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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.)

Plaintiffs Emma Hill and Noelle White’s Trial Brief
FACTUAL BACKGROUND

Plaintiffs offer the following very brief overview of some of the relevant facts that will be adduced at the trial in this matter. This discussion is by no means exhaustive. It merely is designed to give the Court a broad overview of the facts and issues in the case. For more detail, plaintiffs refer the Court to their opposition to defendants’ motion for summary judgment and the declarations attached thereto.

Universal Healthcare’s Reckless Neglect Of Emma Hill

Emma Hill was 78 years old at the time of her admission to Universal Healthcare on March 1, 2007. In her earlier years, Ms. Hill worked in personnel for various federal agencies and served in that capacity for several years in Vietnam during the Vietnam War. She loved to dance and she flew airplanes. Emma was a wonderfully warm, loving mother and grandmother.

For several years leading up to her admission at Universal, Ms. Hill lived in Florida with her son Randall and his wife. Unfortunately, as the years progressed, Emma became forgetful and she ultimately was diagnosed with Alzheimer’s disease.

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

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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 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.

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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.)

The Court of Appeal addressed the holdings of Cobbs and Truman, discussing the duty found in those cases to disclose information about recommended procedures [See 7 Cal.App.4th at pt 1069], The Court went on to say:

In Scalere v. Stenson (1989) 211 Cal.App.3d 1446 [260 Cal.Rptr. 152], the plaintiff made the same argument that plaintiff here makes, namely, that a physician has a duty of disclosure concerning procedures which he or she is not recommending. There, the defendant physician, a cardiologist, performed an angiogram on the plaintiff’s right arm. After surgery, plaintiff reported pain and discomfort in her arm. The physician examined and tested her arm and concluded that it was progressing satisfactorily. Consequently, he neither told her about nor recommended any further diagnostic tests or therapy. About a year later the plaintiff underwent a saphenous vein bypass of her right brachial artery with resultant damage. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the ensuing malpractice action, the jury found that the physician was not negligent On appeal, plaintiff contended that the trial court erred in not instructing on duty to disclose. The Court of Appeal rejected the argument, concluding that the duty of disclosure is predicated upon a recommended treatment or diagnostic procedure and that the failure to recommend a procedure must be addressed under ordinary medical negligence standards.

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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.)

Argument

Preliminarily, plaintiffs characterization of the line of duty determination as being made where a soldier is possibly under the stress of a his/her time in combat in Plaintiff’s Motion in Limine, p.l, is extremely limiting and somewhat biased. While many soldiers certainly do experience stress “related to their military service,” it is not a given that they will also attempt to end their lives under non-combat situations such as those in this case. More importantly however, plaintiff glosses over the fact that the Line of Duty determination is in fact, an investigation. The past difficulties are relevant for the jury’s consideration of whether plaintiffs economic damages claim have any merit, and to what degree. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As a pre-existing medical condition, the military failed to prevent the current hospitalization with significant therapy and medication prescriptions. This is probative of whether Mr. Hill could have been expected to return to military service at any point in the future, and whether the military could offer Mr. Hill the assistance he needed, among other things. Plaintiff cannot claim that Defendants should have inquired into this history to establish liability, while precluding defendants from utilizing the same information for purposes of causation and damages.

A Line of Duty (LOD) determination is an administrative tool for determining a member’s duty status at the time an injury, illness, disability, or death is incurred. This investigation is generally conducted whenever a soldier acquires a disease, incurs a significant injury or is injured under unusual circumstances.

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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 car accident case and its proceedings.)

Plaintiff’s claims against defendant are based upon defendant’s negligence relating to defendant’s clear violation of California Vehicle Code §21801 (a) (unsafe left turn). In Bewley, the court expressly stated that a driver is under a duty, both by statute and common law, to operate his vehicle without negligence so as to abstain from injuring any other person or property. Id. (Citing Civil Code §1708).

CACI jury instruction 700 expressly instructs a jury that:

A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant clearly violated Vehicle Code §21801 (a) by making an unsafe left turn in front of Plaintiff. See Vehicle Code §21801(a); Hickson v. Beitel, 103 Cal.App.2d 391, 393-394 (1951). Section 21801 (a) expressly states that:

“[t]he driver of a vehicle intending to turn to the left or to complete a U-turn upon a highway, or to turn left into public or private property, or an alley, shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn or U-turn can be made with reasonable safety.”

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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.)

PLAINTIFF’S NEW TRIAL MOTION cont.

Conversely, in Smith it is undisputed that although there are two potential alternative methods for diagnosing DRD, the only method contemplated by the Defendant Dr. Hill was a trial dose of L-dopa.

In Maher v. Saad (2000) 82 Cal.App.4th 1317, it was held to be error to give this instruction when there was no evidence that the particular procedure actually utilized was a recognized and approved method of diagnosis or treatment for the patient’s condition. Maher v. Saad, supra, 82 Cal.App.4th at pp. 1318-1319, 1327. In Maher, Plaintiff’s argued that the so-called T incision used by the surgeon was below the standard of care. Although the Defendant’s expert did not say its use violated the standard of care, no one testified in that situation that it was a recognized or approved method of treatment. The court, over objection, gave jury instruction BAJI 6.03, but granted a new trial when the jury found no negligence.

The trial court and the appellate court held that Jury BAJI 6.03 prevented plaintiff’s from receiving a fair trial on their negligence claim. (Maher v. Saad, supra, 82 Cal.App.4th at p. 1325.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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 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.)

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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. 4 REGARDING LINE OF DUTY REFERENCES
Introduction

Plaintiff seeks to exclude at trial all reference to a Line of Duty Determination as well as any documentation pertaining to a Line of Duty Report. Plaintiff claims that any reference to this term would constitute a “trial within a trial” as to the stresses of combat and whether their residual effects existed in Sacramento. (Plaintiffs Motion in Limine No. 4)

It is anticipated that Plaintiff will put on evidence regarding Mr. Hill’s military service to this county in an effort to evoke sympathy and compassion from the jury. It is also anticipated that Plaintiff will attempt to portray the decedent as a hero who “fell in the line of duty.” The fact that a Line of Duty Investigation regarding the circumstances of Mr. Hill’s death was initiated and conducted by the military is, by itself, quite salient and should properly be allowed as admissible evidence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

To the extent the line of Duty Report spells out collateral source benefits admissible under Civil Code Section 333.1, Defendants incorporate by reference all arguments contained in their Oppositions to Plaintiff’s Motions in Limine 2 and 21.

Facts
David Hill had served in the U.S. military armed services (Army) from 1989 to 1991 and again from 1999 through 2008.

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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 car accident case and its proceedings.)

In the present case, it is clear that this Court is entitled to, and actual obligated to, make a separate determination as to whether or not the verdict, which included a finding of seventy-five percent fault on the part of Plaintiff, was appropriate. Further, Plaintiff submitted evidence of medical bills of in excess of $18,970.54. Evidence was also presented concerning the need for future medical care at a cost of in excess of $23,400.00. Therefore, Plaintiff submits that the evidence establishes that the verdict is improper, and that there was inadequate evidence presented by defendant at trial to support such a verdict. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DEFENDANT SHOULD NOT HAVE BEEN PERMITTED TO ARGUE COMPARATIVE NEGLIGENCE OF PLAINTIFF AT TRIAL
In advance of trial, Plaintiff filed a Motion in Limine seeking to preclude defendant from arguing at trial that Plaintiff caused or contributed to the accident. Defendant’s contention that Plaintiff has any fault in this accident is without merit. At the time of the accident Plaintiff was lawfully proceeding eastbound on West Ave. with the flow of traffic. He had the right of way at all times, and he had the legal right to expect that defendant would not make an illegal left turn directly in front of Plaintiff’s vehicle. Based upon the exact details of the accident, defendant had no evidence to support a bare claim that Plaintiff somehow contributed to the accident. And defendant presented no such evidence at trial. (See Part 4 of 5.)

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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.)

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.)

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