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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.)

PLAINTIFFS’ DIRECT VICTIM THEORY WAS AN AFTERTHOUGHT, NOT SUPPORTED BY THE PRESENT ALLEGATIONS.

It bears repeating that the parents’ status as “direct victims” was not pled, either directly or by reasonable inference. The only theory postulated by the parents to support their NIED recovery is based upon bystander status.) In order to pursue any direct victim claim they first have to plead it, which they did not do. The demurrer should be sustained on that basis.

THE FATHER CANNOT STATE A RIGHT TO RECOVER AS A DIRECT VICTIM AS A MATTER OF LAW, BECAUSE HE IS NOT A PATIENT.

The plaintiff-parents cite Burgess v. Superior Court (1992) 2 Cal.4th 1064 and Zavala v. Arce (1997) 58 Cal.App.4th 915 as support for their status as direct victims. Assuming leave to amend is granted, because the plaintiff-mother was a patient of Dr. Brown, she may qualify under Burgess as a direct victim; however, the father cannot possibly qualify.

So-called “Burgess” NIED recovery stemming from birth injury to a child is allowed only for the mother. This is because both mother and fetus are owed a duty of care, as both are the obstetrician’s patients. No case has allowed a father to recover as a direct victim for injuries to a child during birth, because he is not a patient. Rather, in order for a father to sue for NIED based upon birth injury to a child, he must satisfy the bystander criteria.

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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.)

It is true, of course, that every case is different, and that the value of an award in one case cannot be determined to be unreasonable on the basis of awards in other cases. However, the Supreme Court encourages trial courts, when reaching a determination concerning the reasonableness of the amount awarded by the jury, to consider damage awards in other cases. In discussing appellate review of a denial of motion for new trial based on excessive damages, the Supreme Court remarked in Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d 498, that, [w]hile the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. (Id. at p. 508.)

More recently, in Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, the court cited to the language in Seffert quoted above, and, based on it, conclude[d] that while it is appropriate to look at awards in similar cases, ultimately we must determine the propriety of the award based upon the facts of this case. (Id. at p. 550.) The court also found that a comparison of other cases may give us a point of reference . (Id. at p. 552.)

While it is true that the physical injuries and pain and suffering are different in all cases, they also share similarities. If they did not, then jurors would have no means by which to determine, in the first place, a reasonable amount of damages on the basis of their own experience as human beings.

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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 DEFENDANT OWED A DUTY TO PLAINTIFF BECAUSE THE DOG IN QUESTION LIVED AT THE DEFENDANT’S RESIDENCE

The law in this area is governed by Civil Code Section 3242, which imposes strict liability against dog owners whose dog causes injury to another.

Although the defendant and most recently, Ms. Cantor, are attempting to claim that the dog had never been to the residence at Maddox before (See deposition of Diana Topp, and the declaration of Maria Cantor), the defendant’s neighbor, Jack Rose, testified in deposition and declaration that the large brown Pit Bull with spots who attacked and injured plaintiff had been living at defendant Diana Topp’s residence for a significant amount of time before the incident occurred. In deposition, the words he used indicated the dog had been living at defendant’s residence and that he had personally seen the dog “on a daily basis, for a period of years.” Further, he is certain that the dog lived at defendant’s residence because he would see the dog on a daily basis because the defendant and Mr. Rose share a common chain-link fence in their backyard. (See Declaration of Jack Rose.) Therefore, a question of fact is raised when the defendant declares that the dog had never once been to her residence when the next door neighbor indicates that the dog had been living there for years.

Second, another neighbor, Mr. Tory Brown, who also lives next to the defendant, said that he has he heard the bark of a large dog on a weekly basis coming from the defendant’s residence over the course of years while he was walking his own dog (See Brown deposition.) Further, on one occasion (approximately three weeks before the incident involving plaintiff) the subject dog aggressively charged Mr. Brown, who had to chase the dog away with a stick. In deposition, Mr. Brown testified that the dog returned to the residence of Ms. Topp after it charged him. (See Brown deposition.)

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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 motorcycle accident/personal injury case and its proceedings.)

Plaintiff testified at trial that he currently has pain in the left hip/pelvis area which he rates as a 3 on a scale of 0-10. He did experience more acute flare ups 1-2 times a year since he has been released back to work and has returned to Dr. Jones, who has sent him to physical therapy and taken him off work for a week or two. Dr. Jones testified that he expected plaintiff would have on-going pain for 3-5 years following the accident however, because it was already 3.5 years after the motorcycle accident, he would expect that plaintiff will have the on-going pain for another 1.5 years. The jury’s award for future medical expenses ($720) and future lost earnings ($4,250) were not substantial.

Based on the above evidence, the award of $190,000 for past pain and suffering and $80,000 for future pain and suffering was excessive and not based on the evidence presented at trial. A new trial should be granted.

In the Alternative, The Court Should Remit The Award.

As noted above. Code of Civil Procedure section 662.5(b) sets forth the procedure whereby the court may deny a motion for a new trial conditioned upon acceptance of a reduction of the award. In general, the trial judge has discretion to grant a new trial or the grounds of excessive damages, and it is the court’s duty to grant such a new trial or provide for a reduction of a verdict if, under the circumstances, it believes the jury’s award is excessive. (Bazzoli v. Nance’s Sanitarium, inc. (1952) 109 Cal.App.2d 232.)

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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.)

Plaintiff, Sandy White, by and through her attorney of record hereby submits this opposition to Motion for Summary Judgment of Defendant. This opposition will be based upon this motion, the attached declarations, the court file, and evidence and oral argument to be presented at the hearing.

MEMORANDUM OF POINTS AND AUTHORITIES
FACTS OF THE CASE

On or about April 13, 2006, plaintiff, Sandy White was walking past the defendant’s residence, located on Maddox Avenue in Sacramento, CA, when a vicious Pit Bull charged from the defendant’s residence and attacked and maimed Ms. White. The plaintiff sustained significant and permanent injuries both physically and emotionally.

The defendant’s are claiming that the dog who caused the injury to plaintiff wasn’t their dog and had never been to defendant’s property before the date of the incident and therefore, they are not responsible for the injuries sustained by the plaintiff. Further, the defendants have submitted the declaration of Maria Cantor in support of their motion for summary judgment. Ms. Cantor (the alleged owner of the dog) has suddenly reappeared solely in support of defendant’s motion for summary judgment. Ms. Cantor’s whereabouts were perpetually unknown to defendant even in the deposition of Diana Topp, she testified she had no idea of the whereabouts of Ms. Cantor. Then miraculously Cantor reappears and submits a vague declaration in support of defendant’s MSJ.

Notwithstanding, there remains a triable issue of fact regarding ownership of the dog because two of the defendant’s neighbor’s (including a neighbor who shares an adjoining chain link fence with the defendant) have come forward in declaration and deposition and unequivocally testified that the dog in question was seen at, and lived at, the defendant’s residence (See depositions of Jack Rose and Tory Brown.

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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.)

une 28, 2005, Hemorrhagic Shock and Cardiac Arrest

On June 28th, Plaintiffs blood pressure again dropped. Right femoral and venous lines were placed in his groin by Dr. O’Connor. A third emergency surgery was performed by Dr. Brown and Dr. Garcia. A major hemoperitoneum was discovered with over five liters of blood intraperitoneally in the abdomen. It was not until the surgery on the 28th that Dr. Garcia and Dr. Brown finally discovered the source of bleeding, two totally separate injuries, a laceration at the posterior aspect of the aorticbifurcation and an associated kissing laceration of the left common iliac vein. The two lacerations were repaired and the abdomen was left open. These injuries were four to five centimeters away from the first series of injuries. Two days later, another laparotomy was performed and Plaintiffs abdomen was closed. These newly discovered injuries could have been caused from two separate events and certainly were caused by separate instrumentalities then that which lacerated Plaintiff’s iliac vein, mesentery, and small bowel on June 16th. As such, they are subject to two additional general damage recoveries, each in a separate amount not to exceed $250,000.

What was thought to be an outpatient procedure turned into a 35-day stay in ICU with multiple complications, two near death experiences and months of recuperation. Plaintiff was finally released from the hospital on July 21, 2005, totally disabled.

LIABILITY
Liability is clear. During the course of the cholecystectomy and the subsequent treatment by the defendants in this matter, Plaintiff sustained the following injuries: 1) laceration of the left iliac vein,

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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 motorcycle accident/personal injury case and its proceedings.)

LEGAL DISCUSSION
THE COURT HAS A DUTY TO SET ASIDE AN EXCESSIVE VERDICT UNSUPPORTED BY THE EVIDENCE

A New Trial Should Be Granted Because The Award for Past and Future Pain and Suffering by the Jury Was Unsupported by the Evidence.

The Court has authority and the power in this case to reweigh the evidence independently from that of the jury to determine whether the past pain and suffering and future pain and suffering award was excessive.

Defendant maintains that the amounts award by the jury for past and future noneconomic damages is simply unsupported by the evidence. To that end, the evidence at trial demonstrated that plaintiff suffered only soft tissue injuries. Plaintiff testified at trial that plaintiff’s CT scans and x-rays taken at the hospital following the accident were all negative.

None of the plaintiff’s doctors testified at trial that plaintiff required surgery or that he would require surgery in the future. Plaintiff’s past medical bills were only $15,221 and there was no evidence presented at trial to suggest that plaintiff suffered enduring, severe injuries or pain as a result of the motorcycle accident.

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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 issue before the Court was not whether Dr. Mitchell could testify to areas into which opposing counsel had failed to delve but rather whether he could testify on accident reconstruction issues about which he was specifically asked and had stated he had no opinion. The Court stated:

The decisive fact in the present case is the appellant’s failure to disclose Mitchell’s expected testimony … either at Mitchell’s deposition or as required by Sec??ion 2037.3. This failure deprived respondent to prepare for Mitchell’s cross-examination.

The Court went on to say that respondent was entitled to rely on Mitchell’s disclaimer [regarding the scope of his testimony] until such time as appellants disclosed that Mitchell had conducted further investigation and had reached additional opinions in a new area of inquiry. (Id. at 919.)

Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer v. Cooper, 233 Cal. App. 2d 750, 754 (1965), a case cited with approval in Kennemur, the court stated as follows concerning the scope of required deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for.

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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.)

The Jury’s $5.4 Million Non-Economic Damages Award to Mr. Ward Is Excessive
The jury awarded $5,400,000 past and future non-economic damages to Mr. Ward. This amount suggests a “per year” approach by the jury, in that this amount is precisely equal to $150,000 per year, multiplied by a life expectancy from the time of the auto accident of 36 years.

In general, a jury violates the law when it uses a mathematical formula to arrive at a figure for damages. (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 755-756, citing to Beagle v. Vasold, supra, 65 Cal.2d at p. 172.) The taking of a per-year or per-diem approach (i.e. where a dollar value is equated with pain and suffering over a unit of time) is an exception to this rule. (Beagle at pp. 179-180.) However, the use of this method can still lead to unreasonable results because, like any formula, it removes the determination of damages for pain and suffering from the realm of human experience. In his dissenting opinion in Beagle v. Vasold, supra, 65 Cal.2d 166, Justice Traynor strongly disapproved the use of per diem formulas, correctly observing that [n]one of these formulas appears unreasonable on its face, for there is no basis in human experience for testing their reasonableness. (Id. at pp. 183-184.) He concluded that [i]t is therefore unrealistic to seek an appropriate award for pain and suffering by the use of any so-called per diem formula. (Id.)

The Beagle majority addressed this concern by stating that, [W]hatever manner of calculation is proposed by counsel or employed by the jury, the verdict must meet the test of reasonableness. The per diem argument is only a suggestion as to one method of reaching the goal of reasonableness, not a substitute for it. If the jury’s award does not meet this test, the trial court has the duty to reduce it…. (Beagle, supra, at pp. 179-180.)

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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’s Opposition to Motion in Limine Re Limiting Expert Testimony

Plaintiff MOLLY CHANCE hereby opposes defendant’s motion for an order limiting plaintiff’s expert’s testimony to opinions set forth in expert designations and their depositions.

INTRODUCTION

Defendants filed a Kennemur motion to limit the testimony of experts at trial. Kennemur motions are both widely used and abused. They should not be permitted to excuse an attorney from taking an incomplete deposition. Additionally, a strict limit on testimony arguably beyond the scope of a expert designation is not appropriate when the expert was asked questions on certain subjects and the deposing party had every opportunity, and in fact does provide testimony in response to the expert’s opinions.

ARGUMENT

Defendants’ reliance on Kennemur v. State of California, 133 Cal.App.3d 907 (1983) is misplaced. Even a cursory review reveals the case to be inapposite.

In Kennemur, the plaintiffs expert, Dr. Mitchell, was deposed on three separate occasions over a six-day period by the defendant. The witness was specifically asked whether he was going to testify on accident reconstruction. He specifically stated that he was not and would leave that to a different expert. He said that he was limiting his testimony to the stability of the automobile involved in the accident. (Id. at 912.) At the second session of his deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

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