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The following blog entry is written from a defendant’s position post-verdict. 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/bus accident case and its proceedings.)

LEGAL ARGUMENT

EVIDENCE AT TRIAL SUPPORTS THE JURY’S VERDICT AND DOES NOT MEET THE STANDARD FOR JUDGMENT NOTWITHSTANDING THE VERDICT AS SOUGHT BY PLAINTIFF.

California Code of Civil Procedure § 629 allows for a motion for a judgment notwithstanding the verdict and provides that the court “shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In considering such motions, California Courts uniformly hold that such motions shall be granted only when there is no evidence of sufficient substantiality to support the verdict rendered. In Newing v. Cheatham (1975) 124 C.R. 193, the court held as follows:

A directed verdict may be granted, when, disregarding conflicting evidence, and indulging every legitimate inference which may be drawn from the evidence in fayor of the party against whom the verdict is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of such party, if such a verdict has been rendered. 124 C.R. at 198.

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

IN THE ALTERNATIVE, THE COURT SHOULD CONDUCT A COTTLE HEARING OR SECTION 402 HEARING TO DETERMINE WHETHER OR NOT PLAINTIFF CAN MAINTAIN THEIR PRIMA FACIE CASE AGAINST DEFENDANT PRIOR TO JURY SELECTION.

Under California Evidence Code section 402:

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury…

(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

CAL.EVID.CODE section 402 (emphasis added). Further, California Evidence Code section 400 states in pertinent part:

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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 slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

The evidence shows that XYZ Market had repeated problems with employees logging their sweeps before they actually did them.

There is also evidence, from the testimony of Maggie Black and independent witness Burns, that Ms. Black did in fact slip on something wet. There is evidence from the testimony of Maggie and Charles Black that there was a substantial amount of liquid on the floor enough so that her pants were wet on the buttock and both legs. The testimony of various witnesses, including Tom Miller and Ms. Black, establishes that she sat on the floor where she fell while awaiting the ambulance. This shows how the liquid had time to soak into her jeans. A substantial amount of liquid on the floor should have been noticed by the XYZ Market employees working nearby. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under these facts, a reasonable jury could conclude:

1) XYZ Market employees involved in re-stocking activities created the dangerous condition on which plaintiff fell by either tracking in something wet from the back storage area or by transporting leaky product, or

2) The XYZ Market employees working in close proximity to where plaintiff fell should have seen the wet substance on the floor and cleaned it up, but were either negligent in not detecting it, or did see it but chose not to clean it up promptly. This is particularly true for the employee working the dairy case within five to six feet of the wet area.

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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 any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

The majority of the new allegations in the First Amended Complaint describe the residency training that Dr. Black should have heeded in order to avoid causing the subject auto accident. Dr. Black was provided training at Central Hospital, prior to the incident, about the specific risk posed to the public by fatigued or sleep-deprived medical residents. The article “Extended Work Shifts and the Risk of Motor Vehicle Crashes Among Interns,” published by the New England Journal of Medicine on January 13, 2005, was just one of many scientific journal articles offered to Dr. Black on the subject. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The collective information regarding Dr. Black’s training is directly relevant to the action and establishes the fact that Dr. Black was acutely aware of the dangerous risks posed to the public, including plaintiff, by driving home in a fatigued or sleepy condition after being awake for a continuous 18 hours. Plaintiff has sufficiently, and with much detail, alleged the many ways in which Dr. Black acted with malice and oppression by willfully disregarding her relevant training on many levels. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The present case is highly distinguishable from Austin v. Regents of Univ. of California (1979) 89 Cal.App.3d 354, where the Court held, … the allegations in plaintiff’s complaint are purely conclusory.

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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.

THE SUPREME COURT REFUSED TO APPLY PERIODIC PAYMENTS BASED ON THE CONCEPT OF “LOST YEARS”
The Fein Court found that the periodic payments of Code of Civil Procedure section 667.7 applied to medical negligence actions and found the application of periodic payments to be mandatory. However, the Supreme Court refused to apply periodic payments to lost years. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Although in general lost earnings are a type of future damage particularly suitable to a periodic payment judgment, this case presents a somewhat unusual situation because the damages awarded are solely attributable to the earnings of plaintiff’s lost years. If the trial court had ordered such damages paid periodically over the time period when the loss was expected to be incurred, the damages would have been paid in their entirety after plaintiff’s expected death, and thus-if the life expectancy predictions were accurate-plaintiff would not have received any of this element of damages. (Fein v. Permanente Medical Group, supra, 38 Cal.3d at 156.)

Therefore, it is clear from the language of Fein that the purpose of “lost years” damages is make sure that the plaintiff receives all of their lost future earnings in a lump sum during their lifetime. (Accord Schiembeck v. Haight (1992) 869 Cal.App.4th 869, 778.)

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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 personal injury case and its proceedings.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

This is a complex medical malpractice and birth injury action, involving numerous issues pertaining to prenatal and neonatal care, with allegations of catastrophic injury. Indeed, this action involves three distinct plaintiffs, comprised of the infant and his two adult parents, each of whom has claims which will require extensive work-up for purposes of evaluation and trial preparation. Given the nature of the allegations, it is expected that plaintiffs will be claiming several million dollars in damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

However, while defendants have acted expeditiously in recognition of the complexity of the issues presented in this matter, their efforts to do so have been severely impeded by these same plaintiffs who are now seeking a preferential trial setting. Indeed, despite the fact that these responding defendants served initial written discovery on February 27, 2002, to date, nearly four months later, plaintiffs have failed to provide any responses thereto. Plaintiffs’ repeated failure to respond to discovery has required defendants to file Motions to Compel.

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The following blog entry is written from a defendant’s position post-verdict. 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/bus accident case and its proceedings.)

At trial, plaintiff proved herself to be a poor historian who could not get her facts straight. She could not remember details of a slip-and-fall in a liquor store after the bus accident. She testified that she made no claim for the subsequent injury, but documents produced at trial proved that a claim was made against Hartford Insurance Company. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff exhibited a prominent limp during trial and used a cane at all times in the presence of the jury. She testified that she was unable to walk without a cane and that her limp was always present, in and out of the courtroom. However, four days of surveillance videotape of plaintiff taken immediately before trial began showed plaintiff walking without a limp and without a cane 3 of the 4 days. The only time plaintiff walked with a cane on the videotape was as she was coming out of her lawyer’s office on the day prior to trial.

The jury was interviewed post-verdict by both plaintiff and defense counsel. Plaintiff’s counsel asked a group of jurors why they ruled that plaintiff was not injured in the accident. One of the jurors responded, observation.”

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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 slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

There are Triable Issues of Fact Whether XYZ Market Employees Either Created the Dangerous Condition, or Knew or Should Have Known About It

The key question for the Court on summary judgment is whether there are triable issues of fact for the jury to consider. Based on the evidence here, we know that 8:30 a.m. is a slow time for this store; there were very few customers present. We know from the testimony of plaintiff, and XYZ Market employees Nancy Smith and Sean Reilly that at the time of the accident there were extensive ongoing re-stocking procedures, involving one employee in the meat section ten feet away, one re-stocking the dairy case five to six feet from where plaintiff fell, and three to five employees in aisles within sight of the fall. We also know that employees were coming in and out of the double swinging doors located near the fall area. There were many boxes scattered on the floor in that area. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is undisputed from XYZ Market’s documents and its PMK testimony that every employee has an equal responsibility to detect and correct slip and fall hazards on the floor.

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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.

In addition to the above language, an arbitration agreement must include immediately before the signature line provided for the individual contracting for the medical services the following language in at least 10-point bold red type:

NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE I OF THIS CONTRACT. (Code of Civil Proc. §1295(b).) For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Here, the February 27, 2005, Physician-Patient Arbitration Agreement complies with the requirements of Code of Civil Procedure section 1295(a) and (b). The language proscribed by subsection (a), of Code of Civil Procedure section 1295, translated into Spanish, is included in Articulo 1 (Article 1) of the Physician-Patient Arbitration Agreement Mrs. Hernandez signed on February 27, 2005.

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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 any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

ARGUMENT
LEGAL STANDARD ON MOTIONS TO STRIKE

Motions to strike are not favored. Weil & Brown, Civil Procedure Before Trial, § 7:197. The policy of California law is to construe the pleadings “liberally” … with a view to substantial justice. C.CP. § 452.

Plaintiffs First Amended Complaint meets the notice pleading requirements under California law. What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkins v. Superior Ct. (1981) 117 Cal.App.3d 1, 6. Specificity is not required in the Complaint “because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.” Ludgatelns. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App.4th 592, 608.

The First Amended Complaint adequately informs Dr. Black of the damages sought and the legal bases for those damages. Since Plaintiff has met the notice pleading requirements, Dr. Black’s motion to strike should fail on all accounts. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PARAGRAPH 32 SHOULD NOT BE STRICKEN SINCE PLAINTIFF’S ALLEGATIONS ARE FACT-SPECIFIC AND ESTABLISH IN DETAIL HOW DR. BLACK ACTED WITH MALICE AND OPPRESSION

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