Articles Posted in Car Accidents

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

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.

The Injury Claim

Plaintiff testified that her neck and mid-back began hurting the day after the automobile accident. Plaintiff initially sought treatment from her regular medical facility, the Doctors Medical Group, 2 days post-accident on February 9, 2005. She was seen by Sun Bhandiopathi, M.D. She reported that she had been rear-ended in a parking lot 2 days ago. She was having neck pain and back pain. Her pain was a 5 out of 10. Her cervical spine had tenderness and spasm and her lumbar spine had tenderness and some spasm with limited range of motion. Assessment was cervical and lumbar strain, mild, due to motor vehicle accident and she was prescribed Flexeril and she was advised to recheck back in one week.

Plaintiff then did not seek any other additional medical treatment for any alleged complaints from the accident until June 8, 2005, some 4 months post accident, when she saw Bobbi Chen, M.D. at the Doctors Valley Medical Group. She reported this was for followup of the motor vehicle accident of February 2005 and plaintiff reported she still had back pain. Plaintiff reported she was driving her car over a speed bump using a stick shift and she had slowed down and got rear-ended by a truck. She was wearing her seatbelt.

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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 auto accident case and its proceedings.)

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.

DEFENDANTS’ MANDATORY SETTLEMENT CONFERENCE STATEMENT
PARTIES
Plaintiff Alexa Brown is represented by counsel.

Defendants Randy Greene is represented by counsel.

INTRODUCTION

This matter arises out of a claim by plaintiff Alexa Brown (age 21) that she was rear-ended by a vehicle operated by defendant Randy Greene in the Community College parking lot in Sacramento, California, on February 7, 2005.

Defendant contends that the impact was minor and no injuries could possibly have occurred. Neither a traffic collision report nor college security report were completed regarding the accident.

FACTUAL BACKGROUND
The Accident
Plaintiff Alexa Brown (age 20 at the time of the accident) was driving a 2001 BMW 325i.
Defendant Randy Greene (age 21 at the time of the accident) was driving at 2001 Toyota Prerunner.

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Toyota’s recent series of missteps has forced the automaker to recall millions of vehicles that could potentially malfunction (obviously, some already have), possibly causing injury to the occupants as well as other drivers sharing the road. Sacramento lawmakers are stepping up their efforts to stay ahead of potential issues affecting California drivers.

A House Democrat expressed concern Wednesday about a massive Toyota recall that has led the automaker to stop manufacturing and selling vehicles linked to problems with gas pedals, signaling that Congress could soon review the massive recall.

Michigan Rep. Bart Stupak, who leads an investigative subcommittee, said his staff would meet with Toyota officials on Wednesday following the automaker’s decision to suspend U.S. sales of eight of its vehicle models, including the Camry, the best-selling car in the United States. The company is also halting production at assembly lines at six North American car plants, beginning the week of Feb. 1.

“We want to find out what Toyota knows about the sudden acceleration problem with several of their vehicles and we want to know what will be done to protect consumers who are currently driving those vehicles,” Stupak said in a statement.

Stupak is a senior member on the House Energy and Commerce Committee, which held high-profile hearings and pushed for new auto safety requirements following the massive recall of Firestone tires in 2000. Congress approved legislation requiring automakers and other manufacturers to provide data on deaths, injuries, consumer complaints, property damage and warranty claims.

Toyota issued a recall last week for the same eight models involving 2.3 million vehicles. It followed a separate recall of 4.2 million vehicles last year because of problems with gas pedals becoming trapped under floor mats, causing sudden acceleration. That problem was the cause of several crashes, including some fatalities. About 1.7 million vehicles fall under both recalls.

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The recent troubles facing Toyota automobiles in North America affect not only the owners of its vehicles, but also those of us sharing the roadways with the defective and potentially dangerous cars.

Toyota dealers resumed selling vehicles Thursday that were pulled from the sales lot to address sudden-acceleration problems as the automaker said lost sales and a series of related recalls would cost $2 billion.

That recall price tag would be one of the most expensive in automotive history, said auto information company Edmunds. com.

Also, the California state assembly reacted to Toyota Motor Corp.’s safety recalls and its decision to shutter the state’s last auto manufacturing plant by voting Thursday to stop buying Toyota cars for use by lawmakers when they’re in Sacramento. The Assembly Rules Committee voted to resume a 2003 policy of buying only U.S.-made cars for its 130-vehicle fleet.

Toyota stopped sales of eight models — including its top-selling Camry and Corolla — on Jan. 26, saying the gas pedals could get stuck and cause runaway acceleration. The automaker also shut down production of the vehicles for a week while it examined how to fix the problem, which it attributed to wear on the pedal system.

“We now have more than enough parts at dealers to take care of the flow of repairs. Dealers may sell a new car if the repair is made,” said Mike Michels, a Toyota spokesman. “There is no single point in time when the stop sale would be lifted. It will be car by car.”

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The recent public apology by Toyota’s chief was overdue as the automaker was forced to recall millions of vehicles that could potentially malfunction (obviously, some already have), possibly causing injury to the occupants as well as other drivers sharing the road.

Toyota’s president emerged from seclusion Friday to apologize and address criticism that the automaker mishandled a crisis over sticking gas pedals. Yet he stopped short of ordering a recall for the company’s iconic Prius hybrid for braking problems.

Akio Toyoda, appointed to the top job at Toyota Motor Corp. last June, promised to beef up quality control, saying, “We are facing a crisis.”

Toyoda, grandson of the company’s founder, said he personally would head a special committee to review checks within the company, go over consumer complaints and listen to outside experts to come up with a fix.

“I apologize from the bottom of my heart for all the concern that we have given to so many customers,” said Toyoda, speaking at his first news conference since the Jan. 21 global recall of 4.5 million vehicles.

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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 brain injury/auto accident case and its proceedings.)

Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer v. Cooper, (1965) 233 Cal. App. 2d 750, 754, a case cited with approval in Kennemur, the court stated as follows concerning the scope of required deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for. In this case, Dr. Brown and Dr. Smith testified in their depositions as to their observations and opinions and they should not be limited by defense counsel’s failure to conduct a more thorough deposition, as is common in a personal injury case.

DEFENDANTS’ MOTION IS PRECISELY THE TYPE CRITICIZED BY THE COURT IN KELLY VS. NEW WEST FEDERAL SAVINGS

An important recent case on in limine motions, Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, addressed itself to precisely this type of motion and expressly found that such motions are not proper. The Court stated as follows at pages 670-673:

[M]any of the motions filed by Amtech were not properly the subject of motions in limine, were not adequately presented, or sought rulings which would merely be declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses. For example: MIL No.7, previously referred to, sought to limit the opinions of plaintiffs’ experts to those rendered at deposition and in written reports. Again, there was no supporting evidence to suggest what opinions had been rendered at the depositions, leaving the court and the parties to guess what opinions during trial may be included within the scope of the ruling.

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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 brain injury/auto accident case and its proceedings.)

THE AUTHORITIES CITED BY THE DEFENSE ARE NOT APPLICABLE TO THE FACTS OF THIS CASE

Defendants’ reliance on Kennemur v. State of California, (1983) 133 Cal.App.3d 907 is misplaced. Even a cursory review reveals the case to be inapposite.

In Kennemur, the plaintiff’s expert, Dr. Mitchell, was deposed on three separate occasions over a six-day period by the defendant The witness was specifically asked whether he was going to testify on accident reconstruction. He specifically stated that he was not and would leave that to a different expert He said that he was limiting his testimony to the stability of the automobile involved in the accident. (Id. at 912.) At the second session of his deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

The issue before the Court was not whether Dr. Mitchell could testify to areas into which opposing counsel had failed to delve but rather whether he could testify on accident reconstruction issues abut which he was specifically asked and had stated he had no opinion.

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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 brain injury/auto accident case and its proceedings.)

In addition, Defendants’ blanket and vague Motion in Limine is inappropriate. They have not set forth or highlighted any specific testimony they seek to exclude. As set forth in Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, Motions in Limine which are declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses are inappropriate. Id. at 670.

Further, the defendants have inaccurately claimed that they have not been provided with Dr. Smith’s raw data. This is simply not the case; Plaintiff’s counsel has confirmed that Defendants’ expert, Dr. White, has been in receipt of said raw data since October 19, 2005. Consequently, as set forth herein, Defendants’ Motion is inappropriate and should be denied.

THE DEFENSE INTERPRETATION OF THE LAW WOULD REWARD DEFENDANTS FOR TAKING INSUFFICIENTLY THOROUGH DEPOSITIONS
Defendants are asking the Court to preclude an expert from saying anything that he has not already said in his deposition. This is clearly contrary to the law and would create a possible loophole in the expert discovery statute. A defendant would simply have to ask very few questions and thereby block the expert from testifying about anything other than what he was asked. Surely the Defendants cannot possibly be asking the Court to make such a ruling in such a horrific personal injury case.

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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 brain injury/auto accident case and its proceedings.)

This Opposition will be based upon this Notice, the attached Memorandum of Points and Authorities, any supplemental briefs submitted on the issues, as well as on the pleadings, papers, files, and records in this matter, and upon such other further documentary and oral evidence as may be presented at the hearing on this matter.

(1) Plaintiffs’ experts are allowed to respond to the opinions given by Defendants’ experts, especially where the Defendants’ experts were deposed after the Plaintiffs’ experts; and

(2) Counsel should be allowed the right to present all relevant evidence which will assist the jury. There is no basis for a restriction based on an abstract in limine ruling.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Plaintiff opposes the Motion in Limine #1 submitted by Defendants to the extent that it seeks to exclude testimony of Plaintiffs’ experts that either the Defendant did not elicit from the expert at the time of deposition, or constitutes comment or opinion regarding the testimony of opposing experts.

California Code of Civil Procedure section 2034(j) governs the exclusion of expert testimony. A Court may exclude testimony of an expert only if a party did not list the witness as an expert, did not submit an expert witness Declaration that complied with the expert information disclosure statute, did not produce the expert’s reports, or did not make the expert available for deposition. California Code of Civil Procedure § 2034(j); Bonds v. Roy (1999) 20 Cal.4th 140.

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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 automobile accident/personal injury case and its proceedings.)

Thus, the court determined it was proper to place the entire medical charges before the jury, as better evidence of the degree of harm, and effect a post-verdict reduction of damages to account for the difference between the amounts paid by private health insurance and the amounts billed by the health care provider.

Nishihama is not dispositive. To the extent that Olszewski limited Hanif’s application to the Medi-Cal context, it implicitly overruled Nishihama’s extension of Hanif to the realm of private insurance. Moreover, the Supreme Court reserved the issue in connection with private insurers. In Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595, 611, fn. 16, the Court explicitly declined to reach the question of whether Olszewski and Hanif “apply outside the Medicaid context and limit a patient’s tort recovery for medical expenses to the amount actually paid by the patient notwithstanding the collateral source rule.”

Regardless of whether this Court agrees with Nishihama, it does not alter the fact that under the collateral source rule the tortfeasor should be precluded from reducing the injured plaintiff’s recovery because his or her insurer was able to contract with the health care provider to treat Plaintiff below its normal rates.

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