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The following blog entry is written to illustrate a common motion filed during the pre-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 brain injury case and its proceedings.)

DEFENDANTS CLAIM OF PREJUDICE IS COMPLETELY WITHOUT MERIT BECAUSE PLAINTIFF HAS SUBMITTED TO DEFENSE MENTAL EXAMINATIONS AND DR. BROWN HAS BEEN DEPOSED BY THE DEFENSE

Code of Civil Procedure § 2034.300 governs the exclusion of expert testimony in order to avoid any prejudice to an adverse party. The court may only exclude an expert from testifying if the party designating him “unreasonably” fails to (a) List that witness as an expert ; (b) submit an expert declaration; (c) produce reports and writings; or (d) make the expert available for deposition. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has clearly and undeniably complied with all of these requirements in naming Dr. Brown in a supplemental designation. As the defense medical reports show, Plaintiff has in fact submitted to two defense mental examinations – one by defense expert Mike Hall, M.D., and two days of intense mental testing by defense expert Robert Lee, Ph.D. Defendants concede that they have conducted a thorough deposition of Dr. Brown. Nowhere do the defendants specify what prejudice they would suffer by Dr. Brown’s testimony and their complaint of prejudice is simply made of whole cloth. Even if defendants could elucidate some prejudicial effect, any potential for prejudice is easily avoided by defendants’ companion Kennemur motion in limine to limit any expert’s testimony to what was disclosed in plaintiffs designation and deposition.

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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.)

The XYZ Corporate Defendants’ Liability For The Reckless Neglect Of Emma Hill

Universal Healthcare, Inc. is part of a 33 facility chain owned and operated by one Neil Greene and his eight children. Mr. Greene is most well known for his development of golf courses and other properties throughout California. For reasons unknown, the Greene family has elected to shroud its facilities in an ever shifting web of corporate entities that even the most seasoned of Universal operatives find befuddling. The parent company over the entire skilled nursing facility operations is Universal, Inc. The true ownership of Universal, Inc. is kept in secrecy, other than a designation that it is owned by a number of trusts. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Universal, Inc. was initially formed in approximately 1990. The Greene family had owned and operated nursing home facilities dating back to at least the 1980s. Prior to Universal, Inc. being formed, the Greene family’s skilled nursing facilities were owned by two corporate entities, Rose Enterprises and Mountain Medical Enterprises. An entity known as Universal Headquarters, Inc. was created at the same time that Universal, Inc. was created. Universal Headquarters, Inc. provided various services to the Universal skilled nursing facilities. Thereafter, Rose Enterprises changed its name to East West, Inc.

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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 PLAINTIFF’S MOTION IN LIMINE NO. 10 – NO MENTION AS TO WHETHER OR NOT DANI LENNON ASSESSED DAVID AS A FLIGHT RISK OR RECOMMENDED THAT HE BE RESTRAINED
INTRODUCTION

Plaintiff seeks to exclude any mention of whether or not Dani Lennon assessed David Hill as a flight risk or whether she recommended restraints for him. There is no legal basis for Plaintiff to exclude this relevant and highly probative evidence. Rather, Plaintiff moves to exclude the evidence because it is bad for her case and not based on any statutorily recognized reason.

FACTS

Plaintiff initially sued Health Care West/Universal Behavioral Health, but dismissed that party. Universal Behavioral Health was involved in the case because they sent their Behavioral Health Analyst to Sacramento Medical Center to assess David Hill and because David Hill was slated to transfer to Universal once he was medically cleared by . In response to a demand for production of documents from Plaintiff, Healthcare West provided certain documents that pertained to David Hill’s assessment. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

ARGUMENT
Plaintiff, in her moving papers, argues that (a) Ms. Lennon was not trained to assess the issues of flight risk or restrains, she was only trained to assess the need for a 5150 hold and (2) if Ms. Lennon did assess flight risk, she was not doing so from the perspective of Sacramento Medical Center but was rather assessing whether Mr. Hill was a flight risk at Universal Behavioral Health, a locked facility.

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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.)

MORE RELIEF AVAILABLE

In weighing and evaluating the evidence, the court is a trier of fact and not bound by factual resolutions made by the jury. The court may grant a new trial even though there is sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines that the weight of the evidence is against the verdict. (Candido v. Huitt. (1984) 151 Cal.App.3d 918, 923.)

The court has the power to consider the credibility of witnesses to draw reasonable inferences contrary to those drawn by the jury. (Valdez v. J.D. Diffenbaugh Co., (1975) 51 Cal.App.3d 491, 512.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is not only the right, but the duty of the trial judge to grant a new trial when he or she believes the weight of the evidence to be contrary to the findings of the jury. (Tice v. Kaiser Co., (1951) 102 Cal.App.2d 44, 46.)

A new trial should be granted when the verdict is against law. These grounds apply one when the evidence is without substantial conflict in any material point and insufficient as a matter of law to support the verdict. (McCowan v. Spencer (1970) 8 Cal.App.3d 216, 229.)

A verdict is against law, if the evidence is legally insufficient to support the verdict. (McCowan. supra.)

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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 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.

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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, 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.)

Plaintiffs Emma Hill and Noelle White’s Bench Brief Re Anticipated Testimony of Harold Lee, M.D.

Defendants have stated their intent to call their physician expert, Harold Lee, M.D., during trial.

Plaintiffs file this anticipatory bench brief in an effort to avoid protracted discussion at sidebar in the jury’s presence regarding various aspects of the scope of Dr. Lee’s testimony.

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

Dr. Lee Should Be Precluded From Offering Testimony Of Any Kind Relating To Ms. Hill’s Cause Of Death

First, Dr. Lee should be precluded from offering testimony of any kind relating to Ms Hill’s cause of death. In his deposition, Dr. Lee specifically testified that he would not be offering any opinion as to causation at trial:

Q: Are you going to render an opinion that sepsis from an infected sacral ulcer was not a cause of death for Ms. Hill?

A: Well, what I’m gonna say is it’s anyone’s guess whether it was the sacral infection or a urinary tract infection.

Q: So you’re not — you’re not gonna offer an opinion to a reasonable degree of medical certainty as to what the cause of death was for Ms. Hill; is that right?
A: Correct.
(Lee Depo. at 103:5-15.)

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Ponzi schemes are not limited to the likes of convicted felon Bernard Madoff. A similar plan to defraud real estate investors occurred right here in Sacramento during the past five years.

In the past week lawsuits have been filed in both federal and state courts against Christopher Jackson, Genesis Innovations, and others for real estate fraud and related illegal schemes. The federal complaint alleges that between 2005 and 2009, Jackson, using the corporate name Genesis Innovations, recruited people to invest in real estate. The complaint also alleges that he promised them a 14 percent return and persuaded them to entrust him with their retirement savings.

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

A local newspaper reported that according to the complaint, Jackson received about $11 million dollars from investors but invested only abut $2.5 million in real estate. The rest of the money, the complaint alleges, was used to distribute purported investment returns and to fund Jackson’s lavish lifestyle, which included a leased Lamborghini and Range Rover, a purchased BMW, frequent meals at high-end restaurants, stays at luxury hotels and jewelry.

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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.)

California has adopted the substantial factor test for proving cause-in-fact, or actual cause, in negligence cases. Viner v. Sweet (2003) 30 Cal.4th 1232, 1238; Rutherford v. Owens-Ill., Inc. (1997) 16 Cal.4th 953, 968.) Per CACI 430, a substantial factor is one that a reasonable person would consider to have contributed to the harm suffered by the plaintiff. As reiterated most recently in Mayes v. Bryan (2006) 139 Cal.App.4th 1075: A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. Id. at 1095. Ordinarily, the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. Bromme v. Pavitt, supra, 5 Cal.App.4th at 1497-1498. If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries. Doupnik v. GM Corp., (1990) 225 Cal.App.3d 849, 861.

Plaintiff’s mental health history is incredibly relevant to the issue of causation because it demonstrates the decedent’s intention and desire to end his life. One of the critical defenses that the Medical Center Defendants have put forth through the course of this litigation is the fact that Mr. Hill’s departure was abrupt considering he was feigning sleep immediately prior to his elopement. This signifies an intent to deceive medical providers into thinking he was complacent when he really wanted to escape. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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.)

MEMORANDUM OF POINTS AND AUTHORITIES
COURT’S AUTHORITY TO GRANT A NEW TRIAL

A new trial is an examination of the issues of fact in the same court after trial and decision by the jury, court or referee. (Code of Civil Procedure section 656.)

A motion for new trial is proper only to secure examination of the issues of fact. (Rinaldo v. Superior Court. (1936) 15 Cal.2d 585.)

The test of propriety from the order granting a new trial is not whether there is sufficient evidence to support the jury’s verdict, but whether a contrary verdict would have been supported by substantial evidence. (Biggins v. Hanson. (1967) 252 Cal.App.2d 16.)

A motion for new trial may be entertained where issues of law or issues of law and fact, are determined as well as where issues of fact are decided. (Carney v. Simmonds. (1957) 49 Cal.2d 84.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The trial judge is accorded wide discretion and ruling on motions for new trial and exercise of this discretion is given great difference on appeal. (Sherman v. Kinetic Concepts. Inc., (1998) 67 Cal.App.4th 1152.)

RELIEF AVAILABLE
The verdict may be vacated and other decisions may be modified or vacated, in whole or in part and a new and further trial granted if all or part of the issues on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: (1) Irregularities in the proceeding of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) Inadequate damages;

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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.)

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.

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