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.)

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION

On September 9, 2005, a completely avoidable high-speed collision occurred on Highway 160 at the intersection of Royal Oaks Avenue shortly before midnight between two vehicles. Sacramento Police Officer Paul Black was rocketing down the road, eastbound, with two county probation officers in his vehicle, returning from a police matter in Roseville. Black was not authorized to be speeding, and he testified he had no right to be doing so. According to Black, he was not driving in any emergency fashion, or otherwise permitted to be operating under “Code 3” conditions. Therefore, it is undisputed that he had, at all times relevant, an obligation to adhere to the same rules of the road as a motor vehicle operator as any other citizen.

As Officer Black approached the intersection of Royal Oaks Avenue that evening, traveling well over the posted speed limit, at least pre-skid, Don Choo was waiting at a stop sign and the limit line to make a left-turn across Highway 160. He intended to traverse the two west-bound lanes of travel and enter the east-bound lanes. According to Mr. Choo, he nudged his vehicle out past the limit line to gain a line of sight to his left, and although he saw the oncoming Black vehicle, it appeared far enough away that he felt he could safely start the process of making his left-hand turn. The Choo vehicle, a white 2003 Chevrolet Malibu, started out and all of a sudden, Mr. Choo perceived the oncoming police vehicle traveling at an extremely high rate of speed. (See Part 2 of 9.)

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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.)

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 Officer 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. He left two skid marks which are parallel, consistent with a braking skid, and inconsistent with a simple steer (yaw) as the City’s expert contends occurred.

In any event, 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 hit 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.

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.)

Plaintiff offers the following Motion in Limine No. 3, regarding the following topics:
Expert witnesses for the defense trying to offer and discuss wholly misleading and not substantially similar:
(1) night-time photographs;
(2) night-time videos;

(3) animations.

Under the Evidence Code and California case law, it is clear that these topics should not be addressed by any witness at the time of trial of this brain injury case.

MEMORANDUM OF POINTS & AUTHORITIES
STATEMENT OF THE CASE

On September 9, 2005, a completely avoidable high-speed collision occurred on Highway 160 at the intersection of Royal Oaks Avenue shortly before midnight between two vehicles. Sacramento Police Officer Paul Black was rocketing down the road, eastbound, with two county probation officers in his vehicle, returning from a police matter in Roseville.

Black was either heading back to the S.P.D. station where he worked, or was responding to an officer-involved shooting matter in that general direction at 57th Street. He was not authorized to be speeding, and he testified he had no right to be doing so. According to Black, he was not driving in any emergency fashion. Therefore, it is undisputed that he had, at all times relevant, an obligation to adhere to the same rules of the road as a motor vehicle operator as any other citizen.

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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/auto accident case and its proceedings.)

Archie weighed approximately 125 lbs at the time of the incident and after being discharged from the hospital dropped to a mere 95 lbs. Archie was a ghost of his prior self. Archie suffers from post-traumatic stress and depression and was diagnosed with anorexia. Even the defense neuropsychologist Sian Green agrees that Archie ‘s anorexia was caused by the incident. Archie lost a significant amount of muscle mass, is fatigued easily, has lost stamina and overall energy, feels physically weak and is not the same person he was before the incident.

Due in large measure to the traumatic brain injury, Archie ‘s personality has changed. He has lost spontaneity, is very fretful, overly apologetic, more irritable and less animated. Archie is a shadow of his former self; he does not engage with the world like he did before the incident in terms of what he is willing to undertake, his intellectual ambition, his social ambition and his career ambition. Archie is more dependent on his family to take care of his daily needs. Archie is fearful and anxious; he is uncertain of his future and whether he will return to a state of independence, that of normal twenty three year old male, which he would have had, but for defendant’s negligence.

Anorexia is a life threatening illness and Archie will require future care and treatment for the remainder of his lifetime. (See Dr. Patt’s report below.) Archie requires further psychiatric treatment that will exceed costs of $100,000. In light of his orthopedic injuries, plaintiff will never be able to walk or run as he used to before the incident. Archie ‘s hip has started to undergo arthritic changes and even the defense orthopedist agrees that Archie will indeed need two to three hip replacements in the future at $50,000 per surgery. (See Dr. Schwartz’s deposition testimony below.) Archie ‘s future medical expenses will be in the several hundreds of thousands of dollars.

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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/auto accident case and its proceedings.)

Here, defendant and two independent witnesses, Cathy and Frank Bennett, testified that defendant was stopped at the stop sign. Therefore, Archie, who was lawfully riding his bicycle in the bike lane of San Vicente Boulevard, would have observed that defendant was stopped and had a right to assume that she would stay stopped as he passed directly in front of her. Defendant had a duty to obey the stop sign and Archie had a right to assume that defendant would carry out her duty and obey the stop sign and not enter the intersection until it was safe to do so. Accordingly, there can be no comparative fault as a matter of law.

Further, defendants’ argument that plaintiff could have averted the incident is completely without merit. Defendant’s BMW accelerates much faster than Archie pedaling on his bicycle and the impact occurred when Archie was directly in front of defendant’s BMW. Thus, in the moments before the impact, Archie was almost in front of defendant’s vehicle. Based on the speed that the BMW was accelerating, Archie did not have enough time to react and take action to avoid the collision. This incident is unquestionably 100% defendants’ fault.

INJURIES AND DAMAGES
Archie suffered severe and life threatening injuries and extensive damages as a result of defendant’s negligence. Archie suffered a litany of devastating injuries. Archie ‘s right femur was pushed through the pelvic bone causing a right acetabular fracture and dislocation of the hip. Archie suffered pelvic fractures, a ruptured bladder, rib fractures, moderate brain injury with subdural hematoma and seizure, memory loss, nerve damage and significant soft tissue bruising and abrasions. Archie ‘s doctors told his family that they were not sure if they could save him.

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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/auto accident case and its proceedings.)

Several witnesses, observing that Archie was underneath the SUV screamed at defendant to stop. Defendant, completely oblivious as to what was happening, continued on and did not stop until more than 20 feet later. Archie was pummeled against the asphalt as his body was propelled underneath the SUV all the way from the bike lane to the second lane of eastbound traffic on San Vicente Boulevard. When defendant’s SUV finally came to rest, the rear wheel pinned Archie to the ground. Again oblivious, witnesses had to get the defendant’s attention to reverse the SUV so that they could attend to Archie. (See deposition testimony of Cathy and Frank Bennett below.) Archie suffered massive injuries, including traumatic brain injury.

The Santa Monica Police Department determined that defendant caused the accident by failing to yield to Archie who was lawfully traveling in the bike lane at the time of the incident in contravention of Vehicle Code Section 21802 (a).

LIABILITY

Defendants do not dispute liability.

PLAINTIFF WAS NOT COMPARATIVELY AT FAULT, THEREFORE DEFENDANTS ARE 100% RESPONSIBLE FOR HIS CATASTROPHIC INJURIES AND DAMAGES
Although it may be negligence where the injured party fails to discover the danger by neglecting to look or by looking ahead without glancing to either side, the rule does not apply in situations where there is reasonable reliance on another’s duty of care.

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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/auto accident case and its proceedings.)

PLAINTIFF’S TRIAL BRIEF
STATEMENT OF FACTS

November 28, 2003, was Sunday of Thanksgiving weekend. Plaintiff Archie Smith, a Sacramento resident, was twenty-one years of age and was on a break from his studies as a math major at Princeton University. The weather was clear and sunny so Archie and friend Miranda Brown decided to go for a bike ride to the beach. The pair started near Veteran Avenue in Santa Monica, rode to Ocean Boulevard along the beach and then turned east on San Vicente Boulevard back towards Miranda’s home.

Defendant Sabrina Black, aged 60, had been to the manicurist, purchased holiday greeting cards and was driving her BMW X-5 SUV northbound on 11th Street on route to her home in Westwood. At approximately 2:15 p.m., defendant approached the stop sign at the intersection of 11th Street and San Vicente and intended to proceed across the intersection to the center median, where there is a break in the road for vehicles to make turns, and then turn left onto San Vicente Boulevard. Defendant stopped at the stop sign but failed to see Archie who was riding eastbound on San Vicente Boulevard in the bike lane directly in front of her at the time of impact. Defendant accelerated to make her way towards the center median and struck Archie.

The point of impact was within the bike lane. The front of defendant’s SUV struck Archie ‘s right hip and the middle of the hood of the SUV impacted the bicycle’s handlebars. After impact, Archie ‘s bicycle was knocked to the ground in front of defendant’s SUV. Instead of immediately stopping upon feeling the impact, defendant continued to drive forward, ran over Archie with the left front tire of the SUV, and continued to drag him and his bicycle on the asphalt underneath the vehicle for more than twenty feet. (See Part 2 of 4.)

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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/personal injury case and its proceedings.)

GENERAL DAMAGES

As a result of his injuries Paul has experienced severe pain and suffering and emotional distress. Paul was nearly killed on the scene as he suffered a severe skull fracture and brain hemorrhage, multiple broken ribs, spleen and liver lacerations, internal bleeding, and collapsed lung. Paul endured nine days in critical care, and continued to have pain and suffering well into his recovery. Paul continues to have complaints of periodic headaches and pains in the area where he fractured multiple ribs. The large scar on his head, and facial palsy further add to the suffering experienced by this young man after the automobile collision.

As a result of his brain injury, Paul has lost all motivation and shows signs of depression and anger. Paul often sleeps throughout an entire day, and it is frequently difficult for him to pull himself out of bed. Prior to the collision, Paul was an energetic, enthusiastic, and kind young boy. Now, he does not express himself, does not communicate well with others, and becomes angry and frustrated very easily. In short, Paul has become a different person all together.

As a 14-year-old with a brain injury, Paul’s social development has been stunted. For the most part, Paul has been in homeschool programs since the collision which have further contributed to this isolation. Paul’s prime years of high-school have been taken away from him, and he will never be able to make up this lost ground.

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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/personal injury case and its proceedings.)

DAMAGES
As discussed above, Paul Martin suffered severe personal injuries as a result of the collision. Paul suffered a severe skull fracture, brain hemorrhage, collapsed lung, fractured pelvis, multiple fractured ribs, liver laceration, and spleen contusion and laceration. Paul nearly died on the scene after he became unresponsive and could not be intubated due to his locked jaw. The 14-year-old was air-lifted and spent nine days in critical care at University Hospital.
PAST MEDICAL EXPENSES
Mercy Air: $8,031.50
ABC Ambulance: $ 1,089.03
Valley Regional: $49,941.17
University: $ 70,752.47
Outpatient Rehab. $ 5,000.00
TOTAL $134,814.00
FUTURE MEDICAL EXPENSES & SERVICES

Paul has been diagnosed with a moderate to severe traumatic brain injury. Paul’s treating physicians have recommended that he be placed in a specially designed educational learning program for children with brain injuries. Paul will need extended schooling through the age of 22 based on his condition.

Paul will require treatment in a residential neurobehavioral program to cope with his damaged motor skills.

Due to his brain injury and inability to properly care for himself, Paul will require long-term supported living after completion of school.

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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/personal injury case and its proceedings.)

The investigation performed by the Gas Company’s experts confirmed that the speed of Mr. Brown’s Ford F-150 was 50.7 to 60.3 miles per hour. This report, prepared by Dr. Kevin Fish of the Institute of Risk and Safety Analyses, further states “We found no evidence that the traffic signals were not properly functioning at the time the subject collision occurred.” The report concludes It is clearly evident that Mr. Brown caused the subject collision by violating California Vehicle Code § 21453, failure to stop for a steady circular red signal.

Although the Gas Company has not formally accepted responsibility for causing this collision, Brown could not deny fault when pressed at deposition.
Q: Do you admit that you are at fault for this accident?

A: Yes. (Whitely deposition.)

SHERRIE MARTIN CANNOT BE APPORTIONED ANY RESPONSIBILITY FOR CAUSING THE SUBJECT COLLISION
The single eye-witness to the collision, Mr. Walkup, confirmed in his statement to the California Highway Patrol that Brown was completely at fault in causing the collision. Mr. Walkup stated that he was driving his vehicle northbound on White Road and was stopped at SR-40 waiting for his light to change. He observed the Martin vehicle stopped in the westbound left turn lane and after the signal cycled, she began a normal left hand turn. Mr. Walkup stated that the Martins were in a normal turn and were not in a hurry, and that Brown “came out of nowhere eastbound on SR-40, ran the red light and collided with the Martins.”

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