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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.)

LEGAL STANDARD
SUMMARY JUDGMENT IS APPROPRIATE BECAUSE PLAINTIFF HAS FAILED TO ESTABLISH THAT A TRIABLE ISSUE OF ONE OR MORE FACTS EXISTS

In a summary judgment motion, the opposing party has the burden of showing the existence of a triable issue of material fact. (Churn v. Bank of America (1976) 15 Cal.3d 866, at 873; Marilla v. Right Stuff Food, Inc. (1998) 65 Cal.App.4th 833, at 841). The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure §437(c)(7)(c)). The defendant need only show the plaintiff cannot establish at least one element of the cause of action. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, at 853.) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more facts exists as to that cause of action. (Id.) Information and expert opinion that is utterly irrelevant to the moving party is not sufficient to create an issue of fact.

ARGUMENT
THE OPINIONS EXPRESSED BY DR. BLACK ARE IRRELEVANT TO DR. WHITE

Dr. Black states in his declaration that “a standard trauma evaluation was required, with emergency attending physician evaluation…” Black goes on to further state at 3:18 that “early emergency department attending physician evaluation … could have prevented the subsequent cervical spine deformity...” While this may or may not be the case, this opinion assumes that when plaintiff presented, the patient was actually seen by Dr. White. As is well documented, and even admitted in plaintiffs opposition brief, Dr. White neither saw, nor cared for, plaintiff at any point in time through no fault of his own.

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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.)

In this case, after counsel and the court had gone over the special verdict forms, the court instructed the defendants to revise the special verdict forms with respect to punitive damages. Thereafter, the court instructed the defendants to reorder the special verdict forms. Defense counsel revised Special Verdict Forms VF-1704 and VF-1705 in a manner that did not reflect the law, the jury instructions, or the underlying CACI forms on which they were based. Defense counsel did not advise Plaintiff, nor as far as Plaintiff knows, the court, that they had made these revisions.

The question posed in the defamation special verdict forms given to the jury used a standard that is higher even than that required to be entitled to punitive damages. The question in the special verdict form is Did one or more officers, directors, or managing agents of [XYZ ], acting in a corporate capacity, make the following statement To be able to assess punitive damages against a corporate employer, a plaintiff must show offending conduct of the corporate employee was authorized or ratified by an officer, director, or managing agent of the corporation. (See Civ. Code § 3294(a).)

In speaking with the jurors after their verdict, they asked Plaintiff’s counsel who had written the questions. They stated that they wanted to find for Mr. White on the issue of defamation, but that they could not because of the wording of the special verdict forms: there had not been any evidence introduced at trial that answered the questions, and they got no clarification from the jury instructions.

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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.)

Several witnesses, observing that Archie was underneath the SUV screamed at defendant to stop. Defendant, completely oblivious as to what was happening, continued on and did not stop until more than 20 feet later. Archie was pummeled against the asphalt as his body was propelled underneath the SUV all the way from the bike lane to the second lane of eastbound traffic on San Vicente Boulevard. When defendant’s SUV finally came to rest, the rear wheel pinned Archie to the ground. Again oblivious, witnesses had to get the defendant’s attention to reverse the SUV so that they could attend to Archie. (See deposition testimony of Cathy and Frank Bennett below.) Archie suffered massive injuries, including traumatic brain injury.

The Santa Monica Police Department determined that defendant caused the accident by failing to yield to Archie who was lawfully traveling in the bike lane at the time of the incident in contravention of Vehicle Code Section 21802 (a).

LIABILITY

Defendants do not dispute liability.

PLAINTIFF WAS NOT COMPARATIVELY AT FAULT, THEREFORE DEFENDANTS ARE 100% RESPONSIBLE FOR HIS CATASTROPHIC INJURIES AND DAMAGES
Although it may be negligence where the injured party fails to discover the danger by neglecting to look or by looking ahead without glancing to either side, the rule does not apply in situations where there is reasonable reliance on another’s duty of 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 sexual harassment/personal injury case and its proceedings.)

SUMMARY OF FACTS

Plaintiff was falsely accused of sexually harassing defendant Tamara Black. Defendants’ investigations into these allegations were incredibly sloppy and shoddy, and not in compliance with their own policies. Defendants, through their expert witness disclosure, have declared that Hall would offer testimony on the following subjects:

It is anticipated that Ms. Hall will offer testimony relating to human resource matters, including but not limited to, the prevention of discrimination and harassment, and responding to complaints of discrimination and harassment, effective investigation procedures generally and particularly as the apply to the investigations done in this case. Ms. Hall will be asked to review any opinions offered by Plaintiff’s expert and offer her own opinions in rebuttal.

LEGAL ARGUMENT
A. Ms. Hall’s Testimony Should Be Excluded To The Extent It Consists of Improper Legal Conclusions, Usurping The Function of The Trier of Fact To Determine The Reasonableness of Defendants’ Conduct
Expert opinion testimony is inadmissible when it involves the manner in which the law should apply to a particular set of facts and includes a legal conclusion based upon the analysis. (See Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1179.) Even if the expert’s opinion does not address a question of law, it is not appropriate if it invades the province of the jury to decide a case. An expert opinion is supposed to help the jury in doing its work, not usurp the function of the jury. (Id. at 1183.) Expert opinion about the significance of evidence does not assist the jury but instead creates an unacceptable risk that a jury would pay unwarranted deference to the expert’s expertise who, in reality, may be in no better position than the jury to evaluate the evidence. (Kotla v. Regents of the Univ. Of California (2004) 115 Cal.App.4th 283, 293.) When opinions are nothing more than an attempt to direct the jury to the ultimate conclusion that the expert wants them to reach, such opinions are inadmissible, as the opinion amount to advocacy not testimony. (Summers, 69 Cal.App.4th at 1185.)

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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.)

BRIEF STATEMENT OF FACTS

This medical malpractice action arises out of the prenatal, perinatal and postnatal care and treatment provided to Molly Brown and her minor son Mark Brown by defendants Tom White, M.D., Richard Hill, M.D., and Memorial Hospital (hereinafter “Memorial”). On June 20, 2000, Mrs. Brown delivered her son, Mark at Memorial. Plaintiffs contend that as a result of defendants’ alleged negligence in caring for Mrs. Brown and her son Mark Brown while at the hospital, Mark Brown suffered permanent neurological damages, including cerebral palsy.

As to defendant Memorial, plaintiffs contend its nurses negligently delayed in attaching Mrs. Brown to a fetal heart monitor upon her presentation to the hospital, that defendant failed to implement intrauterine resuscitation maneuvers, and that defendant’s nurses failed to timely contact Dr. White. (See, Molly Brown’s responses to special interrogatory no. 23). Plaintiffs further contend that, as a result of this alleged negligence, plaintiff Mark Brown suffered physical, emotional and other damages. Plaintiffs allege defendants’ negligence caused Molly Brown to suffer physical, emotional and loss of earnings damage. Mrs. Brown brings her claim for emotional distress as a direct victim, under Burgess v. Superior Court (1992) 2 Cal.4th 1064. Plaintiff Stan Brown contends he suffered emotional distress as a bystander, pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644 and loss of consortium damages as a result of his wife’s alleged injuries. (See Part 3 of 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 automobile accident/personal injury case and its proceedings.)

RECENT CASE AUTHORITY CONFIRMS THAT THE TOTAL AMOUNT OF A PLAINTIFF’S MEDICAL BILLS ARE ADMISSIBLE

In Olsen, supra, WL 2486789, plaintiff was injured by defendant’s motorized wheelchair and incurred over $62,000 in medical expenses. The court granted plaintiff’s motion to present the full amount that her providers billed her for treatment and denied defendant’s motion to introduce the amount actually paid. After trial, the court reduced the jury’s verdict to the amount actually paid on plaintiff’s behalf.

The appellate court held that this reduction was in error because there was insufficient evidence of what amount was paid, “written off” and remained to be owed. However, the court further held that the full amount of plaintiff’s medical charges was properly presented to the jury, citing Nishihama’s explanation that the usual rates billed was a stronger indicator of the extent of a plaintiff’s injuries than the specially negotiated rates obtained by an insurance company.

In Greer, supra, 141 Cal.App.4th at 1152-1153, the plaintiff was seriously injured in an automobile accident. His medical bills were $216,000. Plaintiff’s employer paid plaintiff’s health care providers $132,000, satisfying plaintiff’s entire medical tab. Prior to trial, defendant moved in limine to exclude evidence of medical expenses that exceeded the amount paid on plaintiff’s behalf to his medical providers.

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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.)

ARGUMENT
THIS TRIAL COURT HAS BROAD DISCRETION TO GRANT A NEW TRIAL AND THE EXERCISE OF THE COURT IN GRANTING A NEW TRIAL IS ACCORDED GREAT DEFERENCE

Although denials of motions for new trial are reviewed on appeal de novo, grants of such motions by the trial court are accorded great deference. (See, e.g., Andrews v. County of Orange (1982) 130 Cal. App. 3d 944, 954-55; Gray v. Robinson (1939) 33 Cal. App. 2d 177, 184-85.) Thus, it is well settled that the granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his [or her] action unless a manifest and unmistakable abuse of discretion clearly appears. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98,109 (quoting Mazzotta v. Los Angeles Ry. Corp. (1944) 25 Cal. 2d 165, 169) [emphasis added].) Such discretion is very wide and every presumption is indulged in support of the action of the court in passing upon the motion [citation], and a stronger showing is required to justify interference with an order granting than one denying a new trial. (Gray, 33 Cal. App. 2d at 184-85.) The rationale for the different standards lies in the California Constitution which secures to all the inviolate right to a trial by jury. (Andrews, 130 Cal. App. 3d at 953.)

PLAINTIFF IS ENTITLED TO A NEW TRIAL BASED ON IRREGULARITY IN THE PROCEEDINGS WHEN DEFENDANTS AND/OR THEIR ATTORNEY HAVE ENGAGED IN MISCONDUCT IN THIS SEXUAL HARASSMENT CASE

A motion for new trial may be granted if there is an irregularity in the proceedings by the adverse party. (Code Civ. Proc. § 657(1).) An irregularity is any overt act of the adverse party that violates the right to a fair and impartial trial and amounts to misconduct (Gray v. Robinson (1939) 33 Cal. App. 2d 177, 182.) When one party is mislead by the acts of another, justice requires that a new trial should be granted. (See Pinkham & McDonough v. McFarland & Elrod (1855) 5 Cal. 137, 138.) The irregularity must materially affect the substantial rights of a party (Code Civ. Proc. § 657(1); Gay v. Torrance (1904) 145 Cal. 144, 148.) If the court gives conflicting instructions that contain inconsistent ideas that may have confused the jury, a new trial may be granted on the ground of errors in law occurring at trial (Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256, 262.)

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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 allegations in the complaint are sufficient to withstand defendant’s demurrer. Allen alleges that he is a dependent adult under the EADACPA. He alleges conduct that constitutes Neglect under Cal. Welf. & Inst. Code §15610.57 by stating the following:

(1) While an inpatient at defendant’s medical facility known as University Hospital, plaintiff developed severe stages three and four decubitus ulcers on his body, which was known but concealed, or in the exercise of reasonable care, should have been [known] by defendant and its employees. As a result of the decubitus ulcers, plaintiff suffered injuries which contributed to his existing physical injuries, and caused delays in his physical therapy. The injuries that were the result of the development of the decubitus ulcers were legally caused by the acts and/or omissions of defendants. The defendants, knowing of the injury and the likelihood that an injury would occur if they failed to act, deliberately failed and/or refused to provide timely assessment and treatment of plaintiff’s injuries. Defendants also failed and/or refused to investigate and/or document the circumstances and cause of the injuries suffered by plaintiff;
(2) While plaintiff was an inpatient at University Hospital, defendant, and its employees abandoned plaintiff for an extended period of time without nursing or other appropriate attention, despite his weakened condition and complete dependence upon such personnel;
(3) Defendants, and each of them, intentionally acted to cover up the existence and cause of plaintiff’s injuries and circumstances as described above, by failing and/or refusing to invest gate and/or appropriately document such occurrences by failing or refusing to notify family members, or appropriate law enforcement or regulatory personnel of such occurrences;

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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.)

Second, Nishihama violates the California Supreme Court decisions of Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729, 734 and Helfend v. So. Calif. Rapid Transit Dist. (1970) 2 Cal.3d 1, 4 which have unequivocally confirmed the application of the collateral source rule in California. To rule otherwise would ignore the historical importance of the collateral source doctrine and the principle of stare decisis. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ( Under doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction; decisions of Supreme Court are binding upon and must be followed by all California state courts… Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court .).

Third, even defendant’s expert Lee Brown testified that although he intends to testify that the reasonableness of the bills is merely the adjusted amount accepted by the facilities, he has no way of knowing for sure what that amount is. Consequently, there is no basis to limit the introduction of the total amount billed to the Plaintiff.

Fourth, the prejudicial effect of introducing reduced medical bills to the jury would undermine Plaintiff’s claim for personal injury damages. If, for example, the jury is informed that Plaintiff’s medical bills are substantially less than the $278,000 which were charged by his health care providers, that fact may diminish Plaintiff’s general damages claim in the jury’s eyes and reduce his general damages award.

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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.)

STATEMENT OF FACTS

Plaintiff was terminated from his employment with XYZ Security ( XYZ ), for sexual harassment, and thereafter sued XYZ for discrimination on the basis of gender and race, and wrongful termination in violation of public policy, and sued XYZ and the individual making the false allegations and those individuals charged with investigating those allegations for defamation.

Trial began in this matter on March 26, 2007, in the Sacramento County Superior Court. On April 10, 2007, after a more than two-week trial involving numerous witnesses and a relatively complicated set of jury instructions and special verdict forms, the case was submitted to the jury. The jury came back the next afternoon, April 11, 2007, with verdicts in all instances for defendants.

In speaking with approximately nine or ten of the jurors after the verdict was delivered, Plaintiffs counsel learned that the jury wanted to find for Plaintiff and against XYZ on the defamation claim, but they could not answer the first question on the special verdict forms with respect to defamation, “Yes.” The jurors asked Plaintiff’s counsel who had written the questions.

The court and counsel had reviewed the special verdict forms in chambers. After such review the court instructed defendants to revise the punitive damages instructions. The next day the court instructed defendants to reorder the special verdicts. Sometime after the initial review of the special verdict forms defendants revised the forms such that they did not reflect the law of defamation, did not track with the jury instructions and did not resemble the CACI special verdict forms on which they were based.

The first sentence of CACI forms VF-1704 (defamation per se) and VF-1705 (defamation per quod) is Did [name of defendant] make the following statement to [a person/persons] other than [name of plaintiff]? When counsel and the court reviewed the special verdict forms, they each said, Did XYZ Security, make the following statement to a person other than Bobby White? The relevant portion of the CACI instructions 1704 (defamation per se) and 1705 (defamation per quod) states that That [name of defendant] made [one or more of] the statement(s) to [a person/persons] other than [name of plaintiff].

By the time special verdict forms VF-1704 and VF-1705 reached the jury, the first question read: Did one or more officers, directors, or managing agents of XYZ Security, acting in a corporate capacity, make the following statement to a person other than Bobby White.

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