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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.)

It is well settled that less particularity in pleading is necessary where the defendant may be assumed to have equal or superior knowledge of the facts than the plaintiff does. Burks v. Poppy Constr. Co. (1962) 57 Cal. 2d 463,474, 2 Cal. Rptr. 609; Dahlquist v. State of California (1966) 243 Cal. App. 2d 208, 212, 52 Cal. Rptr. 324; Doheny Park Terrace v. Truck Ins. (2005) 132 Cal. App. 4th 1076, 1099, 34 Cal. Rptr. 3d 157. The courts have reasoned that less particularity is required because [M]odern discovery procedures necessarily affect the amount of detail that should be required in a pleading. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4 th 592, 608, 98 Cal. Rptr. 2d 277.

Moreover, not all statutory causes of action must be alleged with the specificity that defendant suggests. A cause of action based upon a defendant’s violation of business and professions code section 17200 does not have to be alleged with specificity. Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46, 77 Cal. Rptr. 2d 709.

Here, defendant, who has been Allen’s health care provider since he was hospitalized beginning February 11, 2004, may be assumed to have knowledge of the facts of this action that is equal to or superior to that of Allen. Defendant has Allen’s complete medical chart in its possession. Defendant’s employees at University Hospital who were responsible for Allen’s custodial care, including the nurses, knew or should have known that because Allen was paralyzed, he needed regular assistance with turning and movement.

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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.)

Plaintiff’s Motion In Limine Exclude Testimony of Defendants’ Human Resources Expert Tina Hall
INTRODUCTION

Plaintiff Bobby White (hereinafter “Plaintiff” ) respectfully moves the Court for an order in limine to exclude any testimony from Defendants’ proposed human resources expert Tina Hall (hereinafter “Hall”). Plaintiff brings this motion on the grounds that Hall’s proposed testimony would improperly usurp the role of the jury by offering her own unnecessary and improper legal conclusions as to how this case should be decided. Hall will offer opinions, under the mantle of expert, that XYZ Security applied effective investigation procedures to the investigations done in this case. Hall’s proposed testimony should be excluded under Evidence Code section 801 because it is not related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. Further, allowing Hall to offer her improper legal conclusions would unduly prejudice Plaintiff, while wasting the time and resources of the Court, the parties and the jury. Hall’s testimony regarding plaintiff’s alleged sexual harassment, therefore, also should be excluded under Evidence Code section 352.

This motion is based on the supporting memorandum of points and authorities, the pleadings, records and papers on file in this action, herein, and upon such further oral and documentary evidence as may be presented at the time of the hearing. (See Part 2 of 2.)

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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.)

Steve White, M.D.’s (hereinafter “White”) Reply to Plaintiff’s Opposition to Summary Judgment Motion by Defendant Steve White, M.D.

INTRODUCTION

The following facts were established in the moving papers in this medical malpractice action, and remain without dispute. Plaintiff Cindy Smith went to the emergency room the day after she fell at her Sacramento home, and she complained of neck pain. The patient was directed to a nurse practitioner (Paul Brown) and was never seen by Dr. White.

Plaintiff’s opposition to this motion is misdirected. Plaintiff’s essential contention is that she should have been seen by a medical doctor and not a nurse practitioner. But, this was a decision made by the triage nurse. Plaintiff argues that Dr. White is “personally and vicariously liable for nurse Paul Brown’s failure …” But, there is no legal basis for vicarious liability on the part of a physician, who simply happens to be in the emergency department at the same time that a patient is treated by a nurse practitioner and discharged.

Beyond expressing an opinion that the patient had a serious condition that warranted evaluation by a medical doctor, not a nurse practitioner, plaintiffs expert provides nothing to the court of legal significance. He attempts to offer an interpretation of Standardized Procedures under which nurse practitioner Wonder operates but such opinion is argumentative, lacks foundation, and is outside the scope of the expertise of a medical expert.

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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’s Memorandum of Points and Authorities in Opposition to Defendant’s Demurrer and Motion to Strike Portions of Plaintiff’s Third Amended Complaint
INTRODUCTION

Plaintiff John Allen (“Allen”), an incompetent adult, and Sacramento resident, by and through his conservator, Darrell Allen, requests that the Court issue an order overruling Defendant XYZ Medical Center’s (“Defendant”) demurrer and motion to strike portions of Allen’s third amended complaint. Allen has properly alleged causes of action for Defendant’s violation of the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”), intentional infliction of emotional distress, and violation of Cal. Welf & Inst. Code § 15656. Additionally, Allen may also seek treble damages as set forth in Cal. Civ. Code §3345 as a result of Defendant’s neglectful and abusive conduct. Alternatively, Allen requests that the court grant him leave to amend if the court finds that he has not properly alleged the causes of action contained in his complaint.

DISCUSSION

THE COURT SHOULD OVERRULE DEFENDANT’S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CAUSE OF ACTION FOR VIOLATION OF THE EADACPA.

Allen has alleged sufficient facts to state a cause of action for violation of the EADACPA.

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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.)

PLAINTIFF’S TRIAL BRIEF REGARDING INTRODUCTION OF HIS MEDICAL BILLS
MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY OF FACTS AND ARGUMENT

This is an admitted liability case.

Plaintiff Billy White’s vehicle was rear-ended at high speed by defendant Thomas Smith’s vehicle as Mr. White was stopped at a lighted intersection in Sacramento. Plaintiff’ suffered a serious low back disc herniation at L5-S1, which eventually required a fusion surgery. He may need future revision procedures. Plaintiff’s medical bills exceed $278,000. His loss of earnings exceeds $600,000-$750,000.

Defendants want to restrict evidence of Plaintiff’s medical specials at trial to the contract rate the healthcare providers accepted from Plaintiff’s health insurance carrier pursuant to Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298.

The motion should be denied for the following reasons:

First, recent judicial decisions affirmed the right of a plaintiff to introduce the full amount of her medical bills notwithstanding that they exceeded the amount paid by insurers to plaintiff’s medical providers. In Olsen v. Reid, 2008 WL 2486789, the court of appeal “squarely rejected” defendant’s argument that the jury should be barred from hearing evidence of the full measure of plaintiff’s medical damages. Similarly, in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157, the court permitted Plaintiff to present the full amount that was billed to him, subject only to a possible post-verdict reduction.

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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.)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL
INTRODUCTION

By this Motion, Plaintiff Bobby White (“Plaintiff”) respectfully requests that the Court make an order granting him a new trial. There is significant irregularity in the proceedings by the parties adverse to Plaintiff (CCP § 657(1)), insufficient evidence (CCP § 657(6)), and error in law excepted to during trial (CCP § 657(7)), each of which prevented Plaintiff from having a fair trial. For each of these reasons, Plaintiff respectfully requests that the Court grant his motion for a new trial.

This workplace discrimination and harassment case was resolved after more than two weeks of trial, which began on March 26, 2007. On April 10, 2007, the case was submitted to the jury. The jury came back the next afternoon, April 11, 2007, with verdicts in all instances for defendants. At the last minute, in a manner designed to deceive the jury, the court, and plaintiff, defendants, who were charged with preparing the special verdict forms for the jury, revised them so that they misstated the law. Even though the jury wanted to find for the injured plaintiff, the revised special verdict forms kept them from doing so.

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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.)

PLAINTIFF’S TRIAL BRIEF
STATEMENT OF FACTS

November 28, 2003, was Sunday of Thanksgiving weekend. Plaintiff Archie Smith, a Sacramento resident, was twenty-one years of age and was on a break from his studies as a math major at Princeton University. The weather was clear and sunny so Archie and friend Miranda Brown decided to go for a bike ride to the beach. The pair started near Veteran Avenue in Santa Monica, rode to Ocean Boulevard along the beach and then turned east on San Vicente Boulevard back towards Miranda’s home.

Defendant Sabrina Black, aged 60, had been to the manicurist, purchased holiday greeting cards and was driving her BMW X-5 SUV northbound on 11th Street on route to her home in Westwood. At approximately 2:15 p.m., defendant approached the stop sign at the intersection of 11th Street and San Vicente and intended to proceed across the intersection to the center median, where there is a break in the road for vehicles to make turns, and then turn left onto San Vicente Boulevard. Defendant stopped at the stop sign but failed to see Archie who was riding eastbound on San Vicente Boulevard in the bike lane directly in front of her at the time of impact. Defendant accelerated to make her way towards the center median and struck Archie.

The point of impact was within the bike lane. The front of defendant’s SUV struck Archie ‘s right hip and the middle of the hood of the SUV impacted the bicycle’s handlebars. After impact, Archie ‘s bicycle was knocked to the ground in front of defendant’s SUV. Instead of immediately stopping upon feeling the impact, defendant continued to drive forward, ran over Archie with the left front tire of the SUV, and continued to drag him and his bicycle on the asphalt underneath the vehicle for more than twenty feet. (See Part 2 of 4.)

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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.)

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT MEMORIAL HOSPITAL’S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION

This is a medical malpractice action arising out of a birth injury suffered by the minor, Mark Brown. The minor suffered birth injuries resulting in cerebral palsy, and cognitive and developmental delay.

Memorial Hospital, where the minor was born, now moves for summary judgment claiming that the nurses acted within the medical standard of care and did not cause injury to the minor.

There is a triable issue of fact; Plaintiff has submitted evidence contradicting the Defendants’ expert declaration. Plaintiff presents the expert declaration of John Zee, M.D., board certified in obstetrics and gynecology, contradicting the moving party’s expert declaration. This counter declaration requires the denial of summary judgment (Sesma v. Cueto (1982) 129 Cal.App.3d 108, superceded on other grounds).

The moving party bears the burden of persuasion and the initial burden of proof: [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. (Emphasis added.) (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Here the Plaintiff has now contradicted the Defendants’ expert declaration; the Defendant has failed to carry its burden of persuasion. (See Part 2 of 5.)

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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 auto accident/personal injury case and its proceedings.)

These above cases dramatically demonstrate the principle that–much as every case is of course different and must be independently decided–awards of non-ecomonic damages in the range of $5.4 million (roughly adjusted for inflation) are limited to truly catastrophic injuries. And while Mr. Ward presented evidence at trial of back, neck, and knee injuries that cause significant pain and require surgery, Mr. Ward has produced no evidence of an injury which leaves him paralyzed or otherwise deprived of control over his life as an individual. In short, his injuries from the automobile acident are not catastrophic, and the jury’s award of damages as if they were is not reasonable. Damages must be reduced substantially by this Court, or a new trial must be ordered. The same is true for plaintiff’s wife’s award.

The Jury’s $1.620 Million Loss of Consortium Damages Award to Ms. Ward Is Excessive

A wife’s loss of consortium is comprised of her own physical, psychological and emotional pain and anguish which results when her husband is negligently injured to the extent that he is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life. [Citation.] While triggered by the spouse’s injury, a loss of consortium claim is separate and distinct, and not merely derivative or collateral to the spouse’s cause of action. (Gapusan v. Jay (1998) 66 Cal.App.4th 734, 742.)

The jury awarded a total of $1,620,000 to Ms. Ward for past and future loss of consortium. This amount is exactly 30% of the $5.4 million in non-economic damages awarded to Mr. Ward.

The loss of consortium award to Ms. Ward raises three immediate concerns. First, the jury clearly disregarded the independent nature of Ms. Ward’s claim, by simply giving her a percentage of what it gave to Mr. Ward for his pain and suffering. Second, the determination of Ms. Ward’s loss of consortium claim by way of a percentage of an entirely independent claim belonging to another person constitutes a clear violation of the rule against using mathematical formulas to arrive at a figure for damages. (See above.)

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The following blog entry is part of the plaintiff’s response to the defendant’s new trial motion, which was posted earlier this month.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

LAW AND ARGUMENT

In considering a motion for new trial which is based on the ground of excessive damages, the trial court is restricted to the evidence presented at trial. Stevens v. Owens-Corning Fiberglass Corp. (App. 1 Dist. 1996) 57 Cal.Rptr.2d 525, 49 Cal.App.4th 1645. Trial court must weight and consider all evidence in record, including reasonable inferences to be drawn therefrom, before granting new trial on ground of excessive or inadequate damages and if new trial is granted, it must be based upon totality of evidence, not upon any particular portion of record which can be readily pointed out. Collins v. Lucky Markets, Inc. (App. 4 Dist. 1969) 79 Cal.Rptr. 454, 274 Cal.App.2d 645. A court may not set aside verdict and grant new trial merely because judge does not agree with amount of damages. Phillips v. Lyon (App. 1930) 109 Cal.App. 264, 292 P. 711.

The assessment of damages is primarily the province of jury and secondarily the province of trial court when passing upon a motion for new trial. Gersick v. Shilling (1950) 218 P.2d 583, 97 Cal.App.2d 641; Music v. Southern Pac. Co. (1949) 204 P.2d 422, 91 Cal.App.2d 93. Trial courts may not grant new trial merely because verdict seems large or because it is larger than court sitting as jury would have given, but only when it appears that verdict was given under influence of passion or prejudice. Casaretto v. DeLucchi (1946) 174 P.2d 328, 76 Cal.App.2d 800; Kent v. Los Angeles Ry. Corp. (1939) 84 P.2d 1057, 29 Cal.App.2d 435; Los Angeles County Flood Control Dist. v. Abbot (1938) 76 P.2d 188, 24 Cal.App.2d 728; Bonner v. Los Angeles Examiner (1936) 62 P.2d 427, 17 Cal.App.2d 458; Hellman v. Los Angeles Ry. Corp. (1934) 27 P.2d 946, 135 Cal.App. 627, rehearing denied 28 P.2d 384, 135 Cal.App. 627.

In actions sounding in damages, where the law furnishes no rule of measurement, save the discretion of the jury upon the evidence before them, courts will not disturb a verdict upon the ground of excessive damages, unless it is so flagrantly improper as to evince passion, prejudice, partiality, corruption, or misapprehension. Wheaton v. North Beach & M.R. Co. (1869) 36 Cal. 590; Boyce v. California Stage Co. (1864) 25 Cal. 460; Aldrich v. Palmer (1864) 24 Cal. 513.

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