Articles Posted in Real Cases

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

Plaintiff, KERRIE RICH, hereby submits the following Mediation Brief:

I. BACKGROUND

At the time of the dog attack, attorney Kerrie Rich was 45-years-old. She was in good health, and was an attorney of 20 years working at various locations. She was married and resided with her husband, Robert, in Sacramento, California. She was an athlete who ran, trained for triathalons, and worked out daily.

II. THE INCIDENT
On March 17, 2006, plaintiff was out for her daily walk next to her home in a cul de sac,

when “Franz,” a dog belonging to defendant, Paul Stevens, came running, growling with teeth showing at Ms. Rich. The dog aggressively charged Ms. Rich and tried to bite her arms and legs. In the attack, Ms. Rich was knocked to the ground, landing on her back and buttocks.

Ms. Rich reviewed the pictures of the defendant’s dog, Franz, and provided to plaintiff by defendant. Ms. Rich confirmed that this was the dog that attacked her. In plainitff’s fax she states:

“This is the dog that attacked me.”
III. LIABILITY

This is a case of clear liability. The dog Franz has a history of violent behavior. On April 22, 2004, Paul Stevens signed a Vicious Dog Notification pursuant to Sacramento Municipal Code 7-125 (herein after referred to as “SMC 7-125”) and was cited for violation of SMC 7-124 (Dogs running at large – Unlawful). Defendant was advised that this dog must be chained and kept confined at all times. The animal control report by F. Dobales dated April 22, 2004, stated in part:

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

G. Home Remodel or Replacement Costs

One important item which Dr. Barchuk recommended, but Ms. Albee was unable to price, was the cost of either updating the Bates’ home to accommodate her disabilities or selling the current home and buying a home that is ADA compliant in bathrooms, hallways, kitchen, bedrooms, and entries and exits. For purposes of this letter, I will estimate the cost of either choice to be $135,500.

H. Loss of Consortium: Andy Bates

Andy Bates is entitled to his own claim for general damages for loss of consortium. He is not limited by his wife’s MICRA cap of $250,000 (see Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1394-1396). Under MICRA he has a separate MICRA cap of $250,000. Under EADACPA he has no cap. For purposes of this letter, his claim for loss of consortium under either cause of action will be $250,000.

III. SUMMARY OF DAMAGES

Claimants have the following damage claims pursuant to their First and Second Causes of Action:

1. Cost of Life Care Plan $12,123,769.64
2. Andy Bates’ Loss of Income $ 228,080.00
3. MICRA General Damages $ 250,000.00
4. EADACPA General Damages $ 625,000.00
5. EADACPA Attorney Fees and Costs $ 312,000.00
6. Home Remodel or Replace $ 135,500.00
7. Andy Bates’ Loss of Consortium $ 250,000.00
TOTAL $13,924,349.64

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

C. Andy Bates: Loss of Income

Andy Bates is married to Susan Bates. He is currently employed as a shift leader at Denny’s Restaurant in Roseville. He works 35-40 hours per week earning $9.00 per hour. His average salary is, therefore, $333.00 per week, or $1,398.60 per month, or $16,783.20 per year.

In 2003, the Sacramento Superior Court appointed Andy and Susan as permanent legal guardians of two boys born to Susan’s brother, who were not getting proper parental care. The children were James (age 4 at the time) and Sean (age 9 months at the time). Shortly thereafter, Susan’s nephew also relinquished his parental rights to his daughter, Carli (age 5 at the time) and she was also placed with Susan and Andy. As a result, since 2003, all three children have been taken into Susan’s and Andy’s home and raised as their own children, with Andy serving as father and Susan as mother.

Prior to her paralysis Susan actively participated in caring for her family. She had an early morning job so she was off in the afternoon. She shopped for her family and cooked dinner. She cleaned the home and did the laundry and cared for the three children when they came home from school (Andy worked in the evenings) and put them to bed. She also shared the yard work.

Susan’s paralysis and care needs have placed a severe strain on the family. As a result, she has been unable to care for James, Sean and Carli. She has been unable to cook and clean as she did before.

Set forth in item B, above, are funds to hire an attendant to take care of Susan’s needs. This attendant is not, however, expected to care for the three children or perform household chores for the family.

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

The patient will continue to require urological supplies, skin supplies, as well as bowel supplies which are delineated in the Life Care Plan.

The patient continues to require 24/7 attendant care. Her skilled needs are as follows:

1. Catheter changes
2. Wound care
3. Blood draws
4. IV antibiotic administration
5. PICC line maintenance and flushing

It is not anticipated, in view of the patient’s multiple medical problems, that she would be able to tolerate any sort of competitive employment in the future.

The patient is in need of an ADA compliant home supplied with air conditioning secondary to heat intolerance from his spinal cord injury.

The details of the above mentioned recommendations are included in the Life Care Plan Worksheet which will be reviewed with Tracy Albee, R.N., Life Care Planner.

It should be noted that as the patient ages with her spinal cord injury she will require more and more assistance and will become more and more dependent on others for her activities of daily living, self-care, grooming and hygiene, as well as mobility.

The patient should also enroll in a smoking cessation program as soon as possible.

Prior to the patient’s cervical myelopathy she was independent in all of her basic activities of daily living, self-care, grooming and hygiene and was described as a very active individual, hard working, taking pride in her family life.

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

I. INTRODUCTION

On May 1, 2006, at 9:15 p.m., a 22-year-old woman suffered serious brain damage. A car driven by the male defendant ran a red light and struck the vehicle carrying plaintiff and two passengers. The defendant admitted to the police officers that he ran the red light. He was a drunk driver.

While she has in some respects recovered, plaintiff remains impaired by her brain damage. This is discussed below in Section V.

II. BACKGROUND

At the time of the collision, plaintiff was employed by Ross Stores as a clerk. She was in excellent physical health. She had some challenges in school and at home, growing up without a mother in a dysfunctional home. She was diagnosed at one time at age four or five as having childhood seizures and emotional problems, but by the time plainitiff reached 22-years-old she had overcome those obstacles. She had a job and was doing well.

III. THE DRUNK DRIVER CAUSES A COLLISION
Plainitff was the back seat passenger in a 2002 chevy Malibu owned and driven by her friend, Denise. In the right front seat was passenger Sandy. Both Denise and Sandy were also injured in the crash and are each represented by other counsel. Denise was traveling southbound on Sunrise Blvd.. As she approached the intersection of Greenback, she stopped for a red light. The light turned green. Denise then started through the intersection.
Driving westbound on Greenback in a 1999 BMW 328 owned by his father, was defendant. He had a red light.

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C. Third Cause of Action: Loss of Consortium

Andy Bates, husband of Susan Bates, makes a claim for loss of consortium following his wife’s total incapacity.

II. DAMAGES

A. Alex Barchuk, M.D.

In order to assess Ms. Bates’ need for ongoing medical and attendant care under both her First and Second Causes of Action, that is, for both (1) her paralysis/neurogenic bowel and bladder and (2) her stage IV sacral decubitis ulcer/colostomy bag, claimant was assessed at her

residence by Alex Barchuk, M.D., on August 29, 2007.

Dr. Barchuk is Board Certified in Physical Medicine and Rehabilitation. He is the Director of the Spinal Cord and Trauma Rehabilitation Program, Kentfield Rehabilitation Specialty Hospital, Kentfield, California.

Dr. Barchuk prepared a report and a DVD setting forth his findings and conclusions. Dr. Barchuk’s DVD is available for review. (The DVD contains a PowerPoint presentation that also includes a number of video clips of interviews with Mr. and Ms. Bates. Once loaded in the computer the presentation can be initiated by using your computer mouse in one of two ways. You can either scroll down to each subsequent page and then use the left click to initiate the video – – by left clicking on the video itself – – on that page, or you can left click on each image or page to advance to the next set of images or video.) Dr. Barchuk’s report and Life Care Plan Worksheet are referenced herein.

Dr. Barchuk states the following in his report beginning at page 18:

The patient is a 45-year-old married woman with history of acute cervical myelopathy status post C4 to C6 laminectomy with decompression evaluated at his home on 8/29/08. At that time a history was obtained from the patient as well as her husband and a physical examination was performed.

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

The collision was investigated by Officer A. E. Jones of the California Highway Patrol. In his report Jones states the following:

“P-1 [Chris] stated he was driving V-1 westbound on Greenback approaching Sunrise Blvd., in the #1 or #2 lane at 50 mph. He stated, ‘I ran the Sunrise light.’”

The investigating officer noticed a strong smell of alcohol on the defendant. He noticed that his speech was slow and slurred and that his eyes were red and watery. When asked if he had consumed any alcohol that evening, the defendant stated to the officer that he had drank between one-half to one bottle of white Zinfandel strawberry wine and had 2 – 3 shots of Bacardi 151 proof. The officer found on the right front floorboard of defendant’s car three empty bottles of Arbor Mist Strawberry wine and one bottle of Bacardi 151 proof that was one-quarter full.

The investigating officer arrested the defendant for violating 23152(a) CVC, driving under the influence of an alcoholic beverage. He recommended the District Attorney charge defendant with the following offences:

1. 23153(a) CVC: Driving under the influence of an alcoholic beverage causing injury. [FELONY]
2. 23153(b) CVC: Driving under the influence of an alcoholic beverage, BAC .80% or more, causing injury. [FELONY]
3. 23140(a) CVC: Under 21 years of age driving with a BAC of .05% or more.

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Superior Court of California.
Sacramento County
Sabrina Williams, Plaintiff,
v.

HBZT, a California corporation, Dan Black, an individual and Does 1 through 50, inclusive, Defendants.

Jury Trial Demanded
Complaint for Damages 1. Employment Discrimination-Gender (Violation of Gov’t Code §12940 et seq.) 2. Sexual Harassment (Violation of Gov’t Code §12900 et seq.) 3. Injunctive Relief
PREAMBLE

It is sad that in the year 2008, a woman, to be successful at her job and recognized for her abilities and accomplishments, has to fit a sexual stereotype of being rail-thin in order to work.

Ms. Sabrina Williams, is a bartender at a popular East Sacramento nightclub called Nighthawk, owned by HBZT Entertainment well-known in the high-end hospitality industry. HBZT owns numerous venues including hotels, restaurants and clubs in Sacramento, Las Vegas and Palm Beach.

Ms. Williams is a trim, capable, attractive and skilled bartender who served the public at Defendant HBZT’s Nighthawk bar until she gained five (5) lbs. Abruptly she was directed to work in the kitchen and to not be visible to the public until she lost 5-6 lbs. “to start.” Ms. Williams is a trim, fit size 5/6 and remained a size 5/6 when she gained the 5 lbs. However, management clearly regarded her as unsightly and not fitting their female sexual stereotypic image. Males are able to continue to bartend despite being overweight or gaining weight.

PRELIMINARY FACTUAL STATEMENT
1. Plaintiff SABRINA WILLIAMS (hereinafter referred to as “Plaintiff” or “Ms. Williams”) is, and at all relevant times mentioned herein was, a resident of the County of Sacramento, State of California.

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

RE: Susan and Andy Bates
I. BRIEF SUMMARY OF CLAIMS

Ms. Bates’ claims involve two distinct separate injuries occurring at two different times. Her claims are brought under two separate legal theories and causes of action. Her first Cause of Action is for medical malpractice. Her Second Cause of Action is brought pursuant to The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), found at Welfare and Institutions Code §15600 et seq. As a result, she is entitled to and seeks two different financial recoveries.

In addition, Andy Bates makes a claim under the Third Cause of Action for loss of consortium.

A. First Cause of Action: Medical Malpractice

Ms. Bates’ First Cause of Action focuses on the care and treatment she received during the period she was hospitalized at United Hospital in Carmichael from December 26, 2005 through January 13, 2006. As a result of that hospitalization, Ms. Bates now has the following injuries:

1. Paralysis,
2. Neurogenic bladder,
3. Neurogenic bowel,

4. Chronic neuropathic pain.

This claim is subject to MICRA.

B. Second Cause of Action: Dependent Adult/Elder Abuse

Ms. Bates’ Second Cause of Action is brought pursuant to Welfare and Institutions Code §15600 et seq., the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). This claim focuses on United’s neglect of claimant, Susan Bates, after she was hospitalized for the above described paralysis and is distinct in time and injury from her paralysis claim. It occurred at ABC Hospital in Citrus Heights after January 13, 2007, and resulted in the following injuries:

1. Stage II sacral decubitus ulcer arising when Ms. Bates was an in-patient at United. This ulcer progressed as described in #2 below.

2. Stage IV sacral decubitus ulcer.

3. Placement of permanent colostomy bag required by the Stage IV sacral decubitus ulcer.

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3. Plaintiff is informed and believes, and based thereon alleges that Defendant DAN BLACK, (hereinafter “BLACK”) is an individual who at all relevant times herein was a resident of the County of Sacramento. Plaintiff is informed and believes that at all relevant times herein BLACK was Defendant HBZT’s Nighthawk’s bar manager, a managing agent of Defendant HBZT.

4. The true names and capacities, whether individual, associate or otherwise, of Defendants sued herein as DOES 1 through 50, inclusive, are currently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants designated herein as a DOE is legally responsible in some manner for the events and happenings referred to herein, and caused injury and damage proximately thereby to Plaintiff as hereinafter alleged. Plaintiff will seek leave of Court to amend this complaint to show the true names and capacities of the Defendants designated herein as DOES when the same have been ascertained.

5. Whenever in this complaint reference is made to “Defendants, and each of them,” such allegation shall be deemed to mean the acts of Defendants acting individually, jointly, and/or severally.

6. Plaintiff is informed and believes, and based thereon alleges, that at all times mentioned herein, each of the Defendants was the agent, servant and employee, co-venturer and co-conspirator of each of the remaining Defendants, and was at all times herein mentioned, acting within the course, scope, purpose, consent, knowledge, ratification and authorization of such agency, employment, joint venture and conspiracy.

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