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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.)

PLAINTIFFS APPEAR TO MISUNDERSTAND THE LEGAL REQUIREMENTS FOR A JUDGMENT NOTWITHSTANDING OF THE VERDICT

As mentioned in Defendant’s previous filing, a JNOV must be denied if there is ANY substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict. See authorities cited therein.

Instead, ignoring the testimony cited in the prior Opposition, Plaintiffs appear to argue that there was evidence that COULD support a verdict for the Plaintiffs, and base their arguments for both motions thereon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Unfortunately, even the cited testimony is mischaracterized in their moving papers.

Physical Therapy Order By Dr. Lee

First, Plaintiffs claim (Points and Authorities, pg. 5, lines 15-17) that Dr. Lee’s treatment plan was overall full body physical therapy… [Emphasis added], appearing to suggest that the plan included physical therapy of the neck.

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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.)

Facts

Ms. Hill is receiving at least $1,158/month in the form of a VA death benefit, $288/month as a partial retirement payment based on the decedent’s years of service/date of death, and an additional $60/month as a “family survivor” benefit. Plaintiff seeks economic damages including lost contribution based on decedent’s earnings and projected work life expectancy.

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

Argument
The Collateral Source Rule
Under the traditional collateral source rule, a jury, in calculating a plaintiff’s damages in a tort action, does not take into consideration benefits, such as medical insurance or disability payments, which the plaintiff has received from sources other than the defendant, i.e., collateral sources, to cover losses resulting from the injury. California Civil Code § 3333.1 alters this rule in medical malpractice cases and in wrongful death cases brought by the heirs of medical malpractice victims. Civil Code § 3333.1(a) provides an exception to the collateral source rule in medical malpractice cases. That section states that in the event the defendant so elects, in an action for a personal injury against a healthcare provider based upon professional negligence, she may introduce evidence of:

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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.)

Evidence Of The 1998 Automobile Collision Is Irrelevant And Therefore Must Be Excluded

Evidence Code §350 states that no evidence is admissible except relevant evidence. “Relevant” evidence is defined by Evidence Code §210 as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” See People v. Kelly (1992) 1 Cal.4th 495, 523 (only relevant evidence is admissible).

Any evidence of the 1998 automobile collision involving plaintiff has no potential to prove or disprove a disputed fact that is of consequence to the determination of this action. Plaintiff was not mentioned in the Traffic Collision Report and he received no medical treatment as a result of the collision. (Morris Depo., 226: 20-24.) There is no evidence that plaintiff suffered from any injury related to a 1998 accident. Further, there is no evidence that plaintiff suffered from any pre-existing medical condition from 1998 to 2008. (Morris Depo., 233: 9-15.) Thus, any inquiry regarding the 1998 collision is not relevant. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Other evidence that may be excluded under the authority of Evidence Code §350 is that which is speculative. See William Dal Porto & Sons, Inc. v. Agricultural Relations Board (1987) 191 Cal.App.3d 1195, 11-12. The court must exclude evidence if the trier of fact must draw speculative or conjectural inferences from it. See People v. Parrison (1982) 137 Cal.App.3d 529.

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It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(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’S MANAGEMENT OF DECEDENT’S EMERGENCY ROOM VISIT FAILED TO MEET THE STANDARD OF CARE

The moving party has the burden of establishing evidentiary facts sufficient to entitle him or her to judgment as a matter of law. CCP § 437c(c); Vesely v. Sager (1971) 5 Cal.3d 153. The opposing party has the burden to controvert issues, only when the moving party has met its burden. CCP 437c(o)(2). As set forth above, Dr. Black has not met this burden. Further, the expert opinion that Dr. Black met the standard of care avoids key facts that are undisputed. Finally, the issue of compliance with the standard of care is controverted by competent contrary opinion.

Dr. Black moves for summary judgment on the opinion of his retained expert that his care and treatment was “at all times appropriate and within the standard of care.” (Decl. of Dr. Howard.) To reach this result, Dr. Howard selectively spins the evidence. Radiologist Cesar Lee, advised Dr. Black that 1) he suspected a chronic fracture of the dens (C-2), incomplete closure of the C-1, and 3) that he could not see any acute fracture. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Howard interpreted this as no more than “chronic degenerative changes without evidence of any acute injury or need for emergent intervention.” (Decl. of Dr. Howard.) He does not address the fact that Dr. Black was advised that Mr. Greene had a fractured cervical vertebrae, chronic or otherwise, nor does Dr. Howard explain what the standard of care requires for this presentation.

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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.

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

Similarly, in Bonds v. Roy (1999) 20 Cal.4th 140, the Supreme Court held that when a plaintiff fails to disclose that he intends to seek an opinion from a treating physician, the trial court may preclude that physician from testifying at trial on a subject whose general substance was not previously described in an expert witness declaration, reasoning that the whole purpose of supplying the information set forth in an expert witness declaration is to avoid surprise and gamesmanship at trial. This concept can be applied to the facts of this case. As there has been no testimony or documents supporting a causal link between the subject accident and this fusion surgery, any testimony at trial supporting a causal link would be a surprise to the defense, and should be disallowed to be introduced.

Plaintiff has had ample opportunity to find a doctor or expert that will support a nexus between the surgery and this accident, and as that nexus has not yet been found, plaintiff should be foreclosed from attempting to claim this surgery in damages at trial based upon the probative value of this evidence being substantially outweighed by the danger of an undue consumption of time, danger of undue prejudice, of confusing the issues, and of misleading the jury, per C.C.P. § 352. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Pursuant to C.C.P. § 352, Jones v. Ortho Pharmaceuticals, (1985) 163 Cal.App. 3d 396, and the Supreme Court’s holding in Bonds v. Roy (1999) 20 Cal.4th 140, defendants Donna Lee and Veronica Lee request the court to order that plaintiff, plaintiff’s witnesses, and his counsel are precluded from attempting to solicit, in any form or manner, any evidence from lay witnesses, non-retained treating physicians Paul White, P.A., Dr. John Brown, M.D., Dr. Devin Smith, or retained experts Sydney Chu, Dr. Andrew Greene, or Dr. Sean Finklestein, as to the causation of his claimed injuries specific to plaintiff Henry Johnson’s February 2009 L5-S1 fusion surgery at Memorial Medical Center.

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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.)

MEMORANDUM OF POINTS AND AUTHORITIES
BOTH OF PLAINTIFFS’ MOTIONS SHOULD BE DENIED AT THE OUTSET BECAUSE PLAINTIFFS HAVE ENTIRELY FAILED TO FILE THEIR SUPPORTING MEMORANDA OR OTHER DOCUMENTATION WITHIN THE REQUIRED TIME LIMITS

As mentioned in Defendant’s prior filing, California Code of Civil Procedure, Section 629, requires that the entire Motion for Judgment Notwithstanding the Verdict (hereinafter, JNOV ) be filed at the same time as the Notice of Intent to Move for a New Trial. Other than the brief reference to a JNOV in the Notice, as cited above, no supporting documentation was presented for such a motion. Based upon that failure alone, the Motion for JNOV should be denied.

Now, Plaintiffs have similarly failed to comply with applicable time limits in which to file supporting documents for their Motion for New Trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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.)

This doctrine was again reviewed in the sentinel case of Haft v. Lone Palm Motel (1970) 3 Cal.3d 756, where defendants attempted to characterize imputing parental negligence as an intervening or superseding cause. In Haft, the negligent party attempted to argue that the alleged negligence of the father, Mr. Haft, in the death of his five-year-old son was a causation issue. They claimed that his failure to appropriately supervise was a intervening and superseding cause which broke the chain of proximate causation with respect to the deaths of father or son. (Haft v. Lone Palm Motel, supra, 3 Cal.3d 756, 769.) In response to same, the court stated as follows:

The fallacy of defendants’ contentions as to “superseding cause” is perhaps most clearly illuminated by its application to the cause of action relating to the death of five-year-old Mark. In that context the claim that defendants’ responsibility to Mark was cut off by Mr. Haft’s alleged negligence is in reality no more than an attempt to resurrect the doctrine of imputed contributory negligence between a minor and his parent, a theory which the California courts have long repudiated. (Crane v. Smith (1943) 23 Cal.2d 288, 295,144 P.2d 356; Zarzana v. Neve Drug Co. (1919) 180 Cal. 32, 34–37, 179 P. 203) [FN15] The imputed contributory negligence formula transferred the negligence of a parent (in not carefully supervising his child, for example (see Hartfield v. Roper (N.Y. 1838) 21 Wend. 615, 34 Am.Dec. 273)) to a plaintiff child so as to bar the child’s recovery against an admittedly negligent defendant; defendants seek to obtain a like dispensation through the jury’s application (in reality, misapplication) to the nebulous superseding cause doctrine. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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(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.)

Plaintiff’s Motion in Limine to Exclude References to A 1998 Automobile Accident

Plaintiff, Owen Black, by and through his attorney of record to request an order prohibiting any mention of an automobile crash involving plaintiff that occurred in 1998 in the State of Washington. This motion is based on the grounds that the evidence is irrelevant, immaterial, confusing, prejudicial, and is expressly prohibited by the laws of this state.

Preliminary Statement

This case involves a civil action arising from an automobile accident that occurred on July 10, 2008, when the defendant crashed her vehicle into the rear of the Toyota Land Cruiser plaintiff was driving. As a result of the crash, plaintiff sustained severe injuries. The defense will attempt to introduce evidence that plaintiff was involved in an automobile accident in 1998. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In 1998, plaintiff was a passenger sitting in the back seat of an automobile when it was hit in the side by another motorist. Plaintiff was not injured, did not receive any medical treatment as a result of the alleged incident, and worked in the construction industry for more than a decade following the alleged incident. Moreover, there is no record or report that plaintiff was in any accident in 1998. There are no medical records indicating he was in an accident in 1998. (See Part 2 of 3.)

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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.

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

Dr. John Brown, M.D., a radiologist who interpreted imaging data as a treating doctor of plaintiff Johnson, was deposed on February 2, 2009, and his transcript has not been completed by the court reporter. Dr. Brown testified that as a radiologist he is unable to determine the sources of any of the degenerative changes that he saw on plaintiff Johnson’ imaging data he reviewed. For this reason, Dr. Brown’s opinion on causation would be speculative, and would not assist a trier of fact in determining causation.

Based upon the standard for expert testimony in Evidence Code Section 801(a), an expert’s opinion is limited to a subject that is sufficiently beyond common experience that the opinion of the expert would assist the trier of fact. In this case, it is clear that any opinion on causation would only cause to mislead or confuse the jury, as the opinions in regards to plaintiff’s February 2009 fusion surgery are consistent that plaintiff’s experts and treating physicians can not offer an opinion linking the subject accident and this disc injury. For this reason, there is no need for the testimony, as it may cause the jury to be confused as to why the plaintiff is claiming a surgery where not a single medical professional or doctor can causally link to the subject incident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This will then allow the jury to make a link that can not be established through the evidence. In Jones v. Ortho Pharmaceutical Corporation, (1985) 163 Cal.App. 3d 396, a similar situation arose whereby the medical experts in a case were in consensus that there was no causal link between the complained of injuries and a product that was ingested.

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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.)

Defendant Medical Center Foundation Hospitals, Inc.’s Opposition to Plaintiff’s Motions in Limine
GENERAL OBJECTIONS

Defendants object to the format of Plaintiffs motions to the extent that they fail to comply with any relevant requirements indicated in the Evidence Code, Code of Civil Procedure and the Rules of Court.

OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NO. 2 AND NO. 21 REGARDING COLLATERAL SOURCE BENEFITS
Introduction

Plaintiff seeks to exclude at trial all reference to the fact that any death benefit life insurance, Department of Veterans’ Affairs benefits, or other benefits were paid (or will be paid in the future) to Plaintiff. (Plaintiff’s Motion in Limine No. 2.) Plaintiff also seeks to exclude at trial all references regarding whether David Hill or Stella Hill, or both, received any compensation, insurance payment, or benefit from a collateral source as to the payment of medical, hospital, health care provider expenses. (Plaintiffs Motion in Limine No. 21.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A governing principle under MICRA is to disallow plaintiff from recovering amounts for medical expenses in excess of the amount paid or incurred. The reason for the collateral source rule is that such evidence gives the jury a more complete picture of the extent of damages and reimbursement already provided to the plaintiff.

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