Articles Posted in Car Accidents

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 car accident lawsuit and its proceedings.)

INTRODUCTION

On March 7, 2011, Plaintiffs Motion in Limine regarding collateral source payments was discussed. It is plaintiffs understanding that the issue was taken under submission, and on March 8, 2011, the court tentatively indicated that the court may entertain a motion post trial to reduce any finding of medical specials, based on amounts paid. However, the amount of medical billings would be admissible at trial.

In this case, when Dr. Lee was deposed on August 28, 2010, he was asked, “Have you reviewed those medical bills relating to Robyn Anderson’s treatment in this case?”

Answer: I have reviewed some of them and commented on some.

Question: Okay. In preparation for today’s deposition, did you go through and do a line-item-by-line-item commentary on her bills to date?

Answer: No. I did not.

Question: But if I understand you correctly, you haven’t been provided by defense counsel with a packet of the billing with the intention of you going through and commenting on that billing; is that correct?

Answer: Right. I have not been provided a packet of just the billing and provided a comment on those specific bills. That’s correct.

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 car accident lawsuit and its proceedings.)

Plaintiff Robyn Anderson’s Motion in Limine to Preclude Defendants’ Expert Witness, Stanley Lee, M.D., from Expressing Opinions as to the Reasonableness of Plaintiff’s Medical Bills

Plaintiff Robyn Anderson respectfully request that this court hear and determine the question of the admissibility of the following evidence, out of the presence or hearing of the jury, pursuant to California Evidence Code § 402, and issue an order, in limine, prohibiting Defendants’ expert witness, Stanley Lee, M.D., from expressing opinions as to the reasonableness of Plaintiffs medical bills.

This motion is made on the grounds that any opinions and conclusions on this subject would lack foundation and be based on mere speculation, California Evidence Code § 803, any probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time and create substantial danger of undue prejudice, confusing the issues, and misleading the jury, per California Evidence Code §352.

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 automobile accident lawsuit and its proceedings.)

DR. LEE’S RELIANCE ON CASES FOCUSED POST-JUDGMENT OR -VERDICT IS MISPLACED SINCE PLAINTIFF NEED NOT PROVE THAT HE SHOULD BE AWARDED PUNITIVE DAMAGES AT THIS STAGE OF THE LITIGATION

Dr. Lee relies on Ebaugh v. Rabkin, (1972) 22 Cal.App.3d 891, which is not applicable to Plaintiff’s First Amended 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. Ebaugh does not apply to this stage of the litigation since it was an appeal 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.

Dr. Lee cites the following cases, all after judgment, verdict or nonsuit, which do not support granting her motion to strike since the cases do not concern the pleadings stage of litigation: American Airlines, Inc. v. Sheppard, Muffin, Richter & Hampton (2002) 96 Cal.App.4th 1017.

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 car accident lawsuit and its proceedings.)

PUNITIVE DAMAGES ARE ALLOWABLE IN THIS NEGLIGENCE ACTION

The California Supreme Court has determined there are circumstances under which punitive damages can be awarded in unintentional tort actions. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004. In particular, the Supreme Court has upheld punitive damages in cases of negligent driving. See Peterson v. Superior Ct. (1982) 31 Cal.3d 147; Taylor v. Superior Ct. (1979) 24 Cal.3d 890, 894.

In Taylor, the Supreme Court explained the availability of punitive damages to plaintiffs in motor vehicles tort actions:

A conscious disregard of the safety of others may constitute malice within the meaning of Section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully [sic] and deliberately failed to avoid those consequences.Id. at 895. (emphasis added.) Taylor and Peterson are directly applicable to this case. Plaintiff’s prayer for punitive damages, which is based on Dr. Lee’s inarguable awareness of the probable dangerous consequences of operating a vehicle under fatigue and while asleep and her actions of deliberately failing to avoid the dangerous consequences by driving in a fatigued state, is undeniably supported by California law.

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 car accident lawsuit and its proceedings.)

The First Amended Complaint does not contain mere allegations that the Defendant’s actions were carried on with willful and conscious disregard of the rights of others. In this regard, Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 and Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 163, are inapposite to the present case. Unlike Brousseau and Grieves, Plaintiff did not merely allege that Defendant’s actions were “willful” or “malicious.” Plaintiff refrained from making the sort of conclusory arguments that were scorned in Brousseau and Grieves, The claim for punitive damages in Brousseau and Grieves were not based on specific facts. In this case, Plaintiff pled approximately four pages of detailed facts that allege Dr. Lee acted without regard for the safety of others in her operation of a vehicle while sleeping.

As alleged throughout the First Amended Complaint, Dr. Lee was incompetent and unfit to safely operate a vehicle because she was fatigued. From her residency training, she knew that she was a foreseeable threat to the health and safety of the public if she drove in a fatigued or sleepy condition. She deliberately was disregarding the high probability that she would fall asleep behind the wheel and cause permanent harm to another person.

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 automobile accident lawsuit and its proceedings.)

Further, the case law cited by Dr. Lee does not support her argument that negligence or recklessness is insufficient to warrant punitive damages. Defendant’s citation, to Tomaselli v. Transamerica Ins. Co., (1994) 25 Cal.App.4th 1269 actually supports Plaintiff’s claim. The Court in Tomaselli held that punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. Id. at 1287.

In this case, Dr. Lee’s actions of driving while asleep, when she knew or should have known of the dangerous probability of causing a motor vehicle accident, Were reprehensible. She knew that she was fatigued. She was trained to avoid driving while fatigued. She likely dozed off while driving before falling asleep – yet she continued to drive the trip from Sacramento to El Dorado Hills. She also blatantly violated multiple motor vehicle safety codes and a regulation prohibiting the operation of a vehicle while the driver’s alertness is impaired by fatigue. See 13 C.C.R. 1214. Dr. Lee should not have operated the motor vehicle under the conditions, and her decision to do constitutes malice and oppression.

Since Plaintiff’s allegations are based on facts and not speculation, the present case is consistent with the decisions cited in Defendant’s moving papers, i.e., College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 [plaintiffs failed to plead facts regarding defendants’ intent to injure or facts of vile or despicable conduct]; Colonial Life &Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 792 [a defendant may be liable for punitive damages if it acts with a conscious disregard of the plaintiff’s fights]; Lackner v. North (2006) 135 Cal.App.4th 1188 [summary adjudication of plaintiff’s punitive damages claim was proper since plaintiff’s evidence failed to show defendant acted despicably].

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 automobile accident lawsuit and its proceedings.)

PLAINTIFF HAS PLED SUFFICIENT FACTS TO ESTABLISH THAT DR. LEE’S CONDUCT WAS DESPICABLE AND WITH A WILLFUL AND CONSCIOUS DISREGARD FOR THE SAFETY OF PLAINTIFF

Plaintiff seeks punitive damages against Dr. Lee pursuant to Civil Code Section 3294, which states in pertinent part:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(c)(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(c)(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

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 car accident lawsuit and its proceedings.)

ITEM NO. 12 FOR COURT REPORTER FEES IS ALLOWABLE BY STATUTE.

Finally, defendant objects to plaintiff’s cost Item No. 12 for the fees charged by the official court reporter of this trial. At the conclusion of the case, plaintiff submitted a check to the clerk of the court in the amount of $2,483 directly for payment of the official court reporter fees.

Pursuant to Government Code section 68086(a)(1), such a fee was required by statute:

“(a) The following provisions apply in Superior Court:(1) In addition to any other fee required in civil actions or cases, for each proceeding lasting more than one hour, a fee equal to the actual cost of providing that service shall be charged per one-half day of service to the parties, on a prorata basis, for the services of an official court reporter on the first and each succeeding judicial day.” Obviously the services of the official court reporter are required by law and were paid by plaintiff and are therefore recoverable.

CONCLUSION

Here, defendant chose to turn down an eminently fair settlement offer and instead elected to go to great expense in fighting liability and damages in this case by extremely expensive defense expert witnesses. Additionally, defendant wasted substantial court assets and time in insisting upon a two-week jury trial that could have been resolved far less expensively.

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 automobile accident lawsuit and its proceedings.)

The majority of the new allegations in the First Amended Complaint describe the residency training that Dr. Lee should have heeded in order to avoid causing the subject incident. Dr. Lee was provided training at National Hospital, prior to the incident, about the specific risk posed to the public by fatigued or sleep-deprived medical residents. The article “Extended Work Shifts and the Risk of Motor Vehicle Crashes Among Interns” published by the New England Journal of Medicine on January 13, 2005, was just one of many scientific journal articles offered to Dr. Lee on the subject. The collective information regarding Dr. Lee’s training is directly relevant to the action and establishes the fact that Dr. Lee was acutely aware of the dangerous risks posed to the public, including Plaintiff, by driving home in a fatigued or sleepy condition after being awake for a continuous 18 hours. Plaintiff has sufficiently, and with much detail, alleged the various ways in which Dr. Lee acted with malice and oppression by disregarding her training on a multitude of levels.

The present case is highly distinguishable from Austin v. Regents of Univ. of California (1979) 89 Cal.App.3d 354, where the Court held, … the allegations in plaintiff’s complaint are purely conclusory. Here, Plaintiff’s First Amended Complaint is replete with facts establishing how Dr. Lee acted with a willful and intentional decision to operate a motor vehicle in a fatigued, sleepy and impaired condition. Her conduct was despicable in light of her residency training at National Hospital. Also, National Hospital provides its residents with alternative means of travel, such as a shuttle, bus, or taxi vouchers, but Dr. Lee willfully and knowingly chose to drive home with a conscious disregard of the rights or safety of Plaintiff and the public.

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 automobile accident lawsuit and its proceedings.)

ARGUMENT
LEGAL STANDARDS ON MOTION TO STRIKE

Motions to strike are not favored. Weil & Brown, Civil Procedure Before Trial, § 7:197. The policy of California law is to construe the pleadings liberally … with a view to substantial justice. C.CP. § 452.

Plaintiffs First Amended Complaint meets the notice pleading requirements under California law. What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkins v. Superior Ct. (1981) 117 Cal.App.3d 1, 6. Specificity is not required in the Complaint because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading. Ludgatelns. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App.4th 592, 608. The First Amended Complaint adequately informs Dr. Lee of the damages sought and the legal bases for those damages. Since Plaintiff has met the notice pleading requirements, Dr. Lee’s motion to strike should fail on all accounts.

PARAGRAPH 32 SHOULD NOT BE STRICKEN SINCE PLAINTIFF’S ALLEGATIONS ARE FACT-SPECIFIC AND ESTABLISH IN DETAIL HOW DR. LEE ACTED WITH MALICE AND OPPRESSION

Defendant seeks to mislead the Court by alleging that Plaintiff’s claim for punitive damages is conclusory and based solely on the new fact alleged that Dr. Lee was awake for at least 18 hours prior to the incident. Dr. Lee claims that Plaintiff’s new allegations contained within paragraphs 31 and 32 do not alter the factual scenario of the case, but that is exactly what the new allegations have done.

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

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