| by

(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.)

Miranda Towing has also been named as a defendant and cross-defendant based upon its position as the employer of Mr. Brown. Liability may be imposed against Miranda Towing under the permissive-user statute (Cal. Vehicle Code § 17150) and/or as the principal or employer of a negligent operator under the doctrine of respondeat superior. (See Vind v. Asamblea Apostolica, Christo Jesus (1957) 148 Cal.App.2d 597, 602-604.)

With regard to Vehicle Code § 17150, that statute provides that owners of a motor vehicle may be held liable for injuries to person or property resulting from a negligent or wrongful act or omission in the operation of a motor vehicle by any person using or operating the same with the permission of the owner. However, such liability is limited to the amount of $15,000 for the injury to one person in any one accident. (Cal. Vehicle Code § 17153.)

DAMAGES
Plaintiff’s Claimed Injuries And His Extensive History Of Back, Neck, And Leg Pain
Plaintiff, who is 54-years-old, alleges he sustained injuries to his lower lumbar region and left leg as a result of the subject automobile collision. He claims he has pain down the left side of his leg to his foot, and pain in his left calf. He further claims he suffers tingling from his left knee to the bottom of his foot. He also complains of numbness on the bottom of his left foot.

Continue Reading ›

| by

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.)

MOTION IN LIMINE RE: INADMISSIBILITY OF PLAINTIFF’S EXPERT MEDICAL REPORT
INTRODUCTION

Any medical report sought to be introduced by plaintiff is inadmissible as hearsay and lacks sufficient foundation.

THE REPORT OF AN EXPERT IS NOT ADMISSIBLE INTO EVIDENCE

The report of an expert is not admissible into evidence. Expert reports are hearsay evidence since they contain statements that were made other than by a witness while testifying at a hearing.

Evidence Code Section 1200 provides:

(a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that if offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible.

Expert reports are not made admissible by the business records exception to the hearsay rule.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

The law involving trip and fall actions is well settled, and in fact most of the recent published decisions in this area have been made after summary judgment or as matter of law. For example, in Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, the plaintiff was injured after skiing down a slope, falling, and sliding into a tree. The plaintiff sued for premises liability, alleging that the defendant had either a duty to warn of the tree, or a duty to remove the tree. The defendant filed a motion for summary judgment on the ground that it owed no duty to warn of, or cure, dangerous conditions which were open and obvious. The trial court granted the motion, and the Court of Appeal affirmed. The Court held as follows (at 121-122):

Because the possessor or operator of a given premises is not an insurer of the safety of invitees onto his premises, he is entitled to assume that any such invitee will perceive that which is obvious to him in the ordinary use of his senses … [Defendant] was under no duty to warn that this particular tree … presented a danger to plaintiff wife. The tree itself provided a warning to plaintiff of the implicit danger of a collision with it. A fortiori, [defendant] was under no duty to remove it.

In Curland v. Los Angeles County Fair Assn. (1953) 118 Cal.App.2d 691, the plaintiff was injured after tripping over a pipe about one inch in diameter and protruding 7-10 inches above the ground. The plaintiff did not look down at the ground at any time before he fell.

Continue Reading ›

| by

(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.)

There is a Triable Issue of Fact as To Whether Dr. Lee’s Negligence Was a Substantial Factor in Causing Plaintiff’s Injuries.

On June 24th Plaintiff was found to have suffered a massive bleed in his abdomen. Earlier in the day, Dr. Lee placed an arterial and femoral line in plaintiff’s groin to measure his blood pressure and rapidly infuse blood. The line is placed using a guide wire which is inserted in the groin and up the iliac vein approximately 15-20 centimeters into the area of the bifurcation of the aorta. A hard rigid catheter is placed on top of the guide wire which, if erroneously placed, can cause injury to the aorta. Assuming during the placement of these line, Dr. Lee lacerated the posterior wall of the abdomen aorta and the adjacent area of the left common iliac vein, it would be a breach of the standard of care and a substantial factor in causing plaintiff’s injuries. Dr. Lee has presented no conclusive evidence confirming that his placement of the line did not cause injury.

Dr. White’s declaration fails to adequately address the manner or method by which Dr. Lee placed the lines. Dr. White simply states that had Dr. Lee caused these injuries, plaintiff’s condition would have rapidly deteriorated, thus, Dr, Lee could not have caused the injuries. What Dr. White ignores is the fact that following the surgery on the 24th, Plaintiffs condition did deteriorate, he almost died. The injuries sustained by Plaintiff do not occur in the absence of someone’s negligence and there is a question of fact as to whether or not it was Dr. Lee’s negligent placement of the lines caused the injuries.

However, even assuming Dr. Lee did not cause the injuries, as the vascular surgeon taking part in the laparotomy on the 24th, Dr. Lee was responsible for determining the source of the hemorrhage, including ruling out injury to the abdominal aortic bifurcation and the anterior wall of the left common iliac vein.

Continue Reading ›

| by

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

Plaintiff, Annette White, through her attorney of record, presents her memorandum of points and authorities and declaration of Randall Brown, M.D., in opposition to the motion for summary judgment filed by defendants John Lee, M.D., and John Lee, M.D., INC.

Plaintiff respectfully submits that the motion must be denied. Defendants have not carried their initial burden and have failed to present sufficient evidence to show there is no triable issue of material fact as the declaration of Donald Black, M.D., filed in support of the motion is hopelessly vague and provides no basis for, or explanation of, the opinions expressed.

Plaintiff requests that the motion be denied.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action wherein plaintiff alleges that defendants were negligent in the performance of breast augmentation surgery and in the provision of follow-up care. As a result, it is alleged that plaintiff sustained serious personal injury. A breach of contract cause of action is also stated, based on the allegation that defendants breached their promise to provide their services in a safe and competent manner.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

In the instant case, we are not presented with a “mere crack” in the pavement; rather, we are dealing with a one-inch rise in the pavement and a one-inch gap between the pavers. In Caloroso, the court, focusing simply on a crack defect, stated that minor defects like a crack in the walkway are “inevitable,” so the failure of the homeowner to warn the plaintiff, or to repair the crack, was not unreasonable (Caloroso, at 923). That is not the same situation in the Brown case: a one-inch rise and a one-inch gap are not inevitable.

In Plaintiff Judy Brown’s case, she submits that it was not only the rise in height of the pavement (which cannot be defined as a mere crack) in conjunction with the gap in between the pavers constituted a dangerous sidewalk defect, and one which caused her to trip and fall.

To further distinguish Caloroso from the instant case, in that case, the fall occurred on the walkway owned by a homeowner; whereas, in sharp contract, Plaintiff Judy Brown trip and fall accident occurred on a shopping Mall walkway. Certainly it is reasonable for one to expect that a shopping Mall, like Defendant Universal Mall, has a special duty toward its patrons, like Plaintiff, to detect and repair defects on its property that could foreseeably harm them. Civil Code Section 1714 clearly mandates that every person has a duty to manage his property so as not to cause an injury to persons. See also Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97.

Continue Reading ›

| by

(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.)

The investigating officer could not make a determination of which party was most at fault due to the lack of physical evidence or an independent witness. None of the parties were cited as a result of the accident. The traffic collision report notes the parties stated that the driver of a red pick-up truck may have been a witness to the incident. However, none of the parties obtained the witness’s contact information. Plaintiff confirmed during his deposition that he did not speak to the driver of the red pick-up truck after the vehicles pulled over following the multi-car collision.

Plaintiff commenced this action on September 9, 2005 by filing a complaint for personal injury damages against Mr. Lee, Paul Black, and Universal Market Service, Inc. Paul Black and Universal Market Service were named as the employers of Mr. Lee under a vicarious liability theory. Mr. White has filed Doe amendments to the complaint and named Mr. Brown and Miranda Towing.

On December 20, 2005, Mr. Lee, Paul Black, and Universal Market Service filed a cross-complaint for comparative indemnity and declaratory relief against Mr. Brown and Miranda Towing. An amendment to the cross-complaint named Miranda Towing.

On April 5, 2006, Miranda Towing and Mr. Brown answered the complaint and cross-complaint, and filed a cross-complaint for comparative fault, indemnity, and declaratory relief against Mr. Lee, Paul Black, and Universal Market Service.

Continue Reading ›

| by

(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.)

SUMMARY OF THE FACTS

This matter stems from a three-car accident which occurred on September 21, 2004 at approximately 9:30 a.m. on the eastbound side of the 5 freeway in the city of Sacramento. At the time of the accident, Jack Brown was driving alone in the course and scope of his employment with Miranda Towing in a 1993 Chevy tow truck. Mr. Brown was traveling in the number five of six lanes eastbound on the 5 freeway.

Tony Lee was alone in his 2002 Ford Ranger and was in the number four lane on the eastbound side of the 5 freeway. Plaintiff Milton White was alone in his 1979 Porsche and was in the number three lane on the eastbound side of the 5 freeway.

Mr. Brown was traveling in the number five lane at approximately 60 miles per hour when a large tractor trailer started merging into his lane from the right. In order to avoid the merging tractor trailer, Mr. Brown activated his turn signal and moved his vehicle into the number four lane, which was occupied by Mr. Lee’s Ford. Mr. Brown looked in his rear-view mirror and saw Mr. Lee’s Ford prior to making his lane change and there was plenty of room for him to move safely. After Mr. Brown merged into the number four lane, he watched Mr. Lee’s vehicle in his rear-view mirror.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

The Luggage Was Open And Obvious
There is no duty on behalf of the property owner to warn of or repair a condition that is open and obvious to the reasonable person. Hanson v. Luft (1962) 58 Cal.2d 443, 445 [duty to warn of defects not applicable where defect open and obvious]; Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal. App. 4th 1578, 1590-1591 [where danger was obvious, no duty to warn or to make property safe]; Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408 [same]; Krognos v. Pacific Gas & Electric Company (1992) 7 Cal.App.4th 387, 393 [ if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition ]

DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [ it is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant ]; Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 90 [ it is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both. ] As one learned author explained:

If the danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning. (See, 6 Witkin, Summary of California Law (9th ed.) Torts, § 930, p. 301.) (See Part 5 of 8.)

Continue Reading ›

| by

(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.)

DR. STUART

Defendant Dr. Stuart s treatment of plaintiff began on June 19, 2006, when plaintiff suffered from respiratory failure and complications of aspiration pneumonia and a pulmonary embolism. On June 28th, plaintiffs blood pressure again dropped and right femoral venous lines were placed by Dr. Stuart. If Dr. Stuart caused injury to the left common iliac vein during the course of these placement of the femoral venous lines and/or caused a puncture/laceration to the aortic bifurcation it was below the standard of care and a substantial factor in causing plaintiff’s second set of injuries.

DAMAGES

As a result of defendants’ negligence plaintiff required multiple surgeries, a 35-day stay in the hospital and, he will require future care to treat his residual injuries. His future care includes the continued monitoring for deep vein thrombosis and the need to take Lovenox as a prophylactic each time before flying in an airplane. Additionally, plaintiff will need to wear a compression stocking to control the swelling in his legs for the remainder of his life. Dr. Green’s expert, Dr. Kim, believes he will require future surgery.

It is not presently known whether health issues will arise from lymphodema in his left leg, and/or his inc reased blood clot risk, or other medical conditions arising out of the defendant’s care. Although the cost of his future care has not yet been determined, his past medical expenses total $601,150.12. Defendants caused this $601,150.12 in damages that were paid by plaintiff’s insurance for the harm they caused. Plaintiff’s health coverage was provided by the federal government, a collateral source. The defendants are responsible for this economic loss.

Continue Reading ›