SUMMARY JUDGMENT MOTION ON BEHALF OF RESPONDENT By: ~::r-.l

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36 1 ANTHONYF.PINELLI(CABarNo ) WILLIAMS, PINELLI & CULLEN, LLP North Third Street San Jose, California Telephone: (408) Facsmlile: (408) ARBITRATOR IN RE: ARBITRATION 9 Kaiser Foundation Health Plan, Inc., CASENO.N/A 10 Claimants, ORDER FOR JUDGEMENT 11 v. 12, 13 Defendants This matter came on regularly for Arbitration Hearing on March 31,2017. Present by phone 16 was Claimant Kaiser Foundation Health Plan, Inc. through counsel Michael Karatov of Gibson 17 Kolb. There was no appearance by Respondent, 18 has not participated in any of the proceedings, leading up to and including 19 the Arbitration. Despite notice to her last known address, she did not appear at the first 20 Arbitration Management Conference. Consequently, it was re-set. did not appear 21 at the second Arbitration Management Conference either. An Arbitration Hearing was set. 22 Discovery was propounded to. The evidence shows she did not respond to 23 discovery. did not appear at the first Arbitration Hearing. The Arbitration 24 Hearing was then reset to March 31, At the March 31, 2017 Arbitration Hearing, satisfactory evidence was presented that: (1) 26 Respondent was served with discovery and she never responded; (2) Attempts were ORDER FOR JUDGEMENT

37 1 made by Kaiser Foundation Health Plan, Inc. to ascertain the amount that the underlying case 2 settled for, without response from Respondent or her attorney in the underlying action (upon 3 whom a subpoena was attempted to be served); (3) Mail previously propounded to. 4 by both Petitioner counsel and the Arbitrator began to be returned by the post office as 5 undeliverable, without a forwarding address in 2017; and (4) Voice mail messages left at the 6 Respondent's purported voice mail box (which had no identifying owner in its message) by both 7 the Petitioner and Arbitrator were never returned. 8 Wherefore, satisfactory evidence having been presented by Petitioner Kaiser Foundation 9 Health Plan, Inc. without objection, that Kaiser Foundation Health Plan, Inc. incurred 10 $375, in medical charges and there being no evidence presented by Respondent that (a) II that amount exceeded the settlement in the underlying case; or (b) there is no legal basis for 12 recovery, it is hereby ordered that judgment in the amount of$375, be issued in favor of 13 Kaiser Foundation Health Plan, Inc. 14 Nothing in this arbitration decision prohibits or restricts the enrollee from discussing or 15 reporting the underlying facts, results, terms and conditions of this Decision to the Department 16 of Managed Health Care. 17 IT IS SO ORDERED Dated: April 7, WILLIAMS, PINELLI & CULLEN, LLP 4, // J.-;9~ By: ~I.7~~~~TIT'=-~ ANTHON '../. PINELLI ARBITRATOR ORDER FOR JUDGEMENT

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40 1 ANTHONY F. PINELLI (CA Bar No ) WILLIAMS, PINELLI & CULLEN, LLP North Third Street San Jose, California Telephone: (408) Facsimile: (408) ARBITRATOR IN THE MATTER OF THE ARBITRATION BETWEEN 9 Kaiser Foundation Health Plan, Inc., CASE NO.: Claimant, ARBITRATION DECISION AND ORDER 11V Respondent This matter came on regularly for binding arbitration hearing on August 21, Present 16 by phone for Claimant Kaiser Foundation Health Plan, Inc. (hereinafter "Kaiser") was Michael 17 Karatov. Respondent did not appear. Respondent has not appeared at any of the 18 Arbitration Management Conferences, has not responded to correspondence (though no mail has 19 been returned), has not responded to telephone calls by counsel or the arbitrator, and failed to 20 communicate with Kaiser counsel regarding potential resolution and failed to respond to 21 discovery. 22 Kaiser submitted a detailed trial brief and exhibits without objection by Respondent. 23 Included in Kaiser's submissions were documentation that settled her 24 underlying personal injury matter for $75,000 and that Kaiser provided $19, in services 25 to Respondent for the underlying settled matter. Pursuant to the provisions of C. C.P. 3040, the 26 $19, which Kaiser seeks as ajudgment, without objection by Respondent, is appropriate. ARBITRATION DECISION AND ORDER

41 1 Accordingly, it is ordered that judgment in the sum of $19, be awarded in favor of 2 Kaiser and against. 3 Nothing in this arbitration decision prohibits or restricts the enrollee from 4 discussing or reporting the underlying facts, results, terms and conditions of this 5 Decision to the Department of Managed Health Care. 6 IT IS SO ORDERED. 7 8 Dated: August 25, 2017 WILLIAMS, PINELLI & CULLEN, LLP 10 By: ANTHONY FLDNLLI 11I ARBITRATOR * 12 * * 16 *17 * * 20 * 21 * * 24 * 25 * ARBITRATION DECISION AND ORDER

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