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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.)

Damages awards upheld in other cases involving similar injuries further illustrate the true departure from reality reflected by the award to Mr. Ward. (See Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1074-1077 [in upholding $150,000 in non-economic damages for slip-and-fall injury to legs and lower back of 55-year old woman, trial court remarked that the award was generous, where plaintiff suffered from ongoing, chronic, permanent pain from myofascial pain syndrome, which limited her mobility, caused her to be physically weak, and prevented her from working at her job]; Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1546-1547 [where plaintiff’s arm was severed by fan, resulting in permanent loss of use of dominant hand after reattachment, chronic and severe pain, and inability to work, jury awarded non-economic damages of $2.5 million];
Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 34-38 [where plaintiff suffered “massive crush injury” to his left chest and shoulder from being trapped between a 65,000-pund truck and its trailer, causing massive blood loss, kidney failure, crushing of shoulder blade, nerve damage in arm, shearing-off of ligaments and muscles in arm, collapsed lung, repeated operations, permanent loss of use of arm, and permanent pain in shoulder, jury awarded $568,000 in non-economic damages, upheld by reviewing court]; Honea v. Matson Navigation Co. (N.D. Cal. 1972) 336 F.Supp. 793, 795, 797-799 [where slip-and-fall resulted in fractured left hip, death of a piece of bone due to lack of blood supply, and possible permanent confinement to a wheelchair, court awarded $75,000 in non-economic damages, including pain and suffering];
Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at pp. 504, 506, 508-509 [bus accident caused fractures of left heel and shin bones, severed nerves and arteries to left foot and persistent open ulcer; Court conceded that non-pecuniary damages award of $134,000 was high but upheld it, stating that it was intended to compensate for pain and suffering, past and future, humiliation as a result of being disfigured and permanently crippled, and constant anxiety and fear that the leg will have to be amputated ];

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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.)

THE SECOND ACT OF NEGLIGENCE IS A SECOND CAUSE OF ACTION

Although Plaintiff suffered multiple injuries when Dr. Brown placed the original trocar in the iliac vein, the mesentery and the small bowel, which commutatively give rise to one general damage award of the $250,000 MICRA cap, Plaintiff suffered two totally separate injuries from potentially separate acts of negligence giving rise to a second and third $250,000 cap. Indeed had Plaintiff so chosen he could have brought a separate lawsuit for the injury to his abdominal aorta and for the left iliac vein. See (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848,1854. Each time a separate and distinct wrongful act causes this injury a separate cause of action arises because a separate right has been violated.)

Defendants Garcia and Green’s own expert, Dr. Richard Davis testified at deposition there are two separate and distinct injuries. (See Deposition of Dr. Richard Davis, page 51, lines 17-21, attached hereto as Exhibit 1. ) Dr. Davis further testified that the injury to Plaintiff’s bifurcation of the aorta could not have been present during the June 16th surgery because Dr. Garcia would have been able to see it. (See Deposition of Dr. Richard Davis.) Plaintiff has separate causes of action for each injury and therefore separate damage limitations. Plaintiff will ask the jury to award him S750,000 in general damages for medical malpractice.

CAUSATION
As discussed above, the type of injuries suffered by Plaintiff do not occur in the absence of negligence. It is undisputed, even by defendants own experts that one, some, or all, of the defendants caused Plaintiff’s injuries.

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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.)

Plaintiff Molly Chance (“Chance”) requests this court to accept the following supplemental points and authorities to consider in support of her motion to vacate judgment in this matter and order a new trial under C.C.P. § 657.

INTRODUCTION

Plaintiff earlier submitted authorities arguing the inadmissibility of an un designated expert’s opinion. Should this court entertain the possibility that Defendant somehow qualified this policeman as an expert despite previously enumerated procedural shortcomings? Plaintiff requests this court further consider the impermissible foundation for his opinion.

ARGUMENT

A hypothetical question must be propounded to an expert based upon facts presented by other witnesses at trial to give foundation for expert opinion that he did not have before testifying.

The opinion that Chance was guilty of jaywalking at the time she was injured by the bus was based on the hearsay statement of Petra White ( White ) as summarized in Officer Will Smith’s ( Smith ) report rather than any testimony received during trial thru the reading of deposition testimony of this same witness. In fact, if Smith had been read the full testimony of Ms. White in the form of a hypothetical question, he would have no basis for his proffered expert opinion that Chance was “outside the crosswalk” upon leaving the curb because White testified that Chance was either 8, 4 or 3 feet from the corner which the court may give judicial notice was the right side boundary of the unmarked crosswalk as Chance approached it. (Deposition Transcript of P. White.)

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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.)

Plaintiff opposes the Motion for New Trial or, in the Alternative, Motion for Remittitur as the evidence presented at the trial justified and supported the award of non-economic damages by the jury. This court should not disturb the unanimous verdict of the jury which clearly was the result of careful deliberation and not the result of either sympathy or prejudice. As the verdict of the jury was supported by the evidence presented at trail, the motion of the defendant should be denied.

The Verdict of the Jury Was Supported by the Evidence.

Significant and substantial evidence was presented regarding the nature and extent of the injuries sustained by Mark Smith. Larry Brown testified that she turned her vehicle into the path of Mr. Smith’s motorcycle, collided with the motorcycle, and caused Mr. Smith to be propelled from the motorcycle and onto the pavement. Mr. Smith testified that the collision with the defendant’s automobile caused him to flip off of the motorcycle, rotate in the air, and land on his shoulders. After plaintiff’s shoulders struck the pavement, Mr. Smith testified that his hips and legs slammed into the pavement, inflicting serious and significant injury. This testimony was uncontradicted.

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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.)

In Randolph v. Budget Rent-A-Car (C.D. Cal. 1995) 878 F.Supp.162 (reversed on other grounds in Randolph v. Budget Rent-A-Car (9th Cir. 1996) 97 F.3d 319), the court (following a court trial) determined plaintiff’s damages arising from an auto accident. (Id. at pp. 163-164.) The court described the plaintiff’s injuries as follows:

As a proximate result of the automobile accident John Randolph has suffered extensive orthopedic injuries. His left knee has a fractured tibial plateau and a tear of its anterior cruciate ligament; his pelvis was fractured resulting in the separation of his pubic rami; his pelvic region suffered a severe hematoma, resulting in a major rectus muscle injury; and the third and fourth metacarpal of his left hand were also fractured. In an effort to alleviate some of the pain John Randolph has been suffering, he must undergo two future surgeries. The first is to remove metal fragments from his left knee; the second is to replace the knee with an artificial knee implant. Further, it is quite possible that a second knee replacement operation will be needed if the first replacement does not work. (Id. at pp. 164-165.)

While the plaintiff in Randolph also suffered impotence as a result of his injuries, he was separately compensated for this by the court. (Id. at p. 166.) For his total past and future pain and suffering arising from the injuries described above, however, the court awarded him a total of $500,000. (Ibid.) The court explicitly based its determination on a survey of compensation for similar injuries in this and other jurisdictions. (Ibid.)

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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 dog bite/personal injury case and its proceedings.)

Moreover, there are significant inconsistencies in the declarations of Diana Topp and Maria Cantor. Please note, Ms. Topp’s first declaration indicates under penalty of perjury that Ms. Cantor was visiting her on 4-13-06 . However, in Ms. Cantor’s declaration she indicates that she was visiting Ms. Marta Jones on 4-13-06. Then, Ms. Topp submits a second declaration that indicates that Ms. Cantor was not visiting her on the date in question, but was visiting Marta Jones (see second declaration of Diana Topp) thereby changing her original story completely.

Admissions of material facts made in an opposing party’s pleadings are binding on that party as judicial admissions. They are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) 10:147, p. 10-49; Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146.).

The dog was on the premises with the owners consent and/or the dog lived at the property. The dog had been spotted by neighbors at the residence of the defendant for years, as testified in deposition by both of the defendant’s neighbors
SIGNIFICANT DISCOVERY HAS STILL TO BE OBTAINED IN THIS CASE
Code of Civil Procedure, Section 437c (h) a Court shall deny a motion for summary judgment if the opposition establishes that there is additional discovery to be had. In this case, defendant’s misconduct in the discovery proceedings evidences willful abuse in this instance. (See responses to RFA’S.)

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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 Do Not Constitute the Improper Admission of Hearsay Evidence.

Defendants next argue that Mr. Black’s opinions are based on hearsay and that his report constitutes multiple hearsay. Plaintiffs do not intend to offer Mr. Black’s Expert Report into evidence at trial, so defendants’ hearsay objection with respect to it is moot. More importantly, however, as noted above, expert opinions may be based on inadmissible matters, specifically including hearsay, as long as those matters are the type on which experts reasonably rely.

Experts reasonably rely on a plaintiff’s description of what happened to him and how it affected him. As also noted above, experts may not testify as to the details of that hearsay. For example, an expert may testify that his or her opinion as to the nature of a personal injury is based on the injured person’s hearsay statements, but such hearsay cannot be used to prove the cause of the injury. See In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1120 [overruled on other grounds in People v. Brown (1994) 8 Cal.4th 746, 763.]
Similarly, Mr. Black may testify here that his opinions regarding the defendants’ conduct before and after the 2007 Gay Pride Parade, with respect to plaintiffs’ unwillingness to participate, are based on hearsay statements by the plaintiffs. Nonetheless, that hearsay itself cannot be used to prove, for example, defendants’ failure to prevent sexual harassment or retaliation. (See Part 7 of 7.)

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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.)

Plaintiff, Mark Smith, submits this Memorandum of Points and Authorities in Opposition to Defendant’s Motion for New Trial or, in the Alternative Remittitur:

INTRODUCTION

This action arises from motorcycle versus automobile collision which occurred on June 12, 2005, in Sacramento, California. Plaintiff filed the action and requested a jury trial. In its answer, the defendant likewise requested a trial by jury.

The jury trial was conduced from February 2 to February 5, 2008. On the morning of trial, the defendant admitted liability, but disputed causation and damages. During the trial, plaintiff submitted substantial evidence on the issues of causation and damages which was not significantly opposed by the defendant. The jury returned a verdict awarding Mr. Smith economic damages for the stipulated medical expenses of $15,221.75, future medical expenses of $720, past lost earnings of $28,686 and future lost earnings of $4,250. The jury awarded past non-economic damages in the amount of $190,000 and future non-economic damages of $80,000. The verdict of the jury was unanimous in all respects.

In spite of the facts that the defendant sought the trial by jury, the defendant now seeks a new trial, complaining that the non-economic damages awarded by the jury were excessive. The defendant has not cited any statutory or jurisprudential for her position that the damages are excessive, except for Horsford v. Board of Trustees of Calif. State Univ. (2005) 134 Cal.App.4th 359 wherein the court remitted on award of economic damages in an employment discrimination case. Nor has the defendant cited any evidence that the jury was unduly influenced by passion and sympathy toward the plaintiff.

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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.)

DAMAGES
As discussed above, Paul Martin suffered severe personal injuries as a result of the collision. Paul suffered a severe skull fracture, brain hemorrhage, collapsed lung, fractured pelvis, multiple fractured ribs, liver laceration, and spleen contusion and laceration. Paul nearly died on the scene after he became unresponsive and could not be intubated due to his locked jaw. The 14-year-old was air-lifted and spent nine days in critical care at University Hospital.
PAST MEDICAL EXPENSES
Mercy Air: $8,031.50
ABC Ambulance: $ 1,089.03
Valley Regional: $49,941.17
University: $ 70,752.47
Outpatient Rehab. $ 5,000.00
TOTAL $134,814.00
FUTURE MEDICAL EXPENSES & SERVICES

Paul has been diagnosed with a moderate to severe traumatic brain injury. Paul’s treating physicians have recommended that he be placed in a specially designed educational learning program for children with brain injuries. Paul will need extended schooling through the age of 22 based on his condition.

Paul will require treatment in a residential neurobehavioral program to cope with his damaged motor skills.

Due to his brain injury and inability to properly care for himself, Paul will require long-term supported living after completion of school.

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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 dog bite/personal injury case and its proceedings.)

THE MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE ISSUES OF MATERIAL FACT IN THIS CASE

Summary judgment is proper only where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 473c, subd. (c). A defendant moving for summary judgment based on an affirmative defense has the overall burden of showing there is a complete defense to the plaintiff’s action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 849. In this regard, the defendant must first produce evidence to support a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. (Id. at p. 850.)

Under strict liability theory, a person is liable for any injuries caused by the subject. Here the testimony of the defendant and Ms. Cantor is the complete polar opposite of the testimony of the defendant’s neighbors (Rose & Brown) and clearly raises a triable issue of fact as to ownership of the dog, residence of the dog, and whose is responsible for the plaintiffs injuries. Only a jury can decide these ultimate questions of fact.

In addition to the declaration and deposition testimony of both of the neighbors, the law states that once the owner has knowledge of the dog on her premises, she is liable for any and all injuries that are caused by the attacking dog.

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