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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 THE COURT ERRONEOUSLY EXCLUDED EVIDENCE AT TRIAL, THUS MATERIALLY AFFECTING PLAINTIFF’S SUBSTANTIAL RIGHTS
The Standard

A motion for a new trial may be granted for an error in law occurring at trial and excepted to by the party making the application. (Code Civ. Proc. § 657(7).) Errors of law occurring at trial may include erroneous rulings on evidence. (Richard v. Scott (1978) 79 Cal. App. 3d 57, 63.) That there was an error in law must be established by the minutes of the court. (See Code Civ. Proc. § 658.) If the error could possibly have been prejudicial, the court must consider its probable effect and decide the motion accordingly, and if it concludes that the error is prejudicial, a new trial is properly granted. (Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256, 262.)

A new trial may be granted on the ground of error in law if the trial court erroneously excludes certain admissible evidence and that exclusion results in prejudice to the moving party. (See Richard v. Scott (1978) 79 Cal.App.3d 57, 63 n.2; Burroughs v. Ben’s Auto Park, Inc. (1945) 27 Cal.2d 449, 456.) If an error of law has occurred in the admission or rejection of evidence, the trial judge may consider all the circumstances surrounding the ruling, including the weight that may be accorded to the questioned evidence, the attitude of the interrogator, and any other fact tending to show the importance of the admission or rejection of the evidence. (De Victoria v. Erickson (1948) 83 Cal. App. 2d 206, 208-209.)

A court’s ruling sustaining or overruling an objection to evidence is deemed excepted to without formal objection. (Code Civ. Proc. § 647.)

Evidence in this sexual harassment case that was excluded includes: (1) a letter written by Tony Anson in support of Plaintiff that would have impeached Mr. Anson’s testimony that Plaintiff made inappropriate comments of a sexual nature, which were unprofessional, and

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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.)

This Opposition will be based upon this Notice, the attached Memorandum of Points and Authorities, any supplemental briefs submitted on the issues, as well as on the pleadings, papers, files, and records in this matter, and upon such other further documentary and oral evidence as may be presented at the hearing on this matter.

(1) Plaintiffs’ experts are allowed to respond to the opinions given by Defendants’ experts, especially where the Defendants’ experts were deposed after the Plaintiffs’ experts; and

(2) Counsel should be allowed the right to present all relevant evidence which will assist the jury. There is no basis for a restriction based on an abstract in limine ruling.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Plaintiff opposes the Motion in Limine #1 submitted by Defendants to the extent that it seeks to exclude testimony of Plaintiffs’ experts that either the Defendant did not elicit from the expert at the time of deposition, or constitutes comment or opinion regarding the testimony of opposing experts.

California Code of Civil Procedure section 2034(j) governs the exclusion of expert testimony. A Court may exclude testimony of an expert only if a party did not list the witness as an expert, did not submit an expert witness Declaration that complied with the expert information disclosure statute, did not produce the expert’s reports, or did not make the expert available for deposition. California Code of Civil Procedure § 2034(j); Bonds v. Roy (1999) 20 Cal.4th 140.

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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 (“Allen”), deceased, by and through his conservator, Darrell Allen, submits the following Settlement Conference Statement:

INTRODUCTION

This is an action for violation of the Elder Abuse and Dependent Adult Act (“EADACPA”) and negligence against defendant XYZ MEDICAL CENTER (“XYZ”) for its reckless neglect in its failure to provide adequate custodial care to Allen. This also an action for violation of the EADACPA, negligence, battery, and intentional infliction of emotional distress against defendant Paul Smith (“Smith”) arising out the battery against Allen. Furthermore, this is an action against defendant Generic Nursing, Inc., (“Generic”) under the doctrine of respondeat superior, and for negligent hiring and retention of defendant Smith.

STATEMENT OF FACTS

Allen, who is now deceased, was an incompetent adult as determined by the probate court. The court appointed Allen’s father to be the limited conservator over Allen’s person and estate. Therefore, Allen was the proper plaintiff under the EADACPA. Allen suffered from attention deficit disorder with hyperactivity, global developmental disability, and had emotional behavioral problems. Prior to his admission to XYZ’s medical facility, Allen was a regional center client. An individual is eligible to be a client of the regional center if he/she has a developmental disability and has an IQ of 85 or below. Allen could not read, write, count, or manage his own finances. He was assigned a payee who managed his social security check.

On or about February 11, 2005, Allen was shot in the neck, and the shooting rendered him a quadriplegic. Shortly after the shooting, Allen was admitted to University, a branch of XYZ.
Shortly after being admitted to University, Allen was assessed for his risk for developing decubitus ulcers. The University staff at XYZ concluded that Allen’s risk for developing decubitus ulcers was high. In order to satisfy his nutritional needs, Allen was given a percutaneous endoscopic gastrostomy tube (PEG) that was monitored by his dietician.

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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.)

Defendant Sue Davis admitted to creating documents in the investigation file that were designed to appear to be written by Plaintiff and that, in fact, even mislead defendants’ own counsel. Defendant Andrew Price admitted to suppressing the statement of a witness who did not support the allegations of defendant Marcia Byrd and admitted that defendant XYZ enforced only part of the sexual harassment policy.

Defendant Marcia Byrd said she was not at work on September 27, 2004, until she was presented with a document that showed she was. At that point she said that something to the effect that “she didn’t remember.” There also was testimony that Byrd had said that she got Plaintiff fired before he got her, and that she had written a report about him and gotten others to write reports about him. She also testified that she had not spoken with anyone at all about Plaintiff’s alleged conduct, but some of her friends testified otherwise.

There was testimony at trial that defendants Harris and Smith knew that defendant Byrd was not credible. Defendants Smith, Davis and Price testified they did not follow company policy. Defendant Harris testified that she was told by the Vice president of Human Resources, Nancy Hall, not to follow company policy.

Although there are numerous other portions of the record that can be cited to support granting Plaintiff’s motion for new trial based on insufficiency of the evidence with respect to defamation, these portions alone justify such action. Plaintiff respectfully requests this Court to reexamine the record and grant his motion for new trial based on the alternative ground of insufficiency of the evidence.

Race Discrimination

It is a violation of law to terminate an employee or to treat him differently in the terms and conditions of his employment for reasons based on his race. (Govt. Code § 12940(a).)

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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 automobile accident/personal injury case and its proceedings.)

Thus, the court determined it was proper to place the entire medical charges before the jury, as better evidence of the degree of harm, and effect a post-verdict reduction of damages to account for the difference between the amounts paid by private health insurance and the amounts billed by the health care provider.

Nishihama is not dispositive. To the extent that Olszewski limited Hanif’s application to the Medi-Cal context, it implicitly overruled Nishihama’s extension of Hanif to the realm of private insurance. Moreover, the Supreme Court reserved the issue in connection with private insurers. In Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595, 611, fn. 16, the Court explicitly declined to reach the question of whether Olszewski and Hanif “apply outside the Medicaid context and limit a patient’s tort recovery for medical expenses to the amount actually paid by the patient notwithstanding the collateral source rule.”

Regardless of whether this Court agrees with Nishihama, it does not alter the fact that under the collateral source rule the tortfeasor should be precluded from reducing the injured plaintiff’s recovery because his or her insurer was able to contract with the health care provider to treat Plaintiff below its normal rates.

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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 COURT SHOULD OVERRULE DEFENDANT’S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CLAIM FOR DAMAGES UNDER CAL. CIV. CODE §3345.

Defendant argues that Allen cannot recover under Cal. Civ. Code §3345 because there are no fines or penalties to be trebled in this case. This argument is without merit. Allen is seeking the statutory penalties against defendants XYZ Medical Center under Cal. Welf. & Inst. Code §15630(h), which provides for a fine of $1,000 for the failure to report the abuse of an elder or dependent adult, and a fine of up to $5,000 if the failure to report the abuse was willful. Allen is also seeking punitive damages against defendants Paul Smith and Generic Nursing, Inc. Punitive may be trebled pursuant to Cal. Civ. Code §3345. Therefore, there is a proper basis upon which treble damages may be awarded in this action, and the court should overrule defendant’s motion to strike Allen’s claim for treble damages.

IF THE COURT FINDS THAT ALLEN HAS NOT STATED SUFFICIENT FACTS TO SUPPORT HIS CAUSES OF ACTION, ALLEN REQUESTS LEAVE TO AMEND HIS COMPLAINT.

The Cal. Code of Civ. Proc. §472a(c) provides that: When a demurrer is sustained, the court may grant leave to amend the pleading upon any terns as may be just and shall fix the time within the amendment or amended pleading shall be filed.

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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.)

Defamation

Defamation can consist of either a written publication (libel) or an oral publication (slander). (Civ. Code §§ 44, 45, 46.) In the absence of a privilege, anyone who actively participates in the publication of a false and libelous statement is liable for special, general, and even punitive damages. Moreover, it is also the general rule that every repetition of the defamation is a separate publication and hence a new and separate cause of action though the repeater states the source (Prosser, Torts (2d ed.) p.787.) And, ordinarily the originator of the defamatory matter is also liable for each such repetition if he could reasonably have foreseen the repetition. (DiGiorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.268, 273.)

The evidence presented at trial overwhelmingly demonstrated that defendants defamed Plaintiff. Plaintiff was a very credible witness, able to remember events and to provide specifics and context with respect to those events.

Defendants’ witnesses, on the other hand, were, at best, not very credible. Besides examining the four defendants, over the course of April 7 and April 8, 2007, defendants called 12 witnesses. Of all those witnesses, only one was credible: Danny Greene. Every defense witness was able to tell the story that they had prepared with defense counsel, but once Plaintiff’s counsel began to cross-examine them, they could not remember anything specific about any events that occurred. One witness, William Smith, answering every question on cross-examination with I don’t remember, testified that he could not remember almost before counsel could ask a 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. Black states in his declaration that plaintiffs injuries represented complex, if not major, trauma. Black goes on to state at 3:26-4:4 that complex or major trauma requires immediate involvement of an emergency department physician, for documentation, diagnosis, initial treatment and stabilization, and referral. Only minor trauma may be initially evaluated by a nurse practitioner … Dr. Black in his declaration has the benefit of 20/20 hindsight in that the true extent of plaintiff’s injury is now known. Upon plaintiffs initial presentation to XYZ Hospital, it may have been impossible to instantaneously recognize her injury as complex and/or major trauma. Here, plaintiff was ambulatory and brought herself voluntarily to the hospital, the day after falling at her home, with a complaint of neck pain.

The real crux of Black’s declaration begins at 4:5 wherein he chastises the inappropriate triage decision of placing plaintiff in urgent care, accompanied by the incomplete and inaccurate evaluation performed by nurse practitioner Paul Brown. This information is totally irrelevant to the potential liability of Dr. White. A decision by the triage nurse to send a patient to either a nurse practitioner or a physician is utterly out of Dr. White’s hands. Despite this lack of responsibility on Dr. White’s part, Black attempts to overcome this by citing to XYZ Medical Center’s Nurse Practitioner Standardized Procedures.

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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, defendant and two independent witnesses, Cathy and Frank Bennett, testified that defendant was stopped at the stop sign. Therefore, Archie, who was lawfully riding his bicycle in the bike lane of San Vicente Boulevard, would have observed that defendant was stopped and had a right to assume that she would stay stopped as he passed directly in front of her. Defendant had a duty to obey the stop sign and Archie had a right to assume that defendant would carry out her duty and obey the stop sign and not enter the intersection until it was safe to do so. Accordingly, there can be no comparative fault as a matter of law.

Further, defendants’ argument that plaintiff could have averted the incident is completely without merit. Defendant’s BMW accelerates much faster than Archie pedaling on his bicycle and the impact occurred when Archie was directly in front of defendant’s BMW. Thus, in the moments before the impact, Archie was almost in front of defendant’s vehicle. Based on the speed that the BMW was accelerating, Archie did not have enough time to react and take action to avoid the collision. This incident is unquestionably 100% defendants’ fault.

INJURIES AND DAMAGES
Archie suffered severe and life threatening injuries and extensive damages as a result of defendant’s negligence. Archie suffered a litany of devastating injuries. Archie ‘s right femur was pushed through the pelvic bone causing a right acetabular fracture and dislocation of the hip. Archie suffered pelvic fractures, a ruptured bladder, rib fractures, moderate brain injury with subdural hematoma and seizure, memory loss, nerve damage and significant soft tissue bruising and abrasions. Archie ‘s doctors told his family that they were not sure if they could save him.

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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 automobile accident/personal injury case and its proceedings.)

(More re Medi-Cal payment ruling challenge.)

However, in Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 826-817, the Supreme Court expressed disapproval of restricting a tort victim’s medical specials to the amounts paid by Medi-Cal. The Court recognized that the tortfeasor escapes liability for the full amount of the medical expenses he or she wrongly caused. Such a result benefits the tortfeasor at the expense of the blameless provider and harms society as a whole. The Court urged the Legislature to remedy this inequity. Id. at 827. These policy reasons favor following the collateral source rule over the appellate courts’ disregard of that rule.

In Nishihama, supra, 93 Cal.App.4th 298, another appellate court extended the Hanif limitation beyond Medi-Cal to private insurance without distinguishing the collateral source rule. In Nishihama, the injured plaintiff’sought recovery of medical expenses which had been paid by her employer-obtained medical insurer (Blue Cross). That insurer in turn had negotiated for reduced rates (i.e. rates below what is ordinarily charged) at the facility where the plaintiff was treated. The jury awarded the plaintiff damages based on what the facility ordinarily charged. In the context of discussing whether the plaintiff could recover damages based on the hospital’s ordinary rates, the court first observed:

A plaintiff in a personal injury action is entitled to recover from the defendant tortfeasor, the reasonable value of medical services rendered to the plaintiff, including the amount paid by a collateral source, such as an insurer. As medical expenses fall into the category of economic damages, they represent actual pecuniary loss caused by the defendant’s wrong. Id. at 306.

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