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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.)

POINTS AND AUTHORITIES
THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE VERDICT [C.C.P. SECTION 657 SUBD. 6.] AND AS A RESULT DAMAGES WERE NOT AWARDED [C.C.P. SECTION 657 SUBD. 5.]

Code of Civil Procedure Section 657 subd. (6) permits the vacating of a verdict and ordering of a new trial if the evidence was insufficient to justify the verdict. The Fourth District Court of Appeal has held that, in determining whether a new trial may be granted on this ground, the trial court must independently weigh the evidence and assess its sufficiency to support the verdict; a new trial may be granted even if the evidence would be considered sufficient to sustain the verdict reached by the jury on appeal. People v. Capps (1984), 159 Cal.App.3d 546, 552; Candido v. Huitt (1984) 151 Cal.App.3d 918, 923.

In weighing and evaluating the evidence, the court is a trier-of-fact and is not bound by factual resolutions made by the jury in this car collision case. The court may grant a new trial even though there be sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence is against the verdict. (Candido v. Hunt, supra, 151 Cal.App.3d at p. 924.)

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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 AS PLEADED

The Plaintiffs’ complaint specifically alleges the following facts, which for purposes of a demurrer must be taken as true:

a. The Plaintiff and decedent, John Hernandez (hereinafter “John”), was born on XX/XX/1921.

b. It is alleged that upon admission to Defendant Healthcare’s facility, Doctor’s Medical Center, Defendant Doctor’s Medical Center, Dr. Green, Dr. Smith, and DOES 21-40 neglected, abandoned, and abused his care, failed to protect him from health hazards, failed to provide care for his physical and mental health needs, failed to exercise the degree of care that a reasonable person in a like position would exercise, failed to react promptly to emergent situations, all such acts constituting reckless “neglect” as defined in Welfare and Institutions Code § 15610.57, and delineated in Delaney v. Baker (1999) 20 Cal.4th 23, 31-32, 35, such that John suffered: gangrene to his testicles, unnecessary pain and suffering, and development of rashes all over his body due to an allergic reaction to Primaxin. These injuries were preventable had the Defendant, Healthcare’s and DOES 1-10, provided enough sufficiently trained staff at Doctor’s Medical Center to provide John with the amount of care that state and federal regulations required.

c. It is further alleged that during John’s admission at Doctor’s Medical Center, Defendants Doctor’s Medical Center, DOES 21-40, and Paul Smith, M.D. failed to meet the standard of care and otherwise failed to exercise that degree of care that a reasonable person in like position would exercise with respect to caring for the decedent, John. Specifically, during John’s admission at Doctor’s Medical Center from January 3, 2006 to January 30, 2006, a urine culture revealed that the decedent had developed E. coli and Proteus mirabilis from Universal.

Dr. Smith, an infectious disease doctor was consulted in to manage John’s E. coli infection. In order to control John’s infection, Dr. Smith prescribed Primaxin, an antibiotic, on January 5, 2006. On January 6, 2006, when the Plaintiff, Robert, visited his father at Doctor’s Medical Center, he noticed that his father had developed rashes on his body and notified the nurse.

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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.)

From his own testimony, Choo froze, bringing his vehicle to a stop as it straddled the #2 lane (slow lane) on the Highway 160 westbound, directly in the path of travel of Black. Black then slammed on the brakes and tried to steer away from the vehicle in his path by turning his wheel to the right, skidding. Officer Black left two skid marks which are parallel. Black swerved and braked to avoid Choo’s Malibu, and he slammed directly into the side of Ms. Lee’s 1992 Toyota Camry.

The impact was so severe, it crushed the vehicle to the midline of the occupant compartment when she was struck at 30-40 m.p.h. (at impact). Only five inches of metal on the side of her vehicle stood between her and the oncoming battering ram of the front end of the police vehicle.

During the trial, both counsel stipulated to the fact that Ms. Lee was not in any way at fault for the collision. The stipulation of parties was read to the jury. The jury returned a verdict, determining that Officer Paul Black was 55% at fault for this collision and that Don Choo was 45% at fault for the cause of the collision. Defendant has not challenged this finding by way of Defendant’s Motion for Judgment Notwithstanding the Verdict.

As a result of the impact severity, Ms. Lee was knocked to the other side of the vehicle, despite her use of the passive restraint system within the vehicle. She was rendered unconscious and was in a coma for many days following the crash. She suffered a severe brain injury, cracked hip bones, a cracked skull and subdural hematoma, large lacerations on her head, a ruptured spleen, and many other related serious and life threatening injuries.

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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.)

Ella Lee has been fully evaluated by many top independent medical experts to assess her brain injury, and has had a Life Care Plan assembled with the help of these experts by Patti Green, a highly respected life care planner. The future medical care costs for Ella Lee are in excess of $8,750,000. Her past medical bills are in excess of $430,000.

The defense experts estimate the cost of future care to be in the area of $5,000,000, but they have provided no life care plan through their experts. Instead, the defense takes the position that maybe Ella Lee is faking, and is a malingerer. However, their best expert on the subject acknowledges that her condition is just as likely to be quite real, and severe brain injury patients like Ella Lee often cannot control their emotions and make sense as accurate historians. Given Ella Lee’s pre-existing condition with mental illness, as a result of the new and devastating overlay of significant brain trauma, she know non-functional and requires the help the experts contend is needed.

To sum up the case which will be presented at trial, Ella Lee is seeking economic damages only. She will prove that the auto accident is the fault, in whole or in part, of Sacramento Police Officer Paul Black. Therefore, he is jointly and severally responsible for her economic damages. The City of Sacramento will contend the accident was completely the fault of Mr. Choo, and further will contend that Plaintiff’s injuries and economic damages claimed are overstated and not credible. Mr. Choo will contend, like Plaintiff, that the accident is in whole or in part the fault of S.P.D. Officer Paul Black. No one contends that Ella Lee is at all responsible for the accident or her damages. She was blame-free, stopped behind the Choo vehicle, minding her own business when the crash occurred.

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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.)

Further, plaintiff was given actual notice of the relationship between physicians and UMC in the Conditions of Services form. The physicians are independent contractors and not employees or agents of UMC. Moreover, plaintiffs signature appears on the Conditions of Services form. UMC cannot be liable for any physician negligence (i.e., diagnosis and treatment) alleged by plaintiffs.

Any assertion that UMC breached a duty in the diagnosis and treatment of the decedent’s condition is also a legal impossibility–diagnosis and treatment are the sine qua non of practicing medicine and only a licensed physician may perform such acts. UMC does not have a license to practice medicine, and it does not practice medicine. (Bus. & Prof. Code § 2052 [ Any person who practices or attempts to practice … any system or mode of treating the sick, or afflicted in the state… without having at the time of doing so, a valid, unrevoked, or unsuspended certificate… is guilty of a misdemeanor. )

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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, oppose the Demurrer of Defendant Paul Smith, M.D. (“Dr. Smith”) and Motion to Strike as follows:

INTRODUCTION

This is a Negligence case, and an Elder Abuse case brought under the provisions of Welfare & Institutions Code § 15600, et. seq. The Plaintiffs’ Complaint further alleges the following causes of action against the Defendant Dr. Smith: Negligence Per Se, Willful Misconduct, Survivorship, and Wrongful Death. The causes of action for Elder Abuse, Negligence, Negligence Per Se, Willful Misconduct, and Survivorship are causes of action that belongs to the decedent, John Hernandez, and is brought in and through his Successor-in-interest and son, Robert Hernandez.

The facts alleged in the Complaint, which for purposes of this demurrer must be taken as true, assert that the Defendant, Dr. Smith, failed to properly assess and medically treat the decedent’s severe allergic reaction to an antibiotic that was prescribed by Dr. Smith.

As a result of the allergic reaction to the antibiotics, the decedent developed Stevens-Johnson disease which caused his body to develop water blisters and first degree burns all over his body.

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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.)

Points and Authorities in Support of Plaintiff’s Motion for a New Trial
INTRODUCTION

This case is admittedly one of contested damages and, as a result, highly contested liability. Mild traumatic brain injuries, such as that suffered by Dr. Black in Sacramento, are often difficult damages cases because the injury is not easily subject to objective medical confirmation and the proof of same is based wholly on the testimony of the subjective complaints of the plaintiff. When the credibility of the plaintiff is impugned, all aspects of the verdict are affected, despite the fact that the law requires that the separate issues of negligence and causation of any injury must be separately and fully assessed by the jury.

In this case, substantial evidence supported, as a matter of law, that Defendant Sylvia White was negligent, and that her negligence was the cause of at least a portion of Dr. Black’s injuries incident to the car collision. Accordingly, some measure of damages should have been awarded and would have been except for improper and prejudicial testimony and argument. Plaintiff maintains that liability, including substantial damages, should have been the verdict and contends in this motion that misconduct of counsel and error of law so prejudiced the jury that negligence was wrongfully decided. In this new trial motion, plaintiff contends that he was prevented from having a fair trial.

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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.)

The holdings of these California and federal courts, in addition to the California Legislature’s stated intent, clearly apply to the underlying complaint of sexual harassment by Ms Black in this case. Allowing evidence of Ms. Black’s prior sexual conduct, including prior complaints of sexual harassment, with anyone other than the alleged harasser would undermine the clear intent of the California Legislature to prevent the discouragement of complaints and the unnecessary badgering of harassment victims. See Rieger v. Arnold, 104 Cal. App. 4th, at 460. Ms. Black’s conduct with individuals other than the Plaintiff, whether in or out of the workplace, is not relevant to the central issue of whether Plaintiff engaged in conduct that violated XYZ’s sexual harassment policy justifying his termination.

A case based upon the conduct of a [claimant’s] coworkers should not be turned into an investigation of [claimant’s] prior sexual history. Knoettigen v. Superior Court, 224 Cal. App. 3d 11, 15 (1990). In short, Ms. Black’s private life and/or sexual history with individuals other than Plaintiff does not provide lawful consent to the offensive sexual conduct engaged in and acknowledged by Plaintiff in this case, and which resulted in his termination.

Moreover, inquiry into sexual aspects of Ms. Black’s private life not only intrudes upon Ms. Black’s right to privacy, but the privacy of third parties as well. See Mendez v. Superior Court, 206 Cal. App. 3d 557, 568 (1988). Insofar as [Plaintiff] seek[s] to pry into [Ms. Black’s] sexual conduct with others, [he] necessarily seek[s] to pry into the third party’s sexual conduct. (citation). Id. When privacy is implicated, the appellate courts have been vigilant to provide extraordinary relief to prevent impairment of these protections. Knoettigen v. Superior Court, 224 Cal. App. 3d. at 14-15. (citations omitted) While theoretically such third parties could seek to appear in this action and oppose [Plaintiff’s efforts] (citation), such privilege under these circumstances is meaningless…. See Mendez v. Superior Court, 206 Cal. App. 3d at 568.

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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.)

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION

On September 9, 2005, a completely avoidable high-speed collision occurred on Highway 160 at the intersection of Royal Oaks Avenue shortly before midnight between two vehicles. Sacramento Police Officer Paul Black was rocketing down the road, eastbound, with two county probation officers in his vehicle, returning from a police matter in Roseville. Black was not authorized to be speeding, and he testified he had no right to be doing so. According to Black, he was not driving in any emergency fashion, or otherwise permitted to be operating under “Code 3” conditions. Therefore, it is undisputed that he had, at all times relevant, an obligation to adhere to the same rules of the road as a motor vehicle operator as any other citizen.

As Officer Black approached the intersection of Royal Oaks Avenue that evening, traveling well over the posted speed limit, at least pre-skid, Don Choo was waiting at a stop sign and the limit line to make a left-turn across Highway 160. He intended to traverse the two west-bound lanes of travel and enter the east-bound lanes. According to Mr. Choo, he nudged his vehicle out past the limit line to gain a line of sight to his left, and although he saw the oncoming Black vehicle, it appeared far enough away that he felt he could safely start the process of making his left-hand turn. The Choo vehicle, a white 2003 Chevrolet Malibu, started out and all of a sudden, Mr. Choo perceived the oncoming police vehicle traveling at an extremely high rate of speed. (See Part 2 of 9.)

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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.)

Memorandum of Points and Authorities in Support of Plaintiffs’ Motion to Compel Answers to Special Interrogatories, and for Monetary Sanctions
INTRODUCTION

This is an action for medical negligence arising out of the birth of the minor plaintiff, John Smith, at University Hospital in Sacramento in April 2000 which resulted in severe neurologic injury to the minor. Plaintiffs allege that defendant University Medical Center (“University”) and others carelessly and negligently managed the medical care of plaintiffs including but not limited to delivery and post-delivery care of minor plaintiff John Smith. As a result of defendant’s negligence John Smith suffered severe brain injury, paresis and other neurological damage, resulting in impairment of mental and bodily function.

STATEMENT OF FACTS
Plaintiffs served their first set of Special Interrogatories on defendant University on February 28, 2002. University requested four extensions of time to respond to the interrogatories, all of which were granted by plaintiffs. After having an extended six weeks to answer, University served written responses on May 16, 2002. Defendant responded to Special Interrogatory, Numbers One through Seven, with an inadequate boiler plate objection, stating that defendant did not have to produce the information because it was equally available to plaintiffs.
Plaintiffs’ counsel attempted to meet and confer with University with regard to their deficient responses to the special interrogatories by letter dated May 31, 2002. In their meet and confer correspondence, plaintiffs’ counsel outlined each alleged insufficient interrogatory response, the answer given by University as well as the reason the answer was inadequate, and an explanation as to why the information requested in the interrogatories was relevant.

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