(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.)
It is also well settled that misconduct has often taken the form of improper argument to the jury, such as by urging facts not justified by the record or suggesting that the jury may resort to speculation (Malkasian v. Irwin, supra, 61 Cal.2d 738, 747); by informing the jury that an injured party has been compensated by a codefendant (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575); and by informing the jury of an offer of settlement and compromise (Granville v. Parsons (1968) 259 Cal.App.2d 298, 304). City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870.
The issue of negligence by Defendant White was wrongly decided. The issues of causation and Dr. Black’s damages were never decided. The argument of defendant’s counsel at trial had the effect of injecting irrelevant, prejudicial, and misleading evidence into the proceedings, and resulted in a verdict tainted by passion and prejudice.
The Implication that Dr. Black was Working.
In reality there was no evidence that Dr. Black was employed during the time that he claimed to be disabled. The only income he had during this time frame was disability benefits or residual income. Despite knowing same, defense counsel, over the court’s admonition, suggested repeatedly to the jury that Dr. Black was working when he claimed to be disabled – again impugning Dr. Black’s credibility. He went so far as to examine Dr. Baker on a telephone message taken by a member of his staff, indicating that Dr. Black “needed a letter for work” and examine Dr. Mark on and thereby admitting into evidence a patient’s history form on which Dr. Black reported that he was a CEO of a company.
Despite knowing that the true state of affairs was that plaintiff was not working, the jury was intentionally misled. Over objection, the court permitted the patient questionnaire to be presented into evidence and allowed Mr. Jones to question regarding same.
This misrepresentation to and misleading of the jury was further compounded by cross-examination of the economists. As such it was another tool or nail that defendant inappropriately used to infer to the jury that Dr. Black was lying to them and to the health care providers. It served as another mechanism to inappropriately mislead the jury into conclusions about credibility, which prejudiced them on the issue of negligence.
DR. BLACK WAS PREJUDICED BY THESE ERRORS.
Although the nature and scope of Dr. Black’s injuries were hotly contested during the trial, it was never truly contested that Dr. Black did not receive some damage from the collisions. The issue is, and has always been, the nature and scope of Dr. Black’s damages and the percent for which defendant White was responsible.
The substantial weight of the evidence presented at this trial supported that 1) Defendant White was a negligent cause of Dr. Black’s injuries and damages; and 2) a portion of Dr. Black’s injuries and damages were proximately caused by Defendant White’s negligence. By the admission of inadmissible opinions and argument, Dr. Black was deprived of a fair and unbiased trial.
CONCLUSION
Plaintiff respectfully submits that the errors and irregularities which occurred during the trial of this action resulted in the jury being prejudiced toward Dr. Black, and ultimately, incorrectly finding no negligence by Defendant White. A defense verdict was rendered, despite the overwhelming evidence supporting negligence. If these errors were remedied, it is reasonably probable that Dr. Black would receive a verdict in his favor. Based on the foregoing, plaintiff Ethan Black requests this court grant his JNOV/new trial motion or in the alternative, his request for a new trial.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.