(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)
As to Defendant’s seven purported “false assumptions” that supposedly make the evidence presented in this traumatic brain injury case “insignificant,” the Plaintiff would respond as follows:
Not one of Plaintiff’s witnesses knew of the existence of the sub rosa video prior to their testimony. Despite Defendant’s contention that the “sub rosa” contradicts the weight of the evidence, Plaintiffs family testified 1) that plaintiff was able to leave the house by herself on occasion and in fact had confusedly wandered in the neighborhood on occasion; 2) that plaintiff was able to dress herself on occasion, but more frequently than not needs assistance; 3) that plaintiff could move her arm somewhat, and that her movement and rotation in her left arm had reduced over recent months; 4) that plaintiff required supervision and was not the same since the collision and that the family tries to watch her as much as they can; 5) that plaintiff could walk unassisted on occasion, having good days and bad days.
Further, Plaintiffs experts testified that Plaintiff’s future care needs would range from a level 2 to level 3 environment, which is contrary to Defendant’s moving papers that suggest all evidence proffered by plaintiff suggested she would need no less than “24 hours a day, every day” care post-auto accident. Further, Plaintiffs expert Patti Green testified that Ms. Lee future surgical needs were suggested, but yet unknown pending further testing.
Defendant also contends that a false assumption relied on by Plaintiffs experts is that Plaintiff would not be allowed to smoke; however, whether or not Plaintiff smokes or is allowed to smoke has no bearing on this case. Further, Defendant contends that a false assumption relied on by Plaintiffs experts is that Plaintiff could not conduct a transaction by herself, relying on the sub rosa videotape as some sort of proof that Plaintiff in fact can conduct transactions. However, as the video shows no more than an exchange without any verifiable source to indicate what was actually taking place, it is more than speculation to suggest that Plaintiffs experts opinions would somehow be changed by these few seconds of videotape.
The mere fact that Plaintiff’s experts had no knowledge of a video clip from a couple of minutes out of one day in Ella Lee’s life that was six months prior to the trial in this matter does not discredit or otherwise diminish the evidence put on in the trial, before the jury that indicated Ms. Lee’s future care needs. While Defendant argues that Plaintiff’s experts’ opinions were based upon improper or unwarranted matters, and as such the judgment should be reversed, Defendant relies solely on the sub rosa videotape that was played before the jury. The twelve jurors in this matter that found in favor of Plaintiff Ella Lee also saw this video and had the opportunity to weigh the credibility of Plaintiffs experts and Defendant’s experts in light of all the evidence, including the sub rosa videotape. This Court should not now usurp that function and make credibility determinations and weigh evidence, which is contrary to the function of the Court when evaluating a motion for JNOV. (See Part 8 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.