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.)

STANDARD FOR A JUDGMENT NOTWITHSTADING THE VERDICT

A Judgment Notwithstanding the Verdict (hereinafter “JNOV”) challenges the legal sufficiency of the evidence, essentially asking whether the evidence was sufficient to prove the claims or defenses asserted and now embodied in the jury’s verdict, such as the one in this brain injury case. See Hauter v. Zogarts (1975) 14 Cal.3d 104; Clemmer v. Harford Ins. Co. (1978) 22 Cal.3d 865.

For purposes of a JNOV, all evidence supporting the verdict is presumed true, making the issue whether the facts, when presumed true, constitute a prima facie case or defense as a matter of law. Moore v. San Francisco (1970) 5 Cal.App.3d 728; Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743.

The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. The trial judge cannot weigh the evidence, or judge the credibility of witnesses. If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support 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.)

ALLOWING TESTIMONY, WITHOUT PROPER FOUNDATION, AMOUNTED TO ERROR OF LAW [C.C.P. §657 subds. 1 and 7.1

The following witnesses were erroneously permitted to give expert opinion and evidence without proper foundation:

Defendant’s Expert Accident Reconstructionist, Dr. Brown’s Opinion That There Was a Single Rear-end Impact to the Black Vehicle:

Over objection, and based solely on a single page, page 13, in the police report identifying. three impacts, Dr. Brown was allowed to testify that the Black vehicle may not have been impacted at all by the Escalade after the Escalade was hit by defendant White. That police report is attached as Exhibit 1. Plaintiff’s counsel objected that there was no foundation for such an opinion since the report was merely hearsay opinion of the officer’s, without a showing of his knowledge, education or training. Defendant was unable to sustain an offer of proof otherwise. Despite the foregoing, the court allowed Dr. Brown to express this opinion.

Subsequently, Officer King, the police officer who wrote that page of the report, testified. His testimony did not establish the necessary foundation for Dr. Brown’s opinion. (Declaration of Shana Mulligan, page 3, paragraph 5 and 6.) As Officer Brown explained, outside the presence of the jury, the three point-of-impacts described in his police report represented his opinion that the majority of the damage to the vehicles was done by the first three collisions and not the collisions that followed White striking Lyon.

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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.)

THIS MOTION SEEKS TO EXCLUDE TESTIMONY WHICH WOULD MISELEAD THE JURY. THE VIEOS AND ANIMATIONS AND NIGHTTIME PHOTOGRAPHY THE DEFENSE AND THEIR EXPERTS HAVE CONJURED UP IS NOT SUBSTANTIALLY SIMILAR TO THE CONDITIONS ON THE NIGHT IN QUESTION, IS HIGHLY PREJUDICIAL, IS GROSSLY MISLEADING, AND LACKS FOUNDATION. IT MUST BE EXCLUDED

The Court has inherent power to grant a motion in limine to exclude “any kind of evidence” which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451; Peat, Marwick, Mitchell and Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288. Evidence Code § 350 states that “(n)o evidence is admissible except relevant evidence.”

ONLY RELEVANT EVIDENCE IS ADMISSIBLE

This Court must act in limine to exclude improper evidence to ensure a fair trial in this brain injury case.

Evidence Code § 352 states the court 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, of confusing the issues, or of misleading the jury. A number of courts have approved of the use of Section 352 to exclude prejudicial, wasteful or confusing evidence. See, People v. Cardenas (1982) 31 Cal.3d 897, 904 (prejudicial evidence); People v. Sanders (1995) 11 Cal.App.4th 475, 514 (undue consumption of time); People v. Wagner(1982) 138 Cal.App.3d 473, 481 (jury confusion).
(See Part 5 of 8.)

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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.)

Prior to this catastrophic car crash, Ella Lee, a mother and grandmother, had a functional life filled with the typical array of ups and downs. Testimony was given that prior to this collision, Ms. Lee took care of her parents, enjoyed friends, and had relatively good health. She did have anxiety problems and according to the experts, had mental illness in the form of schizophrenia, but she was functional and lived independently. Now, she needs help with most basic daily tasks and requires supervision due to her traumatic brain injury.

When she left the nationally renowned rehabilitation center in Sacramento, California, Universal Rehabilitation, she regained many life survival skills needed to re-integrate into her world with the help of others, but she still was a danger to herself and others, easily confused, easily tired, and in chronic pain. She requires assistance from skilled nurses.

Sandra Lee has been fully evaluated by many top experts, including Physiatrist Bob Smith, M.D., Neuropsychologist Jeffery Brown, Ph.D., Neuropsychiatrist Lester Davis, M.D., and has had a comprehensive Life Care Plan put together with the help of these experts by Patti Green, a highly respected life care planner. Plaintiffs experts testified that Ella Lee’s future medical care costs totaled $8,636,251.00 and that Ms. Lee’s past medical expenses totaled $426,636.00.

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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.)

Prior to this catastrophic car crash, Ella Lee, a mother and grandmother, had a functional life filled with the typical array of ups and downs. Testimony was given that prior to this collision, Ms. Lee took care of her parents, enjoyed friends, and had relatively good health. She did have anxiety problems and according to the experts, had mental illness in the form of schizophrenia. But she was functional and lived independently. Now, she needs help with most basic daily tasks and requires supervision.

When she left the nationally renowned rehabilitation center in Sacramento, California, Universal Rehabilitation, she had regained many life survival skills to re-integrate into her world with the help of others, but she still was a danger to herself and others, easily confused, easily tired, and in chronic pain from the traumatic brain injury. She requires assistance from skilled nurses.

Sandra Lee has been fully evaluated by many top experts, including Physiatrist Bob Smith, M.D., Neuropsychologist Jeffery Brown, Ph.D., Neuropsychiatrist Lester Davis, M.D., and has had a comprehensive Life Care Plan put together with the help of these experts by Patti Green, a highly respected life care planner. Plaintiffs experts testified that Ella Lee’s future medical care costs totaled $8,636,251.00 and that Ms. Lee’s past medical expenses totaled $426,636.00.

In their case in chief, the City of Sacramento presented testimony of their medical experts, Julie Noonan, M.D, Robert Estes, M.D., and Frank Rubin, M.D. The City’s accident reconstructionist, Stan Evans, also testified.

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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 well-established standard for the trial court’s determination of sufficiency of the evidence was set forth by the California Supreme Court, In the Matter of the Estate of Caroline H. Bainbridge, et al. v. McCarthy (1915) 169 Cal.166:

In the determination of a motion for a new trial, the verdict should be set aside if, in the opinion of the trial court, it is not supported by sufficient evidence; and this is equally true whether there be an absence of evidence or that the evidence received, in the individual judgment of the trial judge, is lacking in probative force to establish the proposition of the fact to which it is addressed. This is the meaning of the terms insufficiency of evidence. (Code Civ. Proc., sec 657, subd. 6.) In the Matter of the Estate of Caroline H. Bainbridge, et al. v. McCarthy, supra, 169 Cal.at p.167.

The appellate court’s scope of review is limited, especially when the court exercises its discretion in favor of a new trial. The trial court’s exercise of discretion may only be disturbed where a “manifest and unmistakable abuse of discretion clearly appears.” See Candido v. Huitt, supra, 151 Cal.App.3d at pp. 922-923, citing Jimenez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387. Our state Supreme Court in Jimenez v. Sears, Roebuck & Co., supra, clarified the limited scope of the court’s review on appeal:

The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. Jimenez v. Sears, Roebuck & Co., supra, 4 Cal.3d at p. 387. [citations omitted.]

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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.)

POINTS AND AUTHORITIES
THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE VERDICT [C.C.P. SECTION 657 SUBD. 6.] AND AS A RESULT DAMAGES WERE NOT AWARDED [C.C.P. SECTION 657 SUBD. 5.]

Code of Civil Procedure Section 657 subd. (6) permits the vacating of a verdict and ordering of a new trial if the evidence was insufficient to justify the verdict. The Fourth District Court of Appeal has held that, in determining whether a new trial may be granted on this ground, the trial court must independently weigh the evidence and assess its sufficiency to support the verdict; a new trial may be granted even if the evidence would be considered sufficient to sustain the verdict reached by the jury on appeal. People v. Capps (1984), 159 Cal.App.3d 546, 552; Candido v. Huitt (1984) 151 Cal.App.3d 918, 923.

In weighing and evaluating the evidence, the court is a trier-of-fact and is not bound by factual resolutions made by the jury in this car collision case. The court may grant a new trial even though there be sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence is against the verdict. (Candido v. Hunt, supra, 151 Cal.App.3d at p. 924.)

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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.)

From his own testimony, Choo froze, bringing his vehicle to a stop as it straddled the #2 lane (slow lane) on the Highway 160 westbound, directly in the path of travel of Black. Black then slammed on the brakes and tried to steer away from the vehicle in his path by turning his wheel to the right, skidding. Officer Black left two skid marks which are parallel. Black swerved and braked to avoid Choo’s Malibu, and he slammed directly into the side of Ms. Lee’s 1992 Toyota Camry.

The impact was so severe, it crushed the vehicle to the midline of the occupant compartment when she was struck at 30-40 m.p.h. (at impact). Only five inches of metal on the side of her vehicle stood between her and the oncoming battering ram of the front end of the police vehicle.

During the trial, both counsel stipulated to the fact that Ms. Lee was not in any way at fault for the collision. The stipulation of parties was read to the jury. The jury returned a verdict, determining that Officer Paul Black was 55% at fault for this collision and that Don Choo was 45% at fault for the cause of the collision. Defendant has not challenged this finding by way of Defendant’s Motion for Judgment Notwithstanding the Verdict.

As a result of the impact severity, Ms. Lee was knocked to the other side of the vehicle, despite her use of the passive restraint system within the vehicle. She was rendered unconscious and was in a coma for many days following the crash. She suffered a severe brain injury, cracked hip bones, a cracked skull and subdural hematoma, large lacerations on her head, a ruptured spleen, and many other related serious and life threatening injuries.

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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.)

Ella Lee has been fully evaluated by many top independent medical experts to assess her brain injury, and has had a Life Care Plan assembled with the help of these experts by Patti Green, a highly respected life care planner. The future medical care costs for Ella Lee are in excess of $8,750,000. Her past medical bills are in excess of $430,000.

The defense experts estimate the cost of future care to be in the area of $5,000,000, but they have provided no life care plan through their experts. Instead, the defense takes the position that maybe Ella Lee is faking, and is a malingerer. However, their best expert on the subject acknowledges that her condition is just as likely to be quite real, and severe brain injury patients like Ella Lee often cannot control their emotions and make sense as accurate historians. Given Ella Lee’s pre-existing condition with mental illness, as a result of the new and devastating overlay of significant brain trauma, she know non-functional and requires the help the experts contend is needed.

To sum up the case which will be presented at trial, Ella Lee is seeking economic damages only. She will prove that the auto accident is the fault, in whole or in part, of Sacramento Police Officer Paul Black. Therefore, he is jointly and severally responsible for her economic damages. The City of Sacramento will contend the accident was completely the fault of Mr. Choo, and further will contend that Plaintiff’s injuries and economic damages claimed are overstated and not credible. Mr. Choo will contend, like Plaintiff, that the accident is in whole or in part the fault of S.P.D. Officer Paul Black. No one contends that Ella Lee is at all responsible for the accident or her damages. She was blame-free, stopped behind the Choo vehicle, minding her own business when the crash occurred.

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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.)

Points and Authorities in Support of Plaintiff’s Motion for a New Trial
INTRODUCTION

This case is admittedly one of contested damages and, as a result, highly contested liability. Mild traumatic brain injuries, such as that suffered by Dr. Black in Sacramento, are often difficult damages cases because the injury is not easily subject to objective medical confirmation and the proof of same is based wholly on the testimony of the subjective complaints of the plaintiff. When the credibility of the plaintiff is impugned, all aspects of the verdict are affected, despite the fact that the law requires that the separate issues of negligence and causation of any injury must be separately and fully assessed by the jury.

In this case, substantial evidence supported, as a matter of law, that Defendant Sylvia White was negligent, and that her negligence was the cause of at least a portion of Dr. Black’s injuries incident to the car collision. Accordingly, some measure of damages should have been awarded and would have been except for improper and prejudicial testimony and argument. Plaintiff maintains that liability, including substantial damages, should have been the verdict and contends in this motion that misconduct of counsel and error of law so prejudiced the jury that negligence was wrongfully decided. In this new trial motion, plaintiff contends that he was prevented from having a fair trial.

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