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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 malpractice/personal injury case and its proceedings.)

The illegal provisions in this Agreement also affect its scope because they speak to the manner in which disputes will be resolved before the arbitration is called for and not after the arbitration has taken place. Therefore, this agreement is also distinguishable from the one provision severed in the Saika and Benyon cases.

Therefore, the illegal provisions in this Agreement should not be severed because to do so would allow Defendant Black (and other hospitals) to continue to insert illegal provisions in his arbitration agreements if he knows that the worst that can happen is that the illegal provisions will simply be severed. Armendariz, supra, 24 Cal. 4th at 124, fn.13. The interests of justice will not be served by allowing severance of the illegal provisions of this agreement.

REQUEST FOR ORDER EXTENDING TIME FOR RESPONSE

Under C.C.P. Section 1290.6, the time for filing a response to petition for arbitration is 10 days after service of the petition. The Court can order an extension of time to file a response upon good cause shown. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Unfortunately, when the petition was received by mail by counsel for Plaintiffs, the response was calendared under C.C.P. Section 1005 (a)(13)(b.). Accordingly, Plaintiffs calendared the response to be filed 9 court days prior to the November hearing date.

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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 malpractice/personal injury case and its proceedings.)

Here, the agreement contains two illegal provisions, the unlawful unilateral provision that gives Defendant Black the right to a jury trial to collect fees from his patients, and the unlawful cost splitting provision. These two provisions are central to the purpose of the contract, not collateral to it. Therefore, these provisions cannot be severed and the contract should not be enforced. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There are two reasons for severing or restricting illegal terms. The first is to prevent parties from gaining undeserved benefit or detriment. Second, the doctrine of severance attempts to conserve a contractual relationship if to do so would not be to condone an illegal scheme. The overarching inquiry is whether the interests of justice would be served by severance. Armendariz, supra, 24 Cal. 4th 124. Here, as in Armendariz, the Agreement has more than one defect indicating a systemic effort to impose arbitration as an inferior forum that works to serve the interest of Defendant Black and gives him an advantage. Armendariz, supra, 24 Cal. 4th 124.

Additionally, the court distinguishes Armendariz, where the arbitration agreement was deemed unenforceable, from Saika v. Gold (1996) 49 Cal. App. 4th 1074 and Benyon v. Garden Grove Medical Group (1980) 100 Cal. App. 3d 698, where in both cases one-sided provisions in the physician-patient arbitration agreement were severed.

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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 appellate courts have emphasized that a defendant’s failure to provide a foundation for the documents on which it is relying will require denial of a motion for summary judgment. In Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 719-710, 128 Cal.Rptr.2d 529, 541-542, an attorney for a defendant offered a declaration in support of a motion for summary judgment. That declaration attested to the purported authenticity of exhibits in support of motion for summary judgment. The declaration failed to show that attorney was custodian of records, that the documents were prepared in the regular course of business, that he prepared documents or circumstances under which the documents were created. The trial court ruled that the documents were inadmissible due to lack of foundation, and the appellate court affirmed that ruling.

The defendant’s Separate Statement of Material Facts must cite to admissible evidence. A violation of this rule is sufficient in itself to deny the motion for summary judgment. C.C.P. § 437c(b). Because the defendant’s Material Facts 3 and 4 are unsupported by admissible evidence, the motion for summary judgment can be denied on that basis alone. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The defendant may attempt to add additional evidence to cure this defect in her reply brief. If she does so, that effort should be rejected. New evidence can be offered in a reply only in exceptional circumstances. Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 n.8, 11 Cal.Rptr.2d 811, 819 n.8.

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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.)

Dr. Black testified that Mr. Greene had experienced three-and-one-half years of significant pain, measured as a three to four on a scale of ten, and would more likely than not continue to experience this pain for another three to four years. While the defendant has argued that Dr. Black testified that the pain would typically resolve in three to five years, in the case of Mr. Greene Dr. Black opined that the pain would continue for another three to four years. Mr. Greene would experience daily pain with stiffness and flare-ups of extreme pain.

Dr. Black testified that Mr. Greene would lose eight to nine days of employment per year for the next three to four years. Dr. Black concluded that this was a “very serious injury.” The testimony of Dr. Black was uncontradicted at trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Kieran O’Callahan, a board certified radiologist, testified regarding extent of injury to Mr. Greene’s testicle and that injury was permanent. Dr. O’Callahan reviewed CT scans, performed in July of 2004 and in August of 2008, of Mr. Greene’s testicles. The first test revealed that the Mr. Greene’s left (injured) testicle was 30% smaller than the right testicle. Dr. O’Callahan testified that this discrepancy in size may have been either congenital or the result of recent trauma.

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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 malpractice/personal injury case and its proceedings.)

Allocation of Arbitration Fees

Article 3 of the Defendant Black’s Physician-Patient Arbitration Agreement requires that each party pay for the cost of arbitration and the pro rata share of the arbitrator’s fees. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Armendariz the employees were required to pay their pro-rata share of the expenses and fees of the arbitrator and to pay for all other expenses incurred. The Court in Armendariz states that … it would undermine Congress’s intent to prevent employees who are seeking to vindicate statutory rights from gaining access to a judicial forum and then require them to pay for the services of an arbitrator when they would never be required to pay for a judge in Court. Armendariz, supra, 24 Cal. 4th 108. The Supreme Court stated that arbitration is imposed by the employer and occurs at the employer’s option. Therefore arbitration fees should be borne solely by the employer. Armendariz, supra, 24 Cal. 4th 108, citing Cole v. Burns Intern. Security Services (D.C. Cir. 1997) 105 F. 3d 1484-1485.

Arbitration fees can be upwards to $8,000.00 per day or greater. (The daily fee for many retired judges, for instance, providing services for JAMS.) If Ms. Hall, who is a mother and homemaker, and Mr. Hall, who is a construction worker, both in a similar economic position as the employees in Armendariz, must pay the prohibitive cost of arbitration, they would be substantially deterred from bringing a claim for medical negligence.

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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.

Only an expert can determine what relationship Plaintiff’s mental health problems have to his CRPS/RSD, and/or whether they are related to or caused by pre-existing mental health issues. Defendant understands that Plaintiff may attempt to present Plaintiff’s severe mental health problems at trial as side effects of his CRPS/RSD, and as a component of his damages. As such, a mental examination of Mr. Smith is necessary to Defendant’s defense. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Defendant therefore requests a court order allowing plaintiff to undergo a psychiatric examination by David Black, M.D., a psychiatrist, in San Jose, California. Defense counsel understands that the examination will involve a discussion between Plaintiff and Dr. Rappaport regarding Plaintiff’s relevant personal, medical and mental health history and his ongoing mental health problems and medical and psychological stressors.

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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 Failed to Meet Her Threshold Burden of Proving that She is Entitled to Summary Judgment
The Evidence Upon Which the Defendant Relies Has No Foundation

The defendant relies upon one piece of evidence to try to prove that she acted within the standard of care: Defense Exhibit E, a photocopy of a portion of a fetal monitor strip. The defendant’s lawyer also attached a document identified as Exhibit D, which she asserts is a portion of a fetal monitor strip. This document has all of the same evidentiary infirmities as Exhibit E, plus it is not relevant to any issue because it is not cited anywhere in the defendant’s Separate Statement.

The defendant’s Separate Statement shows that she relies solely on this document as proof that of her assertion that she acted quickly and timely, and within the standard of care. The document, however, has no foundation and is unauthenticated. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Two of the material facts in defendant Lee’s motion rely upon this unauthenticated document that her lawyer attempts to interpret and introduce into evidence. Material Facts 3, 4 and 5 rely upon alleged medical records that have no foundation. There is no declaration from a custodian of records showing that this document concerns Ms. Jackson or her baby. There is nothing on the document that is self-authenticating. There is handwriting on the document, but there is no identification of the author of the handwriting. There is no declaration or deposition testimony from anyone who purports to be the author. Further, the writings themselves are plainly handwritten, often illegible, and using a plethora of uncommon abbreviations.

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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’ opposition also relies on several cases involving a mother’s claim for NIED, which differ from the motion before the court. First, plaintiffs’ rely on Sesma v. M. Cuento, M.D., (1982) 129 Cal.App.3d 108. According to plaintiffs’ brief, Sesma involved a woman in labor who brought a cause of action for NIED based on a stillbirth. The motion at bar does not involve a mother’s claim for NIED. Rather, it involves Mr. Lee’s claim for NIED, which must be based on the bystander theory. Plaintiffs raise the issue of foreseeability, but, as put forth in moving parties’ motion, have alleged no facts that would support this theory. Rather, they rely on their strategy of intertwining the mother’s and father’s claims of NIED. Again, Johnson v. Superior Court, (1981) 123 Cal.App.3d 1002, involved a mother’s claim for NIED caused by a medically caused stillbirth.

Plaintiffs argue that Marlene F. v. Affiliated Psychiatric Medical Clinic Inc., (1989) 48 Cal.3d 583, applies. Marlene F., as stated in plaintiffs’ opposition, involved two mothers and their sons who sought therapy. Plaintiffs state it best: the court held that a mother of a minor child could state a claim for NIED against the psychotherapist who consulted to treat both the mother and son and then sexually molested the son.

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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’s Complaint is Uncertain Because the Facts Support Only a Cause of Action for Professional Negligence and Not for General Negligence

California Code of Civil Procedure §430.10 provides, in pertinent part:

The party against whom a complaint … has been filed may object, by demurrer … to the pleading on any one or more of the following grounds:

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible.

A demurrer may be taken to the entire complaint or to any of the causes of action stated in the complaint. Code Civ. Proc. §430.50. For the purposes of testing the sufficiency of the cause of action, the demurrer assumes all material facts alleged in the complaint to be true. Serrano v. Priest (1971) 5 Cal.3d 584, 591, cert denied, 432 U.S. 907. The function of a demurrer is to test the sufficiency of a complaint as a matter of law and it only raises questions of law. Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 611. A demurrer must be sustained if the complaint’s cause of action is uncertain. Code of Civ. Proc. §§430.10(f).

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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.)

Plaintiff opposes the Motion for New Trial or, in the Alternative, Motion for Remittitur, as the evidence presented at the trial justified and supported the award of non-economic damages by the jury. This court should not disturb the unanimous verdict of the jury which clearly was the result of careful deliberation and not the result of either sympathy or prejudice. As the verdict of the jury was supported by the evidence presented at trail, the motion of the defendant should be denied. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Verdict of the Jury Was Supported by the Evidence.

Significant and substantial evidence was presented regarding the nature and extent of the injuries sustained by Sean Greene. Virginia Hall testified that she turned her vehicle into the path of Mr. Greene’s motorcycle, collided with the motorcycle, and caused Mr. Greene to be propelled from the motorcycle and onto the pavement. Mr. Greene testified that the collision with the defendant’s car caused him to flip off of his motorcycle, rotate in the air, and land on his shoulders. After his shoulders struck the pavement, Mr. Greene testified that his hips and legs slammed into the pavement, inflicting serious and significant injury. This testimony was uncontradicted.

The collision was witnessed by Thomas Smith who was standing on the corner and facing the intersection when Ms. Hall turned into the path of Mr. Greene. He testified that there was a significant collision and that Mr. Greene appeared to have been injured. Mr. Smith testified that Mr. Greene was not able to stand immediately after being slamming against the pavement. Mr. Greene crawled on the ground for a few moments and then walked to the curb. Mr. Smith testified that Mr. Greene lay on the curb until emergency medical services arrived. Mr. Smith observed that Mr. Greene received medial attention immediately and was transported to University Hospital.

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