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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.)

Universal Medical Center’s Opposition to Plaintiffs’ Motion for Summary Adjudication

Defendant, UNIVERSAL MEDICAL CENTER (“UMC”) hereby opposes plaintiffs motion for summary adjudication. Plaintiffs have failed to meet their burden because UMC is not liable for the acts of an independent contractor physician; plaintiffs’ moving papers fail to establish ostensible agency pursuant to the three prong test set forth by Mejia and plaintiffs were given actual notice that Dr. Cruz was an independent contractor, and Dr. Cruz was not a UMC employee or agent. Thus, summary adjudication must be denied.

MEMORANDUM OF POINTS AND AUTHORITIES

Summary adjudication must be denied because (1) UMC is not liable for the acts of an independent contractor physician; (2) plaintiffs’ moving papers fail to establish ostensible agency pursuant to the three prong test set forth by Mejia and plaintiffs were given actual notice that Dr. Cruz was an independent contractor, and (3) Dr. Cruz was not a UMC employee or agent.

UMC is Not Liable for Independent Contractor Physicians.

If a doctor is an independent contractor at a hospital, the hospital is not liable for a doctor’s alleged negligence. (Mayers v. Litow (1957) 154 Cal.App.2d 413; Konoff v. Fraser (1944) 62 Cal.App.2d 788.)

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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.)

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 Officer 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. He left two skid marks which are parallel, consistent with a braking skid, and inconsistent with a simple steer (yaw) as the City’s expert contends occurred.

In any event, 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 hit 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.

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 workplace discrimination/personal injury case and its proceedings.)

CACI 2502 – Elements of Disparate Impact Discrimination

There was testimony at trial that the part of the sexual harassment policy that disciplines persons who make false allegations of sexual harassment is not enforced. The large majority of allegations of sexual harassment are made by women against men. This selective enforcement of the policy, therefore, has a disparate impact on men, and CACI 2502 should have been given to address this situation.

Erroneous or Misleading Instructions

An erroneous or misleading jury instruction is an error in law for which a new trial may be granted. (See Bruck v. Adams (1968) 259 Cal. App. 2d 585, 587; Mazzotta v. Los Angeles Ry. Corp. (1944) 25 Cal. 2d 165, 170, 153 P.2d 338.) An erroneous instruction given by the court to the jury is considered excepted to as a matter of law. (See Code Civ. Proc. § 647; Stoneburner v. Richfield Oil Co. (1931) 118 Cal. App. 449, 453.) An order granting a new trial for error in instructions will be affirmed if the challenged instruction was erroneous in any degree or even if it is only fairly debatable that the instruction may have been misleading. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal. 2d 153, 159.)

A new trial may be granted on the ground of error in law occurring at trial when an instruction has been given that includes an incorrect or incomplete statement of law applicable to a material issue and the error was not cured by the charge as a whole or otherwise rendered harmless. (Brignoli v. Seaboard Transportation Co. (1947) 29 Cal. 2d 782, 790.)

In this case the instruction regarding defamation with respect to defendant Byrd was correct, but the special verdict form prepared by defendants was incorrect. The first question in Special Verdict Form VF-1704 Defamation Per Se and in Special Verdict Form VF-1705 Defamation Per Quod with respect to defendant Byrd asked “Did Marcia Byrd maliciously report that she was harassed by Bobby White?” There is no requirement under the law that such a report be malicious, and the forms themselves do not use that language.

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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/auto accident case and its proceedings.)

Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer v. Cooper, (1965) 233 Cal. App. 2d 750, 754, a case cited with approval in Kennemur, the court stated as follows concerning the scope of required deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for. In this case, Dr. Brown and Dr. Smith testified in their depositions as to their observations and opinions and they should not be limited by defense counsel’s failure to conduct a more thorough deposition, as is common in a personal injury case.

DEFENDANTS’ MOTION IS PRECISELY THE TYPE CRITICIZED BY THE COURT IN KELLY VS. NEW WEST FEDERAL SAVINGS

An important recent case on in limine motions, Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, addressed itself to precisely this type of motion and expressly found that such motions are not proper. The Court stated as follows at pages 670-673:

[M]any of the motions filed by Amtech were not properly the subject of motions in limine, were not adequately presented, or sought rulings which would merely be declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses. For example: MIL No.7, previously referred to, sought to limit the opinions of plaintiffs’ experts to those rendered at deposition and in written reports. Again, there was no supporting evidence to suggest what opinions had been rendered at the depositions, leaving the court and the parties to guess what opinions during trial may be included within the scope of the ruling.

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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.)

SPECULATIVE TESTIMONY REGARDING PLAINTIFF’S LEVEL OF FUNCTIONING WOULD BE HIGHLY PREJUDICIAL

The court has inherent power to grant a motion to exclude Any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clement v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451; Peat. Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d 272, 288.

Evidence Code §352 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. People v. Cardenas (1982) 31 Cal. 3d 879, 904.

Evidence Code §402 allows this court to hear and determine the question of the admissibility if evidence outside the presence or hearing of the jury. Mize v. Atchison, Topeka & Sante Fe Ry. Co. (1975) 46 Cal. App.3d 436, 448.

THE COURT MAY EXCLUDE AN EXPERTS OPINION WHERE BASED ON SPECULATION OR CONJECTURE
An expert may not base his/her opinion on speculation or conjecture. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 338; Long v. Cal-Western States Life Ins. Co. (1955) 43 Cal. 2d 871, 882 (Experiments based largely on speculation or conjecture are not the proper subject of expert testimony). An expert’s opinion may also be excluded if it is not shown to be reliable. People v. Price (1991) 1 Cal. 4th 324, 419-420; People v. Carter (1957) 48 Cal. 2d 737, 752.

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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/medical malpractice case and its proceedings.)

To meet this burden of proof, the defendant must show that either one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action (Code Civ. Proc., § 437c(o)(2).) This means that where plaintiff has the burden of proof at trial by a preponderance of evidence, the defendant must present evidence that would require a reasonable trier of fact not to find the underlying material fact more likely than not. Otherwise, he [defendant] would not be entitled to judgment as a matter of law. But would have to present his evidence to a trier of fact [the jury]. (Brackets added.) (Aguilar, supra, 25 Cal.4th at p.851.)

The import of the more likely than not in the foregoing quote is that a moving defendant must generally present evidence that, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established…. The same is true when a moving defendant seeks to secure dismissal of the complaint based on an affirmative defense. (Emphasis added.) (Kids’ Universe v. In2labs (2002) 95 Cal.App.870, 879.) Consequently, if the Defendants’ expert declaration is disputed by a declaration by plaintiff’s expert, then the matter is contradicted and the summary judgment must be denied.

Consequently, if the defendants fail to meet the above burden or persuasion, their motion must be denied:

Therefore, at the summary judgment stage, the defendants in the present case had an initial burden of production to make a prima facie showing that their conduct came within the exposure exemption. [Citations omitted.] If they failed to meet that burden, the plaintiff need not make any showing at all. (Pepperell v. Scottsdale Ins. Co. (1998) 62 Cal.App.4th 1045, 1054…].) Defendants contend that Dr. Amendola’s declaration, together with Consumer Cause’s discovery responses, shifted the burden of production to Consumer Cause. We disagree. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 469 – 470.

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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.)

In Rieger, the court found that testimony about a sexual harassment plaintiff’s racy banter, sexual horseplay, and statements concerning prior proposed or planned sexual exploits were subject to exclusion under California Evidence Code section 1106 unless such conduct involved the alleged perpetrator. See id. at 460-467. The Rieger court also noted:

The legislature declared its intent in enacting section 1106 as follows: [I]t is the existing policy of the State of California to ensure that causes of action for…sexual harassment, sexual assault, or sexual battery are given proper meaning. The discovery of sexual aspects of complainant’s [sic] lives, as well as those of their past and current friends and acquaintances, has the clear potential to discourage complaints and to annoy and harass litigants [which] is unnecessary and deplorable. Without protection …, individuals whose intimate lives are unjustifiably and offensively intruded upon might face the … risk of enduring further intrusions into details of their personal lives in discovery, and in open quasi-judicial or judicial proceedings. [ ] … [A] similar state of affairs once confronted victims in criminal prosecutions for rape ….

The Legislature has taken measures to curb those abuses in rape proceedings. It is the intent of the Legislature to take similar measures in sexual harassment … cases. [ ] The Legislature concludes that the use of such evidence of a complainant’s sexual behavior is more often harassing and intimidating than genuinely probative…. (citation omitted). Id. at 460.

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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 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 medical malpractice/personal injury case and its proceedings.)

DR. BLACK’S DECLARATION OMITS VITAL FACTS

Dr. Black’s declaration, through careful wording, attempts to create the picture that when any patient presents to XYZ Hospital and they are seen by a nurse practitioner, a supervising physician is automatically involved every time, working hands-on with that patient, second-guessing the nurse practitioner, and fully handling and managing that patient’s care. Nothing can be further from the truth. Nurse practitioners, by their special status as mid-level practitioners are allowed (and even expected) to have a certain degree of autonomy in rendering care to patients. In fact, page 1 of the Frequently Asked Questions Regarding Nurse Practitioner Practice states that a nurse practitioner is still practicing legally when the supervising physician is 50 miles away.

Further, XYZ Medical Center’s Standardized Procedures for Nurse Practitioners, that Dr. Black has mis-cited in his declaration, in actuality goes to great lengths to describe the degree and type of autonomy that nurse practitioners have. On page 4 of the Standardized Procedures, at the very onset of the General Policies, the first sentence states it is the intent of this document to authorize nurse practitioners at XYZ Medical Center Emergency Department to implement the Standardized Procedures without the immediate supervision or approval of a physician. (Emphasis added.) Page 6 of the General Policies provides that the nurse practitioner will be responsible for the preparation of a complete medical record for each patient contact per existing office policies. Moreso, under the “Supervision” heading, the nurse practitioner is authorized to implement the Standardized Procedures in this document without the direct or immediate observation, supervision or approval of a physician, except as may be specified on individual healthcare management standardized procedures.

Under the “Consultation” heading, the rules regarding when a nurse practitioner must consult with a physician clearly state on page 7 the situations wherein a physician must be consulted. These requirements are mandatory for nurse practitioners only. Thus, it is up to the nurse practitioner to seek out the physician for a consultation, if such is required under these guidelines, not the other way around. It is not a physician’s duty to seek out a nurse practitioner and provide an unasked-for consultation. Physicians are not required to wander the halls, looking for patients whose very existence they are unaware of, seeking to provide consultations every time a nurse practitioner treats a patient.

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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.)

Plaintiff John Allen’s Motion In Limine to Exclude Sammi Nunn, R.N. from Testifying Regarding Her Opinion on Plaintiff’s Functional Capacity and Competency
STATEMENT OF FACTS

The defense has designated Sammi Nunn, R.N., as an expert. Plaintiff believes that part of her testimony will consist of opinions about plaintiff’s functional capacity and competency while an inpatient at defendant’s University Hospital and Generic Nursing, Inc.’s residential facility in Sacramento.

GROUND FOR EXCLUSION

1. The expert witness is not qualified to render an opinion about plaintiffs functional capacity and competency.

A NURSE WITH NO EXPERIENCE IN PSYCHOLOGICAL EVALUATIONS IS NOT QUALIFIED TO TESTIFY ON THE ISSUE OF PLAINTIFF’S FUNCTIONAL CAPACITY.

The Evidence Code §720(a) provides that A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his [her] testimony relates. According to Sammi Nunn’s Curriculum Vitae, she is a registered nurse with no background in conducting psychological evaluations to determine an individuals functional capacity. In this matter, plaintiff was a mentally disabled individual with an IQ of 66. Like Dr. Goldberg, Sammi Nunn is not qualified to render an opinion regarding plaintiff’s functional capacity and competency. (See Part 2 of 2.)

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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 offers the following Motion in Limine No. 3, regarding the following topics:
Expert witnesses for the defense trying to offer and discuss wholly misleading and not substantially similar:
(1) night-time photographs;
(2) night-time videos;

(3) animations.

Under the Evidence Code and California case law, it is clear that these topics should not be addressed by any witness at the time of trial of this brain injury case.

MEMORANDUM OF POINTS & AUTHORITIES
STATEMENT OF THE CASE

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 either heading back to the S.P.D. station where he worked, or was responding to an officer-involved shooting matter in that general direction at 57th Street. He 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. 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.

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