Articles Posted in Bus Accidents

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Brad Small is the defense expert on accident reconstruction and biomechanics. Mr. Small testified that he reviewed Mr. Awad’s deposition and discovered several significant errors in Mr. Awad’s calculations. First, Mr. Awad used the wrong mathematic equation to calculate Ms. Chance’s pedestrian speed. (Small deposition, pages 85 to 86.) Second, Mr. Awad also reversed the location of the initial bus/pedestrian contact area or ICA because Awad drew his diagram of the intersection upside down, with north at the bottom and south at the top. (Small deposition pages 74 to 75.), Third, Mr. Awad is overheard on his video taped inspection of the intersection telling Mr. Jones that he has comparative fault here because Ms. Chance stepped out into the crosswalk on the DON T WALK phase of the signal.

Mr. Awad’s opinions are based on mathematically incorrect equations, conjecture and unwarranted assumption at best and outright fabrication at worst. Expert opinion testimony, to be admissible, must be based on at least some objective, independent validation of the expert’s methodology. The expert’s assurances that he has utilized generally accepted scientific methodology are insufficient when the expert’s calculations are shown to be incorrect (based n the wrong equation) and based on an upside down diagram that places the area of impact in the wrong location.

More important, where the expert can be heard informing his principal (John Jones) that the plaintiff was at fault for entering the intersection of the DON’T WALK phase of the green light (CVC 21456 (b)), there is no rational basis for allowing this expert to misrepresent the facts and testify in a manner inconsistent with his earlier in time, candid opinion on the issue of whether Ms. Chance was into the street on the WALK or on the DON’T WALK phase of the signal.

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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 bus accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

COME NOW defendants Bus USA, and move the Court in limine for an order excluding the expert witness testimony of Joseph Awad, the plaintiffs accident reconstruction and biomechanics expert.

Mr. Awad was deposed in this matter on February 1st. Mr. Awad testified at that time plaintiff Molly Chance entered the crosswalk at Fourth Street and Elm Street on the WALK phase of the green signal and proceeded to cross the street. (Awad deposition page 93.) Mr. Awad also testified that defendant Paul Davie (the bus driver) focused his attention on two pedestrians who were walking from west to east in the same crosswalk and that as a consequence, Ms. Chance walked into a zone of no visibility for the bus driver who proceeded to turn the bus left into Ms. Chance. (Awad deposition, pages 93 to 95 .)

Mr. Awad based the foregoing opinions on the length of the Walk phase of the green signal for Chance’s direction of travel as measured at 13 seconds by Mr. Awad on January 30th 2008. (Awad deposition page 91.); the walking speeds of the pedestrians and Ms. Chance (Awad deposition pages 69, 70, and 71.); and upon the unwarranted assumption that on the date of loss Ms. Chance limps or is otherwise “hobbled” due to injuries she sustained in an auto crash in 1998 (Awad deposition, page 71 to 72.). (See Part 2 of 2.)

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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 bus accident/personal injury case and its proceedings.)

Likewise, Smith would have no basis for his proffered opinion that Ms. Chance left the curb on a “southerly diagonal” :

Q (Bus USA Counsel): Okay. Now, the last question I have is when (Chance) she crossed the street from wherever she was south of the intersection did she go straight across, or did she cross it at a diagonal or at an angle, based on what you saw?
A (White): Well, I didn’t – when she jumped off the curl I saw her, but once she started crossing like you said the bus, I couldn’t see until he hit her over here. So I don’t know what direction she was heading. But when I couldn’t see her she could have been -what I saw was –
Q: I don’t want you to speculate.

A: What I saw she was going straight across.

Q: You saw her step off the curb, but the bus was going forward and he blocked your view?
A: Right.

(Depo Transcript P. White.)

As the above italicized words demonstrate, White wanted to speculate as to what happened to Chance, which she obviously did when speaking to Officer Smith at the accident scene.

In Ribble v. Cook (1952) 111 Cal.App.2d 903, 245 P2d 593, a police officer’s opinion was ruled to lack proper foundation, because it was based on the self-serving declaration of the defendant and the statement of a witness who did not see the impact, which evidence was clearly hearsay. The officer’s testimony was adjudged almost worthless, because it depended on the credibility of persons other than himself.

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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 bus accident/personal injury case and its proceedings.)

Plaintiff Molly Chance (“Chance”) requests this court to accept the following supplemental points and authorities to consider in support of her motion to vacate judgment in this matter and order a new trial under C.C.P. § 657.

INTRODUCTION

Plaintiff earlier submitted authorities arguing the inadmissibility of an un designated expert’s opinion. Should this court entertain the possibility that Defendant somehow qualified this policeman as an expert despite previously enumerated procedural shortcomings? Plaintiff requests this court further consider the impermissible foundation for his opinion.

ARGUMENT

A hypothetical question must be propounded to an expert based upon facts presented by other witnesses at trial to give foundation for expert opinion that he did not have before testifying.

The opinion that Chance was guilty of jaywalking at the time she was injured by the bus was based on the hearsay statement of Petra White ( White ) as summarized in Officer Will Smith’s ( Smith ) report rather than any testimony received during trial thru the reading of deposition testimony of this same witness. In fact, if Smith had been read the full testimony of Ms. White in the form of a hypothetical question, he would have no basis for his proffered expert opinion that Chance was “outside the crosswalk” upon leaving the curb because White testified that Chance was either 8, 4 or 3 feet from the corner which the court may give judicial notice was the right side boundary of the unmarked crosswalk as Chance approached it. (Deposition Transcript of P. White.)

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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 bus accident/personal injury case and its proceedings.)

The issue before the Court was not whether Dr. Mitchell could testify to areas into which opposing counsel had failed to delve but rather whether he could testify on accident reconstruction issues about which he was specifically asked and had stated he had no opinion. The Court stated:

The decisive fact in the present case is the appellant’s failure to disclose Mitchell’s expected testimony … either at Mitchell’s deposition or as required by Sec??ion 2037.3. This failure deprived respondent to prepare for Mitchell’s cross-examination.

The Court went on to say that respondent was entitled to rely on Mitchell’s disclaimer [regarding the scope of his testimony] until such time as appellants disclosed that Mitchell had conducted further investigation and had reached additional opinions in a new area of inquiry. (Id. at 919.)

Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer v. Cooper, 233 Cal. App. 2d 750, 754 (1965), a case cited with approval in Kennemur, the court stated as follows concerning the scope of required deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for.

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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 bus accident/personal injury case and its proceedings.)

Plaintiff’s Opposition to Motion in Limine Re Limiting Expert Testimony

Plaintiff MOLLY CHANCE hereby opposes defendant’s motion for an order limiting plaintiff’s expert’s testimony to opinions set forth in expert designations and their depositions.

INTRODUCTION

Defendants filed a Kennemur motion to limit the testimony of experts at trial. Kennemur motions are both widely used and abused. They should not be permitted to excuse an attorney from taking an incomplete deposition. Additionally, a strict limit on testimony arguably beyond the scope of a expert designation is not appropriate when the expert was asked questions on certain subjects and the deposing party had every opportunity, and in fact does provide testimony in response to the expert’s opinions.

ARGUMENT

Defendants’ reliance on Kennemur v. State of California, 133 Cal.App.3d 907 (1983) is misplaced. Even a cursory review reveals the case to be inapposite.

In Kennemur, the plaintiffs expert, Dr. Mitchell, was deposed on three separate occasions over a six-day period by the defendant. The witness was specifically asked whether he was going to testify on accident reconstruction. He specifically stated that he was not and would leave that to a different expert. He said that he was limiting his testimony to the stability of the automobile involved in the accident. (Id. at 912.) At the second session of his deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

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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 bus accident/personal injury case and its proceedings.)

Plaintiff’s immigration or residence status is not relevant to the determination of liability. (See Rodriguez v. Kline (1986) 186 Cal.App.3d 1145.)

Plaintiff is pursuing a claim for loss of earning capacity. To the extent that plaintiffs residency status is relevant for that claim, plaintiff has provided evidence that she is currently a legal resident and entitled to work within the United States. Her residency and immigration status prior to this bus accident thus is not relevant to the determination of any damages at issue in this case and should clearly be excluded.

III. Admission of Plaintiff’s Immigration Status Would Create Undue Prejudice to PlaintiffEvidence Code Section 352 states that the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. See People v. Cardenas (1982) 31 Cal.3d 897, 904 (if the prejudicial effect of the disputed evidence outweighs the probative value, the trial court should exclude the evidence).

Evidence Code Section 352 justifies the preclusion of the requested evidence in this case. Given the clear lack of relevance, defendant’s intention by admitting such evidence can only be to prejudice the plaintiff and cause the jury to look negatively or with ill feelings towards the plaintiff if she was unable to demonstrate residency or immigration status at a time period prior to the subject accident. Certainly, the issues will be confused and the jury will be misled by the admission of such evidence. And clearly the probative value of the evidence is nonexistent.

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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 bus accident/personal injury case and its proceedings.)

Plaintiff’s Motion in Limine for Order Precluding Reference to Plaintiff’s Residency or Immigration Status

Plaintiff MOLLY CHANCE hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony or argument relating to plaintiffs immigration and/or residence status.

This motion is made under the provisions of Evidence Code Sections 352 and 350, and is based on the supporting Memorandum of Points and Authorities, the pleadings and papers on file in this action, and upon such of the argument and evidence as may be presented prior to or at the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES
Preliminary Statement

This is a personal injury action arising out of an automobile versus pedestrian accident that occurred on October 27, 2006, where the plaintiff incurred a fractured jaw, brain hemorrhaging, dental damage and cognitive deficit and loss of earning capacity. This motion seeks to preclude the defendant from attempting to present prejudicial and irrelevant evidence relating to the plaintiffs immigration or residency status at the time of trial.

Plaintiff’s Immigration Status Is Not Relevant to Any Material Issue in this Case

Evidence Code Section 350 states that (n)o evidence is admissible except relevant evidence. Relevant evidence is defined by Evidence Code Section 210 as having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. See People v. Kelly (1992) 1 Cal.4th 495, 523 (only relevant evidence is admissible).

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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 bus accident/personal injury case and its proceedings.)

To allow Officer Smith to essentially read to the jury his inadmissible traffic collision report including hearsay statements and impermissible opinions of statutory violation derived from that hearsay is reversible error. Over fifty years ago, the first district of the California Appellate Court opined … (an) objection to the question put to (an investigation policeman) Officer Rakestraw as to whether or not he had issued any citations as a result of the accident was sustainable…. The question in that form was certainly objectionable as it clearly called for the conclusion of the witness as to whether or not there were any law violations and the objection was properly sustained. Hooper v. Bronson (1954) 123 Cal.App.2d, 243, 256.

CONCLUSION

Had Chance’s trial been restricted to the competent, properly admitted and relevant evidence, there is no question the jury would have been compelled to find Davie negligent and causative of Chance’s severe injuries. However, when a jury enthralled by law enforcement was allowed to hear extremely prejudicial testimony of Officer Smith’s opinion of Ms. Chance’s violation of California Vehicle Code 21954a, based solely on the unquestioned and inadmissible hearsay statements of Ms. White, Ms. Chance did not have a chance. By the time Ms. Chance’s counsel questioned Smith of his admitted lack of understanding of White’s inability to see what she reported based on her vantage point as documented by Smith the jury (save for Mr. Brown) had been rendered deaf. When the exact, sworn deposition testimony of Petra White was read to this same jury that contradicted Smith’s hastily summarized and belatedly reported statement of this same witness as to Chance’s manner and location of entry to Fourth Street and the brevity of White’s view due to the bus obstruction, the jury was apparently comatose with indifference.

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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 bus accident/personal injury case and its proceedings.)

7. This opinion was offered by an non-designated expert.

Over Chance’s objection, Police Officer Smith opined what vehicle code in his opinion Molly Chance violated on the day of his brief inspection. (RT of Smith’s Testimony, 4/28/08. 29:25 – 30:28, Exh. 1). This expert opinion should never have been allowed Smith had never been designated as an expert as required under C.C.P. 2034 and SDSC Local Rule 2.1.18(3) nor was he offered as a qualified expert even at trial. Further, Smith did not qualify to be an non-designated expert under the two sole provisions of C.C.P. 2034.310(a). That expert has been designated by another party … No party had designated either of the police officers as experts before trial or even designated them as such in the joint witness list. (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial… Officer Smith could not be called to impeach any of the non-party accident eyewitnesses since he had not taken the time to find and interview them except for White who refused to appear.

8. Smith’s opinion impermissibly invaded the exclusive province of the jury as the ultimate finder of fact.

Officer Smith’s opinion went far beyond estimating the point or even area of contact like in the case of Arellano v. Moreno (1973) 109 Cal.Rptr. 421 Cal.App.2.Dist. Instead, his opinion went to the ultimate fact of a party’s negligence per se in violating a statute intended to prevent the type of incident in question. It was the charge of the jury to make a determination if either or both parties were negligent, not Smith.

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