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 brain injury lawsuit and its proceedings.)

INTRODUCTION
Plaintiff Melissa White’s Trial Brief

This case arises out of a three (3) vehicle collision on Highway 50, caused when a commercial van driven by Sean Black rear-ended the Plaintiff’s vehicle.

Prior to the January 24, 2008 traffic accident, Plaintiff Melissa White was a healthy, physically active 57-year-old senior bank vice-president. After more than a 25-year career in banking, she was making $87,500.00 base salary, not including benefits and bonuses as a senior vice-president with County Bank. Mrs. White had a nice home and a happy and fulfilling life. All that changed in an instant on a rain-slick highway in the early evening of January 24, 2008. Through no fault of her own, a van driven by a GHI Distributing Company employee, Richard Black slammed into the back of Mrs. White’s BMW which was stopped for traffic on SR50. At the time of impact, the GHI van was going at least 40 mph. (Plaintiff thought that Black’s vehicle was going more than 50 mph.) In the accident, Mrs, White’s vehicle was smashed into the vehicle ahead of her. As a result of the collision, Melissa White suffered a mild traumatic brain injury/post-concussion syndrome, injury to her left shoulder, and post-traumatic cervical and lumbar spine injuries.

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 the pre-trial stage of civil litigation. Reviewing this kind of briefing 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 case and its proceedings.)

DEFENDANTS CLAIM OF PREJUDICE IS COMPLETELY WITHOUT MERIT BECAUSE PLAINTIFF HAS SUBMITTED TO DEFENSE MENTAL EXAMINATIONS AND DR. BROWN HAS BEEN DEPOSED BY THE DEFENSE

Code of Civil Procedure § 2034.300 governs the exclusion of expert testimony in order to avoid any prejudice to an adverse party. The court may only exclude an expert from testifying if the party designating him “unreasonably” fails to (a) List that witness as an expert ; (b) submit an expert declaration; (c) produce reports and writings; or (d) make the expert available for deposition. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has clearly and undeniably complied with all of these requirements in naming Dr. Brown in a supplemental designation. As the defense medical reports show, Plaintiff has in fact submitted to two defense mental examinations – one by defense expert Mike Hall, M.D., and two days of intense mental testing by defense expert Robert Lee, Ph.D. Defendants concede that they have conducted a thorough deposition of Dr. Brown. Nowhere do the defendants specify what prejudice they would suffer by Dr. Brown’s testimony and their complaint of prejudice is simply made of whole cloth. Even if defendants could elucidate some prejudicial effect, any potential for prejudice is easily avoided by defendants’ companion Kennemur motion in limine to limit any expert’s testimony to what was disclosed in plaintiffs designation and deposition.

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The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing 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 case and its proceedings.)

Dr. Brown is a California licensed medical doctor and is board certified in neurology and psychiatry. (This was in error. Dr. Brown testified at his deposition that he is board certified in psychiatry only, notwithstanding, that both he and Dr. Hall are diplomates of the American Board of Psychiatry and Neurology.) Dr. Brown is designated as an expert to counter defendants designation of Mike Hall, M.D. and Rupert Jones, M.D.

Dr. Brown will testify as to his expert opinions regarding the nature, extent and causation of plaintiff’s injuries, his post injury level of mental and physical functioning as well as the nature and cost of plaintiff’s post injury medical and life care needs. Such testimony will include, but is not limited to expert medical opinions as to diagnosis, reasonableness and necessity of treatment, prognosis, future medical care and life care needs and continuing and worsening symptomology. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In other words, Dr. Brown was clearly designated to express an opinion on a subject to be covered by defense experts Drs. Hall and Jones, as contemplated by section 2034.280.

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The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing 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 case and its proceedings.)

PLAINTIFF’S SUPPLEMENTAL DESIGNATION OF PAUL BROWN, M.D., IS PROPER BECAUSE IT IS TIMELY AND REASONABLY RELATED TO THE SUBJECTS TO BE COVERED BY DEFENSE MEDICAL EXPERTS HALL, M.D. AND JONES, M.D.

Defendants do not dispute that plaintiff’s supplemental designation of Dr. Brown was timely served. Defendants complaint that plaintiff had retained Dr. Brown prior to the date of the scheduled exchange of expert information is unavailing. California pre-trial procedural law recognizes that a party may retain a consulting expert and not have to designate him at all, if the party does not intend the expert to testify at trial. When the party decides to call the expert, he must comply with the pre-trial discovery procedures of the code. Code of Civil Procedure § 2034.230(a) (refers to “Expert trial witnesses”); Kennemur v. State of California (1982) 133 Cal. App. 3rd 907, 916. Plaintiff has clearly complied with the procedural requirements of the code. 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 the pre-trial stage of civil litigation. Reviewing this kind of briefing 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 case and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Summary of Facts:

In this case, Plaintiff Wayne Smith is seeking personal injury damages for head injuries he suffered on December 14, 2006, when a 10″ Crescent wrench fell approximately 12 to 15 feet from scaffolding above and struck him on the head while he was attending a Christmas play produced by the co-defendants at their Sacramento church. Medical evidence shows that plaintiff has a traumatic brain injury. However, defendants dispute that plaintiffs brain injury was caused by the wrench striking him on the head and claim that all or a substantial portion of plaintiffs brain injury was pre-existing. Thus, the central issue of this case is the nature and extent of plaintiff’s injuries caused by the incident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Subject of Defense Medical Expert Opinions:

The parties exchanged their designations of experts pursuant to Code of Civil Procedure § 2034.210 et seq. (All subsequent references are to the Code of Civil Procedure unless otherwise noted.) The defendants jointly designated as medical experts Mike Hall, M.D. and Rupert Jones, M.D.. As to each of these defense experts, Section 2034.260(c) requires a declaration of counsel that contains: (1) a brief narrative statement of the qualifications of each expert ; and (2) A brief narrative statement of the general substance of the testimony the expert is expected to give.

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The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing 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 case and its proceedings.)

Plaintiff Wayne Smith’s Opposition to Defendants Motion in Limine to Exclude Expert Opinion Testimony of Paul Brown, M.D.; Memorandum of Points and Authorities

Plaintiff Wayne Smith hereby opposes defendants Universal Fellowship and Randall White’s motion in limine to exclude plaintiff from offering the expert medical opinion testimony of plaintiffs designated expert, Paul Brown, M.D., on the grounds that plaintiff’s supplemental designation of Dr. Brown was proper and timely because:

1) Dr. Brown was properly and timely designated to express an opinion on a subject to be covered by defendants designated experts, Mike Hall, M.D. and Rupert Jones, M.D., in compliance with Code of Civil Procedure S 2034.280. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

2) Both Dr. Brown and defendants’ expert Mike Hall, M.D., are members of the American Board of Psychiatry and Neurology, and therefore have a common basis for the proffered opinions.

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It is worth noting that situations similar to those described in this brain injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

NIED Factual Pleading cont.

43. Plaintiff Ethan Lee was present at the scene of the injury to his child when it occurred and at that time and place and had contemporaneous sensory awareness of the causal connection between the negligent conduct of the Defendants and was reasonably certain that his child was being injured from negligent medical care during labor and delivery, as herein alleged.

44. Plaintiff Thomas Lee was present in the labor room during the labor and delivery his son and witnessed thick meconium during the labor, and knew that the meconium was impeding his son’s breathing, and causing a lack of perfusion of blood and oxygen to this child’s brain.

45. Plaintiff Thomas Lee also witness his son’s heart rate decrease, and knew at the time that the decreased fetal heart rate meant that this son was not receiving enough blood and oxygen to his brain, and was thereby being damaged from the lack of blood and oxygen. When Ethan Lee was born his father witnessed his son to be lifeless and in severe distress, and Thomas Lee understood that his son was suffering brain damage at the time.

46. Said Defendants in disregard of the probability that their actions, in failing to provide the necessary medical treatment to Ethan Lee, were a substantial factor in causing Plaintiff Thomas Lee to suffer severe emotional distress. 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 brain injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

CACI (California Civil Jury Instructions) or BAJI (Book of Approved Jury Instructions) is a checklist of the substantive law in the civil actions covered thereby. These instructions indicate the elements that plaintiff must prove at trial to recover and these are usually the same elements plaintiff must plead to state a cause of action. Rutter Group: California Practice Guide: Civil Procedure Before Trial, Chapter 6 Pleadings.

The “facts” to be pleaded are those upon which liability depends — the facts constituting the cause of action. These are commonly referred to as “ultimate facts.” Doe v. City of Los Angeles, (2007) 42 Cal.4th 531, stating that the complaint will be upheld so long as it gives notice of the issues sufficient to enable preparation of a defense. Id. 549-550. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A complaint must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts. Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.

B. Plaintiff’s Complaint Includes Each of the Elements Required In CACI 1621:

The 4th Cause of Action for Negligent Infliction of Emotional Distress by Plaintiff Thomas Lee states:

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It is worth noting that situations similar to those described in this brain injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

PLAINTIFF HAS PLEADED EACH OF THE REQUIRED ELEMENTS FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)

A. Elements to Be Proven re Bystander NIED:

California Jury Instructions (CACI)Civil 2008 gives the elements required to be proven in a bystander negligent infliction of emotional distress case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

CACI 1621: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
BYSTANDER NIED – ESSENTIAL ELEMENTS:

[Name of plaintiff] claims that [he/she] suffered serious emotional distress as a result of perceiving [[an injury to] [the death of] [name of injury victim]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] negligently caused [ [injury to] [the death of] ] [name of injury victim];
2. That [name of plaintiff] was present at the scene of the injury when it occurred and was aware that [name of injury victim] was being injured;
3. That [name of plaintiff] suffered serious emotional distress; and
4. That [name of defendant]’s conduct was a substantial factor in causing [plaintiff’s] serious emotional distress.

Continue Reading ›

It is worth noting that situations similar to those described in this brain injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Plaintiffs’ Opposition to Demurrer by Defendant Darren White, M.D.; Memorandum of Points and Authorities in Support Thereof

Plaintiffs Ethan Lee, a minor, parents Kathleen Lee and Thomas Lee (“Plaintiffs”), oppose the demurrer of Defendant Darren White, M.D. (“Defendant”), to the Fourth Cause of Action brought by plaintiff-father Thomas Lee for negligent infliction of emotional distress, on the following grounds:

1. The complaint and the 4th cause of action allege each of the elements required for bystander negligent infliction of emotional distress to Thomas Lee, who is the father of the minor child Ethan Lee and the husband of Kathleen Lee, and whom witnessed the negligent acts upon his child and wife.

2. The opposition will be based on this notice, the accompanying Memorandum of Points and Authorities and all of the pleadings and records on file in this action, together with such other and further evidence, as may be presented at the hearing of the demurrer. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
This is an action for medical malpractice during labor and delivery of infant Ethan Lee and his mother who were injured during labor and delivery.

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