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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 medical malpractice/personal injury case and its proceedings.)

Dr. Green

On June 24th Plaintiff was believed to have suffered a gastrointestinal bleed. On that day, Dr. Green placed an arterial and femoral line in Plaintiff’s groin to measure his blood pressure and rapidly infuse blood. The line is placed using a guide wire which is inserted ir the groin and up the iliac vein approximately 15-20 centimeters into the area of the bifurcation of the aorta. A hard rigid catheter is placed on top of the guide wire which, if erroneously placed can cause injury to the aorta. Assuming during the placement of these line, Dr. Green lacerated the posterior wall of the abdominal aorta and/or the adjacent area of the left common iliac vein, it would be a breach of the standard of care and a substantial factor in causing Plaintiff’s second series of injuries. Dr. Green has presented no evidence rising to a medical probability that his placement of the line did not cause injury.

However, even assuming Dr. Green did not cause the injuries, as the vascular surgeon taking part in the laparotomy on the 24th, Dr. Green was responsible for determining the source of the hemorrhage, including ruling out injury to the abdominal aorticbifurcation and the anterior wall of the left common iliac vein. Dr. Green admits that he did not discover the source of Plaintiffs bleed on the 24th As evident by the events on June 28th, Dr. Green failed to adequately inspect, discover and repair all sources of the bleed. Dr. Green’s failure to discover and repair the injury was below the standard of care and was a substantial factor in causing Plaintiff’s injury.

Dr. O’Connor

Defendant Dr. O’Connor s treatment of Plaintiff began on June 19, 2005, when Plaintiff suffered from respiratory failure and complications of aspiration pneumonia and a pulmonary embolism. On June 28th, Plaintiffs blood pressure again dropped and right femoral venous lines were placed by Dr. O’Connor. If Dr. O’Connor caused a puncture/laceration to the aortic bifurcation and/or to the left common iliac vein during the course of these placement of the femoral venous lines it was below the standard of care and a substantial factor in causing Plaintiff’s second set of injuries.

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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.)

Dr. Bale testified that Mr. Smith sustained a permanent, painful and extremely personal injury. Mr. Smith’s left testicle was damaged and, as of 2007, had lost 50% of its mass. Mr. Smith testified that many of the personal and intimate details of this life now were painful. He was unable to have sexual relations with his wife, Kim Smith, for three months and the sexual relationship with wife and continued to suffer since that the collision. Mr. Smith had painful erections, pain on urination, and pain upon exertion. These are not mere “soft tissue injuries” that will resolve with the passage of a few weeks or months or years. The traumatic damage to Mr. Smith’s left testicle is permanent and worsening. The testicle was reduced in size from 30% of normal to 50% of normal in just the past several years. Dr. Bale testified that this damage from the motorcycle collision may continue to worsen, but will not reverse.

Mr. Smith testified regarding the impact of these injuries upon his life. He was unable to return to his employment for several months and continues to suffer flare-ups which cause him to miss additional days of work. He testified that he suffered many embarrassing and humiliating events where he was physically unable to stand, sit or even walk and that, on many occasions, he was entirely dependent upon his family, sometimes his children, for physical and medical support. These events caused Mr. Smith significant anxiety as he was removed from his usual and customary role of the provider and guardian of his family. Mr. Smith’s testimony regarding several events where his children were required physically to care for him illustrated the full extent of the damages which were inflicted by the defendant’s collision with his motorcycle.

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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 bus accident/personal injury case and its proceedings.)

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.

Brad Small is the defense expert on accident reconstruction and biomechanics. Mr. Small testified that he reviewed Mr. Awad’s deposition and discovered several significant errors in Mr. Awad’s calculations. First, Mr. Awad used the wrong mathematic equation to calculate Ms. Chance’s pedestrian speed. (Small deposition, pages 85 to 86.) Second, Mr. Awad also reversed the location of the initial bus/pedestrian contact area or ICA because Awad drew his diagram of the intersection upside down, with north at the bottom and south at the top. (Small deposition pages 74 to 75.), Third, Mr. Awad is overheard on his video taped inspection of the intersection telling Mr. Jones that he has comparative fault here because Ms. Chance stepped out into the crosswalk on the DON T WALK phase of the signal.

Mr. Awad’s opinions are based on mathematically incorrect equations, conjecture and unwarranted assumption at best and outright fabrication at worst. Expert opinion testimony, to be admissible, must be based on at least some objective, independent validation of the expert’s methodology. The expert’s assurances that he has utilized generally accepted scientific methodology are insufficient when the expert’s calculations are shown to be incorrect (based n the wrong equation) and based on an upside down diagram that places the area of impact in the wrong location.

More important, where the expert can be heard informing his principal (John Jones) that the plaintiff was at fault for entering the intersection of the DON’T WALK phase of the green light (CVC 21456 (b)), there is no rational basis for allowing this expert to misrepresent the facts and testify in a manner inconsistent with his earlier in time, candid opinion on the issue of whether Ms. Chance was into the street on the WALK or on the DON’T WALK phase of the signal.

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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 birth injury/personal injury case and its proceedings.)

It was exactly this type of NIED claim that led to the Supreme Court’s unanimous opinion in Bird v. Saenz (2000) 28 Cal.4th 910, and bears repeating. There, the Supreme Court acknowledged the crucial point the Court of Appeal had overlooked – lay people, as a general rule, necessarily lack the ability to meaningfully comprehend medical errors when they occur. Being distressed by watching medical care rendered to a loved one is not enough to state a claim:

The Court of Appeal did not explain how a bystander without medical acumen, except in the most extreme case…could meaningfully be aware that a course of treatment is causing injury. In any event, a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing’s requirement that the plaintiff be aware of the connection between the injury-producing event and the injury. The Court of Appeal’s rule would, moreover, impose nearly strict liability on health care providers for NIED to bystanders who observe emotionally stressful procedures that turn out in retrospect to have involved negligence. We may reject such a rule as inconsistent with Thing.

Thus, allowing the father to amend is futile, because he could not possibly have witnessed or meaningfully comprehended the transmission of a latent bacterial infection from mother to child during birth. The only way he could have known about the infection is to be told about it after the fact. The demurrer to his NIED claim should be sustained without leave to amend.

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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 bus accident/personal injury case and its proceedings.)

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.

COME NOW defendants Bus USA, and move the Court in limine for an order excluding the expert witness testimony of Joseph Awad, the plaintiffs accident reconstruction and biomechanics expert.

Mr. Awad was deposed in this matter on February 1st. Mr. Awad testified at that time plaintiff Molly Chance entered the crosswalk at Fourth Street and Elm Street on the WALK phase of the green signal and proceeded to cross the street. (Awad deposition page 93.) Mr. Awad also testified that defendant Paul Davie (the bus driver) focused his attention on two pedestrians who were walking from west to east in the same crosswalk and that as a consequence, Ms. Chance walked into a zone of no visibility for the bus driver who proceeded to turn the bus left into Ms. Chance. (Awad deposition, pages 93 to 95 .)

Mr. Awad based the foregoing opinions on the length of the Walk phase of the green signal for Chance’s direction of travel as measured at 13 seconds by Mr. Awad on January 30th 2008. (Awad deposition page 91.); the walking speeds of the pedestrians and Ms. Chance (Awad deposition pages 69, 70, and 71.); and upon the unwarranted assumption that on the date of loss Ms. Chance limps or is otherwise “hobbled” due to injuries she sustained in an auto crash in 1998 (Awad deposition, page 71 to 72.). (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 medical malpractice/personal injury case and its proceedings.)

Dr. Brown

Dr. Brown’s placement of the first trocar or Veres needle during the initial surgery caused multiple vascular injuries, including a laceration to the left iliac vein, a laceration to the mesentery and small bowel. Dr. Brown was below the standard of care in causing these injuries.

Dr. Spring, Dr. Brown’s retained expert testified these injuries are not supposed to happen.
Q: you’re not suppose to injury the vein, are you?
A:. No.
Q: You’re not supposed to injure the mesentery, correct?
A: No. That’s not the intent of the operation.
Q: And you’re not suppose to injur the bowel correct?

A: That’s correct.

The same response was given for the injuries to the mesentery and the bowel.

Dr. Spring confirmed these injuries were caused by Dr. Brown’s placement of the trocar.
Q: Tell me how the vein injury was caused.

A: Most likely be the insertion of the trocar.

Further, it was Dr. Brown’s and Dr. Garcia’s duty to discover all areas of injury during the first exploratory surgery.
Q: Whose responsibility was it to determine the sources of the bleeding?
A: I believe the vascular surgeon would do that. That would be h s responsibility.
Q: Am I correct then that once Dr. Brown finished the cholecystectomy despite that fact that he may be responsible for causing the injuries it became Dr. Garcia’s obligation to identify any source of injuries?

A: Correct.

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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.)

Dr. David Jones, a board certified orthopaedist, testified that Mr. Smith was severely injured in the motorcycle collision. As a direct consequence of the collision, Dr. Jones diagnosed Mr. Smith with a left thigh strain, left groin strain, abdominal wall strain, testicular contusion, left thigh contusion, chest wall contusion, closed head injury and pelvic contusion. The injuries were so severe, that a post-collision MRI confirmed that Mr. Smith hand sustained a pelvic bone bruise with micro-fractures. Dr. Jones testified that the force generated in the trauma exerted upon the tissues surrounding Mr. Smith’s pelvis was so severe the underlying pelvic bone was bruised and micro-fractured. In short, this was a considerable trauma.

Dr. Jones testified that Mr. Smith had experienced three and one-half years of significant pain, measured as a three to four on a scale of ten, and would more likely than not continue to experience this pain for another three to four years. While the defendant has argued that Dr. Jones testified that the pain would typically resolve in three to five years, in the case of Mr. Smith Dr. Jones opined that the pain would continue for another three to four years. Mr. Smith would experience daily pain with stiffness and flare-ups of extreme pain. Dr. Jones testified that Mr. Smith would lose eight to nine days of employment per year for the next three to four years. Dr. Jones concluded that this was a very serious injury. The testimony of Dr. Jones was uncontradicted.

Dr. Joe Bale, a board certified radiologist, testified regarding extent of injury to Mr. Smith’s testicle and that injury was permanent. Dr. Bale reviewed CT scans, performed in July of 2005 and in August of 2007, of Mr. Smith’s testicles. The first test revealed that the Mr. Smith’s left (injured) testicle was 30% smaller than the right testicle. Dr. Bale testified that this discrepancy in size may have been congenital or the result of trauma. If the discrepancy were congenital, it would remain constant over time; if the discrepancy were the result of trauma, the left testicle would continue to atrophy as the damage progressed. When a CT scan was performed in August 2007, two years later, the discrepancy had increased, from a 30% reduction in mass to 50% reduction in mass.

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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.)

Mr. Black’s Opinions Will Assist the Trier of Fact and Therefore Are Relevant and Admissible.

Finally, defendants argue that Mr. Black’s opinions as to the City’s violations of its internal policies and procedures are not relevant to any of the issues in this case, and that testimony about those opinions might confuse or mislead the jury. On the contrary, defendants failure to follow its own policies and procedures, with respect to the prevention of sexual harassment and their response to complaints of sexual harassment, are evidence which tend to prove the prior notice element of plaintiffs’ sexual harassment cause of action. It also proves their failure to prevent sexual harassment itself (including the mandate to conduct an investigation) and retaliation. See, e.g., Kotla v. Regents of the Univ. of Calif. (2004) 115 Cal.App.4th 283, 294 n. 6 [opinion testimony by a qualified expert that an employer significantly deviated from its ordinary personnel procedures in the aggrieved employee’s retaliation case might well assist the jury in its factfinding];

Silva v. Lucky Food Stores, Inc. (1998) 65 Cal.App.4th 256, 263 [grant of summary judgment against plaintiff employee in wrongful termination case upheld in part because plaintiff had not presented any expert witness testimony regarding whether the employer conducted an appropriate investigation of underlying sexual harassment claim].

Even if some of the jurors have some familiarity with them, the elements of an effective intervention and prevention program for workplace sexual harassment are not commonly known by a typical juror. Accordingly, courts in California and other jurisdictions are finding that expert witness testimony is appropriate to establish whether the employer acted reasonably to prevent harassment and to respond to reports of alleged harassment. See, e.g., Kotla v. Regents of the Univ. of Calif., supra, 115 Cal.App.4th at 294 n. 6; Holly D. v. Calif. Inst. of Tech. (9th Cir. 2003) 339, F3d. 1158, 1177; Shrout v. Black Clawson Co. (S.D. Ohio 1988) 689 F.Supp. 774, 777-778; Kimzey v. Walmart Stores, Inc. (8th Cir. 1997) 107 F.3d 568, 571.

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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 bus accident/personal injury case and its proceedings.)

Likewise, Smith would have no basis for his proffered opinion that Ms. Chance left the curb on a “southerly diagonal” :

Q (Bus USA Counsel): Okay. Now, the last question I have is when (Chance) she crossed the street from wherever she was south of the intersection did she go straight across, or did she cross it at a diagonal or at an angle, based on what you saw?
A (White): Well, I didn’t – when she jumped off the curl I saw her, but once she started crossing like you said the bus, I couldn’t see until he hit her over here. So I don’t know what direction she was heading. But when I couldn’t see her she could have been -what I saw was –
Q: I don’t want you to speculate.

A: What I saw she was going straight across.

Q: You saw her step off the curb, but the bus was going forward and he blocked your view?
A: Right.

(Depo Transcript P. White.)

As the above italicized words demonstrate, White wanted to speculate as to what happened to Chance, which she obviously did when speaking to Officer Smith at the accident scene.

In Ribble v. Cook (1952) 111 Cal.App.2d 903, 245 P2d 593, a police officer’s opinion was ruled to lack proper foundation, because it was based on the self-serving declaration of the defendant and the statement of a witness who did not see the impact, which evidence was clearly hearsay. The officer’s testimony was adjudged almost worthless, because it depended on the credibility of persons other than himself.

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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/personal injury case and its proceedings.)

GENERAL DAMAGES

As a result of his injuries Paul has experienced severe pain and suffering and emotional distress. Paul was nearly killed on the scene as he suffered a severe skull fracture and brain hemorrhage, multiple broken ribs, spleen and liver lacerations, internal bleeding, and collapsed lung. Paul endured nine days in critical care, and continued to have pain and suffering well into his recovery. Paul continues to have complaints of periodic headaches and pains in the area where he fractured multiple ribs. The large scar on his head, and facial palsy further add to the suffering experienced by this young man after the automobile collision.

As a result of his brain injury, Paul has lost all motivation and shows signs of depression and anger. Paul often sleeps throughout an entire day, and it is frequently difficult for him to pull himself out of bed. Prior to the collision, Paul was an energetic, enthusiastic, and kind young boy. Now, he does not express himself, does not communicate well with others, and becomes angry and frustrated very easily. In short, Paul has become a different person all together.

As a 14-year-old with a brain injury, Paul’s social development has been stunted. For the most part, Paul has been in homeschool programs since the collision which have further contributed to this isolation. Paul’s prime years of high-school have been taken away from him, and he will never be able to make up this lost ground.

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