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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.)

Defendant John Lee, M.D.’s Opposition to Motion for New Trial (Supplemental); Memorandum of Points and Authorities in Support Thereof
SUPPLEMENTAL INTRODUCTION

Counsel for Plaintiffs served his Notice of Intention to Move for New Trial, which included reference to “The motion for judgment notwithstanding the verdict,” but which included no Memorandum of Points and Authorities, and no citations whatsoever to any testimony from the trial.

Because of the rapidly approaching March date for hearing on Plaintiffs’ motions for JNOV and new trial, counsel for Defendant filed an opposition to both motions, based on information available at that time and arguments by Plaintiffs suggested in the Notice of Motion. 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 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.)

No Undisputed Fact

Defendant’s Motion for Summary adjudication is based on the assertion that no evidence supports the liability element of the malpractice claim. However, of the 14 proposed undisputed facts, the only ones even remotely material to this point (11-14) are not undisputed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant has cited no authority supporting her proposal that such disputed issues can be summarily adjudicated on the word of one of the party’s retained witnesses.

No Material Fact
The court’s sole function on a motion for summary Judgment/adjudication is issue finding, not issue determination. The court must determine whether there is a triable issue as to any material fact. CCP § 437c(c). A material fact, for summary judgment purposes, must relate to some claim or defense in issue under the pleadings, and it must be in some way essential; i.e. if proved it could change the outcome of the case. Pettus v. Standard Cabnit Works (1967) 249 Cal.App.2d 64.

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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, U.C. 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 brain injury case and its proceedings.)

Mr. Lee alleges that he saw thick meconium, decreased fetal heart rate, and his son born lifeless. As a layperson, he could not have known at the time that the injury was caused by the medical treatment being rendered. For a layperson, seeing thick meconium, decreased fetal heart rate, and a child born “lifeless” does not amount to the layperson’s contemporaneous awareness of the cause of the injury. The key element missing in this case as set forth by the Court in the Thing case is that the plaintiff “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim.” Mr. Lee was present and he witnessed some events, but he has alleged no facts by which he could have been aware at the time that any conduct on the part of the defendants was causing injury to the child.

Mr. Lee witnessed various symptoms, and he may have even witnessed the injury-producing event, but he did not know, at least based on what is alleged, that he knew at the time that what he was witnessing was conduct on the part of Dr. White that was causing injury to his son. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The issue ultimately comes down to whether the father could have known that the child was being injured by conduct on the part of Dr. White, and not merely suspected that the child was being injured. Like Mr. Lee, both fathers in the Justus case suspected that their children were being injured during the delivery, but they did not know that they were being injured.

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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.)

Plaintiff Wayne Smith’s Opposition to Defendants Motion in Limine to Exclude Expert Opinion Testimony of Paul Brown, M.D.; Memorandum of Points and Authorities

Plaintiff Wayne Smith hereby opposes defendants Universal Fellowship and Randall White’s motion in limine to exclude plaintiff from offering the expert medical opinion testimony of plaintiffs designated expert, Paul Brown, M.D., on the grounds that plaintiff’s supplemental designation of Dr. Brown was proper and timely because:

1) Dr. Brown was properly and timely designated to express an opinion on a subject to be covered by defendants designated experts, Mike Hall, M.D. and Rupert Jones, M.D., in compliance with Code of Civil Procedure S 2034.280. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

2) Both Dr. Brown and defendants’ expert Mike Hall, M.D., are members of the American Board of Psychiatry and Neurology, and therefore have a common basis for the proffered opinions.

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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.)

No Admissible Evidence

Defendants’ Motion for Summary Judgment is based on the second amended complaint and a declaration. However, none of the documents is properly authenticated, on personal knowledge, or otherwise.

A motion for summary judgment/adjudication must be supported by evidence establishing the moving party’s right to the relief sought. Such evidence shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. CCP § 437c(b). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Where a motion is based upon deposition testimony excerpts, the procedure is to attach copies of relevant pages of deposition transcripts to the moving party’s declarations. The declarations, made on personal knowledge, serve to identify and authenticate the testimony. Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950.

Written documents, likewise, must be authenticated by declarations or other evidence establishing that the writing is what it purports to be. Evid. Code § 250, § 1401(a); O’Laskey v. Sortino (1990) 224 Cal.App.3d 241; Local Rule 9.21(e).

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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 personal injury case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The definitive criteria in guidance of the trial court’s determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal.2d 749, at page 753, 205 P.2d at page 5, to rest primarily on “occupational experience,” as stated: The proof of that standard (the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as “occupational experience,” the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood. 2 Wigmore on Evidence 3d Ed., § 556, p. 635.

He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured.” (Emphasis added.) Pearce v. Linde (1952) 113 Cal.App.2d 627, 630-631. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There seems little reasonable basis for Defendant Smith’s position that he intends to elicit expert opinion testimony from Dr. Lee clearly concerning plastic surgery or nursing.

3) The Law of the Case is that Experts May Not Testify to any Opinions they did not Testify to at their Depositions

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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.)

Paul White, P.A. (date of deposition: January 29, 2009; page and line 31:13-17; 32:10-15)

Q: Are you going to give a medical opinion regarding Mr. Johnson’s back, neck, and pain between his shoulder blade injuries as pertains to his August 9th, 2007, motor vehicle accident?

A:No.

Q: Would it be fair to say that as far as rendering opinions on causation, you are not going to render an opinion on the causation of Mr. Johnson’s back, neck, or pain between the shoulder blades?

A: It would be fair to say that I’m not going to render an opinion on the cause of his symptoms.

Sydney Chu (date of deposition: January 9, 2009; page and line 27:1-6)

Q: And as it pertains to this case, is it true that you will not be offering any biomechanical opinions regarding the accident?

A: You are correct. I will not be discussing biomechanics, injury causation or anything remotely associated with those two topics.

Dr. Sean Finklestein, Ph.D. (date of deposition: February 3, 2009; page and line 42:13-23)

Q: Okay. Let’s move on to the last category, and your last category is that the radiological studies suggest there is not sufficient force to cause the disk injury. Can you comment on the forces involved in that opinion?

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

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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 here can only allege that defendant ran a red light and entered an intersection by driving into a lane that was not intended for through traffic. (Incidentally, these are factually disputed.) If true, such acts were negligent. But even grossly negligent or reckless acts do not suffice for punitive damages. Dawes, supra. Tacking on the words “willful and conscious disregard” does not create an action for punitive damages. Broussear v. Jarrett (1977) 73 Cal App 3d 864, 872.

Indeed, if plaintiff’s theory on punitive damages were allowed, then virtually every traffic collision case would result in punitive damages: in virtually every such case will be found a defendant who ran a red light, or entered a wrong lane, or drove excessively fast, or otherwise exhibited behavior that was less than admirable – but hardly the stuff of punitive damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At the most, plaintiff’s allegations of defendant’s running a red light and entering an undesignated lane might be grossly negligent. But, as Dawes teaches, that is not enough. Indeed, Dawes was decided before the legislature amended the statute to add despicable conduct to the requirements for stating a cause of action for punitive damages. None of these allegations approach the Dawes threshold, let alone that of the revised statute.

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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, U.C. 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 brain injury case and its proceedings.)

The complaint alleges that the father witnessed “thick meconium” during the labor and that he knew the meconium was impeding his son’s breathing … (Paragraph 44.) However, the complaint is silent as to how the father knew the significance or the effect of meconium at the time. It is not alleged that the father is a health care provider or has any background by which he would know that witnessing thick meconium would cause a lack of oxygen to the child’s brain. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The plaintiff alleges that he witnesses his son’s heart rate decrease. (Paragraph 45.) However, as noted above, the father in the Justus case witnessed “the diminution of the fetal heart tones,” but even that did not give rise to the NIED cause of action. Id. at 584.

The plaintiff also alleges that he witnessed his son to be “lifeless and in severe distress” (paragraph 45), but that is no different that the father in Justus who aw the manipulation of the fetus with forceps and by hand, and the emergency procedures performed on his wife in connection with the attempted Cesarian section. Id. at 584.

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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.)

DISCUSSION

Plaintiff claims that lumbar fusion surgery on February 6, 2009 was related to alleged injuries suffered by plaintiff from the subject incident of August 9, 2007. Although this claim is being made by plaintiff, there is no documents, evidence, or testimony of his experts, retained, or non-retained, that support this causal link. In fact, quite the opposite is true. Not only has there been a consensus among all the experts that they are not willing to render an opinion on causation for this fusion surgery, but plaintiff’s own expert Dr. Sean Finklestein opined that the forces involved in the subject accident were not sufficient to cause a disc injury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The pertinent testimony is as follows:

Dr. Andrew Greene, M.D. (date of deposition: January 20, 2009; page and line 74:6-11)

Q: Do you intend on offering any opinions or have you been asked to offer any opinions about the relatedness of the surgery to the August 2007 accident?

A: Specifically to surgery?

Q: Yes.

A. No.

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