Articles Posted in Brain Injury

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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this traumatic brain injury lawsuit and its proceedings.)

THIS EVIDENCE IS MORE PROBATIVE THAN PREJUDICIAL AS TO PLAINTIFF’S FUTURE ECONOMIC DAMAGES

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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this traumatic brain injury lawsuit and its proceedings.)

Plaintiff seeks to exclude evidence which specifically meets the parameters of relevance, which is intimately tied to the subject matter of the action. See C.C.P. §2017.010; Norton v. Superior Court, 24 Cal.App.4th 1750, 1760. At test of relevancy sometimes used by the Courts is the reasonable inference test, where the general test of relevancy of indirect evidence is whether it tends logically, naturally, and by reasonable inference to prove or disprove a material issue. People v. Jones (1954) 42 Cal.2d 219, 222.

Here, there is a direct relationship between the evidence plaintiff seeks to exclude and critical issues of causation and damages. Plaintiff contends that his academic difficulties are related solely to his traumatic brain injury, and seeks to exclude evidence that his failure to finish high school was related to the entirely unrelated incident involving the gun and knife. The issue is what consequences plaintiff can prove were attributable to his underlying cognitive injuries. Thus, any evidence that impacts that issue is relevant and admissible before the trier of fact.

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

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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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this traumatic brain injury lawsuit and its proceedings.)

EVIDENCE OF PLAINTIFF BROWNE’S ACADEMIC SUSPENSION IN EXTREMELY PROBATIVE TO THE ISSUES OF DAMAGES AND FUTURE DAMAGES

Plaintiff contends that his traumatic brain injury has caused him severe memory and cognitive deficits, and attributes many of the post-accident occurrences in his life to those injuries. He has not been able to complete his high-school education. His academic success at school, after the accident, was poor and as a result he was not eligible for baseball or other athletics. He attributes these academic struggles solely to the 2008 subject accident, irrespective of pre-accident academic difficulties.

In his mediation brief, plaintiff alleges that his medical experts believe the 2010 gun-incident is directly derived and related to the traumatic brain injury. Dr. Randall Hill has opined that plaintiff “did not have the executive functions needed to keep in mind that he had left the rifle in his car, although now attending school, or that his action in doing so would have consequences.” Similarly, Dr. Li was also called upon to opine whether or not the gun and knife expulsion incident was related to his TBI.

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

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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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this traumatic brain injury lawsuit and its proceedings.)

Defendant Blaine White hereby provides its Opposition to Plaintiff’s Motion in Limine to Exclude Evidence of Academic and Criminal Charges.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
This matter arises out of a roll-over accident involving a Yamaha Rhino 4×4 off-road vehicle at a dirt track event, which occurred on November 21, 2008. The event took place over the course of the weekend at the Motocross Park (MX) in Sacramento, California. Plaintiffs have filed suit against John and Catherine White, amongst numerous other defendants, alleging that they negligently entrusted the Rhino to their daughter Dylan White and her friend, Jane Small. No other causes of action have been asserted or alleged against Blaine White or Linda White.

Plaintiff Robert Browne claims multiple injuries, including a broken left arm and a traumatic brain injury. As a result of his brain injury, plaintiffs’ expert Dr. Randall Hill concludes that he has multiple deficits with respect to memory and executive functioning.

Plaintiffs’ instant Motion references an incident that took place in February of 2010, wherein plaintiff Browne was expelled from National High School after admitting that he brought his loaded .22 hunting rifle and skinning knife onto school property (in his pickup truck).

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

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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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury lawsuit and its proceedings.)

The opinion of an expert witness may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390. In the Dee case, the trial court properly granted Defendants’ motions in limine to exclude Plaintiffs proposed expert testimony on causation. The experts sought to testify that exposure to mycotoxins caused Plaintiffs symptoms without any evidence that Plaintiff was exposed to mycotoxins. The experts’ opinions lacked foundation, relying on unsupported assumptions. Similarly, here, Mr. Gold provides opinions based on speculative facts with no evidence that such facts actually apply to the parties and the occurrences in this case. See also, Hyatt v. Sierra Boat Co. (1978) 79 CA3d 325,337 (holding that a motion in limine to exclude an expert’s opinion was properly granted where the expert who was prepared to testify as to plaintiffs probable speed at the time of the accident, stated at deposition that he based this opinion on a particular assumption, but there was no evidence of the facts assumed by the expert.)

While it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the historical facts, expert opinion evidence that is based upon a guess, surmise, or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence. In re Anthony C. (2006) 138 Cal.App.4th 1493. Mr. Gold’s opinions are based purely on speculation as opposed to relevant probative facts. As such, the Mr. Black and the City seek an Order from this Court precluding Mr. Gold from improperly testifying at trial.

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

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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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury lawsuit and its proceedings.)

EXPERT OPINION IS PROPERLY EXCLUDED WHEN BASED ON ASSUMPTIONS, SPECULATION OR CONJECTURAL EVIDENCE

The Court has the 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 & Co. v. Superior Court (1988) 200 Cal.App.3d 272,288.

Plaintiff should not be allowed to present expert opinions by Mr. Gold which are based on assumptions of fact without evidentiary support and pure speculation. An expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence. Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390. California Evidence Code § 801(b) provides, If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is … perceived by or personally known to the witness or made known to him at or before the hearing … Further, pursuant to California Evidence Code § 352, the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate an undue consumption of time or create substantial danger of undue prejudice, confusing the issues and/or misleading the jury.

Mr. Gold’s expert opinions are based on assumptions and speculation. For example, at deposition Mr. Gold provided the opinion that the Plaintiff could have been walking when crossing the crosswalk.

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

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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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury lawsuit and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This lawsuit arises out of an accident that occurred at a crosswalk for southbound Freedom Avenue near 35th Street on July 6, 2008. At the time of this accident, Plaintiff Donna Lee (“Lee”) was struck while jogging in the subject crosswalk by a car driven by co-defendant Matthew Black (“Black”). As a result of being struck by the car driven by defendant Black, Plaintiff Donna Lee sustained severe head and traumatic brain injuries that resulted in her being in a coma for several weeks. Ms. Lee filed a First Amended Complaint in which both the City of XYZ (“City”) and Black were named as defendants. Plaintiff asserts a claim against the City for dangerous condition of public property pursuant to Government Code Section 835.

Plaintiff Lee served her expert designation on January 7, 2010. Plaintiff has designated Robert Gold, P.E., a traffic engineer, to testify as to issues of traffic engineering and transportation planning. Mr. Gold’s deposition was taken on February 2, 2010. The opinions provided by Mr. Gold were based on assumptions of fact without evidentiary support and pure speculation. As such, his opinions have no evidentiary value and should be excluded from evidence.

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

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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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury lawsuit and its proceedings.)

Defendant Matthew Black and City of XYZ’s’s Motion in Limine No. 8 to Exclude Robert Gold, P.E., from Testifying as Plaintiff’s Expert.

Defendants Matthew Black and City of XYZ move the court in limine, before trial and selection of the jury, for an order precluding plaintiffs expert, Robert Gold, P.E., from rendering any expert opinions at the time of trial. Mr. Gold’s expert deposition was taken on February 2, 2010. In light of Mr. Gold’s testimony at deposition, it is apparent that Mr. Gold’s expert opinion is not based upon reliable facts or data, but is instead based upon assumptions and speculation. As such, the Defendant now seeks an Order from this Court precluding Mr. Gold from improperly testifying at trial.

This motion is made pursuant to California Evidence Code §§ 801, 802 and 352 as well as interpretive case law including Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390. An expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence.

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 traumatic brain 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 personal injury lawsuit and its proceedings.)

FACTS REGARDING WITNESSES’ OBSERVATIONS OF DR. BROWN IN PARAGRAPH 13 SUPPORT PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES

Dr. Brown seeks to strike the following allegations from Paragraph 13, Page 3, line 27 to Page 4, line 2 of the Complaint:

Witnesses at the accident site described Melissa Brown, M.D., as being dazed and confused, and acting like a spectator who did not understand what was going on.

Without any supporting authority, Defendant simply claims these allegations “add nothing to the elements of the complaint or the allegations of punitive damages and should be stricken.” Facts pertaining to witness observations at the scene are relevant to, inter alia, issues of Dr. Brown’s egregious conduct and how impaired she was at the time of the incident. This fact helps establish that Dr. Brown drove a vehicle with a willful and conscious disregard of the rights or safety of others, including David Hall. Plaintiff’s factual allegations describing Dr. Brown at the scene are integral to the negligence causes of action in the Complaint and Plaintiff’s prayer for punitive damages. Defendant’s vague objection hardly justifies striking this salient fact.

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 traumatic brain 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 personal injury lawsuit and its proceedings.)

Dr. Brown’s Reliance on Cases After Judgment or Verdict Is Misplaced – Plaintiff Need Not Prove That He Should Be Awarded Punitive Damages at The Pleadings Stage

Dr. Brown relies on Ebaugh v. Rabkin, (1972) 22 Cal.App.3d 891, and Nolin v. National Convenience Stores, Inc., (1979) 95 Cal.App.3d 279, which are not applicable to David Hall’s Complaint. Ebaugh concerned the reversal of a jury’s award of punitive damages because the evidence was insufficient to support the verdict for punitive damages against the employee and employer.

There was also prejudicial error because one of the jury instructions permitted punitive damages against the employer if it found the employee was acting in a willful, reckless or wanton manner without regard to the employer’s conduct in directing or ratifying the employee’s actions. Id. at .895-896. Nolin also involved affirming a jury verdict awarding punitive damages against an employer for the actions of an employee. Ebaugh and Nolin do not apply to this stage of the litigation since they were appeals of a jury verdict at trial. The standard for meeting the burden of proof to overturn a jury verdict is certainly different from the notice pleading requirements of California law.

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

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