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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 automobile accident/personal injury case and its proceedings.)

The assessment of damages is primarily the province of jury and secondarily the province of trial court when passing upon a motion for new trial. Gersick v. Shilling (1950) 218 P.2d 583, 97 Cal.App.2d 641; Music v. Southern Pac. Co. (1949) 204 P.2d 422, 91 Cal.App.2d 93. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Trial court may not grant new trial merely because verdict seems large or because it is larger than court sitting as jury would have given, but only when it appears that verdict was given under influence of passion or prejudice. Casaretto v. DeLucchi (1946) 174 P.2d 328, 76 Cal.App.2d 800; Kent v. Los Angeles Ry. Corp. (1939) 84 P.2d 1057, 29 Cal.App.2d 435; Los Angeles County Flood Control Dist. v. Abbot (1938) 76 P.2d 188, 24 Cal.App.2d 728; Bonner v. Los Angeles Examiner (1936) 62 P.2d 427, 17 Cal.App.2d 458; Hellman v. Los Angeles Ry. Corp. (1934) 27 P.2d 946, 135 Cal.App. 627, rehearing denied 28 P.2d 384, 135 Cal.App. 627.

In actions sounding in damages, where the law furnishes no rule of measurement, save the discretion of the jury upon the evidence before them, courts will not disturb a verdict upon the ground of excessive damages, unless it is so flagrantly improper as to evince passion, prejudice, partiality, corruption, or misapprehension. Wheaton v. North Beach & M.R. Co. (1869) 36 Cal. 590; Boyce v. California Stage Co. (1864) 25 Cal. 460; Aldrich v. Palmer (1864) 24 Cal. 513.

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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/personal injury 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. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

As the above facts show, Plaintiff is currently suffering from ongoing psychological problems which he traces to his CRPS/RSD injury. These psychological problems are such that he has attempted suicide twice, has received several weeks of inpatient psychiatric care, and has received ongoing outpatient psychiatric care and mental health counseling. These psychological problems are also the reason Plaintiff has given for being unable to complete his deposition in this case. Defendant respectfully submits that Mr. Smith’s mental health is undeniably at issue in this case and that good cause exists for a mental examination. This examination would be performed by a licensed psychiatrist, David Black, M.D., in San Jose, California.

CONCLUSION
For the reasons set forth above, Defendant requests an order requiring Plaintiff Randall Smith to undergo a mental examination by David Black, M.D., a psychiatrist, at Dr. Black’s office located in San Jose, CA.

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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 birth injury/personal injury case and its proceedings.)

The Ross declaration is equally week on the issue of causation. The defense expert asserts that the few minutes of delay in attempting a vacuum extraction did not cause George’s brain damage. The declaration fails to address the manifest question, though: If that did not cause the brain damage, then what did? Further, the defense expert fails to address the delay from 17:00 to 17:22. If this did not cause brain damage either, then what explanation does the defense expert offer? The defense expert’s declaration is silent about all of these questions. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

As Kelley held, without illuminating explanation, [an expert’s declaration is] insufficient to carry [the defendant’s] burden in moving for summary judgment. Moreover, because the defendant’s supporting declaration is inadmissible to support summary judgment, the defendant failed to meet her threshold burden of persuasion. The burden of production thus never shifted to George, so the defendant’s motion for summary judgment should be denied even without considering the opposing evidence. C.C.P. § 437c(o)(2); FSR Brokerage, 35 Cal.App.4th at 73 n.4, 41 Cal.Rptr.2d at 407 n.4 (1995) (plaintiff has no burden to show a triable issue if the defendant failed to meet its initial burden of showing by admissible evidence the absence of a triable issue of material fact).

The defendant may attempt to cure these deficiencies by having her expert submit a new or supplemental declaration. Again, however, any such declaration should be rejected as untimely.

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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 birth injury/personal injury 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, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiffs’ citation of Molien v. Kaiser Foundation Hospitals, (1980) 27 Cal.3d 916, is confusing at best. Molien involved a husband’s claim of emotional distress based on the harm that occurred to him and his marriage. Specifically, the physician misdiagnosed Mr. Molien’s wife with syphilis, leading her to believe he had had an extramarital affair. This caused significant marital problems as well as causing Mr. Molien to be medically tested and to take medication. As the Supreme Court later held in Burgess, to the extent Molien stands for the proposition that it introduced a new method for determining the existence of a duty, as limited by foreseeability, it should not be relied upon and its discussion of duty is limited to its facts. Burgess, at 1074. However, Burgess did reaffirm the principles derived from Molien as follows:

(1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached. (Burgess at 1074.) Again, no duty arose between these moving parties and Mr. Lee. Therefore, Timothy Lee cannot sustain a claim for NIED, based on the direct victim theory.

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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 birth injury/personal injury case and its proceedings.)

The Richard Green Declaration is Insufficient To Support Summary Judgment

If the defendant relies upon expert testimony to meet its burden of persuasion, that testimony must meet the standards of admissibility. An expert’s bare conclusion is insufficient to support summary judgment, just as it would be insufficient at trial. In Kelley v. Trunk, 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 (1998), the appellate court held that an expert declaration was insufficient to support summary judgment. That declaration was remarkably similar to the Willis Declaration in the present action. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Kelley held that the declaration of the expert was deficient to support summary judgment. As the appellate court stated, to be admissible the expert had to explain the connection between the recitation of facts gleaned from the medical records and the ultimate opinion:

[A]n expert opinion is worth no more than the reasons upon which it rests. Here, the crucial issues were: What was the nature of the disease or condition that required Kelley’s surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication? Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley’s injury? Herndon’s declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks’ burden in moving for summary judgment. 66 Cal.App.4th at 524, 78 Cal.Rptr.2d at 124.

In the case at bar, the Ross declaration has the same deficiencies, because there are no explanations or answers to the analogous questions that would be relevant in this case. Why didn’t defendant Lee recognize the complications earlier? In view of Ms. Jackson’s higher risk, and thus greater dangers to the baby, why was it within the standard of care to wait an additional 22 minutes to check on the labor, after the defendant was plainly aware of the risk of hypoxia (as indicated by the order for 8 liters of oxygen by mask)?

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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 wrongful death/brain injury case and its proceedings.)

Plaintiff Must Join All Persons Necessary for Just Adjudication

A complaint shall state the names, if known to the pleader, of any person(s) who, by their absence, may leave the defendant subject to risk of incurring multiple or inconsistent obligations. If such persons are not joined as parties, the pleader must state in the complaint why they are not joined. C.C.P. §389(a) & (c).

If any person is allied in interest with plaintiff, but refuses to join as a co-plaintiff, he or she may be sued as a defendant. In such cases, the complaint must state the reasons why such person was so joined. C.C.P. §382. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The plaintiff clearly has at least one sibling, Paul White, who is listed as the son and next of kin of the decedent in the Coroner’s report. It is unknown by defendant if the plaintiff has other siblings or if there are other persons with standing to bring suit in this wrongful death action.

In any event, the plaintiff should be ordered to identify all such persons who have standing to bring this wrongful death action. If such persons do not wish to join as plaintiffs, plaintiff Nancy White should be order to join the involuntary plaintiffs as defendants pursuant to C.C.P. §382.

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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/personal injury case and its proceedings.)

Mr. Greene testified regarding the impact of these injuries upon his life. He was unable to return to his employment for several months and continues to suffer flare-ups which cause him to miss additional days of work. He testified that he suffered many embarrassing and humiliating events where he was physically unable to stand, sit or even walk and that, on many occasions, he was entirely dependent upon his family, sometimes his children, for physical and medical support. These events caused Mr. Greene significant anxiety as he was removed from his usual and customary role of the provider and guardian of his family.

Mr. Greene’s testimony regarding several events where his children were required physically to care for him illustrated the full extent of the damages which were inflicted by the defendant’s collision with his motorcycle.

The damages awarded by the jury were not excessive. Mr. Greene was the victim of a severe motor vehicle collision which was the result of the sole and unquestioned negligence of Ms. Hall. The trauma in this collision was so severe that Mr. Greene suffered a bone bruise and microfractures in the collision in addition to the damage to the overlaying tissue. These injuries were severe and, in several respects, permanent. Although, the defendants have argued that the injury was merely a soft tissue injury, the only medical testimony presented at the trial confirmed that the injuries were severe and permanent. The jury’s verdict was not excessive in any respect. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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 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/personal injury case and its proceedings.)

Expert Review of the Instant Case Establishes that the Conduct of Dr. Lee Did Not Cause Plaintiff’s Alleged Injuries.

In a personal injury action, causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. Jones v. Ortho Pharmaceutical Company (1985) 163 Cal.App.3d 396, 402 02 (citations omitted); Dumas v. Conney (1991) 235 Cal.App.3d 1593, 1603. Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. Budd v. Nixon (1971) 6 Cal.3d 195,200. In Dumas, the court declined to establish a more lenient standard of causation in medical malpractice cases to account for the theory of lost chance:

Relaxing the causation requirement might correct a perceived unfairness to some plaintiff who could prove the possibility of the medical malpractice cause and injury but could not prove the probability of causation, but at the same time could create injustice. Health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result.

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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 birth injury/personal injury case and its proceedings.)

The Defendant’s Separate Statement Fails to Include Citations to Evidence that Support the Assertions

Another flaw of the defendant’s Separate Statement is the failure to include citations to evidence that support the assertions of fact. Material Fact 2 asserts that the defendant Lee initiated care of Ms. Jackson only once, at 5:22 p.m. As support, the defendant cites several lines on pages 63 through 65 of co-defendant Stein’s deposition.

Defendant Lee’s testimony, however, does not state the supposed Material Fact. That testimony merely states that it was her custom to tell the attending physician (co-defendant Stein) that if there was a call from a nurse about Ms. Jackson, it would have been her practice to notify the attending physician that she was going to see the patient and, later, to tell him what was happening with the patient. The cited testimony does not state or even insinuate that defendant Lee initiated care of Ms. Jackson only once at 5:22 p.m. In fact, defendant Lee admitted that she does not even remember getting a call from a nurse before 5:22 p.m.

The defendant also relies on her Exhibit E to prove that she entered Ms. Jackson’s room at 5:22 p.m., but that document has significant evidentiary flaws. There is no testimony regarding who wrote the notes or when they were written. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The defendant includes as part of her counsel’s declaration several other documents, but the defendant’s Separate Statement cites none of them in support of the motion or the alleged material facts. In particular, the defendant includes pages 21, 24, 25, 34, 35, 43, 44, 52, 70-72 and 77 from the deposition of co-defendant Stein.

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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 automobile accident/personal injury case and its proceedings.)

These objective findings confirmed three facts: 1) that there was significant, permanent and painful damage to Mr. Greene’s left testicle; 2) that this damage was the result of the trauma in the June 12, 2004 collision between the defendant’s vehicle and Mr. Greene’s motorcycle; and 3) that the injury was permanent. This testimony was uncontradicted.

The defendant complains Mr. Greene’s injuries as “only soft tissue injuries” which do not warrant reasonable compensation. The complaints of the defendant are directly in conflict with the uncontroverted testimony of the only medical witnesses who were called to testify at the trial. Dr. Black concluded that Mr. Greene sustained multiple injuries, including a pelvic bone bruise and micro-fractures – these are not mere soft tissue injuries. These injuries are the result of damages to Mr. Greene’s pelvic bone and are long-lasting.

Dr. Black testified that Mr. Greene will experience significant pain, swelling, stiffness and flare-ups from these injuries for three to four more years – until 2011 or 2012. Simple math shows that these injuries will have a duration of at least seven or eight years. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. O’Callahan testified that Mr. Greene sustained a permanent, painful and extremely personal injury. Mr. Greene’s left testicle was damaged and, as of 2008, had lost 50% of its mass. Mr. Greene testified that many of the personal and intimate details of his life now were painful. He was unable to have sexual relations with his wife, Kim Greene, for three months, and the sexual relationship with his wife continued to suffer since the car collision.

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