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The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. 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 also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

THE VERDICT WAS AGAINST LAW

The ground for new trial that the verdict is against law, is separate and distinct from other grounds listed in Code of Civil Procedure section 657, and does not involve the weighing of the evidence. Rather, the jury’s verdict is against law if it is unsupported by the evidence. (See Sanchez-Corea v. Bank of America. (1985) 38 Cal.3d 892.)

In the case of Kruse v. Bank of America. (1988) 202 Cal.App.3d 38, at 51 and 52, the court stated that the test for substantial evidence is:

Substantial evidence, however, is not synonymous with any evidence. To constitute sufficient substantiality to support the verdict, the evidence must be “reasonable in nature, credible and of solid value.” It must actually be “substantial” proof of the essentials which the law requires in a particular case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Here, there is no reasonable or credible evidence to deny that this plaintiff was in fact injured as a result of this accident and that such injuries required medical care and treatment all to the economic and non-economic damage of the plaintiff.

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

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

Ultimately, the issue of alter ego liability is one that turns on equitable considerations and is one of fact. Associated Vendors, Inc., 210 Cal. App. 2d at 837. The conditions under which the corporate entity may be disregarded, or the corporation be regarded as the alter ego of the stockholders, necessarily vary according to the circumstances in each case inasmuch as the doctrine is essentially an equitable one and for that reason is particularly within the province of the trial court. Only general rules may be laid down for guidance. Id. at 836-37. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Of the many factors, undercapitalization of a corporate entity is recognized as a particularly critical one that, if present, strongly supports alter ego liability. Morrison Knudsen Corp. v. Hancock,Rothert & Bunshoft, 69 Cal. App. 4th 223, 251 (1999). Here, Universal’s balance sheets for 2003, 2004, 2007, 2006, and 2007 show that, for each and every year, Universal’s liabilities far exceed the facility’s assets. In other words, Universal’s balance sheets demonstrate that this entity is entirely insolvent and therefore entirely incapable of paying any judgment secured by plaintiffs in this case.

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It is worth noting that situations similar to those described in this birth injury 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 medical malpractice case and its proceedings.)

DR. BLACK SHOULD BE PRECLUDED FROM GIVING ANY OTHER OPINIONS ON THE SUBJECT OF A PEDIATRIC NEUROLOGIST VERSUS AN ADULT NEUROLOGIST

Although Plaintiff’s counsel attempted to solicit from his own witness differences in education, background, training and/or knowledge of the two specialities, Dr. Black chose not to answer the question. She chose to give no admissible basis for her opinion and no opinion other than lack of credibility. Since she did not testify at her deposition of other bases or other opinions on the subject, she must now be precluded from giving same. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

An expert must, if asked at deposition, disclose the substance of the facts and the opinions which the expert will testify to at trial. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919.) In Kennemur, the court explained:

[O]nly by such a disclosure will the opposing party have reasonable notice of the specific areas of investigation by the expert, the opinions he has reached, and the reasons supporting the opinions, to the end the opposing party can adequately prepare for cross examination and rebuttal of the expert’s testimony. (Whitehill v. United States Lines. Inc. (1986) 177 Cal.App.3d 1201, 1210, citing Kennemur at 919.)

Dr. Black’s intentional failure to disclose precludes her from expressing such testimony at trial.

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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.

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.

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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. 14 – TO EXCLUDE EVIDENCE OF DISCUSSION BETWEEN DRS. GAMBLE AND LEE
INTRODUCTION

Plaintiff seeks to exclude from evidence any mention of conversations between Dr. Lee and Dr. Gamble or the fact that they work together. Defendant disagrees that such evidence should be excluded based on a recent discovery that Plaintiffs expert, Dr. Alan Gamble, approached Defendants’ expert, Dr. Michael Lee, specifically about this case. Plaintiff is merely attempting to cover up the fact that her expert made a crucial error in judgment by approaching defense counsel’s expert for his learned advice and opinion on the facts of this case. That plaintiffs expert elected this tactical course to consult a third party as part of the formulation of his opinion effectively waives any expectation of work product privilege and is both admissible and subject to discovery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS
Well over a month before the time for expert witness disclosure and designation in this matter, plaintiffs expert, Dr. Gamble, admittedly of his own volition, informally approached defense expert, Dr. Lee to discuss his review of a case in which he had been retained as an expert. At the time, neither doctor was aware the other was consulting on this case. Following a brief description of the facts in the case by Dr. Gamble, the defense’s expert, Dr. Lee recognized the facts as being similar to this instant litigation matter in which he had been retained by defense counsel for review, and immediately terminated the conversation.

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

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

Dr. Lee Should Be Precluded From Rendering The Opinion That Ms. Hill Did Not Develop Her Pressure Sore At XYZ Healthcare

During the earlier part of his deposition, Dr. Lee offered opinions that were at best vague and contradictory whether he could or would render an opinion regarding whether Ms. Hill did or did not develop her pressure sore at XYZ Healthcare. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

For example, after being impeached with the woeful inaccuracies in his deposition in which he stated that Ms. Hill had been in transit for 30 hours instead of 6 or 7 hours (actually it was 5.5 hours), Dr. Lee testified:

A: Well, yes. Instead of the 30 it’s a small number, 6 or 7 hours. Could decub occur in 6 or 7 hours? Yes. Could the decub be caused from pressure? Yes. Could it be from urine? Yes. Could it be from lack of turns? Yes. But I’m not gonna testify to what actually caused the decub.

(Lee Depo. at 68:19-25.)

Shortly thereafter, however, Dr. Lee testified:

Q: Will you be testifying that to a reasonable degree of medical certainty Ms Hill did not develop the pressure sore that was documented upon her admission to Kaiser at XYZ Healthcare?
A. Correct.

(Lee Depo. at 69:11-15.)

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

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

While the conditions under which a corporate entity may be disregarded vary according to the circumstances in each case, id., one Court of Appeal has set forth an extensive, though non-exhaustive, list of factors that trial courts consider in assessing alter ego liability: (1) the commingling of funds and other assets among the subject corporate entities; (2) the treatment by an individual of the assets of the corporation as his own; (3) the failure to obtain authority to issue stock or to issue stock; (4) the holding out by an individual that he is personally liable for the debts of the corporation; (5) the failure to maintain minutes or adequate corporate records; (6) the identical equitable ownership in the two entities; (7) the identification of the equitable owners thereof with the domination and control of the two entities; (8) identification of the directors and officers of the two entities as the responsible supervision and management;

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

(9) sole ownership in a corporation by one individual or the members of a family; (10) the use of the same office or business location; (11) the employment of the same employees and/or attorney; (12) the failure to adequately capitalize a corporation; (13) the total absence of corporate assets, and undercapitalization; (14) the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation;

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The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. 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 also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

THERE WAS IRREGULARITY IN THE PROCEEDINGS RELATING TO THE COURT’S ALLOWING EVIDENCE

Over the objection of counsel for the plaintiff, defendant’s counsel engaged in what can be described as nothing less than misconduct.

In the case of Smith v. Covell. (1980) 100 Cal.App.3d 947 at 959 the court says that questions which calls for patent hearsay evidence cannot be brought in the back door on cross-examination of a party or for any other reason. That court rejected at page 960 claims by counsel that such questions were for the purpose of impeachment holding that such claims do not barr the evidence from being presented based on the hearsay rule. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In this case, over objection of counsel, defendant’s attorney questioned Dr. Lee and Dr. Gold about medical records which were not admissible under Evidence Code section 1271 or 1272. Objections were made at the time counsel for the defendant attempted to question the doctors concerning medical records which they did not prepare and which did not contain any information concerning the claims of the plaintiff. All of this was for the purpose of trying to demonstrate that the plaintiff did not complain of neck injuries over an extended period of time.

Such records include Exhibit 181 for identification which was written on March 17, 2005, by unknown persons. Counsel for the defendant asked questions concerning this document over objections that it lacked foundation, and was nothing more than hearsay to elicit responses that this document does not show any claim for a neck injury.

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The Sacramento area has another real estate fraud case on its hands. The local U.S. Attorney’s office has filed charges against several individuals, as well as a mortgage lender, in an elaborate scheme to defraud investors.

Many people from the Sacramento area have been financially injured. I represent one of those defrauded investors in a case filed against Christopher Jackson and Genesis Innovations. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

United States Attorney Benjamin B. Wagner announced that on September 2, 2010, a federal grand jury returned a nine-count indictment charging James Berghuis, 38, formerly of Sacramento, now residing in Laguna Niguel, with mail fraud, wire fraud, and money laundering. The indictment was unsealed this afternoon as a result of Berghuis’s arrest earlier today.

The indictment alleges that Berghuis operated Berghuis National Lending Inc., a Sacramento mortgage and lending company. Berghuis offered short-term bridge loans for clients funded by private investors. Berghuis would identify clients in need of bridge loans and act as the intermediary between the clients and investors. The indictment alleges that beginning no later than April 2005, Berghuis began making material false representations to investors and using investor funds to pay off other investors, pay business expenses, and pay his personal expenses.

This case is the product of an extensive investigation by the FBI and IRS-Criminal Investigation. Assistant United States Attorney Camil A. Skipper is prosecuting the 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.

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.

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