Articles Posted in Car Accidents

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 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 case and its proceedings.)

Similarly, in Bonds v. Roy (1999) 20 Cal.4th 140, the Supreme Court held that when a plaintiff fails to disclose that he intends to seek an opinion from a treating physician, the trial court may preclude that physician from testifying at trial on a subject whose general substance was not previously described in an expert witness declaration, reasoning that the whole purpose of supplying the information set forth in an expert witness declaration is to avoid surprise and gamesmanship at trial. This concept can be applied to the facts of this case. As there has been no testimony or documents supporting a causal link between the subject accident and this fusion surgery, any testimony at trial supporting a causal link would be a surprise to the defense, and should be disallowed to be introduced.

Plaintiff has had ample opportunity to find a doctor or expert that will support a nexus between the surgery and this accident, and as that nexus has not yet been found, plaintiff should be foreclosed from attempting to claim this surgery in damages at trial based upon the probative value of this evidence being substantially outweighed by the danger of an undue consumption of time, danger of undue prejudice, of confusing the issues, and of misleading the jury, per C.C.P. § 352. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Pursuant to C.C.P. § 352, Jones v. Ortho Pharmaceuticals, (1985) 163 Cal.App. 3d 396, and the Supreme Court’s holding in Bonds v. Roy (1999) 20 Cal.4th 140, defendants Donna Lee and Veronica Lee request the court to order that plaintiff, plaintiff’s witnesses, and his counsel are precluded from attempting to solicit, in any form or manner, any evidence from lay witnesses, non-retained treating physicians Paul White, P.A., Dr. John Brown, M.D., Dr. Devin Smith, or retained experts Sydney Chu, Dr. Andrew Greene, or Dr. Sean Finklestein, as to the causation of his claimed injuries specific to plaintiff Henry Johnson’s February 2009 L5-S1 fusion surgery at Memorial Medical Center.

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

Plaintiff’s Motion in Limine to Exclude References to A 1998 Automobile Accident

Plaintiff, Owen Black, by and through his attorney of record to request an order prohibiting any mention of an automobile crash involving plaintiff that occurred in 1998 in the State of Washington. This motion is based on the grounds that the evidence is irrelevant, immaterial, confusing, prejudicial, and is expressly prohibited by the laws of this state.

Preliminary Statement

This case involves a civil action arising from an automobile accident that occurred on July 10, 2008, when the defendant crashed her vehicle into the rear of the Toyota Land Cruiser plaintiff was driving. As a result of the crash, plaintiff sustained severe injuries. The defense will attempt to introduce evidence that plaintiff was involved in an automobile accident in 1998. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In 1998, plaintiff was a passenger sitting in the back seat of an automobile when it was hit in the side by another motorist. Plaintiff was not injured, did not receive any medical treatment as a result of the alleged incident, and worked in the construction industry for more than a decade following the alleged incident. Moreover, there is no record or report that plaintiff was in any accident in 1998. There are no medical records indicating he was in an accident in 1998. (See Part 2 of 3.)

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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 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 case and its proceedings.)

Dr. John Brown, M.D., a radiologist who interpreted imaging data as a treating doctor of plaintiff Johnson, was deposed on February 2, 2009, and his transcript has not been completed by the court reporter. Dr. Brown testified that as a radiologist he is unable to determine the sources of any of the degenerative changes that he saw on plaintiff Johnson’ imaging data he reviewed. For this reason, Dr. Brown’s opinion on causation would be speculative, and would not assist a trier of fact in determining causation.

Based upon the standard for expert testimony in Evidence Code Section 801(a), an expert’s opinion is limited to a subject that is sufficiently beyond common experience that the opinion of the expert would assist the trier of fact. In this case, it is clear that any opinion on causation would only cause to mislead or confuse the jury, as the opinions in regards to plaintiff’s February 2009 fusion surgery are consistent that plaintiff’s experts and treating physicians can not offer an opinion linking the subject accident and this disc injury. For this reason, there is no need for the testimony, as it may cause the jury to be confused as to why the plaintiff is claiming a surgery where not a single medical professional or doctor can causally link to the subject incident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This will then allow the jury to make a link that can not be established through the evidence. In Jones v. Ortho Pharmaceutical Corporation, (1985) 163 Cal.App. 3d 396, a similar situation arose whereby the medical experts in a case were in consensus that there was no causal link between the complained of injuries and a product that was ingested.

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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 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 case and its proceedings.)

Paul White, P.A. (date of deposition: January 29, 2009; page and line 31:13-17; 32:10-15)

Q: Are you going to give a medical opinion regarding Mr. Johnson’s back, neck, and pain between his shoulder blade injuries as pertains to his August 9th, 2007, motor vehicle accident?

A:No.

Q: Would it be fair to say that as far as rendering opinions on causation, you are not going to render an opinion on the causation of Mr. Johnson’s back, neck, or pain between the shoulder blades?

A: It would be fair to say that I’m not going to render an opinion on the cause of his symptoms.

Sydney Chu (date of deposition: January 9, 2009; page and line 27:1-6)

Q: And as it pertains to this case, is it true that you will not be offering any biomechanical opinions regarding the accident?

A: You are correct. I will not be discussing biomechanics, injury causation or anything remotely associated with those two topics.

Dr. Sean Finklestein, Ph.D. (date of deposition: February 3, 2009; page and line 42:13-23)

Q: Okay. Let’s move on to the last category, and your last category is that the radiological studies suggest there is not sufficient force to cause the disk injury. Can you comment on the forces involved in that opinion?

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

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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 car accident case and its proceedings.)

Plaintiff here can only allege that defendant ran a red light and entered an intersection by driving into a lane that was not intended for through traffic. (Incidentally, these are factually disputed.) If true, such acts were negligent. But even grossly negligent or reckless acts do not suffice for punitive damages. Dawes, supra. Tacking on the words “willful and conscious disregard” does not create an action for punitive damages. Broussear v. Jarrett (1977) 73 Cal App 3d 864, 872.

Indeed, if plaintiff’s theory on punitive damages were allowed, then virtually every traffic collision case would result in punitive damages: in virtually every such case will be found a defendant who ran a red light, or entered a wrong lane, or drove excessively fast, or otherwise exhibited behavior that was less than admirable – but hardly the stuff of punitive damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At the most, plaintiff’s allegations of defendant’s running a red light and entering an undesignated lane might be grossly negligent. But, as Dawes teaches, that is not enough. Indeed, Dawes was decided before the legislature amended the statute to add despicable conduct to the requirements for stating a cause of action for punitive damages. None of these allegations approach the Dawes threshold, let alone that of the revised statute.

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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 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 case and its proceedings.)

DISCUSSION

Plaintiff claims that lumbar fusion surgery on February 6, 2009 was related to alleged injuries suffered by plaintiff from the subject incident of August 9, 2007. Although this claim is being made by plaintiff, there is no documents, evidence, or testimony of his experts, retained, or non-retained, that support this causal link. In fact, quite the opposite is true. Not only has there been a consensus among all the experts that they are not willing to render an opinion on causation for this fusion surgery, but plaintiff’s own expert Dr. Sean Finklestein opined that the forces involved in the subject accident were not sufficient to cause a disc injury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The pertinent testimony is as follows:

Dr. Andrew Greene, M.D. (date of deposition: January 20, 2009; page and line 74:6-11)

Q: Do you intend on offering any opinions or have you been asked to offer any opinions about the relatedness of the surgery to the August 2007 accident?

A: Specifically to surgery?

Q: Yes.

A. No.

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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 car accident case and its proceedings.)

DISCUSSION

A motion to strike is of course appropriate to strike any “improper matter in a pleading, or any part of a pleading” not drawn or filed in conformity with the laws of this state. CCP § 436.

One might begin the discussion of punitive damages with the universally recognized principle that [t]he law does not favor punitive damages and they should be granted with the greatest caution. Dyna-Med Inc v. Fair Employment and Housing Commission (1987) 43 Cal 3d 1379, 1392. This of course makes excellent sense, as the defendant will be subject to personal liability virtually equal to one found guilty of criminal conduct.

The burden of proof a plaintiff must meet is higher than that for any other civil issue: the plaintiff must prove by “clear and convincing evidence” that the defendant is guilty of oppression, fraud, or malice … Civil Code § 3294 (a). An one appellate court noted, “Clear and convincing evidence” requires a finding of high probability … requiring that the evidence be “so clear as to leave no substantial doubt.” In re Angela P (1981) 28 Cal 3d 908, 919. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The elements plaintiff must prove are no less stringent. The plaintiff must prove “oppression, fraud or malice.” CC § 3294 (a). Thus, “the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” Dawes v. Superior Court (1980) 111 Cal App 3d 82, 90.

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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 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 case and its proceedings.)

Defendants’ Motion in Limine to Preclude Sydney Chu, Paul White, P.A., Dr. Smith, Dr. Greene, Dr. Finklestein, and Dr. Brown from Testifying as to Causation of Plaintiff’s Disc Injury
INTRODUCTION

Defendants Donna Lee and Veronica Lee hereby move this Court for an order instructing that plaintiff, his witnesses and counsel are precluded from attempting to solicit, in any form or manner, any evidence from lay witnesses, non-retained treating physicians Paul White, P.A., Dr. John Brown, M.D., Dr. Devin Smith, or retained experts Sydney Chu, Dr. Andrew Greene, or Dr. Sean Finklestein as to the causation of his claimed injuries specific to plaintiff Henry Johnson’s February 2009 L5-S1 fusion surgery at Memorial Medical Center.

The basis for this motion is that plaintiff’s counsel disclosed that retained experts Sydney Chu, Dr. Sean Finklestein, and Dr. Andrew Greene would render opinions regarding causation for injuries from the subject accident that occurred on August 9, 2007. Also disclosed was that non-retained expert and treating medical provider Paul White, P.A., would also render an opinion on causation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At Dr. Greene’s and Mr. White’s depositions, each of these medical treaters testified that they would not render an opinion regarding the causation of plaintiff’s L5-S 1 disc injury that led to L5-S1 fusion surgery by Dr. Devin Smith at Memorial Medical Center, on or around February 6, 2009. As well, at deposition, Dr. Smith testified that he would not render any opinion on causation as to the L5-S1 fusion surgery that he performed.

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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 car accident case and its proceedings.)

Defendant’s Motion to Strike Punitive Damages: Points & Authorities
Procedural Matters

This motion is filed pursuant to the Court’s tentative ruling, which became the final ruling, and in which the Court granted plaintiffs motion to amend for punitive damages, but also granted leave for the defense to file and serve a motion to strike. Thus, the Court apparently granted to motion to file based on the jurisprudence governing filing amended complaints, and is permitting this forum of the motion to strike to address whether the punitive damages allegations should be allowed to stand.

FACTS

This case is based upon a two vehicle accident which occurred on November 18, 2008. Plaintiff Eli White was on a motorcycle and collided with defendant Lee’s vehicle. There is a dispute as to who had the green light. There are no allegations of driving while under the influence; plaintiff simply lists various aspects of an ordinary vehicle accident in the First Amended Complaint and then appends conclusory language that the actions entitle plaintiff to “exemplary and punitive damages.” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The only facts upon which counsel attempts to bring this ordinary auto negligence case under punitive damages are: (1) defendant was “running a red light,” defendant “traveled in an undesignated lane at a high rate of speed,” and (3) “proceeded into a busy intersection.” Id.

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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 car accident case and its proceedings.)

Hill’s Request Should Be In the Form of a Demurrer. Motion to Strike, or Judgment on the Pleadings. Not a Motion for Summary Adjudication.

Defendant also argues that plaintiffs’ request for punitive damages should be stricken because plaintiffs’ complaint only contained legal conclusions and generalizations. Defendant’s characterization is inaccurate as the portion of the complaint seeking punitive damages is full of specific factual allegations. Furthermore, if the basis for this motion is the legal sufficiency of the plaintiffs’ complaint, then defendant should have challenged it instead with a demurrer, motion to strike, or motion for judgment on the pleadings.

Defendant cites Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1 for the proposition that plaintiffs’ request for punitive damages should be stricken because the complaint contained only legal conclusions. In Cohen, which was an appeal on a motion for judgment on the pleadings (rather than a motion for summary adjudication), the complaint sought punitive damages by stating abstract legal conclusions such as malice, wanton, and willful. (Id. at 8.) No specific factual allegations were made to support the punitive damages claim. (Id.) Plaintiffs’ complaint in the subject action is replete with specific facts.

Plaintiffs alleged that in an act of road rage, Hill swerved his car toward Sean Black’s SUV; that Hill’s car traveled erratically; and that it slammed into Sean’s SUV, causing it to roll over three times. The Lynchs’ complaint does not contain generalizations and legal conclusions. It is supported with numerous and specific factual allegations. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A motion for summary adjudication is not the proper procedure for defendant to attack plaintiffs’ complaint.

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