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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.)

ALLOWING TESTIMONY, WITHOUT PROPER FOUNDATION, AMOUNTED TO ERROR OF LAW [C.C.P. §657 subds. 1 and 7.1

The following witnesses were erroneously permitted to give expert opinion and evidence without proper foundation:

Defendant’s Expert Accident Reconstructionist, Dr. Brown’s Opinion That There Was a Single Rear-end Impact to the Black Vehicle:

Over objection, and based solely on a single page, page 13, in the police report identifying. three impacts, Dr. Brown was allowed to testify that the Black vehicle may not have been impacted at all by the Escalade after the Escalade was hit by defendant White. That police report is attached as Exhibit 1. Plaintiff’s counsel objected that there was no foundation for such an opinion since the report was merely hearsay opinion of the officer’s, without a showing of his knowledge, education or training. Defendant was unable to sustain an offer of proof otherwise. Despite the foregoing, the court allowed Dr. Brown to express this opinion.

Subsequently, Officer King, the police officer who wrote that page of the report, testified. His testimony did not establish the necessary foundation for Dr. Brown’s opinion. (Declaration of Shana Mulligan, page 3, paragraph 5 and 6.) As Officer Brown explained, outside the presence of the jury, the three point-of-impacts described in his police report represented his opinion that the majority of the damage to the vehicles was done by the first three collisions and not the collisions that followed White striking Lyon.

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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.)

Pursuant to Intrieri v. Superior Court, an Elder Abuse Cause of Action Cannot be Disposed of in the Pleading Phase Where There is a Mere Inference of Reckless Conduct.

In Intrieri v. Superior Court of Santa Clara County (2004) 117 Cal.App.4th 72, the Court held that the mere inference that the defendant had consciously disregarded a resident’s safety raised a triable issue of fact concerning the reckless neglect element of an elder abuse claim.

In Intrieri, supra, a skilled nursing facility had on numerous occasions failed to take any action to address a resident’s pressure sores. It made no changes to the resident’s care plan even after complaints by the resident’s son, and further failed to follow a new care plan developed by an outside physician hired by the resident’s son. The infection of the pressure sores that resulted eventually led to amputation of the resident’s right toe, and thereafter her right leg below the knee. The Court held that it may be reasonably inferred from this chain of events that the defendant acted with reckless neglect in caring for the resident, and overturned a grant of summary judgment on the elder abuse cause of action.

Although Intrieri, supra, is a holding that governs the court’s review on summary judgment motions, it is argued that summary judgment motions are held to a higher standard of review. If the plaintiff in opposing a motion for summary judgment need only show a mere inference even after discovery has been conducted, then the Plaintiffs in opposing a Demurrer should not be held to a higher standard and be required to make its case in the Complaint. The Plaintiffs need only plead sufficient facts to put the Defendants on notice of an elder abuse cause of action against them, and be allowed to proceed through discovery to make its case.

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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.)

This motion is made pursuant to California Code of Civil Procedure §§ 2025(o) and 2023 on the grounds that Defendant Doug Jeremy refuses to appear for his properly noticed deposition and continues to contend that he is unavailable for his deposition until August 2006 at the earliest. At this time, Defendant refuses to commit to a date for his deposition.

Plaintiff brings this Motion because Defendant Jeremy’s reasons for failing to make himself available for deposition are unreasonable and constitute a blatant attempt on Defendant’s part to impede Plaintiff’s right to conduct discovery in this matter. Plaintiff has made reasonable efforts to meet and confer in order to avoid the need for court intervention to no avail.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION.

Defendant Doug Jeremy (hereinafter Defendant ) is accustomed to getting what he wants on his own terms. As the outspoken owner of Defendant Universal Design, Inc., Defendant sets his own rules. In fact, if one were to look at his behavior, he or she would conclude that Defendant answers to no one. Whether he is “playing with himself’ in front of a Jane magazine reporter, prancing around in his “dick and ball cover” in front of his employees, or walking around the office in his underwear, one thing remains clear: no one tells Defendant what he can or cannot do.

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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.)

THIS MOTION SEEKS TO EXCLUDE TESTIMONY WHICH WOULD MISELEAD THE JURY. THE VIEOS AND ANIMATIONS AND NIGHTTIME PHOTOGRAPHY THE DEFENSE AND THEIR EXPERTS HAVE CONJURED UP IS NOT SUBSTANTIALLY SIMILAR TO THE CONDITIONS ON THE NIGHT IN QUESTION, IS HIGHLY PREJUDICIAL, IS GROSSLY MISLEADING, AND LACKS FOUNDATION. IT MUST BE EXCLUDED

The Court has inherent power to grant a motion in limine to exclude “any kind of evidence” which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451; Peat, Marwick, Mitchell and Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288. Evidence Code § 350 states that “(n)o evidence is admissible except relevant evidence.”

ONLY RELEVANT EVIDENCE IS ADMISSIBLE

This Court must act in limine to exclude improper evidence to ensure a fair trial in this brain injury case.

Evidence Code § 352 states the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. A number of courts have approved of the use of Section 352 to exclude prejudicial, wasteful or confusing evidence. See, People v. Cardenas (1982) 31 Cal.3d 897, 904 (prejudicial evidence); People v. Sanders (1995) 11 Cal.App.4th 475, 514 (undue consumption of time); People v. Wagner(1982) 138 Cal.App.3d 473, 481 (jury confusion).
(See Part 5 of 8.)

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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.)

Prior to this catastrophic car crash, Ella Lee, a mother and grandmother, had a functional life filled with the typical array of ups and downs. Testimony was given that prior to this collision, Ms. Lee took care of her parents, enjoyed friends, and had relatively good health. She did have anxiety problems and according to the experts, had mental illness in the form of schizophrenia, but she was functional and lived independently. Now, she needs help with most basic daily tasks and requires supervision due to her traumatic brain injury.

When she left the nationally renowned rehabilitation center in Sacramento, California, Universal Rehabilitation, she regained many life survival skills needed to re-integrate into her world with the help of others, but she still was a danger to herself and others, easily confused, easily tired, and in chronic pain. She requires assistance from skilled nurses.

Sandra Lee has been fully evaluated by many top experts, including Physiatrist Bob Smith, M.D., Neuropsychologist Jeffery Brown, Ph.D., Neuropsychiatrist Lester Davis, M.D., and has had a comprehensive Life Care Plan put together with the help of these experts by Patti Green, a highly respected life care planner. Plaintiffs experts testified that Ella Lee’s future medical care costs totaled $8,636,251.00 and that Ms. Lee’s past medical expenses totaled $426,636.00.

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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.)

Contrary to defendant’s objection as stated in their Special Interrogatory Responses, these individuals were not identified in the medical records in the possession of plaintiffs and/or their counsel. The medical records only identify Dr. Green and Dr. Brown as involved in the neonatal resuscitation and one labor/delivery nurse attending the birth. However, it has come out during depositions and through the course of discovery, through testimony of family and friends, that there was a resuscitation team as well as a great number of people in the room during the birth and the immediate post-birth period.

Also uncovered during the course of discovery is the fact that, according to University’s own pediatric department rules and regulations, a neonatal team “would include a neonatal transport nurse and a NICU nurse, as well as the neonatologist or his/her designee.” Further, University’s women and infants services procedure manual specifies that an Advance Practice Nurse, Transitional RN or NICU Charge RN shall be present at every delivery. Thus, it is clear that there are individuals known to University who were present who are not identified or reflected in the McCoy records.

By letter dated June 16, 2002, defendant University indicated that it would provide further Responses to Plaintiffs’ Special Interrogatories, Set One. Defendant agreed to provide supplemental responses on or before July 13, 2002. In addition, defendant agreed to extend plaintiffs time for filing a motion to compel further responses, up to and including July 27, 2002.

On or about July 16, 2002, after not having received any further responses to Plaintiffs’ Special Interrogatories Set One, counsel for plaintiffs telephoned defense counsel Andy Stone in order to obtain a status of the responses. Mr. Stone informed plaintiffs’ counsel that defense counsel Barbara Stein would be handling the responses and would give a status update by the end of business that day.

At the end of the day, having not received a call from Ms. Stein, plaintiffs counsel called her to again inquire as to the status of the responses. Plaintiffs’ counsel left a message for Ms. Stein and her assistant that an update on the responses was necessary or plaintiffs would be forced to file a motion to compel further responses. Defense counsel did not respond.

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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.)

Prior to this catastrophic car crash, Ella Lee, a mother and grandmother, had a functional life filled with the typical array of ups and downs. Testimony was given that prior to this collision, Ms. Lee took care of her parents, enjoyed friends, and had relatively good health. She did have anxiety problems and according to the experts, had mental illness in the form of schizophrenia. But she was functional and lived independently. Now, she needs help with most basic daily tasks and requires supervision.

When she left the nationally renowned rehabilitation center in Sacramento, California, Universal Rehabilitation, she had regained many life survival skills to re-integrate into her world with the help of others, but she still was a danger to herself and others, easily confused, easily tired, and in chronic pain from the traumatic brain injury. She requires assistance from skilled nurses.

Sandra Lee has been fully evaluated by many top experts, including Physiatrist Bob Smith, M.D., Neuropsychologist Jeffery Brown, Ph.D., Neuropsychiatrist Lester Davis, M.D., and has had a comprehensive Life Care Plan put together with the help of these experts by Patti Green, a highly respected life care planner. Plaintiffs experts testified that Ella Lee’s future medical care costs totaled $8,636,251.00 and that Ms. Lee’s past medical expenses totaled $426,636.00.

In their case in chief, the City of Sacramento presented testimony of their medical experts, Julie Noonan, M.D, Robert Estes, M.D., and Frank Rubin, M.D. The City’s accident reconstructionist, Stan Evans, also testified.

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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 well-established standard for the trial court’s determination of sufficiency of the evidence was set forth by the California Supreme Court, In the Matter of the Estate of Caroline H. Bainbridge, et al. v. McCarthy (1915) 169 Cal.166:

In the determination of a motion for a new trial, the verdict should be set aside if, in the opinion of the trial court, it is not supported by sufficient evidence; and this is equally true whether there be an absence of evidence or that the evidence received, in the individual judgment of the trial judge, is lacking in probative force to establish the proposition of the fact to which it is addressed. This is the meaning of the terms insufficiency of evidence. (Code Civ. Proc., sec 657, subd. 6.) In the Matter of the Estate of Caroline H. Bainbridge, et al. v. McCarthy, supra, 169 Cal.at p.167.

The appellate court’s scope of review is limited, especially when the court exercises its discretion in favor of a new trial. The trial court’s exercise of discretion may only be disturbed where a “manifest and unmistakable abuse of discretion clearly appears.” See Candido v. Huitt, supra, 151 Cal.App.3d at pp. 922-923, citing Jimenez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387. Our state Supreme Court in Jimenez v. Sears, Roebuck & Co., supra, clarified the limited scope of the court’s review on appeal:

The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. Jimenez v. Sears, Roebuck & Co., supra, 4 Cal.3d at p. 387. [citations omitted.]

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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 FACTS IN A COMPLAINT MUST BE ACCEPTED AS TRUE FOR PURPOSES OF RULING ON A DEMURRER

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 5 Cal.3d 584, 591. For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts property pleaded. Serrano v. Priest (1971) 5 Cal.3d 584, 591. No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.

THE PLAINTIFF HAS STATED FACTS SUFFICIENT TO PLEAD A CAUSE FOR ELDER ABUSE AGAINST DEFENDANT PAUL SMITH, M.D.

As the moving party succinctly points out in its Demurrer, a plaintiff must plead and prove by clear and convincing evidence reckless conduct in order to establish a claim for elder abuse and that the acts were ratified by an officer, director, or managing agent of a corporate defendant. As set forth herein, Plaintiffs have pled sufficient facts to present a prima facie case for elder abuse; however, Defendant is mistaken if it believes that Plaintiffs must also at this pleading stage prove the Elder Abuse claim against it. That is what discovery and trial are for. As to whether or not a jury will actually agree that the Defendant, Dr. Smith is guilty of Elder Abuse is not for this Court to determine at this time. (See Part 4 of 7.)

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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 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 case and its proceedings.)

Ms. Black’s Prior Sexual Behavior With Individuals Others Than Plaintiff Has No Probative Value And Is Unduly Prejudicial.

Evidence Code section 352 provides:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the trial. Evidence Code Sec. 352.

In the instant matter, the clear intent and likely result of inquiring into and introducing evidence of Ms. Black’s prior sexual conduct is to prejudice the jury against Ms. Black and XYZ. Such evidence, however, has no probative value and no place in this trial. Indeed, as stated most eloquently by the California Legislature:

The Legislature concludes that the use of evidence of a complainant’s sexual behavior is more often harassing and intimidating than genuinely probative, and the potential for prejudice outweighs whatever probative value that evidence may have. Absent extraordinary circumstances, inquiry into those areas should not be permitted, either during discovery or at trial. Id. at 14 (citing Stats. 1985, ch. 1328, § 1, pp. 4654-4655.)

No such extraordinary showing has or can be made here. On the other hand, the prejudicial effect of such testimony is quite apparent in light of the issues of this case.

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