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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.)

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF ERROR IN LAW, BECAUSE THERE WERE ERRONEOUS AND MISLEADING JURY INSTRUCTIONS GIVEN AT TRIAL THAT MATERIALLY AFFECTED PLAINTIFF’S SUBSTANTIAL RIGHTS
Failure to Give Instructions

Each party is entitled to have his or her theory of the case submitted to the jury in accordance with the pleadings and proof, and it is incumbent on the trial court to instruct on all vital issues involved; the failure of the court to instruct on a vital issue may be grounds for the granting of a motion for new trial. (Christian v. Bolls (1970) 7 Cal. App. 3d 408, 415-416.) In this case Plaintiff proposed and the court refused to give the following instructions:

An employer’s failure to follow its own policies and procedures raises an inference of discrimination.

An employee is treated disparately when his employer’s policies and procedures apply to everyone else but him. Consequently, an employer’s failure to follow its own policies and procedures raises an inference of discrimination. [See, e.g., Deschene v. Pinole Point Steel Co. (1999) 76 Cal. App. 4th 33; Village of Arlington Heights v. Met. Hous. Dev. Corp. (1977) 429 U.S. 252, 267 ( Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. ); Azzaro v. County of Allegheny (3d Cir. 1997) 110 F.3d 968, 974-975 (failure to follow policies applicable to employee suggests that discrimination may be involved)]. XYZ knew that the investigation on which it relied was both inadequate and non-compliant with its own procedures, yet nonetheless relied on those policies to discharge Plaintiff for sexual harassment.

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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.)

THE AUTHORITIES CITED BY THE DEFENSE ARE NOT APPLICABLE TO THE FACTS OF THIS CASE

Defendants’ reliance on Kennemur v. State of California, (1983) 133 Cal.App.3d 907 is misplaced. Even a cursory review reveals the case to be inapposite.

In Kennemur, the plaintiff’s expert, Dr. Mitchell, was deposed on three separate occasions over a six-day period by the defendant The witness was specifically asked whether he was going to testify on accident reconstruction. He specifically stated that he was not and would leave that to a different expert He said that he was limiting his testimony to the stability of the automobile involved in the accident. (Id. at 912.) At the second session of his deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

The issue before the Court was not whether Dr. Mitchell could testify to areas into which opposing counsel had failed to delve but rather whether he could testify on accident reconstruction issues abut which he was specifically asked and had stated he had no opinion.

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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.)

Court Improperly Excluded Prior Inconsistent Statement of Tony Anson

In order to challenge the credibility of a witness a party may introduce a statement made by the witness that is inconsistent with any part of a witness’ testimony at the hearing. (Evid. Code § 780(h).) In the instant case, defense witness Tony Anson testified that Plaintiff made inappropriate remarks of a sexual nature and that his conduct in doing so was unprofessional. Shortly after Plaintiff was terminated, however, Mr. Anson wrote a letter in support of Plaintiff, noting his professionalism. The court, over the objection of Plaintiff, would not permit Plaintiff to introduce the letter. The letter had previously been excluded on a ruling by the court that the letter was made in the course of trying to settle the case. This itself was an erroneous ruling, but the court should have permitted the letter to be admitted for the limited purpose of impeaching Mr. Anson.

Mr. Anson’s testimony was prejudicial to Plaintiff in that Mr. Anson had not been identified by Plaintiff as a person who was in defendant Byrd’s circle of influence. This may have mislead the jury to giving his testimony more weight than it deserved.

Court Improperly Excluded Testimony of Human Resources Expert Regarding Industry Standards of Investigating Allegations of Discrimination and Sexual Harassment

California law particularly permits human resource testimony about whether an employer follows or departs from its own policies and standard practice in the industry. Testimony regarding whether the employer had followed proper personnel standards is well within the professional management expert. (Kotla v. Regents of the University of California (2004) 115 Cal.App.4th 283, 293 fn. 5.)

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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.)

Allen developed decubitus ulcers because the nurses in charge of his care did not turn and reposition him as required. Allen was a quadriplegic, and the nurses’ orders stated that he needed to be turned once every two hours. XYZ’s employees did not turn Allen once every two hours as required, and XYZ has admitted that its nurses failed to carry out their own orders. XYZ argues that its employees did not turn Allen as required because he refused to cooperate, and that he stated that he did not want to be turned. In support of its argument, XYZ contends that patients have a right to refuse treatment. XYZ’s position is both legally and medically unsound, as only competent patients have the right to decide what medical care to receive.

Here, Allen lacked the capacity to accept or refuse treatment. There is ample information in Allen’s medical records that indicates that Allen lacked the capacity to accept or refuse treatment. Allen was unable to read, write, or count. He was unable to manage money, and was assigned a payee for his monthly Social Security Check. Allen was also a regional center client prior to his admission at University. XYZ’s employees did not conduct a formal evaluation of Allen’s functional capacity or a psychological evaluation. Moreover, Allen was not interviewed by a psychiatrist or psychologist while a resident at University. The failure to turn Allen as required in his care plan was reckless neglect and a breach of the standard of care that is discussed in CACI Instruction 504.

XYZ’s employees knew or should have known that if they did not provide Allen with assistance with mobility, there was a high probability that he would develop decubitus ulcers based upon Allen’s high risk for pressure ulcers. Those in charge of Allen’s custodial care knew, or should have known of Allen’s high risk for developing decubitus ulcers, and they were reckless in their failure to take the necessary steps to ensure that Allen was receiving proper custodial care.

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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.)

In addition, Defendants’ blanket and vague Motion in Limine is inappropriate. They have not set forth or highlighted any specific testimony they seek to exclude. As set forth in Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, Motions in Limine which are declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses are inappropriate. Id. at 670.

Further, the defendants have inaccurately claimed that they have not been provided with Dr. Smith’s raw data. This is simply not the case; Plaintiff’s counsel has confirmed that Defendants’ expert, Dr. White, has been in receipt of said raw data since October 19, 2005. Consequently, as set forth herein, Defendants’ Motion is inappropriate and should be denied.

THE DEFENSE INTERPRETATION OF THE LAW WOULD REWARD DEFENDANTS FOR TAKING INSUFFICIENTLY THOROUGH DEPOSITIONS
Defendants are asking the Court to preclude an expert from saying anything that he has not already said in his deposition. This is clearly contrary to the law and would create a possible loophole in the expert discovery statute. A defendant would simply have to ask very few questions and thereby block the expert from testifying about anything other than what he was asked. Surely the Defendants cannot possibly be asking the Court to make such a ruling in such a horrific personal injury case.

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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.)

THE MOVING PARTY HAS THE BURDEN OF PERSUASION
A party who seeks an court’s action in his or her favor bears the burden of persuasion thereon:

Evidence Code, § 500 states as follows: Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he or she is asserting.

As our Supreme Court recently explained:
[

F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof….” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

In effect, the defendants in this medical malpractice action as the moving parties for summary judgment bear the burden of persuasion that one or more elements of the cause of action in question “cannot be established,” or that “there is a complete defense” thereto. (Aguilar, supra, 25 Cal.4th at p.850.) Consequently, the burden of persuasion does not shift. Rather, when the court rules, one party has met its burden of persuasion and the other has not.

Regarding the burden of proof, the Supreme Court addressed that issue as follows:
[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. A prima facie showing is one that is sufficient to support the position of the party in question.

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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. White was never an attending physician and merely signed Paul Brown’s chart, fulfilling his administrative duties to the hospital. Dr. White in his declaration in support of his moving papers, at 2:6, states quite plainly I am required to sign charts of a number of patients who were seen and treated by mid-level practitioners, who I did not see or treat myself. There is no requirement that the chart be reviewed in detail by the physician or that the physician make an independent evaluation of the patient’s diagnosis and treatment. Thus, Dr. White’s signature does not create a duty to see the patient or direct the medical treatment, all of which has already occurred. More so, page 1 of the Frequently Ask Questions Regarding Nurse Practitioner Practice states that “The Nursing Practice Act (NPA) does not require physician countersignature of nurse practitioner charts.”

However, other statutes or regulations, such as those for third party reimbursement, may require the physician countersignature. Additionally, some malpractice insurance carriers require physicians to sign NP charts as a condition of participation. Standardized procedures may also be written to require physicians to countersign charts.

Dr. Black sums up his opinions at 5:11-21, stating that plaintiff’s injuries “could have been avoided if appropriate nursing triage had occurred …” and “if Nurse Brown had accurately completed the history and physical…” These two portions of Black’s declaration are utterly irrelevant to Dr. White in this matter. Black then posits a hypothetical that “if Dr. White had read, critically reviewed, and appropriately responded, (as required by the emergency department supervisory procedures) to the submitted patient chart, the patient’s care would have met the standard of care …” Plaintiff was never at any point in time Dr. White’s patient, as the triage nurse directed plaintiff to nurse practitioner Paul Brown, and nurse Brown never consulted with Dr. White regarding plaintiffs care. Dr. White in his declaration at 1:25-2:3 describes that patients coming to the emergency room at XYZ Medical Center at that time (and now) are typically screened by a triage nurse, whose role includes determining the acuity (severity) of the 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 brain injury/auto accident case and its proceedings.)

Archie weighed approximately 125 lbs at the time of the incident and after being discharged from the hospital dropped to a mere 95 lbs. Archie was a ghost of his prior self. Archie suffers from post-traumatic stress and depression and was diagnosed with anorexia. Even the defense neuropsychologist Sian Green agrees that Archie ‘s anorexia was caused by the incident. Archie lost a significant amount of muscle mass, is fatigued easily, has lost stamina and overall energy, feels physically weak and is not the same person he was before the incident.

Due in large measure to the traumatic brain injury, Archie ‘s personality has changed. He has lost spontaneity, is very fretful, overly apologetic, more irritable and less animated. Archie is a shadow of his former self; he does not engage with the world like he did before the incident in terms of what he is willing to undertake, his intellectual ambition, his social ambition and his career ambition. Archie is more dependent on his family to take care of his daily needs. Archie is fearful and anxious; he is uncertain of his future and whether he will return to a state of independence, that of normal twenty three year old male, which he would have had, but for defendant’s negligence.

Anorexia is a life threatening illness and Archie will require future care and treatment for the remainder of his lifetime. (See Dr. Patt’s report below.) Archie requires further psychiatric treatment that will exceed costs of $100,000. In light of his orthopedic injuries, plaintiff will never be able to walk or run as he used to before the incident. Archie ‘s hip has started to undergo arthritic changes and even the defense orthopedist agrees that Archie will indeed need two to three hip replacements in the future at $50,000 per surgery. (See Dr. Schwartz’s deposition testimony below.) Archie ‘s future medical expenses will be in the several hundreds of thousands of dollars.

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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.)

INJURY

As discussed above, Allen developed stage III decubitus ulcers on his buttocks, stage IV decubitus ulcers on his left hip, and a stage II decubitus ulcer on his left ankle. Allen developed a bone infection called osteomyelitis that resulted from his decubitus ulcers. In order to treat the osteomyelitis, Allen underwent surgical process called debridement that took place on May 16, 2005. Photographs of Allen’s decubitus ulcers will be available at the settlement conference. As a result of the assault, Allen suffered injuries to the chest, shock, humiliation, and fear.

LIABILITY

A health care provider may be held liable for reckless neglect for failing to take appropriate action, repeatedly or over a significant period of time, when a dependent adult suffers a decline or change in condition. Sababin v. Superior Court (2005) 144 Cal. App. 4th 81, 90, 50 Cal. Rptr. 3d 266. The defendant in Sababin, like defendant XYZ, argued that it cannot be held liable for dependent adult abuse unless it had injured the patient due to a total absence of care. The court disagreed. The court concluded that even [I]f some care is provided, that will not necessarily absolve a care facility of dependent adult abuse liability.

If a care facility knows that it must provide a certain type of care on a daily basis, but provides that care sporadically, or is supposed to provide multiple types of care, but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care.

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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 personal injury 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 sexual harassment case and its proceedings.)

ARGUMENT
A. Legal Standards Governing Motions In Limine.

A party may bring a motion in limine to exclude evidence on the same grounds as any evidentiary objection that may be made at trial. A court may make an in limine order that counsel and witnesses may not mention objectionable matters before the jury, to avoid creating an improper inference in the jurors’ minds that a subsequent instruction to disregard those matters may not cure. A trial court has inherent power to entertain and grant a motion in limine. 3 Witkin, California Evidence (4th ed.), § 368.369.

B. Inquiry Into And Admission Of Evidence Of Ms. Black’s Prior Sexual Conduct With Individuals Other Than The Harasser Is Irrelevant and Inadmissible.

Under California Evidence Code section 350, no evidence is admissible except relevant evidence. Cal. Evid. Code § 350. Relevant evidence is defined as any evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Cal. Evid. Code § 210. Defendants anticipate that Plaintiff will attempt to elicit testimony and submit evidence regarding Ms. Black’s prior sexual history and/or conduct with others, including prior complaints by Ms. Black of sexual harassment against individuals other than Plaintiff, in an attempt to show that the conduct complained of by Ms. Black was not unwelcome or offensive and to improperly impugn Ms. Black’s character. Such evidence is not relevant to establishing whether Defendant XYZ discriminated against Plaintiff.

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