| by

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.)

STATEMENT OF FACTS.

On or about June 1, 2006, Ms. Brown properly noticed Defendant’s deposition to take place on or about June 24, 2006. Defendant refuses to appear for his deposition. In order to avoid the need for Court intervention, Ms. Brown has made numerous attempts to meet and confer with Defendant to no avail. Ms. Brown’s counsel and Defendant’s counsel made numerous exchanges via email in attempt to meet and confer.

On or about June 6, 2006, Joel Steinman (hereinafter “Mr. Steinman”), counsel for Defendant, notified Ms. Brown’s counsel that his client was unavailable for his deposition on June 24, 2006. On or about June 7, 2006, Mr. Steinman again reiterated that Defendant would be unavailable until August 2006. Mr. Steinman also stated that Ms. Brown would not be prejudiced by this delay since a trial date was not yet set.

Later that day, Ms. Brown’s counsel sent Mr. Steinman an email in again asking for concrete dates for Defendant’s deposition. Ms. Brown’s counsel also reminded Mr. Steinman that Ms. Brown need not show that she would be prejudiced by the delay under the Code.

Continue Reading ›

| by

(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.)

Dr. Bend’s testimony: Neuropsychological Testing Administered by Student Molly Simms:

During the trial, plaintiff timely objected to Dr. Bend expressing any opinion based on the testing performed by his student Molly Simms, on the grounds that it lacked legal foundation. Dr. Bend was not present at this testing. He could not personally verify how the tests were given. His testing assistant, Ms. Simms, is not and was not legally qualified to administer neuropsychological testing to the public.

Ms. Mulligan presented undisputed evidence that Ms. Simms did not meet the requirement of a psychological assistant by the State of California, as required by the California Business and Profession Code §2913, despite the fact that the test documents wrongfully identified her as same. Since she was a psychological assistant she could not legally perform the neuropsychological testing administered to Dr. Black. Therefore, Dr. Bend could not express any opinions based on the results of these tests, and any reference to same must be excluded.

Plaintiff’s counsel further objected that Ms. Simms lacked sufficient training, education, and experience to properly administer the tests. Over plaintiff’s objection, Dr. Bend was permitted to explain to the jury the tests, the manner in which they were given, the results of the testing and base opinions on these test results. Graphs were even shown to the jury. (Declaration of Shana Mulligan, page 4, paragraph 11.) This was error. (See Part 7 of 12.)

Continue Reading ›

| by

(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.)

PLAINTIFFS CONCEDE THAT PLAINTIFF’S SECOND CAUSE OF ACTION FOR NEGLIGENCE IS DUPLICATIVE OF PLAINTIFF’S EIGHTH CAUSE OF ACTION FOR PROFESSIONAL NEGLIGENCE AS AGAINST THE DEFENDANT, PAUL SMITH, M.D.

The Plaintiffs agree with the moving party’s argument that the Plaintiff’s second cause of action for Negligence is duplicative of the Plaintiff’s eighth cause of action for Professional Negligence as to the Defendant, Dr. Smith.

The Plaintiff concedes that a Demurrer as to the Plaintiff’s second cause of action for Negligence would be appropriate.

PLAINTIFFS SEEK LEAVE TO AMEND THEIR COMPLAINT TO ALLEGE THE PROPER REGULATIONS APPLICABLE TO THE DEFENDANT, PAUL SMITH, M.D., IN SUPPORT OF THE PLAINTIFF’S NEGLIGENCE PER SE CAUSE OF ACTION AGAINST THAT DEFENDANT

The Plaintiffs agree with the moving party that the statutes and regulations set forth in the Plaintiffs’ Complaint are applicable to health care facilities and not individual physicians, and that the Plaintiffs have failed to include the applicable statutes and regulations as to the Defendant, Dr. Smith.

Should the Court require that the Plaintiffs include these specific statutes and regulations at this time in the pleading stage, the Plaintiffs respectfully request that the Court allow the Plaintiffs to take leave to amend the Complaint to assert the proper statutes and regulations applicable to the Defendant, Dr. Smith.

Continue Reading ›

| by

(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 VERDICT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE

Defendant contends that a miscarriage of justice will be had in this case if the verdict stands and further contends that the verdict is not based upon substantial evidence of plaintiff’s brain injury. Defendant’s Contention is plainly wrong. First, Defendant does not challenge the finding of liability in this matter and is thus not entitled to a JNOV in that regard.

Further, Defendant suggests that because Plaintiff’s experts were not aware of the sub rosa videotape at the time of their testimony, that the opinions of Plaintiff’s experts are erroneous. In this way, Defendant suggests that the “sub rosa” videotape simply wipes away any and all evidence of injuries to Plaintiff Ella Lee. However, plaintiff presented evidence that was sufficient to “reasonably inspire confidence,” and support the verdict; as such, defendant is not entitled to a JNOV as to the damage award and Defendant’s Motion should be denied in its entirety.

Defendant Erroneously Contends that Plaintiffs Experts Relied on False Assumptions
Defendant argues that Plaintiffs experts relied on false assumptions, including 1) that plaintiff was unable to leave the house by herself; 2) that plaintiff was unable to dress herself; 3) that plaintiff could not move her arm and needed shoulder surgery; 4)that plaintiff required 24 hour supervision; 5) that plaintiff could not walk unassisted; 6) that plaintiff would not be allowed to smoke; and 7) that plaintiff could not conduct a transaction by herself. Defendant suggests that the “sub rosa” video contradicts all of these alleged false assumptions.

Continue Reading ›

| by

(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.)

Further, a judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law. Moore v. San Francisco (1970) 5 Cal. App. 3d 728, 733-734 (referencing Palmer v. Agid (1959) 171 Cal.App.2d 271). A JNOV motion must be denied if substantial evidence “supports the verdict.” Begnal v. Canfield Assocs., Inc. (2000) 78 Cal.App.4th 66; Campbell v. Cal-Gard Surety Svs., Inc. (1998) Cal.App.4th 563; Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal. App. 4th 206, 218.

In the instant case, defendant erroneously argues that a miscarriage of justice has occurred in this brain injury case, without any adequate justification. Defendant suggests that no evidence was presented that would be of “solid value” or that would “reasonably inspire confidence” to support the verdict; however, this contention is unsupported and misleading.

In fact, defendant provides no valid argument to support this conclusion and instead urges this Court to weigh the evidence and make credibility determinations regarding specific witnesses, which is improper. As such, Plaintiffs respectfully request this Court to deny Defendant’s motion for judgment notwithstanding the verdict.

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.)

LEGAL ARGUMENT
Plaintiffs Are Entitled to an Order Compelling Responses To Special Interrogatories

Code of Civil Procedure section 2030(f) requires that a party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by (1) an answer containing the information sought to be discovered, (2) an exercise of the parties option to produce writings, or (3) an objection to the particular interrogatory. Further, section 2030(f)(l) specifies that each answer in the response shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

Lastly, section 2030(1) provides that if the propounding party, on receipt of a response to interrogatories, deems that (1) an answer to a particular interrogatory is incomplete or evasive, (2) an exercise of the option to produce documents under paragraph (2) of subdivision (f) is unwarranted of the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or is too general, that party may move for an order compelling a further response.

In the instant birth injury matter, plaintiffs are entitled to an order compelling University to further respond to plaintiffs’ Special Interrogatories, Numbers One through Seven. (See Part 4 of 6.)

Continue Reading ›

| by

(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.)

Officer King: His Opinion on the Magnitude of the Collisions:

Defendant called Officer Ben King. Because plaintiff’s counsel questioned his capacity to give any expert opinion testimony, the court required a 402 hearing on foundation. At the close of the hearing it was obvious that Officer King lacked sufficient training and experience to express any opinions on the cause, magnitude or number of collisions which occurred. Further, he had no personal information since he was not present at the collision site at the time of the accident. After hearing his testimony the court instructed him not to express his opinions to the jury.

Despite the foregoing and despite multiple admonishments by this court, Officer King intentionally and prejudicially responded to plaintiff’s questions. He insisted on placing his opinions on reconstruction before the jury. He gave unfounded expert opinion testimony in an area on which he was directed not to opine, telling the jury that the damage to the Blacks’ vehicle was caused by the force of the first collision with Mr. Lyon. This inadmissible testimony is reflected in the decision of the jury, i.e. that Mr. Lyon’s negligence caused the damage to the black vehicle and the resulting traumatic brain injury to Dr. Black.

Under Evidence Code section 720 subd. (a), a person is qualified to testify as an expert only if he has special knowledge, skill, experience, training or education sufficient to qualify his as an expert on the subject to which his testimony relates. (Evid. Code section 720 subd. (a)) … the courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.)

Continue Reading ›

| by

(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.)

Throughout the decedent’s admission at Doctor’s Medical Center, the decedent’s allergic reaction to the Primaxin did not subside and the decedent continued to develop rashes over his body. Despite the decedent’s severe reaction to the Primaxin, on January 14, 2006, the Defendant, Dr. Smith, increased the decedent’s dosage of Primaxin to be administered every 8 hours instead of every 12 hours.

The decedent remained on Primaxin throughout his entire admission at Doctor’s Medical Center until his discharge on January 31, 2006, and continued through his admission at Universal Nursing Center from January 31, 2006 to February 6, 2006.

As a result of being on Primaxin for 30 days, the decedent’s body was consumed by Stevens-Johnson Syndrome, an inflammatory disorder of the skin which is triggered by the allergic reaction to Primaxin. By the time the decedent was transferred back to Doctor’s Medical Center on February 6, 2006, the decedent had already developed sloughing of the skin on his hands, forearms, and blisters all over his body and face.

These series of affirmative acts and omissions on the part of the Defendant, Dr. Smith, in failing to treat the decedent’s allergic reaction, and continuing the decedent on a course of antibiotics knowing that the decedent was highly sensitive to antibiotics and was acting severely to the Primaxin constitutes not only gross negligence, but rises to the level of reckless conduct, given Dr. Smith’s acute knowledge of the decedent’s condition, further subjecting him to the heightened remedies of EADACPA.

Continue Reading ›

| by

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.)

Dr. Cruz is Not the Ostensible Agent of UMC.

Pursuant to Mejia v. Community Hospital (2002) 99 Cal.App.4th 1448, in order to establish ostensible agency plaintiffs must prove all of the following three elements: (1) the plaintiff believed that the physician was an agent of the hospital, and this belief was reasonable; (2) plaintiff’s belief must be generated by some act or neglect of UMC; and (3) the plaintiff must not be guilty of negligence. (Mejia, supra 99 Cal.App.4th 1456 -1457.) Herein, plaintiffs cannot establish these elements because the Conditions of Services form, signed by the patient and dated November 3, 2003, prior to the subject surgery by Dr. Cruz, clearly states under paragraph 4 that all physicians and surgeons furnishing services to the patient … are independent contractors with the patient and are not employees or agents of the hospital.

Plaintiff was Given Actual Notice of the Independent Contractor Relationship between Physicians and UMC.

Ostensible agency may not be inferred when the hospital gave the patient actual notice of the true relationship between the hospital and the physician, and in the instant case, such notice was given to plaintiff, who acknowledged his signature on the Conditions of Admissions form dated November 3, 2003, signed by the plaintiff within 24 hours of his presentation to UMC, and a full day before the subject surgery by Dr. Cruz. Since plaintiff was provided with actual, written notice of the relationship between UMC and physicians, there can be no finding of an ostensible agency relationship between Dr. Cruz and UMC.

Continue Reading ›

| by

(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.)

STANDARD FOR A JUDGMENT NOTWITHSTADING THE VERDICT

A Judgment Notwithstanding the Verdict (hereinafter “JNOV”) challenges the legal sufficiency of the evidence, essentially asking whether the evidence was sufficient to prove the claims or defenses asserted and now embodied in the jury’s verdict, such as the one in this brain injury case. See Hauter v. Zogarts (1975) 14 Cal.3d 104; Clemmer v. Harford Ins. Co. (1978) 22 Cal.3d 865.

For purposes of a JNOV, all evidence supporting the verdict is presumed true, making the issue whether the facts, when presumed true, constitute a prima facie case or defense as a matter of law. Moore v. San Francisco (1970) 5 Cal.App.3d 728; Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743.

The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. The trial judge cannot weigh the evidence, or judge the credibility of witnesses. If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.

Continue Reading ›