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.)

DEFENDANT’S SPOLIATION OF CRITICAL EVIDENCE NECESSITATES AN ORDER TO PRECLUDE THE DEFENDANT’S ACCIDENT RECONSTRUCTION EXPERTS FROM TESTIFYING

The guiding California Supreme Court case controlling spoliation of evidence is Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1. In Cedars, plaintiff brought a medical malpractice action arising out of a birth injury. During discovery, the hospital was unable to locate key medical records pertaining to the birth. The plaintiff then filed a separate cause of action of intentional spoliation of evidence. The court began the opinion by noting the serious affront to justice that is caused by destroying evidence:

The intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation. 18 Cal.4th1, 4.

In the opinion, although the court dispensed with a specific cause of action for intentional spoliation of evidence, it confirmed the broad powers that the court has in dealing with issues such as are presented in this case.

Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request. The sanctions under Code of Civil Procedure section 2023 are potent.

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.)

XYZ, INS. COMPANY’S DESTRUCTION OF EVIDENCE HAS SEVERELY PREJUDICED THE ABILITY OF PLAINTIFF TO ESTABLISH CERTAIN FACTS CRITICAL TO LIABILITY ISSUES

Defendant’s decision to destroy their insured’s vehicle and then to misrepresent that it had never been inspected by their experts, has caused serious prejudice to plaintiff’s ability to prove certain issues extremely important to liability. Such issues include:

(1) Crush analysis that would allow plaintiff’s experts to more accurately assess the speed of defendant Brown’s vehicle when he smashed into plaintiff’s stalled car on the freeway.

(2) Determining the speed of defendant Brown’s vehicle would also be important in addressing defendant’s perception and reaction times when he observed the plaintiff’s stalled vehicle prior to this accident.

(3) The distance of illumination from defendant Brown’s headlights in front of him is also a factor that in part is based upon his rate of speed.

(4) The Delta V that all accident reconstructionists use in determining the change of velocity, which equates into the force of impact and is also a fundamental calculation for purposes of accident reconstruction.

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.)

Shortly after this accident occurred, XYZ, Ins. Co. retained ABC Engineering, Inc., and directed them to conduct an inspection of both of the involved vehicles. As the report from defense counsel confirms, an inspection by ABC’s engineer of the defendant’s 2008 Nissan 350Z occurred on August 4, 2009. Thus, despite the fact that XYZ, Ins. Co. was aware of a serious injury claim within weeks of this accident, and was obviously aware of the importance of having engineers inspect the involved vehicles, a conscious decision was apparently made to destroy the defendant’s vehicle and make it unavailable for inspection by plaintiff’s expert. Consequently, the specific purpose of this motion is to preclude any defense experts from testifying as to an accident reconstruction of the subject accident because of their significant advantage in having their engineers personally inspect the defense vehicle, while depriving plaintiff of a similar opportunity.

CHRONOLOGY OF RELEVANT EVENTS:

June 17, 2009: Date of the subject accident.

July 17, 2009: Multiple telephone conversations between XYZ, Ins. Co. and Robyn Black’s parents about the accident and her severe 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 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.)

Within approximately two weeks after this accident, defendant Brown’s insurance company, XYZ, Ins. Co., made contact with plaintiff’s parents. XYZ, Ins. Co. was advised as to the serious injuries suffered by plaintiff during numerous telephone conversations that took place with the Black family and XYZ, Ins. Co.’s adjuster at that time, Kyle Hill. Additionally, Mr. Hill sent correspondence on behalf of XYZ, Ins. Co. to the Black family requesting authorizations to obtain medical records, thus further evidencing the fact that XYZ, Ins. Co. was fully aware that injuries were sustained. XYZ, Ins. Co. obviously recognized the importance of inspecting the involved vehicles, as reflected by their correspondence of July 31, 2009, to the plaintiff asking permission to have their “accident reconstruction engineer” inspect the Black’s 2007 BMW 325i that was involved in this accident.

In early August of 2009, this law firm was retained to represent Robyn Black. Correspondence was sent to the adjuster Kyle Hill, which contained a paragraph as follows:

“I also request that you preserve your insured’s vehicle for inspection purposes. I am sure you will do all within your power to preserve any relevant evidence for this case, as required by California Penal Code section 135.”

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’s Motion in Limine to Exclude Defendant XYZ, Ins. Co.’s Accident Reconstruction Expert Testimony
INTRODUCTION

This case arises out of a major automobile collision that occurred on Highway 50 westbound near the Sunrise exit on June 17, 2009. At that time, Ms. Black’s vehicle became disabled and stalled on the freeway and was struck with great force by defendant’s vehicle. The collision resulted in extremely serious injuries, including a fractured neck and a traumatic brain injury.

The purpose of this motion in limine is to exclude accident reconstruction testimony by defendant’s experts due to defendant’s insurance company’s intentional or negligent spoliation of evidence, namely the defendant’s vehicle. As is explained in more detail below despite a specific written request to preserve such evidence, the defendant’s vehicle was not only destroyed but plaintiff’s counsel was misled by defendant’s insurance adjuster as to the availability of the vehicle for inspection by plaintiff’s experts.

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.)

SIMILAR ACTION DOES NOT REQUIRE SHARED EXPERTS

Dr. Brown and Mr. West are not the same party. They are not married, or even related. They are not represented by the same attorney. One is the purchaser of the tire, the other is not One has privity of contract with Valley Chevrolet and The Auto Center, the other (West) does not. The defendants have cross complained against Dr. Brown for the damages claimed by Mr. West.

Dr. Brown has not hired Mr. West’s experts (save, Mr. Goldberg), and has no contract or agreement with those experts. Either plaintiff could settle with one or more of the defendants leaving the other plaintiff to go it alone.

Nevertheless, XYZ argues that Dr. Brown should be forced to withdraw Drs Bakstrom and Hall, and rely upon Mr. West’s experts instead. There is no compelling reason to do so. Dr. Brown has identified a perfectly reasonable number of experts, and the expected testimony of those experts is expected to overlap barely, if at all.

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.)

None of the expert witnesses listed above has been deposed by the defendant, despite the fact that this same defendant sought a continuance of the December 2009 trial in order to have more time to conduct expert discovery. XYZ contends, essentially, that either Dr Bakstrom or Dr. Hall must go, to save time and money, without actually having heard a word from either expert. Plaintiff Brown contends that both Dr. Bakstrom and Dr. Hall are essential to her case against the formidable, well financed, and experienced corporate defendant (as well a the other two defendants – Valley Chevrolet and The Auto Center).

It is worth remembering that XYZ designed, manufactured, distributed, and marketed the subject tire. Much of the discovery and investigation associated with its defense was incidental to its primary business – making, marketing, and selling tires. Dr. Brown, a retired dentist, has had to start from scratch, using experts who have not had the benefit of unlimited access to XYZ ‘s wealth of resources.

Dr. Brown needs both Dr. Hall and Dr. Bakstrom. Even if there were some overlap subject matter, both of these experts would still need to be deposed because there are areas o their testimony which do not overlap at all (i.e. accident reconstruction, chemical composition and decomposition). Since both experts are necessary and would still testify, even if any hypothetical overlap were excluded at trial, plaintiff assumes that the defendants would take the experts’ depositions.

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.)

In her expert witness disclosure statement Dr. Brown identified seven (7) retained experts Of these seven, two were voluntarily withdrawn by the plaintiff, leaving five. Of those five:

Paul Smith, M.D. , is a neurologist designated to testify regarding Dr. Brown’s head injury and dementia. None of the other retained experts are qualified to provide expert testimony on any medical/neurological issue.

Alexa Chong, R.N., is a home health care expert, designated to testify regarding the value of the services rendered to Dr. Brown by her family members. No other expert designated by any party is qualified to give such testimony.

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

Sven Bakstrom, Ph.D., is an engineer who will give testimony regarding his reconstruction of the subject collision and he analysis of the failure of the tire. No other expert designated by Dr. Brown is qualified to perform accident reconstruction, and no other expert is a mechanical engineer.

Bob Hall, Ph.D., is a professor of chemistry. Dr. Hall will give testimony regarding the chemical factors associated with the failure of the subject tire. Dr. Hall is not an accident reconstructionist. The focus of his testimony will be on the chemical factors that lead to tire failure by age.

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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.)

What is particularly egregious about XYZ ‘s failure to timely file and serve this motion is that XYZ attempted to have similar motion heard, ex parte, on December 4, XYZ withdrew the motion when its motion to continue the trial date was granted. Still, it is not as though this defendant, whose counsel swore that the proposed motion was attached to a declaration filed on March 25, was prompted by surprise or urgency in drafting this motion.

XYZ had a draft of the motion ready to file on December 4, 2009, and proposed version to attach to a declaration on March 25, yet the defendant declined to file and serve the motion until after the statutory deadline.

XYZ ‘s motion raises no minor issue. The defendant seeks to exclude the entirety of certain of the plaintiffs experts’ testimony before any party has even heard the substance of the testimony. XYZ claims excessive consumption of time (a claim which is proved false herein), yet the same defendant could not manage to provide the court and opposing counsel with adequate notice.

The court should deny XYZ ‘s motion for failure to comply with C.C.P. §1005(b) if not also for the substantive reasons stated below.

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 Anna Brown’s Objection and Opposition to Defendant XYZ Tire, Inc.’s Motion for a Protective Order Limiting the Number of Plaintiffs’ Experts
PRELIMINARY OBJECTION

Defendant XYZ Tire, Inc., failed to give adequate notice, or to file its motion, according to the deadlines provided in California Code of Civil Procedure Section 1005(b). C.C.P. §1005(b) requires that the defendant’s motion and supporting papers be filed and served at least 16 court days before the hearing. The hearing is scheduled for April 23, but the moving papers were filed on April 2, only fourteen (14) court days before the hearing. The moving papers, delivered by express mail, should have been served no later than March 28. Instead they were served on Friday, April 2, and delivered on Monday, April 5, more than a week after plaintiffs’ counsel should have received them.

On March 26, XYZ brought an ex parte application to schedule the hearing on this motion for a date between April 16 and April 23, 2010. XYZ ‘s counsel did not request an order shortening time. To the contrary, defense counsel Allison Greene observed that the motion could be served with “normal notice.”

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

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