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

Code of Civil Procedure §662.5(b) provides in pertinent part as follows:

In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion:

b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deciding a motion for new trial on excessive damages, the court has the power (and the responsibility) to reweigh the evidence:

A new trial shall not be granted upon the ground of … excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. [CCP § 657]
In Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 CA4th 359, the jury awarded one plaintiff $300,000 in economic damages and the second plaintiff $250,000 in an employment discrimination case.

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

THE VERDICT

The matter was submitted to the jury on February 5, 2008. On or about February 5, 2008, the jury rendered the following Special Verdict:

Past Medical Expenses: $15,221.75
Past Lost Earnings: $28,686.00
Future Medical Expenses: $720.00
Future Lost Earnings: $4,250.00
Past Pain and Suffering: $190,000.00
Future Pain and Suffering: $80,000.00
Total: $318,877.75

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

In light of the evidence that plaintiff suffered only soft tissue injuries from the accident and had only $15,221.75 in past medical expenses defendant maintains that the jury award for past pain and suffering in the amount of $190,000 as well as the award for future pain and suffering in the amount of $80,000 was extremely excessive, and unsupported by the evidence. A new trial is warranted under the circumstances.

AUTHORITY
Code of Civil Procedure §657 outlines the basis for granting a new trial. In pertinent part, it provides:
The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

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

Plaintiff next treated at Occupational Medical Center on July 14, 2004, with complaints of pain in the left thigh, left groin, pelvis, and left lower abdomen. He was diagnosed with a left thigh strain, left groin strain, abdominal wall strain, testicular contusion, left thigh contusion, chest wall contusion, and closed head injury. He was referred to physical therapy and placed on temporary disability. Plaintiff was evaluated again on July 19, 2004, at which time his complaints remained the same and he was to continue with physical therapy.

Plaintiff then waited more than two months after the car accident to seek further medical treatment, when he presented to orthopedic surgeon Dr. James Black on October 12, 2004, with complaints of pain in the lumbar spine, right buttock which radiated to the right foot, as well as pain in the left thigh and groin. He was referred to physical therapy. By a November 28, 2004 visit, it is noted that the physical therapy had improved his symptoms, and he was released to return to his job as an emergency responder for vehicles that are disabled on toll bridges, on or about November 29, 2004. Thereafter, plaintiff has only seen Dr. Black sporadically and returned to work at a physical job, with the exception of occasional flare ups where Dr. Black has taken him off work for short periods of time.

At the time of trial, plaintiff presented to the jury $15,221.75 in medical specials. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff testified at trial that he currently has pain in the left hip/pelvis area which he rates as a 3 on a scale of 0-10. He did experience more acute flare ups 1-2 times a year since he has been released back to work and has returned to Dr. Black, who has sent him to physical therapy and taken him off work for a week or two.

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

Defendant Virginia Hall submits the following Memorandum of Points and Authorities is support of her Motion for New Trial or, in the alternative, remittitur:

INTRODUCTION

A new trial is warranted due to the imposition of excessive damages that were unsupported by the evidence. In the interests of justice, Ms. Hall’s motion for new trial or, in the alternative, a reduction in damages must be granted.

BACKGROUND

This action arises out of an automobile versus motorcycle accident which occurred at 8:35 p.m. at the intersection of College Street and Ash Boulevard in Sacramento, California on June 12, 2004. Plaintiff was operation the intersection with Ash. As plaintiff entered the intersection, he collided with the 2002 Jaguar S-Type driven by defendant, Virginia Hall, who was turning left from southbound College Street onto eastbound Ash.

The matter proceeded to trial on February 2, 2008. Plaintiff testified at trial that following the accident with Ms. Hall, he stood up and walked over to the curb. When he got to the curb, he sat down and felt pain in his back, as well as pain and weakness in his left leg. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff was taken to University Hospital following the incident, with complaints of pain in his lower left extremity. Plaintiff did not sustain any broken bones from the accident.

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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/personal injury case and its proceedings.)

Moreover, the Notice of Independent Medical Examination of plaintiff expressly states: Further, the scope of said examination shall include and require a history to be given by plaintiff, as well as possible X-rays and any and all clinical and laboratory tests as required by the examining physician. Such X-rays are necessary in light of plaintiff’s alleged orthopedic injuries and claim of post-trauma arthritis.

This is clearly improper and grounds for objection. As stated by Weil & Brown, supra, Questioning plaintiff regarding medical history? The statute mentions only a physical examination. Nothing is said about the right to question the plaintiff regarding his or her injuries or prior medical history. Id., § 8:1520. Other demands are improper (e.g., demands for a complete medical history). Plaintiff may object and refuse compliance. Id., § 8:1529.

As for X-rays, Weil & Brown is again instructive:

Limit on X-rays: The Discovery Act reflects public concern regarding excessive exposure to X-rays. It allows an examinee to avoid submitting to X-ray examination by giving the examiner access to existing X-rays of the same portion of the examinee’s body. In such event, no additional X-rays may be taken without the examinee’s consent or on court order for good cause shown. [Ca Civ Pro § 2032.520]. Id., § 8:1580.

Finally, one of the terms by which Plaintiff agreed to submit to the defense medical examination was that Plaintiff’s counsel receives a copy of the report, including any record review, within five days of the Defendants’ receipt of said documents. Defendants’ counsel would not agree to provide a copy of any record review, but merely with a copy of the “IME report.” This is clearly improper, as the plaintiff is entitled to receive a copy of the full report. CCP § 2032.610.

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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/personal injury case and its proceedings.)

PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ NOTICE OF MEDICAL EXAMINATION OF PLAINTIFF ARE WELL-FOUNDED

The relevant declarations and exhibits thereto paint a clear picture of the Defendants’ intransigent refusal to comply with Code of Civil Procedure §§ 2032.220 and 2032.610, necessitating plaintiff’s proper objections.

Plaintiff’s Notice of Objection set forth objections to defendants’ Notice of Independent Medical Examination, specifically that (a) the examination of a doctor chosen by the defense is not an independent medical examination, but rather a defense medical examination; (b) the date of the examination had not been cleared with Plaintiff or his counsel prior to its setting; (c) the statement defendant is informed and does not believe any clinical or laboratory testing will be necessary is ambiguous, as the statement must state that no clinical or laboratory testing will be performed; (d) x-rays as requested will not be allowed as said x-rays have not been shown to be necessary or indicated; and (e) the clinical and laboratory requests referred to in defendants’ Notice will not be allowed as they are not indicated and such testing is inconsistent with the statement in their notice that “defendant is informed and does not believe any clinical or laboratory testing will be necessary.”

The propriety of plaintiff’s objection to calling the medical examination an “independent medical examination” or “IME” is obvious. Since the examining physician was chosen solely by the defendants and is paid by the Defendants, there is nothing “independent” about his examination of plaintiff, and to suggest by nomenclature that it is “independent” is deliberately misleading and deceptive. (Evidence Code § 352.)

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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/personal injury case and its proceedings.)

There is no statutory authority permitting Defendants to apply ex parte for an order compelling the medical examination of the Plaintiff, thus Defendants’ Ex Parte Application for such an order is fatally defective. Additionally, since Defendants’ proposed Notice of Motion and Motion to Compel, submitted concurrently with their Ex Parte Application, fails to state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination” as required by CCP § 2032.310(b), and also fails to include a separate statement of disputed matters setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled, as required by California Rules of Court Rule 335(a)(6), it too is fatally defective.

It would be anomalous, if not absurd, to grant Defendants’ request for an order shortening time to hear a noticed motion to compel that is, in and of itself, procedurally improper and defective.

Moreover, because the date noticed by Defendants for the medical examination of the Plaintiff, on October 24, 2006, has not yet arrived, Defendants’ motion would in any event be premature because the issue has not yet ripened. Plaintiff has indicated to Defendants that he will submit to a defense medical examination provided that Defendants comply with the code sections governing medical examinations.

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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/personal injury case and its proceedings.)

Finally, defendants’ Ex Parte Application for an Order to Continue Trial, Discovery Cut-Off and Time to Designate Expert Witnesses is without merit, as there is no reasonable basis for the relief they are seeking. If defendants would simply agree to conduct their medical examination of the plaintiff in conformity with the code requirements, there is no reason why the defense medical examination of plaintiff cannot proceed on October 24, 2006, thereby obviating the need for any continuance. If, on the other hand, defendants remain steadfast in their refusal to comply with the Code as it relates to the scope and conduct of defense medical examinations, their position can only be construed as a stalling tactic to avoid mediation and trial.

Such tactics do not warrant continuances that would be substantially prejudicial to the Plaintiff, who is prepared to participate immediately in a meaningful mediation in an effort to settle this case and, if necessary, to proceed to trial. The plaintiff should not be further prejudiced by Defendants’ transparent stalling tactics. Accordingly, Defendants’ Ex Parte Application for a Continuance of Trial, Discovery Cut-Off and Time to Designate Expert Witnesses should also be denied in its entirety.

A MOTION TO COMPEL A MEDICAL EXAMINATION CANNOT BE MADE EX PARTE; IT REQUIRES ADHERENCE TO NOTICED MOTION PROCEDURE
Code of Civil Procedure § 2032.250(a) states:

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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/personal injury case and its proceedings.)

PLAINTIFF MILTON WHITE’S COMBINED OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Defendants’ Ex Parte Application to Compel the Independent Medical Examination of plaintiff, is both procedurally defective and premature, and should thus be denied in its entirety. Defendants’ motion to compel cannot be made on an ex parte basis, but requires a noticed motion. Defendants’ motion is also premature, as the date noticed for the medical examination of car accident victim plaintiff Milton White has not yet arrived.

Further, defendants’ proposed motion to compel submitted with their Ex Parte Application is equally defective, in that it fails to state the time, place, identity and specialty of the examiner, and the manner, conditions, scope and nature of the examination as required by CCP § 2032.310(b), and also fails to include a separate statement of disputed matters setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled, as required by California Rules of Court Rule 335(a)(6).

Additionally, defendants’ request for monetary sanctions must be denied, not only because of the procedural impropriety of their Ex Parte Application, but also because the prejudice they complain of was visited upon themselves by their own dilatory conduct and their stubborn refusal to adhere to the statutory requirements governing the scope and conduct of defense medical examinations.

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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/personal injury case and its proceedings.)

Plaintiff has a long medical history of complaints regarding his lower back, neck, and left leg. Plaintiff was involved in an automobile accident in 1991, during which he reported sustaining back and neck injuries. He received three months of orthopedic treatment following this incident. Plaintiff also reported experiencing back and neck pain after a September 1995 automobile accident. Plaintiff saw a chiropractor for six months following the 1995 incident. Plaintiff later was involved in a mountain bike accident in 2002 following which he reported experiencing back pain. He received five months of chiropractic treatment after the biking accident.

On August 2, 2003 — just one year prior to the subject accident — plaintiff was involved in a rear end automobile accident during which he purportedly sustained soft-tissue, lower back and left leg injuries. Plaintiff received five months of treatment for back and left leg pain. An MRI was taken on November 11, 2003, and revealed mild stenosis due to a disc herniation at L2-3 as well as a posterolateral extrusion at L4-5, which probably was hitting the left nerve root causing the dorsal and plantar foot pain in the lower left extremity. Plaintiff underwent three epidural blocks between November and December 2003. Plaintiff eventually settled the claim against the driver who rear-ended his vehicle through the driver’s auto insurer.

After the subject accident in September 2004, plaintiff consulted with an orthopedic surgeon, Dr. Mick Greene. Records subpoenaed from Dr. Greene reflect plaintiff admitted his belief that the August 2003 accident was the inciting event for his current complaints regarding back and left leg pain. However, plaintiff claims he was essentially asymptomatic at the time of the September 2004 accident, and that the subject accident re-exacerbated his symptoms.

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