It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)
PLAINTIFFS’ DISCOVERY RESPONSES ARE NOT FACTUALLY DEVOID AND DO NOT ESTABLISH THE LACK OF EVIDENCE OF ANY ELEMENT OF ANY CLAIM, MOREOVER, DEFENDANT XYZ CARE’S MOTION MISCHARACTERIZES PLAINTIFF’S DISCOVERY RESPONSES, FAILS TO ADDRESS PLAINTIFFS’ EXERCISE OF THEIR RIGHT TO REFER TO RECORDS IN THEIR RESPONSE, AND INCLUDES NO AFFIRMATIVE EVIDENCE THAT THE FACTS SET FORTH IN PLAINTIFFS’ DISCOVERY RESPONSES (AND DOCUMENTS REFERRED TO THEREIN) ARE INSUFFICIENT TO ESTABLISH ANY ELEMENT OF PLAINTIFFS’ CLAIMS
Plaintiffs recognize that a defendant moving for summary adjudication may rely on “factually devoid” discovery responses to shift the burden of proof. C.C.P. §437c(p)(2). Circumstantial evidence supporting a defendant’s summary judgment motion can consist of factually devoid discovery responses from which an absence of evidence can be inferred, but “the burden should not shift without stringent review of the direct, circumstantial and inferential evidence.” Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.
The moving papers concede that Plaintiffs’ discovery responses include seven pages of facts which support the claims for which defendants seek summary adjudication, including two pages which specifically pertain to XYZ Care.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Among the facts that defendants concede are included in Plaintiffs’ discovery response are facts what support the inference that staff was completely unaware of Mr. Jackson’s needs (i.e. he was served solid instead of pureed food, staff was unaware he wore dentures), failed to provide him with sufficient nutrition and hydration (i.e. he lost weight, was not started on tube feeding, blood could not be drawn because he was dehydrated), failed to provide basic care to prevent infection (i.e. his surgical site was severely infected, surgical staples were not removed). Such facts would clearly support a finding of Wilful Misconduct, i.e. that XYZ Care staff knowingly failed to avoid perils by failing to provide Mr. Jackson with necessary custodial care. (See Part 4 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.