Articles Posted in Brain Injury

(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.)

Assuming that inadmissible hearsay utilized by an expert to form an opinion is presented, an inquiry into the prejudicial effect of such matter becomes necessary. Here the Simms testing was used to support the opinion of Dr. Bend that Dr. Black was not telling the truth, that he was faking. The main consideration to the court is the purpose for which the material was presented. Where, as here, the jury is allowed to consider the hearsay (evidence presented by the expert in connection with proof of the matter asserted [i.e., the applicable test results), the principles approved by the Supreme Court in People v. Coleman (1985) 38 Cal.3d 69, 92, are violated, and prejudice is apparent. (Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at p. 1518.)

What could be more prejudicial than telling the jury that “objective” testing establishes that the plaintiff is not credible?

Material that forms the basis of an expert’s opinion testimony must be reliable. (1 Witkin, Cal. Evidence (3d ed. 1986) The Opinion Rule, § 477, p. 448.) For the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based. (Kennemur v. State of California (1982)133 Cal.App. 3d. 907, 923.)

Consistent with these well-settled principles, the trial court in this case erroneously ruled that Dr. Bend could build his house on a what amounts to nothing more than a pile of sand; Mary Simms’s inherently illegal and unreliable test results – test results from which Dr. Bend based his opinion that Dr. Black was not truthful and falsifying his brain injury.

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(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.)

Defendant’s Analogy Can Be Readily Distinguished From This Brain Injury Case

Defendant provides an example by way of reference to In re Marriage of Hewitson and In re Marriage of Rives as support for the proposition that Plaintiffs experts’ testimony does not constitute substantial evidence. (Def. Mot., citing Hewitson (1983) 142 Cal.App.3d 874; citing Rives (1982) 130 Cal.App.3d 138)).

Defendant cites these two cases, which are a family law cases stemming from dissolution of marriage, for the proposition that an expert’s testimony based on “improper” or “unwarranted” matters means the opinion is not supported by substantial evidence. Defendant fails to identify the Hewitson or Rives Court’s reasoning for such a proposition.

In Hewitson, similarly to Rives, the court concluded that the trial court’s determination of the value of a particular asset [closely held corporation] is a factual one and, if there is substantial evidence to support it in the record, the determination must be upheld on appeal. Hewitson, 142 Cal.App.3d at 885. The court continued its explanation by stating that if such determination is based solely or in large part on the opinion of an expert, the determination will not be upheld on appeal, unless the opinion satisfies the standard of admissibility set forth in Evidence Code section 801. Id. (citing In re Marriage of Rives (1982) 130 Cal.App.3d 138, 149-151; cf.. Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382, 389-390).

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(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.)

THE NIGHT TIME PHOTOGRAPHS AND VIDEOTAPING ARE MISLEADING AS TO THE ACTUAL LIGHTING, WHAT THE PARTIES COULD SEE AND NOT SEE, AND THEREFORE SHOULD NOT BE VIEWED BY THE JURY IN THIS BRAIN INJURY CASE.

Photographs submitted as evidence should never be accepted as true and accurate or substantially similar representations without subjecting them to critical examination. The legitimate manipulation of photographic imagery is as old as photography itself. Retouching and restoring photographs has been an art form for over a century. Special effects for image manipulation methods are used throughout the entertainment industry and in Hollywood.

Consequently, it is not unusual for an attorney to legitimately ask whether a photograph or video has been doctored “in some way,” to emphasize certain details or subdue others. Photoshopping or eliminating images from photos or videos is a common art form now practiced by people on laptops with current software throughout society, especially with digitally recorded images.

Elements within an image can be fabricated, enhanced, distorted, shifted, cloned, erased or transferred quite easily, without a trace. The images can be “brightened up” or “darkened” with a turn of a knob, defying detection or scientific scrutiny. The camera never lies, or so it used to be.

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(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.)

After plaintiff’s counsel’s objection was overruled and Dr. Bend testified, she requested to call Ms. Simms in rebuttal. A hearing was held outside the presence of the jury, and her cross-examination established Ms. Simms’s lack of experience, knowledge, training and education. Her testimony directly rebutted Dr. Bend’s testimony that she was well trained and experienced. Despite same, the court denied plaintiff’s counsel’s request to call Ms. Simms. Ms. Simms was subpoenaed and available to testify.

Evidence Code section 801 subd. (b) requires that the matter relied upon by the expert in forming his opinion must be of a type that reasonably may be relied upon by experts in forming an opinion upon the subject to which the testimony relates. In large measure this assures the reliability and trustworthiness of the information used by experts in forming their opinion. (Evid. Code section 801 and Law Revision Commission Comments.) Expert opinion must be based on matters that the expert may reasonably rely on and is not otherwise legally precluded as a basis for the opinion. (Evid. Code section 801(b).)

When an expert witness bases his testimony entirely or chiefly on incompetent evidence, the opinion should be rejected. (San Diego Land & Town Co. v. Neale (1891) 88 Cal. 50, 62-63; Young v. Bates Valve Bag Corp. (1942) 52 Cal.App.2d 86, 96.) Herein, Dr. Bend’s opinion based on his brain testing was entirely founded on inadmissible and unreliable testing. There was no legal foundation for admitting same.

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(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.

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(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.)

Evidence Code § 402 allows the Court to hear and determine the question of the admissibility of evidence outside the presence or hearing of the jury. See, Mike v. Atchison, Topeka & Santa Fe Ry. Co. (1975) Cal.App.3d 436, 448. In addition to excluding highly prejudicial evidence, the Court may instruct opposing counsel to avoid mention of the evidence in question during trial or in argument to the jury; and to direct persons under their control (counsel’s associates, clients, witnesses, etc.) likewise to avoid such mention. L.A. Sup.Ct. Rule 8.92; see, Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 793, 174 Cal.Rptr. 348, 371.

Expert opinions are not proper when offered by a lay witness. Evidence Code § 800. See, Jambazian v. Borden (1994) 25 Cal.App.4th 836, 848. Examples of inadmissible lay opinion evidence include testimony on causation [Stickel v. San Diego Elec. Ry. Co. (1948) 32 Cal.2d 157, 165], legal conclusions [Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 113-144] and matters beyond common experience [People v. Williams (1992) 3 cal.App.4th 1326, 1332-33].

This would include a statement by Black that the video or photographs of the auto collision “fairly and accurately depicted” what he saw that night, because they cannot. They do not substantially replicate the field of vision he had, where his focus was, or the lighting condition his eyes would have received. If allowed, through a witness or an expert, such evidence would be totally unfair to the brain-damaged plaintiff.

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(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.)

Dr. Bend’s testimony: Neuropsychological Testing Administered by Student Molly Simms:

During the trial, plaintiff timely objected to Dr. Bend expressing any opinion based on the testing performed by his student Molly Simms, on the grounds that it lacked legal foundation. Dr. Bend was not present at this testing. He could not personally verify how the tests were given. His testing assistant, Ms. Simms, is not and was not legally qualified to administer neuropsychological testing to the public.

Ms. Mulligan presented undisputed evidence that Ms. Simms did not meet the requirement of a psychological assistant by the State of California, as required by the California Business and Profession Code §2913, despite the fact that the test documents wrongfully identified her as same. Since she was a psychological assistant she could not legally perform the neuropsychological testing administered to Dr. Black. Therefore, Dr. Bend could not express any opinions based on the results of these tests, and any reference to same must be excluded.

Plaintiff’s counsel further objected that Ms. Simms lacked sufficient training, education, and experience to properly administer the tests. Over plaintiff’s objection, Dr. Bend was permitted to explain to the jury the tests, the manner in which they were given, the results of the testing and base opinions on these test results. Graphs were even shown to the jury. (Declaration of Shana Mulligan, page 4, paragraph 11.) This was error. (See Part 7 of 12.)

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(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.)

THE VERDICT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE

Defendant contends that a miscarriage of justice will be had in this case if the verdict stands and further contends that the verdict is not based upon substantial evidence of plaintiff’s brain injury. Defendant’s Contention is plainly wrong. First, Defendant does not challenge the finding of liability in this matter and is thus not entitled to a JNOV in that regard.

Further, Defendant suggests that because Plaintiff’s experts were not aware of the sub rosa videotape at the time of their testimony, that the opinions of Plaintiff’s experts are erroneous. In this way, Defendant suggests that the “sub rosa” videotape simply wipes away any and all evidence of injuries to Plaintiff Ella Lee. However, plaintiff presented evidence that was sufficient to “reasonably inspire confidence,” and support the verdict; as such, defendant is not entitled to a JNOV as to the damage award and Defendant’s Motion should be denied in its entirety.

Defendant Erroneously Contends that Plaintiffs Experts Relied on False Assumptions
Defendant argues that Plaintiffs experts relied on false assumptions, including 1) that plaintiff was unable to leave the house by herself; 2) that plaintiff was unable to dress herself; 3) that plaintiff could not move her arm and needed shoulder surgery; 4)that plaintiff required 24 hour supervision; 5) that plaintiff could not walk unassisted; 6) that plaintiff would not be allowed to smoke; and 7) that plaintiff could not conduct a transaction by herself. Defendant suggests that the “sub rosa” video contradicts all of these alleged false assumptions.

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(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.)

Further, a judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law. Moore v. San Francisco (1970) 5 Cal. App. 3d 728, 733-734 (referencing Palmer v. Agid (1959) 171 Cal.App.2d 271). A JNOV motion must be denied if substantial evidence “supports the verdict.” Begnal v. Canfield Assocs., Inc. (2000) 78 Cal.App.4th 66; Campbell v. Cal-Gard Surety Svs., Inc. (1998) Cal.App.4th 563; Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal. App. 4th 206, 218.

In the instant case, defendant erroneously argues that a miscarriage of justice has occurred in this brain injury case, without any adequate justification. Defendant suggests that no evidence was presented that would be of “solid value” or that would “reasonably inspire confidence” to support the verdict; however, this contention is unsupported and misleading.

In fact, defendant provides no valid argument to support this conclusion and instead urges this Court to weigh the evidence and make credibility determinations regarding specific witnesses, which is improper. As such, Plaintiffs respectfully request this Court to deny Defendant’s motion for judgment notwithstanding the verdict.

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(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.)

Officer King: His Opinion on the Magnitude of the Collisions:

Defendant called Officer Ben King. Because plaintiff’s counsel questioned his capacity to give any expert opinion testimony, the court required a 402 hearing on foundation. At the close of the hearing it was obvious that Officer King lacked sufficient training and experience to express any opinions on the cause, magnitude or number of collisions which occurred. Further, he had no personal information since he was not present at the collision site at the time of the accident. After hearing his testimony the court instructed him not to express his opinions to the jury.

Despite the foregoing and despite multiple admonishments by this court, Officer King intentionally and prejudicially responded to plaintiff’s questions. He insisted on placing his opinions on reconstruction before the jury. He gave unfounded expert opinion testimony in an area on which he was directed not to opine, telling the jury that the damage to the Blacks’ vehicle was caused by the force of the first collision with Mr. Lyon. This inadmissible testimony is reflected in the decision of the jury, i.e. that Mr. Lyon’s negligence caused the damage to the black vehicle and the resulting traumatic brain injury to Dr. Black.

Under Evidence Code section 720 subd. (a), a person is qualified to testify as an expert only if he has special knowledge, skill, experience, training or education sufficient to qualify his as an expert on the subject to which his testimony relates. (Evid. Code section 720 subd. (a)) … the courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.)

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