Articles Posted in Personal Injury

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

THE COURT SHOULD NOT ORDER BIFURCATION ON ITS OWN MOTION

Although defendants motion is untimely as discussed above, the Court retains discretion to order bifurcation on its own motion at any time when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby . CCP §§ 598; see also, CCP § 1048(b).

In the present case, none of these ends would be served by conducting two separate trials, one on liability and one on damages, for several reasons to be discussed below. First, however, it should be noted that plaintiff has no intention of calling an extensive number of the physicians who treated him. Indeed, Plaintiff plans to call only one of the doctors who treated him at Sacramento Medical Center and only one who treated him at Mercy Hospital. Each will be relatively short – no more than one hour of direct testimony and probably less. Moreover, as discussed further below, each of these doctors will be testifying on the issue of liability in any event, and would have to come back to testify a second time if the case were bifurcated.

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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 case and its proceedings.)

DEFENDANTS’ MOTION IS UNTIMELY
Code of Civil Procedure § 598 provides that a motion to bifurcate brought by a party must be noticed and set for hearing far enough in advance of the trial so that an order for bifurcation, if appropriate, may be obtained no later than the pretrial conference or, in other cases, no later than 30 days before the trial date. C.C.P. § 598;

Although the Court retains discretion to order bifurcation on its own motion, the notice and hearing deadline provided in CCP § 598 is no small matter. For example, in the present case, plaintiffs counsel have been preparing for trial and scheduling witnesses, including expert witnesses, for a single trial. Defendants never mentioned or hinted that they desired bifurcation until new counsel entered the case and this motion was filed. Notably, the motion was filed with the trial date imminent and with a hearing date for the motion on the trial date itself, June 6, 2008. This is well beyond the deadline for such motions specified in CCP § 598.

Equally significant is the fact that the Rules of Court provide that the issue of bifurcation, if desired or applicable, should be taken up months before the trial, at the Case Management Conference. (See California Rules of Court, Rule3.727(10).

In their Case Management Conference Statement filed for the Case Management Conference on June 20, 2007 nearly one year ago, Defendants mentioned nothing about seeking bifurcation, and specifically left blank the section of the CMC Statement that is to be checked where a party is contemplating bifurcation. Nor did defendants suggest they would seek bifurcation at either of the Case Management Conferences (June 20, 2007 and August 31, 2007). Clearly, the rules contemplate that such a motion be heard and ruled upon well before trial.

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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 case and its proceedings.)

Mr. Santoro suffered a severe skull fracture, which caused substantial bleeding, bruising and swelling in his brain. He was in a coma, near death, for nearly a month. He had two operations in an attempt to relieve the bleeding, swelling and fluid in his brain. In the second operation it was necessary to remove parts of the temporal and frontal lobes of his brain. A total of ten centimeters of brain tissue had to be removed from Mr. Santoro’ frontal lobes (referred to as a lobectomy, the equivalent of a lobotomy. While Mr. Santoro’ life was saved, he has sustained permanent brain damage and will need life-long care. He was hospitalized for a total of over eight months and has incurred well over $1.5 million in medical bills. He has not returned to work and now lives with his parents and brothers, all of whom have assisted in his care.

At the very minimum this is a case of comparative fault and plaintiffs d images will clearly have to be litigated.

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

INTRODUCTION/SUMMARY OF FACTS cont.

Defendants’ own police procedures expert has testified that it was improper for Officer Doe to fail to notify dispatch of what he had upon arrival. Officer Doe himself has testified that he was out of his car, in the presence of five unknown males, for about five seconds when one of the men (plaintiff James Santoro) turned and began to lope away. Officer Doe testified that within one second he started to chase Santoro without knowing who the aggressors were and knowing very little about any of the five involved. The crime Officer Doe was investigating was a simple misdemeanor P.C. § 415 (fighting in public).

Officer Doe ran right past the four other men, including the two who instigated the fight. In doing so, he violated proper police protocols and clear training guidelines.

Officer Doe ran about 100 feet toward Mr. Santoro. Witnesses will testify that Officer Doe yelled stop once or twice, and nothing else. Officer Doe claims he yelled numerous times. James Santoro, complying with Officer Doe’ requests, stops and turns around. As he does so, Officer Doe hits Mr. Santoro in the chest with both hands, with great force. Mr. Santoro flies backward.

Officer Doe hit Mr. Santoro with such force that Mr. Santoro’ body flew into the air. According to Officer Doe and an independent eye witness who was six feet away, Mr. Santoro’ legs flew up in front of his body, which was now parallel to the ground, flying backward. Mr. Santoro was unable to break his fall in any way. His back hit the sidewalk and his head snapped back onto the pavement with great force, causing a loud smack which, according to the eye witness, sounded like a melon smashing onto the pavement. Mr. Santoro’ head bounced up and smacked onto the pavement a second time due to the force with which he was hit.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Relatedly, the courts have recognized that the potential for jury confusion and prejudice is particularly acute in cases like this one, where the plaintiff proposes to spend far more time talking about conduct that affected other parties than the conduct that affected the plaintiff. The risk of prejudice from other acts evidence increases tremendously when the plaintiff is permitted to make that evidence the centerpiece of her punitive damages presentation. Holdgrafer, 160 Cal. App. 4th at 934. The Second District, for example, noted that [t]he vast majority of the evidence presented in the punitive damages phase, and counsel’s arguments to the jury, related to evidence of conduct that did not harm the plaintiffs.

Plaintiffs’ counsel began his closing argument by recounting the evidence in great detail, the court noted, and it dominated the rest of his presentation. Id. For that reason, the court concluded, the improper admission of other-acts evidence was particularly prejudicial and resulted in a miscarriage of justice. See also State Farm, 538 U.S. at 420, 423 (noting that [f]rom their opening statements onward the Campbells framed this case as a chance to rebuke State Farm for its nationwide activities, but identified scant evidence of repeated misconduct of the sort that injured them ); Durham, 360 S.C. at 653 ( Further, the evidence is inflammatory, especially in light of the fact that the [other acts] evidence was the only evidence admitted during the punitive damages phase. ).

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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 case and its proceedings.)

Plaintiff’s Opposition to Defendants’ Motion to Bifurcate Liability from Damages

INTRODUCTION/SUMMARY OF FACTS

The plaintiff, James Santoro, is a 28 year old life long resident of Sacramento and law abiding member of the community. Before this incident he had never been arrested or had any negative contact with law enforcement. His family has been in Sacramento for three generations. His father and mother were both born in Sacramento and come from families that have always been hard working, law abiding members of the Sacramento community.

At the time of the incident Mr. Santoro was working as a file clerk for a large law firm in downtown Sacramento. Mr. Santoro had been working there for approximately two years and was an exemplary employee, well liked and well respected by all members of the firm. Prior to working for his current firm worked as a file clerk for another well-respected large law firm in Sacramento.

Sacramento police officer John Doe joined the police department in 2002 and completed his POST training and his field training with SPD in 2003. His training included training in patrol techniques, crimes in progress and foot pursuits.

January 4, 2006 was the night of the national championship football game at the Rose Bowl between U.S.C. and Texas. Many people were in the East Sac. area of downtown Sacramento to watch the game at one of the many restaurants and bars in the area.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

The Kentucky Supreme Court reversed a punitive damages award and remanded for a new trial in a suit against an insurance company alleged to have made a bad-faith effort to settle a auto-injury claim, because the trial court improperly admitted evidence of the defendant’s allegedly similar effort to stonewall another claimant. Citing State Farm, the court held that the evidence was improperly admitted because the Constitution sharply limit[s] the use of evidence of other transgressions to prove entitlement to punitive damages. Ky. Farm Bureau Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 819 (Ky. 2005).

In each of the above cases, just as in this case, the plaintiff wished to tell the jury about other acts the defendant committed, beyond the acts that caused the harm for which compensatory damages were awarded. In each of the above cases, just as in this case, there was a plausible connection between those acts and the conduct that harmed the plaintiff. In each of the above cases, just as in this case, the plaintiff was able to describe a course of conduct that encompassed both the conduct that harmed him and the evidence of other acts. And in each of the above cases, the appellate courts eventually held that it was error to admit the evidence of other acts.

Indeed, there are striking parallels between the evidence that plaintiff wants to introduce here and the evidence at issue in the above cases. Just as the plaintiff in this case argues that USA Tobacco engaged in a decades-long scheme of fraudulently inducing consumers to buy dangerous defective products, the plaintiff in State Farm claimed that the defendant had a national scheme to meet corporate fiscal goals by capping payouts on claims company wide. And just as plaintiff in this case argues that USA Tobacco blames anything and anyone except itself for the results of its conduct, the Holdgrafer plaintiffs argued that the evidence of other oil spills demonstrated a company policy of denying responsibility for such accidents. Time and again, the appellate courts have rejected these arguments. Even where other bad acts are sufficiently connected to the conduct that harmed the plaintiff to be marginally relevant to demonstrate the reprehensibility of that conduct, the potential for prejudice usually far outweighs the probative value.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

H. Universal Fails to Negate Plaintiffs’ Fraud/Conspiracy and Punitive Damages Claims

To satisfy its initial burden, Universal must either negate a necessary element of each of plaintiffs’ causes of action or demonstrate that under no hypothesis is there a material issue of fact that requires the process of trial. [Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674.] Universal fails to show with competent evidence any lack of proof that Tina Gomez was exposed to Universal’s asbestos-containing, or otherwise, defective product. Regardless, plaintiffs need not prove that Ms. Gomez was exposed to asbestos from Universal products to recover against Universal for injuries stemming from its participation in a conspiracy to suppress from Ms. Gomez, and others similarly situated, material information about asbestos-related health hazards. Hence, Universal may be liable to plaintiffs here from Ms. Gomez’s exposure to any asbestos from any source as a result of the conspiracy in which Universal participated.

The elements of a civil conspiracy are an agreement, a wrongful act by any of the conspirators pursuant to the agreement, and damages. [Stone v. Regents of University of Cal. (1999) 77 Cal.App.4th 736, 748 fn. 9 (emphasis added).] The active concealment of facts by even a non-fiduciary (such as Universal here) is the equivalent of a false representation, i.e., actual fraud. [5 Witkin, Cal. Procedure (4th ed. 1997) Pleading § 678, p. 136 (emphasis added).] In a case directly on point, it was held that a viable fraud cause of action was stated against multiple defendants who were accused of having intentionally concealed the ingredients of a defective product. [Quirici v. Freeman (1950) 98 Cal.App.2d 194, 201; Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 964; Committee on Children’s Television v. General Foods (1983) 35 Cal.3d 197, 218-219.]
Likewise, punitive damages may be based upon fraudulent conduct, and upon a defendant’s knowing failure to warn of hazards. [Civ. Code § 3294; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 40091.]

Universal shows no lack of proof that it knowingly concealed asbestos-related hazards associated with its products. Indeed, none of the 26 purported facts in Universal’s separate statement address, involve, or discuss plaintiffs’ fraud, conspiracy-to-defraud and punitive damages claims.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this personal injury case and its proceedings.)

3. Other cases
Holdgrafer is far from the only post-State Farm appellate decision vacating a punitive award after holding that other acts evidence was improperly admitted. Courts around the country have repeatedly done the same:
The Arkansas Supreme Court ordered a new trial on punitive damages in a case brought against a chemical manufacturer by farmers whose wheat crops were rendered unfit for sale when they were sprayed with an insecticide that was later determined to be unsafe for use on wheat. The plaintiffs had introduced evidence that the defendant had recommended the product for use not only on plaintiffs’ farms, but also on various other farms in Mississippi. The Court held that this evidence should not have been admitted, because it improperly invited the jury to impose punishment for conduct that harmed farmers other than the plaintiff. See FMC Corp. v. Helton, 360 Ark. 465 (2005).
The Indiana Court of Appeals vacated a punitive award in a negligence suit brought against a drunk driver because the trial court had allowed the jury to hear evidence of the defendant’s other DUI arrests. That court recognized that evidence of the defendant’s similar acts might, in rare situation[s], assist the jury in determining the level of punitive damages necessary to deter future transgressions. But, citing State Farm, the court held that any relevance which [the defendant’s] subsequent acts could have had upon the issue of punitive damages was substantially outweighed by the danger that the jury would use this evidence to punish [him] for his subsequent acts instead of the conduct that gave rise to [the plaintiffs] actual damages. Wohlwend v. Edwards, 796 N.E. 2d 781,785, 787 (Ind. Ct. App. 2003).

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

G. Universal Fails to Negate Plaintiffs’ Premises Liability Claims

Universal fails to show any lack of proof that it: (1) required the use of any asbestos-containing products at the West Facility; (2) managed the operative details of David Plaza’s work such that the asbestos-containing dust on his person and clothes exposed Tina Gomez to asbestos; (3) negligently failed to warn or abate concealed hazards; or (4) negligently hired or managed other workers that negligently handled asbestos-containing materials.

Universal ignores that it owned and operated the West Facility when David Plaza performed brake work, which inevitably included the removal and installation of asbestos-containing brakes, at that store during 1981 through March 1982. As Universal’s PMK and counsel readily admit, Universal controlled the operative details of the work at the West Facility when that store was company owned. Thus, triable factual issues exist as to whether Universal is liable for negligently: (1) exercising the control it retained of the work at the West Facility that eventually exposed Tina Gomez to asbestos; and (2) failing to warn of or abate concealed asbestos-related defects. [Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659; Grahn v. Tosco Corp. (1997) 58 Cal.App.4th 1373.]
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