1 2 3 4 5 6 UNITED STATES BANKRUPTCY COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 In re ) Case No. 17-22887-E-7 ) 11 SEAN ROBERT STODDARD, ) ) 12 Debtor. ) ) 13 ) PATSY CARTER and ) Adv. Pro. No. 19-2119 14 MONTY CARTER, ) ) 15 Plaintiffs, ) v. ) 16 ) SEAN ROBERT STODDARD, ) 17 ) Defendant. ) 18 ___________________________________) 19 SUPPLEMENTAL FINDINGS AND CONCLUSIONS 20 TO THOSE STATED ORALLY ON THE RECORD 21 The court stated its Findings of Fact and Conclusions of Law on the Record at the final day 22 of trial in the Adversary Proceeding in which Plaintiffs Patsy Carty and Monty Carter (collectively 23 “Plaintiffs”) asserted that debts arising from and related to medical treatment given by Sean Robert 24 Stoddard, the “Defendant-Debtor” were nondischargeable pursuant to

(a)(2)(A) for 25 fraud and/or § 523(a)(6) for willful and malicious injury to Plaintiffs . In preparing the Judgment, 26 the court concludes that for the sake of clarity for the Parties and any court that may be reviewing 27 this Court’s Findings and Conclusions, this Supplement to the Findings and Conclusions is 28 beneficial. 1 The court as part of the oral Findings and Conclusions stated the applicable case law of the 2 United States Supreme Court and the Ninth Circuit Court of Appeals relating to the determination 3 that a debt is nondischargeable pursuant to

(a)(2)(A) for fraud or § 523(a)(6). In the 4 oral Findings and Conclusions, the court reviewed the evidence presented and conflicting testimony 5 by Plaintiffs’ expert, a doctor, and Defendant-Debtor, also a doctor, and does not repeat them here. 6 Both presented the court with their opinions as doctors concerning the medical treatment given 7 Plaintiff Patsy Carter, a total ankle replacement. 8 Each provided their conflicting opinions, citing different medical resources, and their 9 conflicting interpretations of x-rays of Plaintiff Patsy Carter when comparing them to x-rays of other 10 persons, some identified as showing arthritis in an ankle and others stated to not show arthritis in 11 an ankle. 12 As the court stated on the record, the court concludes that the Plaintiffs’ expert and the 13 Defendant-Debtor present their conflicting medical opinion as to whether a total ankle replacement 14 was necessary or proper (as in the nature of a malpractice claim), but did not provide the court with 15 evidence for the court to conclude that total ankle replacement was improper, known to be improper, 16 and intentionally done by Defendant-Debtor knowing that it was not proper medical treatment. 17 As established by the U.S. Supreme Court and amplified by the Ninth Circuit Court of 18 Appeals, for a debt to be nondischargeable as a willful and malicious injury, the conduct of the 19 debtor must be done with the intention to cause the injury, not merely intentionally act, which act 20 causes the injury. Kawaauhau v. Geiger,

(1998). As in this Adversary 21 Proceeding, the conduct at issue in Geiger was that of a doctor who provided medical services to 22 the creditor, which the creditor asserted, and obtained a state court judgment for, constituted 23 malpractice. 24 Though the doctor in Geiger intended to provide the medical treatment, then provided the 25 medical treatment, and it was determined that providing such treatment constituted malpractice, 26 “mere” malpractice, whether negligent or reckless conduct, did not constitute a willful and malicious 27 injury.

. 28 In a 2007 case, a decade after Geiger, the Ninth Circuit Court of Appeals addressed a claim 1 of malpractice asserted to be nondischargeable as a willful and malicious injury in Ditto v. McCurdy, 2

(9th Cir. 2008). In Ditto, the Ninth Circuit applied Gieger to an alleged failure to 3 sufficiently inform a patient concerning the proposed medical treatment, such that the patient could 4 not give informed consent and the medical treatment could constitute a medical battery. Though the 5 tort of battery could be an intentional tort, the intentional conduct must be to either desire to injure 6 the patient or the doctor have a “belief that the injury was substantially certain to occur.” Ditto v. 7 McCurdy,

. 8 Though Plaintiffs argue that their expert established that any reasonable doctor, and even the 9 Defendant-Debtor, had to have a belief that the injury was substantially certain to occur, the court 10 concluded that such was not shown by a preponderance of the evidence. 11 In rereading Exhibit 1 presented by Plaintiffs, beginning on page 000074 starts a doctor’s 12 December 8, 2016 examination report by Jared Garrison, DO, of the Glenn Medical Center. This 13 was from a December 8, 2016 examination, a little more than five months after the June 24, 2016, 14 total ankle replacement surgery. The information provided by Dr. Garrison in his notes from the 15 December 8, 2016 examination as to Plaintiff Patsy Carter’s medical condition include: 16 • Under the History of Present Illness the “Pain Quality” is stated to be “Dull,” the “Onset Mode” is “Gradual,” the “Severity” is “Mild,” and the “Progression” is 17 “Improving.” 18 • The Note under History of Present Illness continues, stating, “She does have some pain in her R ankle 6/10, she had a total joint repair in June 2016. She does use a 19 walker to help with stability and balance. . . She says she finally starting to gain her independence back. . . .” 20 • Under the Physical Exam Constitutional section her “Distress” is stated to be “Mild 21 Distress.” 22 • A Note under this section includes, “She does have some contained valgus deformity of her right ankle her left ankle is pretty well outlined. She walks with her walker 23 with a pretty Colchicine PAT.” 24 • Under the Assessment section, Dr. Garrison states, “Osteoarthritis of the right ankle status post joint replacement doing pretty well. She is followed by a UC Davis for 25 this.” 26 Exhibit 1, pp. 000074-75. The court does not take this as a “verification” that the Defendant-Debtor 27 did it right, but it indicates that another doctor’s opinion and examination notes five months after 28 the surgery do not indicate a failed surgery. 1 In an August 8, 2017 Chart Report/Letter by John Ancona, PA-c, from the U.C. Davis 2 Medical Center to Ms. Linda Tremble at the Glenn Family Medical Group, it states that “we” saw 3 the Plaintiff Patsy Carter on August 2, 2017, and that since her last visit (that date not stated), 4 “[Plaintiff Patsy Carter] states that walking is a challenge for her since her ankle replacement but 5 she can get around with her walker and cane. Whenever she tries to walk on her ankle it rolls over 6 and she is left walking on her lateral malleolus.” It states that “Of note we will also place a consult 7 to a foot/ankle orthopedist specialist to see if anything could be done to help with her ankle.” This 8 examination at U.C. Davis is thirteen months after the July 13, 2016 surgery, and eight months after 9 the December 2016 examination above in which no “urgent” ankle issues are identified. Exhibit 1, 10 p. 000081-82. 11 As addressed in the Oral Findings and Conclusions, the court has been presented with 12 evidence showing differing medical opinions about the surgery and post surgery condition of 13 Plaintiff Patsy Carter. The condition as shown in the evidence “progressed,” to that which led to 14 Christopher Kreulen, M.D. providing Plaintiff Patsy Carter with the treatment option of the 15 amputation after first seeing her on October 17, 2021 (Kreulen Direct Testimony Statement, ¶¶ 4, 16 6). Plaintiff Patsy Carter elected on October 27, 2017, ten days after first seeing Doctor Kreulen, 17 to have her lower leg amputated. Kreulen Direct Testimony Statement, ¶ 8. 18 While Plaintiffs may be able to convince a court that Defendant-Debtor’s conduct fell below 19 the standard of care for a doctor providing such treatment, they have not shown that Defendant- 20 Debtor intended to cause the injury to Plaintiff Patsy Carter that flowed from the total ankle 21 replacement, nor that the Defendant-Debtor had a belief that the injury was substantially certain to 22 occur. Though Plaintiffs’ expert stated he had such conclusion from his review after the surgery and 23 injury occurred, that Defendant-Debtor has such a belief, and that the court to find not credible 24 Defendant-Debtor’s testimony as to his belief in prescribing and doing the total ankle replacement, 25 the court determines that Defendant-Debtor did not intend to injure Plaintiff Patsy Carter, nor did 26 he know that the injuries that resulted from the surgery were substantially certain to occur. 27 Defendant-Debtor intended to do the total ankle replacement, but did not intend to cause the 28 injury that came from it, nor did he have a belief that such injury was substantially certain to occur. 1 It has also been asserted that Defendant-Debtor committed nondischargeable fraud, it being 2 that Defendant-Debtor misrepresented Plaintiff Patsy Carter’s ankle condition, stating that it was 3 sufficiently arthritic to warrant a total ankle replacement and that Plaintiff Patsy Carter was a proper 4 candidate for such total ankle replacement surgery. Going through the well-established requirements 5 for determination that a debt is nondischargeable based on fraud pursuant to 11 U.S.C. 6 § 523(a)(2)(A), Plaintiffs assert that they have shown by a preponderance of the evidence that: 7 • Defendant-Debtor made the representations, 8 • Defendant-Debtor knew the representations were false, 9 • Defendant-Debtor made the misrepresentations with the intention and purpose of deceiving Plaintiffs, 10 • Plaintiffs justifiably relied on such representations, and 11 • Plaintiffs sustained losses and damages as the proximate result of Defendant- 12 Debtor’s misrepresentations. 13 The cases cited by the court as part of the oral Findings of Fact and Conclusions of Law include 14 Cohen v. de la Cruz,

(1998). American Express Travel Related Servs. Co. v. 15 Hashemi (In re Hashemi),

(9th Cir. 1997). 16 Though Plaintiffs’ expert’s opinion was that the representations made by Defendant-Debtor 17 were false and that Defendant-Debtor had to know they were false when he made them to Plaintiffs, 18 the court has not so found. Defendant-Debtor’s interpretation of the x-rays and Plaintiff Patsy 19 Carter’s condition may have been in error, and then Defendant-Debtor recommending and then 20 conducting the total ankle replacement may have been a medical error, the court’s conclusion is that 21 Defendant-Debtor did not know them to be false and Defendant-Debtor did not make them with the 22 purpose of deceiving the Plaintiffs. 23 After considering the testimony of Plaintiffs’ expert witness and the supporting evidence, 24 the court concludes that such evidence was not sufficient for the court to conclude that Defendant- 25 Debtor’s testimony and evidence of his knowledge and intentions were not credible. The court does 26 not believe what Defendant-Debtor says merely because he said it, but considers it in light of the 27 objective facts and evidence presented by Plaintiffs and Defendant-Debtor. 28 Additionally, as stated in the Oral Findings of Fact and Conclusions of Law, the court found 1 || significant that after Defendant-Debtor recommended the total ankle replacement, and in reliance 2 || thereon Plaintiff Patsy Carter decided to have the total ankle replacement done a week later, another 3 || of Plaintiff Patsy Carter’s doctors at the Glenn Medical Center conducted an examination and 4 || certified her fit for the surgery. While not opining on the condition of her ankle, Plaintiff Patsy 5 || Carter was seen by another doctor who, if he or she believed that she was rushing into surgery, had 6 || a professional responsibility to so advise their patient. Plaintiffs’ Exhibit 1. Plaintiff Patsy Carter 7 || was not a “captive patient” of Defendant-Debtor, cut off from other medical professionals and rolled 8 || into surgery only with the knowledge of Defendant-Debtor. If Plaintiff Patsy Carter’s other doctor 9 |] thought that her conditions (obesity, diabetes, and the like) made surgery improper, they had the 10 || opportunity and responsibility to so advise their patient Patsy Carter. 11 It is very unfortunate that the medical treatment prescribed and done by the Defendant- 12 || Debtor did not correct Plaintiff Patsy Carter’s ankle issues. However, based on the evidence 13 || presented, Defendant-Debtor prescribing and doing so did not constitute inflicting a willful and 14 || malicious injury on, or making a fraudulent misrepresentation to either of the Plaintiffs so as to 15 render any malpractice or other tort or contract claim nondischargeable. 16 The court shall issue its separate judgment for Defendant-Debtor denying the relief sought 17 }| by Plaintiffs. 18 | Dated: August 23, 2021 By the Court 19 20 Qf}

Ronald H. Sargis, Judge ON United States Bankraptcy bet t 23 24 25 26 27 28

1 Instructions to Clerk of Court 2 Service List - Not Part of Order/Judgment 3 The Clerk of Court is instructed to send the Order/Judgment or other court generated document transmitted herewith to the parties below. The Clerk of Court will send the document 4 via the BNC or, if checked XXXX , via the U.S. mail. 5 Debtor / Defendant-Debtor Attorney for the Debtor / Defendant- 6 Debtor 7 8 Bankruptcy Trustee (if appointed in the Office of the U.S. Trustee case) Robert T. Matsui United States Courthouse 9 501 I Street, Room 7-500 Sacramento, CA 95814 10 Attorney for the Plaintiffs (if any) Steven H. Schultz, Esq. 11 555 University Avenue, #154 Sacramento, CA 95825 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28