Articles Posted in Birth Injury

It is worth noting that situations similar to those described in this birth injury 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 medical malpractice lawsuit and its proceedings.)

SYMPATHY PLEAS ARE IMPROPER AND VIOLATE THE LAW

Any plea of sympathy for the individual defendants is improper because it asks the jury to violate the law and their oath to judge the case based on the evidence presented to them and without regard to sympathy for any party. While such a plea can be cleverly worded and disguised in its presentation, it is still inadmissible and improper and should not be allowed by this Court.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

EVIDENCE CODE §352 MANDATES EXCLUSION OF SYMPATHY PLEAS. AS IT WOULD RESULT IN PREJUDICE TO PLAINTIFF. CONFUSION OF THE ISSUES. AND WOULD MISLEAD THE JURY SUCH THAT ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE

This Court has the discretion to exclude prejudicial evidence. California Evidence Code § 352 provides that:

The court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, confusion of the issues, or of misleading the jury.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice lawsuit and its proceedings.)

Plaintiffs’ Motion in Limine to Prohibit Argument or Evidence of Sympathy for the Individual Defendant Physician

PLEASE TAKE NOTICE that Plaintiffs will move this court in limine, before trial and selection of jury, regarding the following orders:

1. Don’t put a yoke over any of the individual defendant physician by a verdict.
2. Don’t shame any of the individual defendant physician by a verdict against them.
3. Don’t hurt any of the individual defendant physician’s reputation.
4. Don’t put the individual defendant physician out of business.
5. Don’t jeopardize the individual defendant physician’s medical licenses.
6. Don’t hurt the defendant financially by your verdict.
7. The individual defendant physician will have to personally pay this verdict.

8. A medical malpractice verdict will discourage good doctors from trying to help patients.

This motion is made on the grounds that such evidence is not relevant to any issues presented in this action, and would be highly improper and prejudicial to Plaintiff.

This motion is based upon this notice, the accompanying Memorandum of Points and Authorities, any documents already on file with this Court, and upon such other oral and documentary evidence as may be presented prior to or at the hearing of this matter.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice action and its proceedings.)

DR. HILL’S PERSONAL OPINIONS WOULD RESULT IN UNDUE CONSUMPTION OF TIME, WOULD CREATE A SUBSTANTIAL DANGER OF PREJUDICE TO DEFENDANT, AND CAUSE CONFUSION AND POTENTIALLY MISLEAD THE JURY (cont. below)

Since there are numerous other reasons, many unknown to Dr. Hill, why defense attorneys have not sought his expertise in the recent past a significant amount of time would be required on cross examination to establish Dr. Hill’s opinions have no factual basis and are not based upon personal knowledge. Additionally, cross examination of Dr. Hill regarding medical societies, medical groups, and faculties that allegedly prohibit their members from testifying on behalf of plaintiffs would consume an inordinate amount of time.

More importantly, allowing testimony about the defense attorneys “shift in attitude,” the alleged prohibition by the medical groups, faculties, and societies, or the meritorious nature of plaintiff cases, would create the very real danger of prejudice to the defendant in this matter. Dr.Hill’s testimony infers not only that he has not been retained by the defense bar because the defense doesn’t like his opinions, but also that if a non-supportive opinion is obtained from him the defense bar will simply find someone else. These opinions have no foundation and are highly prejudicial to the defense.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice action and its proceedings.)

DR. HILL’S PERSONAL OPINIONS ARE NOT RELEVANT TO THE ISSUES IN THIS CASE
Evidence Code, § 350 states:

No evidence is admissible except relevant evidence.

Evidence Code, § 351states:

Except as otherwise provided by statute all relevant evidence is admissible. Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence ….” (Evidence Code § 210.) The test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it. (People v. Peggese (1980) 102 Cal.App.3d 415, 420; People v. Yu (1983) 143 Cal.App.3d 358, 376.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The most accepted test of relevancy is: Does the evidence offered render the desired inference more probable than it would be without the evidence? (Ruiz v. Minnesota Mining & Manufacturing Co. (1971) 15 Cal.App.3d 462, 468.)

Dr.Hill’s personal opinions as to why he believes he has testified on behalf of plaintiff more often in the last five years is not relevant to any of the issues in this case. Such testimony does not impact any of his opinions regarding the medical issues or evidence, and does not add anything to support his expert testimony on the medical issues. This testimony, Dr.Hill’s personal opinions, does not make the purported “chill” or “shift in attitude” more probable than it would be without such testimony.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice action and its proceedings.)

THE COURT HAS INHERENT POWER TO PROVIDE FOR THE ORDERLY CONDUCT OF ITS PROCESS AND PROCEEDINGS AND TO CONFORM THEM TO THE LAW AND JUSTICE

California Code of Civil Procedure § 128, provides in part as follows:

(a) Every court shall have the power to do all the following …(3) To provide for the orderly conduct before it, or its officers.A. To amend and control its process and orders so as to make them conform to law and justice. The court’s power to grant this motion in limine, while not provided for by statute, is found in the court’s inherent power to provide for the orderly conduct of the proceedings before it and to control its process and proceedings to make them conform to law and justice. A trial judge has broad authority over the admission and exclusion of evidence. (Peat Marwick, Mitchell & Company v. Superior Court (1988) 20 Cal. App. 3d 272, 288.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice action and its proceedings.)

As expressed by the Court in Kelly v. New West Federal Savings, (1996) 49 Cal.App.4th 659, 672, the court held that [i]t is a misuse of a motion in limine to attempt to compel witness or party to conform their trial testimony to preconceived factual scenarios based on testimony given during pretrial discovery. (Id., at 672-673.) The Court of Appeal in Kelly specifically criticized this type of motion as improper and meaningless motion unless and until plaintiffs attempted to call such witnesses. (Id., at 670-671.)

Additionally, the Kelly Court observed in some cases, a motion in limine may not satisfy the requirements of a motion to exclude under Evidence Code §353. For example, it may be difficult to specify exactly what evidence is the subject of the motion until that evidence is offered. Actual testimony sometimes defies pretrial predictions of what a witness will say on the stand. Events in the trial may change the context in which the evidence is offered to an extent that a renewed objection is necessary to satisfy the language and purpose of §353. Until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility. In these kinds of circumstances, an objection at the time the evidence is offered serves to focus the issue and to protect the record. (Id. 660-661.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice action and its proceedings.)

In this case defendants deposed plaintiff’s designated pediatric neurology expert, Dr. Robert Hill on September 1, 2010. During the deposition Dr .Hill testified as to his personal opinions regarding why he has testified on behalf of plaintiffs in medical malpractice cases more often in the last five years. Essentially, Dr. Hill testified that during the first twenty to 25 years he was acting as an expert, a majority of the cases were reviewed for the defense. However, over the last 10 to 15 years, a gradual transition occurred to the point now 80 % of the cases in which he is deposed as an expert are on behalf of the plaintiff.

When asked about the reason for the transition Dr. Hill testified, There’s some reasons that are flattering to you and some that are not. I’ll give you one reason and one reason only for now, and that is, in the last 10 or 15 years, cases on behalf of families and children are far better prepared and far more meritorious, in association with very superior plaintiff lawyers than they were in the 70s, 80s, and even early 90s. So today I’m seeing plaintiff cases that have been well worked up by highly capable lawyers and the cases are very credible.

In addition, in the case of Dylan White v. XYZ Hospital, Dr. Hill was deposed as a medical expert.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice action and its proceedings.)

Indeed, in Mayer v. Cooper, (1965) 233 Cal.App.2d 750, 754, a case cited with approval in Kennemur, the Court stated as follows, concerning the scope of deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for.

The Court in Kennemur continued, “the principles articulated in Mayer are sound. The only difference when in the expert arena is that the expert must reveal the general substance of his testimony (as opposed to every possible specific opinion).” [Kennemur, Id., at 919].

Defendants’ Instant Motion in Limine is Improper, and Seeks to have the Court Rule in a Factual Vacuum

California law is clear that unsupported Motions in Limine are improper [Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 672].

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice action and its proceedings.)

In Kennemur, the plaintiffs expert was deposed on three separate occasions over a six-day period by the defendant. The witness was specifically asked whether he was going to testify on accident reconstruction. The witness specifically stated that he was not and would leave that to a different expert. The witness said that he was limiting his testimony to the stability of the automobile involved in the accident. [Id. at 912]. At the second session of this witness’ deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The issue before the Kennemur court was not whether this witness (Mitchell) could testify to areas into which opposing counsel had failed to delve, but rather, whether he could testify on accident reconstruction issues about which he was specifically asked and had stated he had no opinion.

The Court stated:

“The decisive fact in the present case is the appellant’s failure to disclose Mitchell’s expected testimony … either at Mitchell’s deposition or as required by Section 2037.3. This failure deprived respondent to prepare for Mitchell’s cross-examination.”

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this birth injury 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 medical malpractice action and its proceedings.)

Defendant’s Motion in Limine Limiting the Testimony of Robert Hill, M.D.

Defendant Universal Partners, Inc., hereby moves this court in limine, before jury selection and the commencement of trial, for an order precluding plaintiff’s expert, Robert Hill, M.D., from testifying to, mentioning, being interrogated upon, or in any other manner conveying to the jury his personal opinions as to why he has testified on behalf of plaintiffs more often in the last five years, and specifically preclude him from providing the testimony noted in this motion or any similar testimony regarding these issues.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
This is a medical malpractice case involving plaintiff Mark Smith brought by his guardian and mother, Alana Smith.

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