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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 Trial Brief on Jury Voir Dire: Personal Injury Case
California Law Provides for the Intelligent Exercise of Peremptory Challenges

Plaintiff, Hank Choo, by and through his attorney of record, hereby requests the right to have an adequate voir dire conducted by counsel. California Code of Civil Procedure (hereinafter CCP) §222.5. provides that following examination by the court:

“…counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause.”

Since the purpose of voir dire is intended to select a fair and impartial jury in civil trials (CCP §222.5), the statute provides:

“During any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Because of the need for follow up questions, justice may on occasion require counsel to cover the same subject or similar questions to those posed by the court. CCP §222.5 recognizes this fact, and states: The fact that a topic has been included in the judge’s examination should not preclude additional non-repetitive or non-duplicative questioning in the same area by counsel.

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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 note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

ALL CONTESTED ISSUES OF LAW

Based on briefing in connection with Defendants’ motion for summary judgment, Defendants believe the following to be the contested issues of law:

Whether Defendant Randy Lee’s alleged vulgar speech is protected by his right of free speech under the First Amendment and California Constitution.

Hill’s sexual harassment claim seeks to invoke state law to punish Lee (and indirectly Randy Lee Artists Collective) for exercising his right of free speech. The California Department of Fair Employment and Housing (“DFEH”) has recognized that free speech rights exist even in the context of alleged harassment. Although the DFEH’s regulations provide that certain forms of verbal and visual conduct can constitute unlawful harassment, the regulations go on to provide that the rights of free speech and association shall be accommodated consistently with the intent of this subsection. Title 2, California Code of Regulations 7287.6. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Lyle, the Supreme Court ultimately did not address the Constitutional limits of sexual harassment laws, because it construed FEHA narrowly to punish only discriminatory speech or conduct that was aimed at the plaintiff or female employees generally because of their gender. Lyle. 38 Cal. 4th at 294 (declining to address First Amendment issue).

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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, 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 wrongful death case and its proceedings.)

Plaintiff Kim Smith’s Motion in Limine: To Preclude Expert Testimony of Defendant Medical Doctor as an Expert

Plaintiff hereby moves this Court for the following Motion in Limine and Order to preclude Defendants, their counsel, or witnesses from directly or indirectly attempting to introduce into evidence, opening statement or closing argument, the following matters:

TO PRECLUDE EXPERT TESTIMONY OF DEFENDANT MEDICAL DOCTOR AS AN EXPERT

This is a medical malpractice case where physician defendant breached the standard of care. As a result of defendant’s negligence there has been severe injury.

Defendant served a designation of expert witnesses, per Code of Civil Procedure §2034. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DEFENDANT DID NOT DESIGNATE HIMSELF AS AN EXPERT NOR HAS A DEFENDANT BEEN DEPOSED AS AN EXPERT WITNESS.

C.C.P. §2034(1) states that:

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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 medical negligence case and its proceedings.)

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

Plaintiffs’ Claim for Violation of the Patients Bill of Rights Is Well Pled
In their second cause of action, Plaintiffs made a claim for violation of the Patient Bill of Rights set from in Title 22 of the California Code of Regulations, Section 72527. Section 72527 provides that [p]atients have the rights enumerated in this section and the facility shall ensure that these rights are not violated … and it specifically enumerates some 25 patient’s rights, including the right to be free from abuse. However, there is not limitation set forth in Section 72527 that suggests that a cause of action lies only where the State has taken action and the action has not been corrected as suggested by Defendants. (Demurrer 8:20 – 25.)

In fact, Section 72527(b) provides, [a] patient’s rights, as set forth above, may only be denied or limited if such denial or limitation is otherwise authorized by law. Reasons for denial or limitation of such rights shall be documented in the patient’s health record. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In contrast, the statute cited by Defendants is Health & Safety Code Section 1417 et seq., also known as the Long-Term Care, Health, Safety, and Security Act of 1973 (hereafter the Long Term Care Act ). The intent of the Long Term Care Act was to establish a citation system for the imposition of civil sanctions by the State against long-term health care facilities in violation of state and federal laws and regulations. There is nothing in the Long Term Care Act that limits a patient’s rights under Title 22 of the California Code of Regulations, Section 72527.

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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.)

Officer Smith’s Traffic Collision Report Should Be Excluded
Vehicle Code §20013 sets forth the rule regarding the admissibility of police reports. It states in pertinent part: “No such accident report shall be used as evidence in any trial, civil or criminal arising out of an accident … ”

In Box v. California Date Growers Association (1976) 57 Cal.App.3d 266, the court applied Vehicle Code §20013 when it properly excluded the officer’s police report following a motorcycle versus truck accident. The Court of Appeals affirmed the lower court’s decision that the Highway Patrol Officer’s traffic report was not admissible. Thus, in the present case Officer Smith’s Traffic Collision Report should be excluded in its entirety pursuant to Vehicle Code §20013 and the above-cited authority. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Highway Patrol Officer Smith Is Not A Qualified Expert Witness And His Testimony Lacks Foundation

California Evidence Code §720 states: (a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

In the present case, defendants have not demonstrated a foundation that Officer Smith has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject of automobile ownership. Further, there is no foundation of reliability of information the officer used to form the opinion stated. Thus, any testimony on this subject by Officer Smith should be excluded because he is not qualified to testify as an expert on this subject.

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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 elder abuse case and its proceedings.)

It is also worth noting that situations similar to those described in this medical negligence 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.

Ratification may be express or implied based on the conduct of the principal from which an intention to consent to or adopt the act may be fairly inferred. Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73. The word, ratify means to approve and sanction; to make valid; to confirm; to give sanction to; to authorize or otherwise approve conduct retroactively, either expressly or by implication. Black’s Law Dictionary (6th ed. 1990) p. 1262, col. 1].For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ratification … may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee’s actions by the corporate agent. Such ratification may be inferred from the fact that the employer, after being informed of the employee’s actions, does not fully investigate and fails to repudiate the employee’s conduct by. redressing the harm done and punishing or discharging the employee. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 621.) Failure to repudiate a party’s acts is itself evidence of ratification. Streetscenes v. ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233.

The inferences which may be drawn from all of these facts is that Defendant’s managing agents – the supervising nurses, the supervisor of defendant’s social services department, and Defendant’s administrator, knew of the staff’s violation of Mr. White’s Patient Care Plan, physician’s orders, and policies and procedures, and by dismissing the complaints and refusing to investigate, attempted to hide or deny these facts.

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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, 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 wrongful death case and its proceedings.)

LIABILITY

Plaintiff contends that Dr. Hall departed from the standard of care with respect to the care of Kim Smith. Dr.Hall was the captain of the ship regarding the surgery. Fields v. Yusuf (2006) 144 Cal. App. 4th 1381, 51 Cal. Rptr. 3d 277 holds the captain of the ship doctrine imposes liability on a surgeon under the doctrine of respondeat superior for the acts of those under the surgeons special supervision and control during the operation.

Dr. Lee breached the standard of care as he was performing the actual part of procedure that led to Ms. Smith’s demise. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, plaintiff was under sole care of defendant(s) at the time of the incident and Drs. Hall and Lee have liability on res ipsa theory.

Dr. White negligently failed to medicate and “worked up” decedent’s underlying infection, leading to full device system infection, which was the underlying cause of the need for surgery. True copies of the curriculum vitae of John Black, M..D. and Ray Brown, M.D., and a copy of the declaration of Dr. Black regarding Dr. Lee are available.

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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 medical negligence case and its proceedings.)

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

Defendants Have Improperly Interjected New Facts in Their Demurrer

Defendants assert in their Demurrer that Abbey had severe co-morbidities which included Parkinson’s and dementia, which specifically prevented her own ability to eat. (Demurrer 6:7 – 9.) Those claims by Defendants are not supported by the facts set forth in the FAC. Defendants repeated references of Abbey’s “co-morbidity” (i.e., the coexistence of two or more disease processes) is nothing more than a red herring and appears an attempt to suggest that because Abbey had Parkinson’s and dementia then she must have been near death. That is simply untrue.

Rather, in paragraphs 30 and 31 of the FAC, Plaintiffs alleged that Defendants should have been aware of the serious risks associated with dysphagia (difficulty swallowing) since Abbey had Parkinson’s and the skilled nursing facility and its nurses needed to carefully monitor her swallowing abilities. They did not, which failure was a clear breach of the applicable standard of care of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants also state, “glaringly,” plaintiffs simply gloss over the fact that Ms. Albert had several significant co-morbidities, but attempt to articulate that she was relatively healthy. (Demurrer 6:26 – 28.) Defendants again attempt to direct the focus outside of the FAC.

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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.)

Likewise, in the present case, any conclusions reached by the police officer who investigated the accident should not be allowed by this court. More specifically, the officer’s opinions and conclusions in the police report or in the form of testimony should not be allowed.

In Francis v. Sauve (1963) 222 Cal.App.2d 102, the court analyzed the issue in greater detail. The court reiterated that a police officer may testify as to the point of impact when his opinion is based upon percipient observations. The court discussed its refusal to admit into evidence expert opinions in traffic accident cases where the factors involved are too varying and too indefinite to constitute the basis of an opinion, such as the probable course of the cars after impact (Fishman v. Silva (1931) 116 Cal.App. 1). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Moreover, this issue was litigated during the State Farm’s motion for summary adjudication, which was denied. The defense attempted to have the issue of whether there was insurance coverage decided by the California Highway Patrol officer. State Farm’s UMF #6 and plaintiff’s objection:

6. Officer David Smith determined at the scene of the accident that Plaintiff Hank Choo is the owner of the 2000 Range Rover driven by plaintiff.

6. Objection: Police officer’s determination of ownership is irrelevant. Waller v. Southern Cal. Gas Co. (1959) 170 Cal.App.2d 747, 755

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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 elder abuse case and its proceedings.)

It is also worth noting that situations similar to those described in this medical negligence 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.

FAILURE TO INVESTIGATE

Within the context of defendant’s staff and supervising nurses failing to follow defendant’s own Patient Care Plan and proper policies and procedures, and feeding Mr. White solid food, and failing to reposition him when required, as set forth above, Plaintiff has alleged that plaintiff’s family and friends complained to not only the supervising nurses, but also the social service supervisors, while Mr. White was still alive and under defendant’s care. On several occasions, plaintiff’s family complained to the supervising nurses on duty that Mr. White should not be given solid foods, which were dismissed by the supervisor, as the conduct continued, and for which defendant’s supervising staff refused to investigate.

Defendant’s supervising staff failed to notify Mr. White’s responsible family about the development and progression of the infected sacral ulcer. Notwithstanding these repeated complaints, defendant’s supervising nurses failed to ensure quality assurance to the physician’s orders and appropriate patient care, and the Patient Care Plans, in violation of Title 42 of the Federal Code of Regulations §482.23(B). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

After Mr. White was rendered ventilator dependent and bedridden, Mr. White’s brother contacted National ‘s supervising staff of social services and complained that his brother had been provided solid foods in violation of the swallowing problems and the orders for a puree diet. He requested defendant’s supervisors to provide an explanation for the situation, and requested an investigation. Defendant’s supervising agent of social services was dismissive, as had been the supervising nurses.

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