Articles Posted in Wrongful Death

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

ARGUMENT cont.

Lack of records at the deposition also does not mean that Dr. Lee should be barred from any opinion whatsoever in the broad subject area identified by Plaintiff in the motion. Dr. Lee likely also gleaned some information about David Hill’s military medical history through other sources he did review, such as the deposition of Stella Hill. Just because he does not consider the materials in the binder directly relevant to his opinions does not mean the materials are not relevant at all (it is clear why the events of February 23 and 24, 2008, are more pertinent to Dr. Lee than prior history). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The case law cited by Plaintiff is not on point. The case law cited deals with the scope of opinion an expert plans to present at trial, not the volume or scope of materials reviewed. Counsel cites to no case law that allows him to delineate the scope of opinion testimony to only the documents produced at the deposition. The cases counsel cites seem to stand for the proposition that an expert who affirmatively represents that he has no opinions outside of those provided at deposition or limits opinions to certain areas should be barred from providing opinion testimony on undisclosed areas at trial. This is simply not the case here. Dr. Lee admitted that he did not consider the military records to be as integral to his opinions as certain other records, but he never limited himself in the manner indicated in the cases cited by Plaintiff. A case that is more on point is Sinaiko v. Superior Court (Medical Board of California) 122 Cal.App. 4th 1133, 1142 which provides that an expert’s lack of familiarity with certain case materials is not sufficient grounds for excluding testimony. It is clear here that Dr. Lee at least skimmed the military records.

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE SENT SEPTEMBER 23, 2010 – EXCLUDING EXPERT OPINIONS AND TESTIMONY ABOUT MILITARY AND MEDICAL RECORDS PRIOR TO SEPTEMBER 23, 2008
INTRODUCTION

Plaintiff seeks to exclude any testimony or opinions from Emergency Room expert Dr. Lee concerning David Hill’s medical, mental health, or military records for any time prior to February 23, 2008. Plaintiffs motion seems to be based on the sheer fact that Dr. Lee did not have the military records with him at his deposition. There are no legal grounds for excluding such testimony so and Plaintiffs motion in limine should be denied. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS

As Plaintiff points out, Dr. Lee did not have the decedent’s military medical records with him at his deposition even though Dr. Lee indicated some familiarity with the records. The deposition took place in Plaintiff’s counsel’s office and counsel had the records in his possession because he is the one who produced the records to all parties.

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

ARGUMENT

As a threshold issue, Plaintiff cites to no authority indicating that documents, later discovered, cannot be produced in a supplemental discovery response. Plaintiff, by serving a supplement demand before trial, must be prepared for the event that additional documentation or responses would be provided. Defendants did indeed supplement and did so in a timely manner. Plaintiff is well-aware that this is acceptable because she produced her own additional documents. Plaintiff actually produces documentation of decedent David Hill’s pay, documentation that most certainly existed at the commencement of this litigation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiffs sole goal in targeting this particular document for exclusion seems to be the mere fact that she does not like what the evidence proves. This is not a viable reason for excluding evidence. Most evidence is prejudicial to the party against whom it is offered. But that is not enough to exclude it under Evidence Code section 352. People v. Doolin (2009) 45 Cal.4th 390, 439 ( prejudicial is not synonymous with damaging ); Rufo v. Simpson (2001) 86 Cal.App.4th 573, 597 (Prejudicial … does not mean “damaging to a party’s case,” it means evoking an emotional response that has very little to do with the issue on which the evidence is offered ).

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

OPPOSITION TO MOTION IN LIMINE NO. 19 – PLAINTIFF’S MOTION TO EXCLUDE EVIDENCE THAT AMBULANCE WAS CALLED
INTRODUCTION

Plaintiff argues that the Medical Center defendants should be barred from introducing evidence that an ambulance was called on behalf of David Hill simply because the evidence was produced pursuant to Plaintiff’s request to supplement all discovery and was not produced earlier. Ironically, Plaintiff herself produced documentation regarding decedent David Hill’s earnings through her own responses to Defendants’ supplemental discovery demand and Defendant Inter-Con produced additional documentation as well through supplemental responses. Plaintiff may not seek to exclude evidence simply because she does not like the evidence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS
Plaintiff sought information about whether an ambulance was called for David Hill through multiple discovery devices including requests for admission, special interrogatories and a demand for production of documents. Plaintiff’s zealous and numerous discovery requests clearly indicate the importance Plaintiff places on whether or not am ambulance was called. However, Defendants take issue with Plaintiffs accusations that Defendants willfully failed to abide by discovery.

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

Plaintiff also takes issue with the fact that Defendants’ did not disclose a nursing expert and security expert in their initial disclosure, claiming Defendants should have known that such experts would be disclosed by Plaintiff. Plaintiff ignores the purpose behind expert disclosures and also expects Defendants to read minds by knowing precisely what types of experts Plaintiff would disclose. Plaintiff herself disclosed an additional expert through her expert disclosure (a vocational rehabilitation expert). Defendants too can make the argument that Plaintiff knew that Mr. Hill’s vocational prospects were a key issue in this litigation, yet Plaintiff failed to disclose anyone initially. Finally, contrary to Plaintiffs assertions, it was not obvious that either expert would be retained by Plaintiff. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, plaintiffs argument relies in part on the filing of a summary judgment and the evidence produced in opposition. However, plaintiff failed to mention that the opposition included only a single declaration from Dr. Gamble, an ER physician, to opine on nursing standard of care and security issues, in addition to physician issues.

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

ARGUMENT

Like most of Plaintiff’s motions in limine, this motion is completely unsupported by any case law or authority supporting Plaintiff’s position.

Plaintiff has no basis to exclude the photographs of Mr. Long. The disclosure only requires that the parties attach copies of any discoverable reports and writings and there is no indication that photographs would have to be included with this same disclosure (ironically, Plaintiffs ER expert came to his deposition with a detailed report of his findings, a report that was not disclosed at the time expert disclosures were served). See Code of Civil Procedure section 2034.210(c). The photographs have already been provided to Counsel. As mentioned above, Plaintiffs accusation that no attorney declaration was included with the disclosure is blatantly untrue. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiffs accusation that the designation does not adequately describe the general substance of the expected testimony also carries no weight. First, it is important to bear in mind that this is a supplemental disclosure meaning that defendants named these two experts to contest the testimony and opinions put forth by Plaintiffs experts, the Plaintiff is quite familiar with the types of opinions that will be offered.

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

OPPOSITION TO MOTIONS IN LIMINE NOS. 16 AND 17 – PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF EXPERTS SARAH BLACK AND WILLIAM LONG
INTRODUCTION

Plaintiff inexplicably seeks to preclude Defendants from introducing any testimony from their rebuttal experts, emergency room nurse Sarah Black and security expert William Long. Plaintiff also seeks to exclude photographs taken by Mr. Long of the Sacramento Medical Center Emergency Room. Plaintiff argues that (a) no attorney declaration was provided with Defendants’ supplemental disclosure; (b) that should have designated an ER Nurse and security expert in their initial disclosure; and (c) that defendants do not describe the General substance of the expected testimony in their expert disclosure. Plaintiff cites to no authority for any of these contentions.

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

FACTS

The parties exchanged their supplemental expert witness lists on August 23, 2009. Defendants’ supplemental expert disclosure was indeed accompanied by an attorney declaration, contrary to what Plaintiff asserts. The declaration also included information about each expert’s qualifications, what area the expert is to testify about, the experts’ fees and an assertion that the expert has agreed to testify at trial and is sufficiently familiar with the action to provide a meaningful oral deposition. See Code of Civil Procedure section 2034.260. The supplemental disclosure followed the same general format of Defendants’ initial disclosure, a document that Plaintiff did not object to.

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

California law upholds this notion of waiver of work-product privilege when a disclosure is made to a third party. The protection offered by the attorney work product privilege can be waived if work product is disclosed to third parties. (Id; See also, Meza v. H Muehlstein & Co.. Inc., (2009) 176 Cal. App. 4th 969, 981.) Dr. Gamble waived the work product privilege by disclosing otherwise protected information to a third party, to wit, Dr. Lee. The fact that the individual Dr. Gamble chose to approach was the defense expert makes no legal difference. An expert’s decision to consult a third party, cannot be shielded since it is by definition related to the work done in connection with the case. That plaintiff expert consulted another doctor is discoverable whether or not it was the defense expert since it relates to the credibility and foundation of the plaintiffs expert’s opinions. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

While communications with an expert retained to assist in the preparation of a defense may initially be protected by the attorney-client privilege, the privilege is waived when the expert is identified or a substantial portion of his otherwise privileged evaluation is disclosed. (Woods v. Superior Court (1994) 25 Cal. App. 4th 178, 187.) The fact that Dr. Gamble sought out advice or information from the defense expert, as well as any statements made by the physician represents a type of disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney’s work product and trial preparation. (Meza v. H. Muehlstein & Co., Inc., supra, 176 Cal. App. 4th at 981.)

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

The statutory language in Evidence Code § 912 indicates that one must look to the words and conduct of the holder of the privilege to determine whether a waiver has occurred. The very conduct of the plaintiffs expert as well as his disclosure about the facts of this case belies a waiver. This was no accidental or inadvertent disclosure of privileged information. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under Code of Civil Procedure §2034.201 et. seq., the attorney’s work product privilege does not apply to an expert’s pretrial statements once that expert is designated as a witness at trial. The statutory provisions entitles a party to request not only information about each expert retained and designated by a party, but is also includes a provision entitling a party to demand the production of all discoverable reports and writings upon which the expert bases his/her opinion. Moreover, a party is entitled to depose this same expert witness and inquire about an expert’s communications conducted for the purpose of formulating and expressing an opinion in anticipation of litigation. Through expert disclosure of plaintiff’s expert that work product privilege has been waived. (See e.g, United States v. Nobles (1975) 422 U.S. 225, 239-240, electing to present the expert as a witness destroys the work product privilege.)

Continue Reading ›

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.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

Plaintiff Has Effectively Waived A Privilege Which Can No Longer Be Asserted

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

Any attempt by plaintiffs counsel to argue that his expert’s decision to approach the defense expert for an opinion or consultation on the case as being privileged or protected information is futile. The party asserting a privilege (plaintiffs counsel and expert) must establish whatever preliminary facts are necessary to show that the proffered evidence is privileged. (Evidence Code § 405) Here, opposing counsel will undoubtedly attempt to argue that the very fact that its ER expert sought out the opinion of the defense expert is a matter which falls under the protection of the attorney work product privilege and should remain so. This notion is contrary to California law however. Evidence Code § 912 subd. (a) states in pertinent part regarding waiver of privilege:

Continue Reading ›