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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.)

BRIEF DESCRIPTION OF CLAIMS AND DEFENSES PRESENTED AND ISSUES TO BE DECIDED

The Court granted summary adjudication on Hill’s 8th and 9th causes of action for overtime pay and meal penalties, and Hill has agreed to entry of judgment on her related 11th cause of action under Labor Code Section 201. Accordingly, Hill has eleven remaining causes of action. As set forth below, one of Hill’s causes of action will be tried to the Court and, depending on the outcome of that proceeding, eleven of the causes of action may be tried to the jury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

14th Cause of Action under Business & Professions Code § 17200 to Be Decided By Court
Hill’s 14th Cause of Action for violation of Business Professionals Code Section 17200 (harassment, discrimination, and retaliation on the basis of sex) must be tried to the Court rather than the jury. Hodge v. Superior Court, 145 Cal. App. 4th 278, 281 (2006) ( We conclude no jury trial is warranted. The gist of the section 17200 cause of action is equitable and the relief sought is equitable even though plaintiffs could have requested damages for the same violations, even though the employer has asserted an affirmative defense, and even though the UCL cause of action will require proof of the underlying Labor Code violations. ); People v. First Fed. Credit Corp., 104 Cal. App. 4th 721,732-733 (2002) ( [T]he concern that juror passion or prejudice may affect a punitive damage award … is absent in UCL cases because there is no right to a jury trial in such cases.”)

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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, or Sutter.

LATER CASE OF HURLBUT HAS AFFIRMED THAT “LOST YEARS” ARE NOT SUBJECT TO PERIODIC PAYMENTS

That later time came four (4) years later, when the court of appeals for the Fifth District had an occasion to revisit the lost years area. In Hurlbut v. Sonora Community Hospital (1989) 207 Cal. App.3d 388, the court, relying upon the California Supreme Court decision in Fein, upheld the finding of lost years damages so as to allow the injured party the use of a specific pool of funds. (Id. at 405.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The court in Hurlbut, like the court in Fein, was again willing to strike out boldly in the area of loss of future earnings and its non-application to periodic payments, by categorizing the concept of “lost years” to be an exception to Code of Civil Procedure section 667.7. Ordinarily, under section 667.7, when a medical malpractice action results in an award for future damages, the trial court must order periodic payments on request. (Id. at 405.) However, where damages for future loss of earnings are concerned, a limited exception to this rule applies insofar as the award is for loss of earnings attributable to the plaintiff’s lost years (the period by which his life expectancy was diminished as the result of the defendant’s negligence). (Id. 405-406.)

Further, even though Fein left the issue of what deductions should be made for the saved cost of necessities from the plaintiff’s lost years recovery, the court in Hurlbut also chose not rule upon this issue. The court in Hurlbut, however, provided more justification behind its decision not to rule on the issue, than did the Fein court.

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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 worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

In its case in chief, the City presented testimony of its medical experts, Christine Jones, M.D, Barry Stein, M.D., and David Hernandez, M.D. The City’s accident reconstructionist, Scott Black, also testified. Additionally, defendant City played for the jury a “sub rosa” videotape of plaintiff Sandra White. The defendant City, however, did not call its designated experts David Hall (economist), Gene Perry (life care planner), or Charles Small, Ph.D. (neuropsychologist).

The jury in this matter returned a unanimous verdict in favor of the plaintiff, Sandra White, in the amount of $6,872,001.00, $426,636.00 for past economic loss and $6,445,365.00 for future economic loss. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

LEGAL STANDARD FOR A JUDGMENT NOTWITHSTANDING THE VERDICT
A Judgment Notwithstanding the Verdict (“JNOV”) challenges the legal sufficiency of the evidence, essentially asking whether the evidence was sufficient to prove the claims or defenses asserted and now embodied in the jury’s verdict. See Hauter v. Zogarts (1975) 14 Cal.3d 104; Clemmer v. Harford Ins. Co. (1978) 22 Cal.3d 865. For purposes of a JNOV, all evidence supporting the verdict is presumed true, making the issue whether the facts, when presumed true, constitute a prima facie case or defense as a matter of law. Moore v. San Francisco (1970) 5 Cal.App.3d 728; Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743.

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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 car accident case and its proceedings.)

Defendants Clive White and Universal Rental Car’s Motion in Limine to Exclude Reference to Police Accident Report Writing Standards

Defendants Clive White and Universal Rental Car hereby move this court, in limine, before jury selection at the trials commencement for an order instructing plaintiff, his counsel, and each and every one of plaintiffs witnesses, not to mention, interrogate on, or in any other manner, convey to the jury whether during voir dire, opening statement, testimony, final argument, or otherwise, any reference to or evidence of police accident report writing standards as evidence that the two consecutive bus accidents that are the subject of this litigation actually constituted a single event.

It is anticipated that plaintiff and his experts will reference police accident report writing standards as evidence for his contention that the bus accident at the intersection of Seminary and International involving defendants vehicle and the following bus accident half a block away in which the bus ran into residences across the street, were a single event caused exclusively by defendant Williams. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

One of plaintiffs accident reconstruction experts referenced CHP accident reporting standards to support his opinion that these bus accidents constitute a single event. Defendant contends that these were two separate accidents albeit they were consecutive and that they both involved the same bus.

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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.)

XYZ generally demurs to the first cause of action for elder abuse on the grounds that plaintiff has failed to state sufficient facts to state a cause of action because plaintiff has not plead facts of reckless conduct by any employees of XYZ. This is incorrect, as throughout the complaint, plaintiff alleges the conduct by XYZ’s nursing staff and staff. XYZ argues that plaintiff has not identified any wrongful conduct by any managing agents, officers or directors of XYZ. Again, this is in error. The first cause of action for elder abuse sets forth sufficient facts to support the inference of ratification of this pattern of reckless neglect for 39 days by XYZ’s staff.

Combined in this motion is XYZ’s request to strike the allegations of punitive damages in the elder abuse cause of action on the same two grounds, in addition to asserting an erroneous argument plaintiff failed to comply with Code of Civil Procedure §425.13. The California Supreme Court held that §425.13 does not apply to elder abuse claims. XYZ specially demurrers to the first cause of action on the ground of uncertainty, without specifying the particular allegations that it contends is uncertain. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ specially demurs to the second cause of action for medical malpractice and third cause of action for wrongful death on uncertainty, again without specifying the particular allegations it contends is uncertain. XYZ then moves to strike the words reckless from the second and third causes of action, without citing any legal support. If plaintiff can prove recklessness, plaintiff will also have proven negligence.

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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’S OPPOSITION TO DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANT, XYZ HOSPITAL
INTRODUCTION

XYZ Hospital (“XYZ”), through its nursing staff and staff, engaged in a pattern for over a month of reckless neglect of Donald Lee by knowingly disregarding standing instructions from Mr. Lee’s prior health care providers, physicians and family that he only be fed pureed food because of a recent surgery to remove a tumor from his esophagus surgery. XYZ, through its staff and nursing staff, fed him solid foods in violation of these instructions, which caused Mr. Lee to choke on his food, vomit and aspirate into his lungs and suffer an incident of prolonged respiratory failure with significant permanent injury in his overall functioning. Mr. Lee was placed on a ventilator because he was no longer capable of breathing without mechanical assistance, underwent a tracheotomy and the insertion of a feeding tube. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Confined to his bed, Mr. Lee required re-positioning to avoid developing bedsores. XYZ, again through its nursing staff and staff, between September 14, 2006 and October 23, 2006, recklessly neglected Mr. Lee and failed to re-position him, causing him to develop a Stage II-III sacral decubitus ulcer. XYZ, however, contends these are not sufficient facts of reckless neglect and brought this combined demurrer and motion to strike to the complaint for elder abuse, wrongful death, and medical malpractice. (See Part 2 of 9.)

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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 medical malpractice case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

STATEMENT OF FACTS

Pro per plaintiff Vernon Hill filed his complaint on May 11, 2009, alleging wrongful death relating to the treatment and care defendant provided to his mother and decedent, Abigail Hill. According to plaintiff, defendant NMC’s treatment on various days in 2006 resulted in plaintiff’s mother’s death. The date of death is not alleged. Plaintiff alleges that he is the surviving heirs (sic) at law of decedent. Plaintiff does not identify his relationship with the decedent although defendant understands she was his mother. Plaintiff does not identify others who may have standing, nor does he state that he is the only person with standing. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

COMPLAINT ALLEGATIONS
Plaintiff’s cause of action titled General Negligence alleges various facts regarding the care and treatment rendered to decedent by NMC. Plaintiff then alleges that NMC’s negligent conduct led to decedent’s pain and suffering and death.

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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 medical malpractice case and its proceedings.)

It is 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

On July 4, 2007, plaintiff Travis Lee filed a complaint against several medical defendants, including defendant Richard Brown, M.D. In his First Cause of Action, plaintiff alleges that in or about March of 2006, he presented himself at Universal Medical Center, under the care of defendant Mary Smith, M.D., complaining of a cut he received in his right foot. Subsequently, plaintiff alleges that he presented himself to the emergency room at National Medical Center due to severe pain and discoloration in his right foot and, thereafter, was <a href=”For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.”>diagnosed with gangrene and an amputation was recommended. Plaintiff further alleges that defendant America INS refused to authorize the amputation and, accordingly, he was transported to Universal Medical Center where he underwent a right below-the-knee amputation on April 23, 2006. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Specifically, plaintiff alleges that each of the defendants committed professional malpractice in that defendants performed procedures “in a negligent manner and below the standard of care,” and that despite plaintiff’s history of diabetes and gradually worsening condition of his cut, defendants, including Richard Brown, M.D., “conservatively treated and/or failed to properly diagnose and treat [plaintiff’s] medical condition,” resulting in severe and painful gangrene to his right foot.

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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 worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As a result of the impact severity, Ms. White was knocked to the other side of the vehicle, despite her use of the passive restraint system within the vehicle. She was rendered unconscious and was in a coma for many days following the crash. She suffered a severe brain injury, cracked hip bones, a cracked skull and subdural hematoma, large lacerations on her head, a ruptured spleen, and many other related serious and life threatening injuries. She spent roughly the next two months in hospitals and in rehabilitation. Eventually she suffered gaping wounds in her buttocks, leaving her disfigured. Further, testimony was given that showed Ms. White was rendered permanently brain damaged by this avoidable collision.

Prior to this catastrophic car crash, Sandra White, a mother and grandmother, had a functional life filled with the typical array of ups and downs. Testimony was given that prior to this collision, Ms. White took care of her parents, enjoyed friends, and had relatively good health. She did have anxiety problems and, according to the experts, had mental illness in the form of schizophrenia. Yet she was functional and lived independently. Now, she needs help with most daily tasks and requires supervision. When she left the nationally renowned rehabilitation center in Roseville, California, Universal Trauma Rehabilitation, she developed many life survival skills so she could re-integrate into the world with the help of others. But she still was a danger to herself and others, easily confused, easily fatigued, and in constant pain. She requires assistance from skilled nurses.

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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 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 HEALTH AND SAFETY CODE § 1430 CLAIM MUST BE STRICKEN AS TO XYZ HOSPITAL

Health and Safety Code § 1430 applies to skilled nursing facilities and reads in part:

(a) Except where the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class “A” or “B” violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. …

(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision

(c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations. …

Thus Health and Safety Code § 1430 permits actions against the licensee of a skilled nursing facility, not acute care Hospitals. The claim under this statute must therefore be stricken as to XYZ Hospital. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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