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.)

PLAINTIFF’S COST BILL FOR MODELS AND EXHIBITS IN THE AMOUNT OF $4,987.62 IS INHERENTLY REASONABLE.

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.)

●Defendant Susan Lee, M.D., failed to use reasonable care appropriate to avoid driving on public roads, streets and highways in a sleep-deprived and fatigued state and also acted wantonly, recklessly and with malice and oppression at the time of the incident. She admitted to the police at the scene of the incident that she had fallen asleep at the wheel.

Also, in Paragraph 32 Plaintiff pled a detailed factual account of Dr. Lee’s training at National Hospital, which was taken from the deposition of Caleb Smith, M.D., who was Dr. Lee’s superior at National Hospital and administered many of the residency trainings. These facts build the foundation for Dr. Lee’s malicious and oppressive conduct on the date of the incident. These facts take up approximately four pages of the entire First Amended Complaint. In the interest of brevity, Plaintiff has not repeated the lengthy allegations herein.

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

Continue Reading ›

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.)

In essence, defendant argues that the expert witness bill from ABC Engineering should be substantially cut because Mr. Ridley Hall used computer programs to create an animation and blow-ups that were used at trial. The argument goes on to sate that such a presentation could have been done by less expensive, low-tech means . No explanation, however, is given by defendant as to how computer modeling and a computer-based animation could have been done less expensively to communicate the same thing. Obviously, due to evidentiary foundational requirements, Mr. Hall had to base his animation on appropriate documentation and evidence in order to create an accurate reconstruction of the subject accident. There is no declaration submitted by defendant by any competent expert that says that the computerized accident reconstruction could be done at a more reasonable expense or using “low-tech means.”
In fact, the jury found that Mr. Hall’s presentation was so important that they asked for the animation to be replayed during their deliberations. All of Mr. Hall’s computer-created exhibits were painstakingly used one by one during his testimony, as was his animation.

The case cited by defendant, El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc., (2007) 150 Cal.App.4th 612, actually supports the type of evidence that was used in this trial:

The problem with the electronic equipment and the labor costs rejected in Science Applications, as we understand it, was that these were more expensive methods of doing things that could be done by less-expensive, low-tech means, and therefore they were not reasonably necessary to the conduct of the litigation but were “merely convenient or beneficial to its preparation.” (§1033.5, subd. (c)(2).)

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

Continue Reading ›

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 SUFFICIENTLY ALLEGED FACTS WHICH ESTABLISH MALICE AND OPPRESSION ON THE PART OF DR. LEE

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.)

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS

THE PURPOSE OF SECTION 998 IS TO ENCOURAGE SETTLEMENTS AND TO PUNISH A PARTY WHO FAILS TO ACCEPT A REASONABLE OFFER FROM THE OTHER PARTY.

In Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 C al.App.3rd 692, the court spent considerable time evaluating the purpose of Code of Civil Procedure section 998. The court noted as follows:

“Section 998 should be interpreted so as to effectuate its purpose of encouraging the settlement of lawsuits before trial.” Section 998 achieves its aim by punishing a party who fails to accept a reasonable offer from the other party. 195 Cal.App.3rd at 698-699.

In this case, the parties could have avoided an extremely expensive and time-consuming two-week jury trial had defendant and his insurance carrier accepted an entirely reasonable offer that is nearly half of what the jury ultimately awarded plaintiff.

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

Continue Reading ›

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 seeks to strike the following portions of Plaintiff’s First Amended Complaint: (a) portions of Paragraph 6, line 15 regarding Defendant’s malicious and oppressive behavior; (b) Paragraph 32 regarding the details of Dr. Lee’s training at National Hospital; (c) Paragraph 42 regarding Dr. Lee’s malicious and oppressive conduct; and (d) Plaintiff’s prayer for punitive damages against Dr. Lee. Her motion to strike fails on all counts because Plaintiff’s allegations are allowed under the negligence theories pled in his First Amended Complaint and he has pled sufficient facts to justify seeking punitive damages.

STATEMENT OF FACTS
FACTUAL ALLEGATIONS THAT SUPPORT PRAYER FOR PUNITIVE DAMAGES

On June 16, 2009, shortly before 1:00 p.m., Plaintiff, a pedestrian, was jogging on the eastern sidewalk of University Road, near the intersection of Small Way, in El Dorado Hills. Dr. Lee was driving east on University Road. Knowingly and intentionally driving in a fatigued and sleepy condition, Dr. Lee fell asleep while driving and drove up and onto the raised sidewalk and struck Plaintiff from behind. Plaintiff flew violently onto the hood and smashed into the. windshield, then up onto the roof. (Id.) Plaintiff was carried approximately 59 feet east before being thrown off the top of the vehicle. (Id.) Dr. Lee, while still asleep, then dragged Plaintiff approximately 38 feet where Dr. Lee ultimately ran over him again.

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

Continue Reading ›

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 Tammy Greene’s Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Tax Costs
INTRODUCTION

As the court is well aware, this was a very serious automobile injury, disputed liability case, with a major defense mounted by defendant Li. To boil defendant’s Motion to Tax Costs down to its essence, Li complains that plaintiff’s expert witness presentation was too expensive and the court should therefore not exercise its discretion to award expert witness fees pursuant to Code of Civil Procedure §998. What Li’s motion fails to point out is that the defense experts charged even higher fees, as is reflected in the trial transcript. Just to cite one example, defense expert witness Walter Brown, who testified all of 15 minutes at trial, and charged well in excess of $10,000 for his services in rendering an opinion as to whether the lights were on or off on the plaintiff’s Lexus. Had defendant been the prevailing party in this case, there is little doubt they would have been asking for expert witness costs well in excess of the amount requested on plaintiff’s cost bill.

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

Continue Reading ›

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’s Opposition to Defendant Susan Lee, M.D.’s Motion to Strike Punitive Damages from First Amended Complaint
INTRODUCTION

On June 16, 2009, at approximately 1:00 p.m. in the afternoon, Defendant Susan Lee, M.D., fell asleep while driving and struck down the Plaintiff, David Hall, with her car as he was jogging on the sidewalk. Dr. Lee caused David to sustain serious and permanent injuries, including: traumatic brain injury, post-traumatic stress disorder, thoracic spine fractures, left fibula fracture, multiple lacerations, severe abrasions (road rash) from his upper back, arms, knees, thighs and toes, and contusions.

As part of her training at National Hospital, Dr. Lee was taught about the dangerous probable consequences of operating a motor vehicle while sleepy or fatigued. Despite the training, Dr. Lee, who is to do no. harm as a physician, left National Hospital where she had been working and awake for at least 18 consecutive hours, and drove home in a sleepy and fatigued condition. She was significantly impaired and unable to drive home safely.

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

Continue Reading ›

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.)

In Galanek, the court reiterated a maxim of jurisprudence that is apropos here: A fundamental principal of our legal system is that “no one can take advantage of his own wrong,” citing Civil Code section 3517. Galanek v. Wismar at 1428. Similarly here, XYZ, Ins. Co., cannot be allowed a procedural advantage on liability due to its destruction of critical evidence.

Unlike the cases of inadvertence above, here XYZ, Ins. Co., did not lose or misplace evidence – it consciously destroyed it, knowing that this was a serious injury claim and that litigation was likely to follow. Further, XYZ, Ins. Co. misrepresented to plaintiff’s counsel that the Brown vehicle had never been inspected by their experts, when in fact such an inspection had taken place weeks before. And moreover, XYZ, Ins. Co. was placed on written notice within six weeks from the date of this accident that plaintiff demanded that the Brown vehicle be preserved for inspection by experts. As the law makes clear: [T]he court has broad powers … to make whatever just orders are necessary to remedy the spoliation. Cedars-Sinai, supra, 18 Cal.4th at 8 (emphasis added). This court should exercise those powers and grant the relief sought so that Ms. Black is not severely prejudiced from recovering the full measure of her damages from defendants for her severe injuries.

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

Continue Reading ›

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.)

It is anticipated that the defendant will claim that the destruction of the vehicle was accidental or non-intentional. Even if the court finds that defendant Brown’s spoliation of evidence was inadvertent, the court should still grant plaintiff’s requests for evidentiary sanctions: where a party inadvertently destroys evidence, the court may issue sanctions intended to level the playing field or even up the score. Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3rd 877, 883-884. In this case, an expert witness inadvertently lost a failed drive shaft. The court reviewed numerous early California authorities and determined that, None of these authorities suggests a willfulness requirement for violations of subdivision (b)(2). Puritan Ins. Co., 1717 Cal.App.3rd at 884.

In Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1427, the court properly shifted the burden of proving lack of causation to the defendant attorney who negligently permitted a storage facility to destroy a defective automobile before either party could perform an inspection. The destruction of evidence made it impossible for plaintiff to prove that defendant’s negligence was the cause of her losses. (Ibid.) In addition, there is no intentional standard set forth in section 2023.030, merely that such sanctions can be issued against anyone engaging in conduct that is a misuse of the discovery process. Destroying key evidence under the facts as outlined above is surely a misuse of the discovery process.

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

Continue Reading ›