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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 Plaintiffs, John Hernandez, in and through his Successor-in-interest and heir, Robert Hernandez, and Robert Hernandez, an individual, submits the following opposition to defendants Edward Green, M.D. and Mark Black, D.O.’s Motion in Limine No. 1 precluding plaintiffs’ retained standard of care expert, Peter Brown, M.D. from testifying that they committed elder abuse.

INTRODUCTION

This is a Wrongful Death and Medical Malpractice action against Defendants Edward Green, M.D. (“Dr. Green”) and Mark Black, D.O. (“Dr. Black”) for failure to properly assess and medically treat the Decedent’s scrotal abscess.

On September 4, 2007, the Court granted Defendants Demurrer as to the Plaintiff’s Elder Abuse and Willful Misconduct causes of action against Dr. Green and Dr. Black.

Subsequent to the Court’s ruling on Defendant’s Demurrer, on March 14, 2008, Plaintiffs medical expert, Peter Brown, M.D., testified in his deposition that at least as to Dr. Black, based on Dr. Black’s conduct as to the care and treatment of the decedent, John Hernandez

(“Mr. Hernandez”), in his medical opinion, Dr. Black not only fell below the standard of care, but had committed elder abuse.

Based on Dr. Brown’s opinion, Plaintiff’s counsel sent a letter to defense counsel for Defendants, Dr. Green and Dr. Black, informing him of their intent to make a motion to amend at trial according to proof. Please see the correspondence sent to defense counsel, Patrick Mayer, dated March 24, 2008.

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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.)

Assuming that inadmissible hearsay utilized by an expert to form an opinion is presented, an inquiry into the prejudicial effect of such matter becomes necessary. Here the Simms testing was used to support the opinion of Dr. Bend that Dr. Black was not telling the truth, that he was faking. The main consideration to the court is the purpose for which the material was presented. Where, as here, the jury is allowed to consider the hearsay (evidence presented by the expert in connection with proof of the matter asserted [i.e., the applicable test results), the principles approved by the Supreme Court in People v. Coleman (1985) 38 Cal.3d 69, 92, are violated, and prejudice is apparent. (Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at p. 1518.)

What could be more prejudicial than telling the jury that “objective” testing establishes that the plaintiff is not credible?

Material that forms the basis of an expert’s opinion testimony must be reliable. (1 Witkin, Cal. Evidence (3d ed. 1986) The Opinion Rule, § 477, p. 448.) For the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based. (Kennemur v. State of California (1982)133 Cal.App. 3d. 907, 923.)

Consistent with these well-settled principles, the trial court in this case erroneously ruled that Dr. Bend could build his house on a what amounts to nothing more than a pile of sand; Mary Simms’s inherently illegal and unreliable test results – test results from which Dr. Bend based his opinion that Dr. Black was not truthful and falsifying his brain injury.

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The following blog entry is written from a defendant’s position during the early stages of litigation. 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 sexual harassment/personal injury case and its proceedings.)

Three more times on June 8, 2006, Ms. Brown’s counsel requested firm deposition dates for Defendant’s deposition. On or about June 9 and June 10, Ms. Brown’s counsel again requested concrete deposition dates. In response to Ms. Brown’s counsel’s emails, Mr. Steinman responded on or about June 10, 2006 and stated that there was no need to depose Defendant before August since there was no trial date set in this sexual harassment matter.

Ms. Brown’s counsel responded to Mr. Steinman’s email by again offering to fly to New York to take Defendant’s deposition and reiterating that the fact that there has not yet been a status conference or trial date set is of no moment and is not a valid excuse to delay the taking of Defendant’s deposition.

In all, Defendant has contended that he must not appear for his deposition before August 2006 because: 1) he is on a business trip in New York; 2) this case has not been set for trial; and 3) Ms. Brown will not be prejudiced if forced to wait. None of these excuses are legitimate reasons as to why Defendant’s deposition should be postponed for months. Moreover, to this day, defendant has failed to give Ms. Brown concrete dates upon which he would be available for his deposition.

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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.)

Defendant’s Analogy Can Be Readily Distinguished From This Brain Injury Case

Defendant provides an example by way of reference to In re Marriage of Hewitson and In re Marriage of Rives as support for the proposition that Plaintiffs experts’ testimony does not constitute substantial evidence. (Def. Mot., citing Hewitson (1983) 142 Cal.App.3d 874; citing Rives (1982) 130 Cal.App.3d 138)).

Defendant cites these two cases, which are a family law cases stemming from dissolution of marriage, for the proposition that an expert’s testimony based on “improper” or “unwarranted” matters means the opinion is not supported by substantial evidence. Defendant fails to identify the Hewitson or Rives Court’s reasoning for such a proposition.

In Hewitson, similarly to Rives, the court concluded that the trial court’s determination of the value of a particular asset [closely held corporation] is a factual one and, if there is substantial evidence to support it in the record, the determination must be upheld on appeal. Hewitson, 142 Cal.App.3d at 885. The court continued its explanation by stating that if such determination is based solely or in large part on the opinion of an expert, the determination will not be upheld on appeal, unless the opinion satisfies the standard of admissibility set forth in Evidence Code section 801. Id. (citing In re Marriage of Rives (1982) 130 Cal.App.3d 138, 149-151; cf.. Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382, 389-390).

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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.)

THE NIGHT TIME PHOTOGRAPHS AND VIDEOTAPING ARE MISLEADING AS TO THE ACTUAL LIGHTING, WHAT THE PARTIES COULD SEE AND NOT SEE, AND THEREFORE SHOULD NOT BE VIEWED BY THE JURY IN THIS BRAIN INJURY CASE.

Photographs submitted as evidence should never be accepted as true and accurate or substantially similar representations without subjecting them to critical examination. The legitimate manipulation of photographic imagery is as old as photography itself. Retouching and restoring photographs has been an art form for over a century. Special effects for image manipulation methods are used throughout the entertainment industry and in Hollywood.

Consequently, it is not unusual for an attorney to legitimately ask whether a photograph or video has been doctored “in some way,” to emphasize certain details or subdue others. Photoshopping or eliminating images from photos or videos is a common art form now practiced by people on laptops with current software throughout society, especially with digitally recorded images.

Elements within an image can be fabricated, enhanced, distorted, shifted, cloned, erased or transferred quite easily, without a trace. The images can be “brightened up” or “darkened” with a turn of a knob, defying detection or scientific scrutiny. The camera never lies, or so it used to be.

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The following blog entry is written from a defendant’s position during the early stages of litigation. 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.)

Plaintiff Signed the Conditions of Services Agreement and is Bound by Its Provisions.

The Conditions of Services form was signed and dated November 3, 2003, prior to the bulk of the treatment provided at UMC and by Dr. Cruz, and two days prior to the subject surgery. California law uniformly holds that one who signs an instrument may not avoid the impact of its terms on the grounds that she failed to read it before signing. In Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, the plaintiff, a driver injured while participating in a sports car race, sought to avoid the impact of a release agreement on the ground that he failed to read it before signing. In affirming the trial court’s grant of defendants’ motion for summary judgment, the Court of Appeal stated:

[M]istake, as plaintiff has argued it, is not a viable ground for not enforcing the release. His position on this point we liken to a person who comments upon leaving the movie, Had I known what it was about, I never would have bought a ticket. In sum, plaintiff cannot now claim he was mistaken about what was in the release when he failed to read it before signing [Citation]. Id. at 126.

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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 PLAINTIFFS HAVE SET FORTH A PRIMA FACIE CASE FOR SURVIVORSHIP AGAINST THE DEFENDANT, PAUL SMITH, M.D.

Although the moving party was correct in stating the law that under California Code of Civil Procedure § 377.34, the damages recoverable by the successor in interest of the decedent are limited to the loss or damages that the decedent sustained or incurred before death, and does not allow for the recovery of the decedent’s pain and suffering, Welfare & Institutions Code § 15657(b) does allow for the recovery of postmortem pain and suffering of the decedent where it is proven by clear and convincing evidence that a defendant is liable for elder abuse.

Welfare & Institutions Code § 15657 states in pertinent part:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:

(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term costs includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.

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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.)

After plaintiff’s counsel’s objection was overruled and Dr. Bend testified, she requested to call Ms. Simms in rebuttal. A hearing was held outside the presence of the jury, and her cross-examination established Ms. Simms’s lack of experience, knowledge, training and education. Her testimony directly rebutted Dr. Bend’s testimony that she was well trained and experienced. Despite same, the court denied plaintiff’s counsel’s request to call Ms. Simms. Ms. Simms was subpoenaed and available to testify.

Evidence Code section 801 subd. (b) requires that the matter relied upon by the expert in forming his opinion must be of a type that reasonably may be relied upon by experts in forming an opinion upon the subject to which the testimony relates. In large measure this assures the reliability and trustworthiness of the information used by experts in forming their opinion. (Evid. Code section 801 and Law Revision Commission Comments.) Expert opinion must be based on matters that the expert may reasonably rely on and is not otherwise legally precluded as a basis for the opinion. (Evid. Code section 801(b).)

When an expert witness bases his testimony entirely or chiefly on incompetent evidence, the opinion should be rejected. (San Diego Land & Town Co. v. Neale (1891) 88 Cal. 50, 62-63; Young v. Bates Valve Bag Corp. (1942) 52 Cal.App.2d 86, 96.) Herein, Dr. Bend’s opinion based on his brain testing was entirely founded on inadmissible and unreliable testing. There was no legal foundation for admitting 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 brain injury/car accident case and its proceedings.)

As to Defendant’s seven purported “false assumptions” that supposedly make the evidence presented in this traumatic brain injury case “insignificant,” the Plaintiff would respond as follows:

Not one of Plaintiff’s witnesses knew of the existence of the sub rosa video prior to their testimony. Despite Defendant’s contention that the “sub rosa” contradicts the weight of the evidence, Plaintiffs family testified 1) that plaintiff was able to leave the house by herself on occasion and in fact had confusedly wandered in the neighborhood on occasion; 2) that plaintiff was able to dress herself on occasion, but more frequently than not needs assistance; 3) that plaintiff could move her arm somewhat, and that her movement and rotation in her left arm had reduced over recent months; 4) that plaintiff required supervision and was not the same since the collision and that the family tries to watch her as much as they can; 5) that plaintiff could walk unassisted on occasion, having good days and bad days.

Further, Plaintiffs experts testified that Plaintiff’s future care needs would range from a level 2 to level 3 environment, which is contrary to Defendant’s moving papers that suggest all evidence proffered by plaintiff suggested she would need no less than “24 hours a day, every day” care post-auto accident. Further, Plaintiffs expert Patti Green testified that Ms. Lee future surgical needs were suggested, but yet unknown pending further testing.

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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.)

Evidence Code § 402 allows the Court to hear and determine the question of the admissibility of evidence outside the presence or hearing of the jury. See, Mike v. Atchison, Topeka & Santa Fe Ry. Co. (1975) Cal.App.3d 436, 448. In addition to excluding highly prejudicial evidence, the Court may instruct opposing counsel to avoid mention of the evidence in question during trial or in argument to the jury; and to direct persons under their control (counsel’s associates, clients, witnesses, etc.) likewise to avoid such mention. L.A. Sup.Ct. Rule 8.92; see, Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 793, 174 Cal.Rptr. 348, 371.

Expert opinions are not proper when offered by a lay witness. Evidence Code § 800. See, Jambazian v. Borden (1994) 25 Cal.App.4th 836, 848. Examples of inadmissible lay opinion evidence include testimony on causation [Stickel v. San Diego Elec. Ry. Co. (1948) 32 Cal.2d 157, 165], legal conclusions [Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 113-144] and matters beyond common experience [People v. Williams (1992) 3 cal.App.4th 1326, 1332-33].

This would include a statement by Black that the video or photographs of the auto collision “fairly and accurately depicted” what he saw that night, because they cannot. They do not substantially replicate the field of vision he had, where his focus was, or the lighting condition his eyes would have received. If allowed, through a witness or an expert, such evidence would be totally unfair to the brain-damaged plaintiff.

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