| by

(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.)

In addition, the Judge has made comments on the record that support the inference that he views fair rulings for the Plaintiff required by the facts and the law to have been favors for which he expects gratitude. For example the following exchange took placed during the July 8 hearing:

MR. GREEN: You repeatedly, throughout the case, you’ve been the advocate for the defense

THE COURT: To me this case is an example of the expression, No good deed goes unpunished. I have in this case devoted more time to this case than about any other medical malpractice case I can recall.

MR. GREEN: Most of it —

THE COURT: I’ve made myself available to you and the other attorneys. I’ve resolved numerous discovery disputes. I haven’t kept track, but I know that some have gone in your favor and some have not. I feel like I performed a very high level of service for you in this personal injury case.

MR. GREEN: I disagree.

THE COURT: I know in my heart I’m trying, I always try, to do the right thing, and so I’m kind of saddened that this is coming — you are not perceiving it in the same way I perceive it.

MR. GREEN: Could I make my arguments, your Honor?

THE COURT: Sure.

MR. GREEN: Thank you.

Continue Reading ›

| by

(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.)

LIABILITY

The care and treatment rendered to Ms. White by Cindy Brown, M.D., and SAC Medical Group, Inc., fell below the standard of care in many respects, and it was that failure that caused the premature birth of Tomas and Owen and their ultimate demise.

Ms. White was at risk for pre-term labor and premature lengthening and dilatation of her cervix for the following reasons:

1. She was pregnant with twins;
2. She recently had undergone a LEEP procedure, i.e., a removal of a portion of her cervix due to abnormal Pap smear/biopsy;

3. She had delivered a child vaginally within the last year prior to this pregnancy.

The standard of care required Dr. Brown to refer Ms.. White to a perinatologist/high risk pregnancy specialist or comply with the standard of care of a perinatologist by assessing Ms.. White’s cervix every two weeks throughout her pregnancy by way of transvaginal ultrasounds.

Secondly, the standard of care required, upon plaintiff’s complaint on March 3rd of cervical pinching or vaginal pain, an immediate vaginal examination to determine whether or not the cervix had dilated and evaluation of the cervix by ultrasound.

Had Dr. Brown complied with the standard of care, early intervention would have occurred. Ms.. White would have been put on bed rest, been advised to stop working and more likely than not would have been able to prolong the pregnancy to 32 plus weeks. The twin baby boys died from the effects of premature labor and would have survived had Dr. Brown complied with the standard of care.

Continue Reading ›

| by

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case 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.)

Further, as we had previously noted, EF makes no allegations of any negative impact on any specific resident caused by the alleged under staffing and, thereby, fails to show a causal link between an individual resident’s specific needs and the services received, regardless of the nursing hours supplied at that time. This is clearly inconsistent with DHS’s enforcement policies as stated in their policy guidelines for enforcing the staffing level requirements.

Equally significant is the fact that, by merely asserting a lump sum amount that Defendants allegedly should have … spent on staffing, and suggesting that amount should be distributed to residents without linking inadequate staffing to any allegations of specific incidents of fewer than 3.2 hours of service for a patient on a particular day, or allegations of harm suffered by individual residents, EF is in fact seeking disgorgement – a remedy clearly not allowed under Section 17200. In contrast to restitution, the remedy of disgorgement is available only in certified class actions and not in a representative action brought by a private party under the UCL. Kraus, supra, at 126-127; see, also, Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148-50.

Continue Reading ›

| by

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

Kaiser also contends that because reporting unsafe and unlawful conditions was part of Plaintiff’s job, she is precluded from raising a wrongful termination claim or Labor Code section 1102. In its desperation, Kaiser turns to federal cases around the country, including an ill considered opinion from the Eastern District of California, lacking any authority to cite to a single California case supporting the outrageous position that it can fire someone for reporting Kaiser wrongdoing. Kaiser’s argument is not only flatly wrong, it is undermined by Garcetti v. Cebellos (2006) 547 U.S. 410, 126 S. Ct.1951, in which the Court held that Labor Code violations remain actionable even to those whose job encompasses the reporting so that employees who seek to expose wrongdoing are still protected.

Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, as a matter of good judgment, be receptive to constructive criticism offered by their employees. 461 U.S., at 149, 103 S.Ct. 1684. The dictates of sound judgment are reinforced by the powerful network of legislative enactments-such as whistle-blower protection laws and labor codes-available to those who seek to expose wrongdoing. See, e.g., 5 U.S.C. § 2302(b)(8); Cal. Govt.Code Ann. § 8547.8 (West 2005); Cal. Lab.Code Ann. § 1102.5 (West Supp.2006)

Continue Reading ›

| by

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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 bus accident/brain injury case and its proceedings.)

A NEW TRIAL IS WARRANTED BECAUSE THE DAMAGE AWARD IS EXCESSIVE.

This court has the explicit ability to grant a new trial based upon [e]xcessive. . . damages. (Code Civ. Proc., § 657, subd. 5.) The court’s discretion is particularly broad when it comes to excessive damage awards. The trial judge not only has the discretion to grant a new trial on the ground of excessive damages, but it is his duty to do so, or to provide for a reduction of the verdict, if under the evidence he believes it to be too large. (Collins v. Lucky Markets, Inc. (1969) 274 Cal.App.2d 645, 652; accord Handelman v. Victor Equipment Co. (1971) 21 Cal.App.3d 902, 909.) If the trial court concludes the jury awarded excessive damages, it may grant a new trial on liability as well as damages. (Collins v. Lucky Markets, Inc., supra, 274 Cal.App.2d 645, 649; accord, Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 443; see Code Civ. Proc. § 657, subd. 5.)

Alternatively, if the court finds excessive damages, it may order a remittitur in an amount that the court in its independent judgment determines from the evidence to be fair and reasonable and condition the denial of a new trial on plaintiffs’ acceptance of that reduced sum. (Code Civ. Proc., § 662.5.) In ruling on a motion for new trial for excessive damages, the trial judge sits as an independent trier of fact, not in an appellate capacity. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 933.) This role as a fact finder is conferred on the trial court by Code of Civil Procedure section 662.5.

Continue Reading ›

| by

(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.)

PLAINTIFFS HEREBY OBJECT to Judge Paul S. Smith presiding at the trial of this medical malpractice action or in any further proceedings concerning this action.

This objection is based upon each of the following:

A person aware of the facts concerning the Judge’s conduct and handling of the matters that have been presented to her in this personal injury case might reasonably entertain a doubt that the judge would be able to be impartial.

As set forth in the declarations submitted herewith, Judge Smith has repeatedly assumed the role of advocate for the defense; repeatedly cut off Plaintiff’s counsel’s efforts to make a record; while making a record favorable to the defense; and repeatedly violated Plaintiff’s constitutional rights to due process by ordering Plaintiff to do things without any prior notice or opportunity to prepare for and brief the issue.

In addition, the facts support an inference that Judge Smith has abdicated his duties as a Superior Court Judge to fairly resolve issues based upon a fair application of the facts to the law. Instead his comments on the record reflect his view of his role as an anti-solomon like mediator position in which he repeatedly attempts to “split the baby” so as to more often than not bestow improper favors upon defense counsel even when the latter is completely in the wrong on the law and facts before the court. The following is an excerpt from the July 5 ex parte hearing in Judge Smith’s chambers:

Continue Reading ›

| by

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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.)

Plaintiffs cannot make an argument for ostensible agency in this case. Mejia states that….a patient is presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician, …. (Mejia, supra, 99 Cal.App.4th at 1455, emphasis added.) Ms. White was treated by her own obstetrician – Dr. Cindy Brown – during her hospitalization at UMH in March 2005.

Further, Dr. Brown is not an employee of UMH, although she did, and still does, have staff privileges at UMH. Physicians with staff privileges are not employees or agents of the hospital. Dr. Brown does not have an office in UMH. Dr. Brown’s office is located at 2601 East Main Street in Ventura, California. Dr. Brown’s practice was not established by UMH and is not considered an outpatient clinic of UMH. Dr. Brown’s office/practice is called the Moss Medical Clinic. Dr Brown’s employees were not employees of UMH, and were not paid by UMH. UMH did not bill for Dr. Brown’s services; UMH only billed for services provided by UMH at UMH.

Based on the foregoing, plaintiff’s cannot establish a claim for ostensible agency, as none of the factors to make such a finding are present in this case. As such, defendant UMH’s motion for summary judgment should be granted.

Continue Reading ›

| by

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case 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.)

LEGAL ARGUMENT
(A) Restitution Is Not An Appropriate Remedy in This Case

When EF set out to attack the nursing home industry under the guise of consumer protection, it initially attempted to link its broad and unsupported allegations of understaffing with potential negative patient outcomes based on certain studies. However, EF has never alleged that any resident received fewer than 3.2 hours of nursing care on any particular day or that the residents in Petitioner’s long-term care facilities have suffered any adverse care outcomes as a result of the alleged failure to comply with the staffing requirements stated in Health & Safety §1276.5. Instead, EF acknowledged that it “planned to develop” the information to support more specific allegations of adverse patient outcome through discovery. That is, EF has pursued an intentional course of action to make broad, conclusory allegations first and attempt to develop the facts to support such allegations through discovery fishing expeditions later.

EF’s complaint against the SunCare defendants (“Complaint”) presents the request for restitution without identifying the interests of a single resident. The Complaint is entirely devoid of any allegations that any particular resident received fewer than 3.2 nursing hours of services on any given day. Nowhere does EF explain “the nature of the vested interest” that such individuals might have in monies to be restored under Business and Professions Code Section 17203.

Continue Reading ›

| by

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

The other temporal nexus which is significant is the one between Ms. Church’s termination and her December 5,2006 complaint to Stan Brown, COO of the Kaiser Medical Center, about how her chain of command, including Richard White and Charles Smith, was ineffectual in addressing workplace safety issues. Mr. Oliver responded to Ms. Church’s initial request for assistance by requiring her to go through the same chain of command, and copying Charles Smith on the email, thereby alerting Mr. Smith that Ms. Church was complaining about the ineffectiveness of the chain of command.

Mr. Oliver did nothing to investigate or prevent Ms. Church’s subsequent termination for wrongful reasons. See Coszalter v. City of Salem (9th Cir.2003) 320 F.3d 968, 977 (employee can show that complaints were a substantial motivating factor in an adverse employment action by introducing evidence regarding the proximity in time between his speech and the allegedly retaliatory action); See also Lujan v. Minagar (2004) 124 Cal.App.4th.1040, 1046 (wrongful termination under Labor Code Sec. 6310 includes preemptive retaliation against employees whom an employer fears will file workplace safety complaints).

Kaiser argues that Church was terminated for legitimate reasons, cannot prove otherwise by showing that the reasons were pretext for retaliatory animus, and therefore it should prevail on summary judgment. As Church’s claim is a state law claim for retaliation, the California Court of Appeal decision in Mamou v. Trendwest Resorts Inc. (2008) 165 Cal.App.4th 686 is directly on point. As clarified by the Mamou, “while pretext” is certainly a relevant issue…the central issue…whether the evidence as a whole supports a reasoned inference that the challenged action was the product of retaliatory animus. Id. at 715 (emphasis added by counsel). At the summary judgment stage, the Court’s duty is to determine whether the employee’s evidence is too weak to sustain a reasoned inference in the employee’s favor. Id. (emphasis by court). If reasonable competing inferences may be drawn from the facts, summary judgment should be denied. Adickes v. S.H. Kress & Co., supra, 398 US at 157; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir. 1987) 841 F2d 872, 875.

Continue Reading ›

| by

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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 bus accident/brain injury case and its proceedings.)

Well, this temporary job, to go through all these things, being in a coma, don’t go home, live in a rehab facility, have folks tell you when to get up, when to go to bed, going through all sorts of therapies, do that for almost two years, what would be a – what would be a fair hourly rate if you have to put in a classified ad to get one person to sign up, if you could, what’s an hour worth?

[” But think again about the classified ad. Classified ad: full-time job, thirty years plus, sign up today, sign up today, and you will be expected to do the things that [plaintiff] has had to go through and will have to go through the rest of your life. How many people would sign up for that? “].)

Counsel’s argument was nothing more than a thinly veiled attempt to ask each juror personally what he or she would expect as compensation for plaintiff’s injuries. Indisputably, counsel’s statements amounted to an improper golden rule argument that prejudiced the defense. Defense counsel objected to the improper argument, but the trial court overruled the objection.

Continue Reading ›