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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 elder abuse/personal injury case and its proceedings.)

The legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause. (See, e.g., Code Civ. Proc, §§ 340.1, subd. (a) [ within three years of the date the plaintiff discovers or reasonably should have discovered ], 340.15, subd. (a)(2) [ [w]ithin three years from the date the plaintiff discovers or reasonably should have discovered ], 340.2, subd. (a)(2) [ [w]ithin one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known ], 340.5 [ one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered ].)

This policy of charging plaintiffs with presumptive knowledge of the wrongful cause of an injury is consistent with our general policy encouraging plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395.)

Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury.

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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 brain injury/car accident case and its proceedings.)

It is also well settled that misconduct has often taken the form of improper argument to the jury, such as by urging facts not justified by the record or suggesting that the jury may resort to speculation (Malkasian v. Irwin, supra, 61 Cal.2d 738, 747); by informing the jury that an injured party has been compensated by a codefendant (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575); and by informing the jury of an offer of settlement and compromise (Granville v. Parsons (1968) 259 Cal.App.2d 298, 304). City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870.

The issue of negligence by Defendant White was wrongly decided. The issues of causation and Dr. Black’s damages were never decided. The argument of defendant’s counsel at trial had the effect of injecting irrelevant, prejudicial, and misleading evidence into the proceedings, and resulted in a verdict tainted by passion and prejudice.

The Implication that Dr. Black was Working.

In reality there was no evidence that Dr. Black was employed during the time that he claimed to be disabled. The only income he had during this time frame was disability benefits or residual income. Despite knowing same, defense counsel, over the court’s admonition, suggested repeatedly to the jury that Dr. Black was working when he claimed to be disabled – again impugning Dr. Black’s credibility. He went so far as to examine Dr. Baker on a telephone message taken by a member of his staff, indicating that Dr. Black “needed a letter for work” and examine Dr. Mark on and thereby admitting into evidence a patient’s history form on which Dr. Black reported that he was a CEO of a company.

Despite knowing that the true state of affairs was that plaintiff was not working, the jury was intentionally misled. Over objection, the court permitted the patient questionnaire to be presented into evidence and allowed Mr. Jones to question regarding same.

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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.)

Request For Sanctions

California Code of Civil procedure Section 2023 provides for monetary sanctions where there is a failure to respond to interrogatories, evasive responses and objections lacking substantial justification are misuses of the discovery process. It further specifies that misuses of the discovery process include, but are not limited to, the following: …. (2) Using a discovery method in a manner that does not comply with its specified procedures; ….(4) Failing to respond or to submit to an authorized method of discovery; (5) Making, without substantial justification, an non-meritorious objection to discovery; (6) Making an evasive response to discovery; ….(8) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery; and (9) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery…… C.C.P. Section 2023.

Plaintiffs propounded special interrogatories to obtain information from defendant regarding the relevant facts and witnesses in the present action. The discovery was not propounded to harass the defendant and was propounded in good faith in order to obtain relevant information in this tragic birth injury matter.

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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 brain injury/car accident case and its proceedings.)

A camera is not the same as the human eye, and film is not the same as the retina of the eye. The limitations of the camera-film system as a simulator of human vision are particularly acute under low luminance conditions. William Hyzer has written extensively on this subject. Hyzer’s criticisms have been relied upon by plaintiffs accident reconstructionist Miles Apuni in this case. As Hyzer notes, a principal difficulty is the limited dynamic luminance range of photography as compared with that of the eye.

Perceptual-cognitive issues also are often misleading with nighttime photographs. The normal field of view for humans is close to 180 degrees in all directions, but a camera only captures a small portion of the visual field, much less than the person who actually sees things the picture or video is trying to replicate. Thus, such photographs artificially concentrate the viewer into the restricted field and artificially enhance the visibility of the key object or condition being depicted.

A photograph is a static representation of a slice of time, whereas the accident sequence itself is very dynamic. The human eye is designed to optimally perform at high levels of illumination. Therefore, cameras and videos tend to make things brighter to allow people to see the target of the illustration. Also, in an auto accident, the driver does not expect the hazard to appear, but observers of a video which tries to replicate the accident know the hazard is coming and the animation or video artificially changes the viewer’s perceptions in a way far different from what actually occurred in the field.

A photograph might be offered to show 200 feet from the intersection and so the person looking at it knows what to look for and scrutinizes what can or cannot be seen, but this is not at all what happens in reality. The driver never knows the hazard is coming, can see a much wider field, and is moving at the time. These problems, along with the camera’s inability to replicate the human eye, all make the demonstration unrealistic and highly prejudicial.

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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 elder abuse/personal injury case and its proceedings.)

DEFENDANTS ARE NOT PREJUDICED IF THE TRIAL COURT GRANTS PLAINTIFF’S MOTION TO AMEND ACCORDING TO PROOF AT TRIAL.

In exercising its broad discretion, the court is guided by whether the opposing party will be prejudiced by the amendment. City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.

The Defendants will not be prejudiced if the trial court were to grant Plaintiff’s Motion to Amend According to Proof at Trial, as the Defendants have been placed on notice of Plaintiff’s elder abuse contentions as to both Dr. Green and Dr. Black as set forth in Plaintiff’s Complaint, First Amended Complaint, and Second Amended Complaint.

This case was filed on September 22, 2006, wherein the Plaintiff had asserted a cause of action against Dr. Green and Dr. Black for Elder Abuse and Willful Misconduct. Defendants’ Demurrer and Motion to Strike Plaintiff’s Second Amended Complaint was not heard and ruled upon until September 4, 2007. Therefore, the Defendants had one year to conduct discovery on Plaintiff’s contentions for Elder Abuse and Willful Misconduct.

Further, the Defendants have been provided all of Dr. Brown’s opinions regarding Dr. Green and Dr. Black, including his opinions on elder abuse relating to the two defendants.

The Plaintiffs have made their intentions clear to the Defendants immediately after the deposition of Dr. Brown that based on Dr. Brown’s deposition testimony, the Plaintiffs intended to request the Trial Court to amend Plaintiff’s operative complaint to include a cause of action for Elder Abuse and Willful Misconduct against Defendants Dr. Green and Dr. Black and to include a prayer for punitive damages according to proof.

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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 elder abuse/personal injury case and its proceedings.)

The Complaint Properly Explains the Basis for Tolling (Due to Delayed Discovery) and Should be Allowed to Proceed.

The delayed discovery rule allows a plaintiff to bring a claim beyond the one year limitation period for medical malpractice if the criteria is met. The issue in this case is whether a plaintiff who does not have a reasonable basis for suing within one year and is trying diligently to determine the facts is precluded from suing later when the facts are discovered within the outer three year limit. The case law says that the plaintiffs can proceed.

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc, § 312 [ Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued ]; Norgart, supra, 21 Cal.4th at p. 397.) In other words, statutes of limitation do not begin to run until a cause of action accrues. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487;

Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806.)

The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have “information of circumstances to put [them] on inquiry” or “if they have” the opportunity to obtain knowledge from sources open to [their] investigation.

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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 brain injury/car accident case and its proceedings.)

In Granville v. Parsons, supra, the action before the jury involved only one defendant. In his opening statement counsel for the defendant advised the jury that there had been other defendants, and the court made an inconclusive ruling on plaintiff’s objection. Counsel argued that the plaintiffs “know who was the guilty party…because…[he] was a defendant in this action and settlement….” Ibid. at 301-02. When former defendants were called as witnesses the defendant brought out that they had been dismissed as defendants and had paid the plaintiff in settlement for his brain injuries. No admonition or instruction was given to limit the effect of that impeaching testimony.

The court ruled on appeal, “… from the record before us we can come to only one conclusion: that defense counsel got carried away in his enthusiasm and deliberately argued the evidence concerning the dismissal and the settlement for an improper purpose.” [Citations.] The case was extremely close. The misconduct was prejudicial. (Granville v. Parsons, supra, 259 Cal.App.2d at p. 304.)

The conduct by defense counsel in the above cited case is directly analogous to that of Mr. Jones’s closing argument in the Black trial. This conduct alone would give rise to grounds for a new trial, but in the Black case it was even more inequitable. While allowing the defendant to inappropriately argue or inform the jury that Mr. Lyon had settled, implying fault and compensation, the court precluded the plaintiff from reciprocally being able to inform the jury that Iris Black was a plaintiff and had settled with defendant White. Iris Black did not elect not to sue Mrs. White. Mrs. White made the same decision to settle that Mr. Lyon made in reference to both plaintiffs in this auto accident case. There was in effect not only misconduct, but an unequal playing ground.

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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.)

STATEMENT OF FACTS

Joan White was a 26-year-old G2, P1 who was under the obstetrical care of Dr. Cindy Brown. Ms. White had previously been under the care of Dr. Brown for the delivery of her first child only 11 months before this incident. At the time of this incident, Ms. White was pregnant with diamnaiotic, dichorionic twins. Dr. Brown’s notes indicate that Ms. White had been without significant complaints until she was admitted to Universal Memorial Hospital at 23 weeks, two days gestation for tocolysis due to premature labor.

Ms. White underwent tocolytic therapy for two days at the hospital before it became apparent that the drugs were not working. She continued to go into labor and became fully dilated. At that point, Dr. Brown had discussions with Ms. and Mr. White about the poor prognosis for babies at such an early gestation. Dr. Greene, a neonatologist, also discussed the poor prognosis for babies born with such extreme prematurity.

The babies were delivered by cesarean section on XX/XX/2005. Baby A had APGARs of 2, 6 and 8, with a birth weight of 532 grams. Baby B had APGARs of 5 and 7 (no value reported for 10 minutes), with a birth weight of 560. Both babies were admitted to the NICU with a multitude of system problems, as would be expected of such premature infants.

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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.)

University’s Assertion Of Boilerplate Objections Is Without Basis

In Greg Mannino v. Superior Court (1983) 142 Cal.App.3d 776, petitioner filed a personal injury action against real party in interest and propounded a six sets of special interrogatories. Real party filed a verified response after the date an answer was required and included numerous objections. Petitioner’s subsequent motion to compel further answers was denied.

On appeal, the Court vacated the order denying motion to compel, holding that real party did not file on time and provided no reasonable excuse for the delay. Id. at 778-779. The court reasoned that the objections contained in the responses were based on relevancy, remoteness, vagueness, ambiguity and the claim that the interrogatories are too burdensome, stating that it does not require more than 60 days to raise these familiar complaints. Although the delay was short in this case, and it was the sixth set of interrogatories propounded to real party in interest, the court emphasized that the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious cause or defense when the party with the greater resources chooses to employ it in an unethical manner. Id.

In the instant birth injury matter, the objections made by University to the first seven special interrogatories propounded by plaintiff are without merit.

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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 brain injury/car accident case and its proceedings.)

Section 1152 of the Evidence Code provides in pertinent part, (a) Evidence that a person has, in compromise … furnished … money … to another who … claims to have sustained loss or damage … is inadmissible to prove his liability for the loss or damage or any part of it. Evidence of any settlement with or payment by Lyon was inadmissible to establish his liabilityin the auto collision, so all such references would also be improper. (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575.)

In fact it is well established that under parallel circumstances it is prejudicial misconduct to tell the jury that the injured party has been compensated by another codefendant who has been dismissed from the case and that such fact demonstrates that the remaining codefendant is not liable. Tobler v. Chapman, supra, 31 Cal.App.3d at p. 575 kiting Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 1083-1084; Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 178; and Granville v. Parsons (1968) 259 Cal.App.2d 298, 303, 304.)

The case of Albrecht v. Broughton, supra, is directly analogous to the case at bar. There the Court of Appeal reversed the trial court’s denial of Plaintiff’s new trial motion, finding prejudicial error in defense counsel’s mention of settlement in arguing the issue of liability resulting in a defense verdict. Like Black, Albrecht was a case in which the evidence on liability was in conflict. Like Black, the court allowed evidence of a settlement with a co-defendant. The trial court in Albrecht then permitted in argument reference to the settlement. The Appellate Court held that this was error.

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