| by

(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.)

As a result of the abdominal bleed, Plaintiff suffered an abdominal compartment syndrome and he went into respiratory arrest, CPR was performed, and he was urgently taken to the operating room where Dr. Brown and Dr. Green performed a laparotomy (opening of his abdomen). Dr. Brown discovered a large hemoperitoneum, an enteral defect in the small bowel interloped mesenteric interstices caused during the first surgery. Neither Dr. Brown nor Dr. Garcia identified the bowel injury during the original surgery on June 16th although it was present. To not identify same was negligent. The failure to identify and repair the hole in Plaintiffs bowel may be a separate and distinct injury giving rise to a separate cause of action and a cap on general damages of $250,000.

Following the repair to the small bowel, Plaintiffs abdomen was left open. Two days later, on June 26th, Dr. Brown inspected and closed the abdomen. Dr. Brown failed to identify any additional sources of bleeding.

As the vascular surgeon taking part in the laparotomy on the 24th, Dr. Green was responsible for determining the source of the massive hemorrhage, including rulding out injury to the abdominal aorticbifurcation and the anterior wall of the left common iliac vein. As evidenced by the events on June 28th, Dr. Green failed to adequately inspect, discover and repair all sources of the abdominal bleed. If Dr. Green caused this bleed by injuring the aorta or left iliac vein when he set his lines this is a separate and distinct cause of action from the prior injuries and gives rise to a separate and distinct general damages cap of $250,000. (See Part 4 of 7.)

Continue Reading ›

| by

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.)

AUTHORITY
Code of Civil Procedure §657 outlines the basis for granting a new trial. In pertinent part, it provides:
The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:
Excessive or inadequate damages.

Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

Consequently, a new trial may be granted when the verdict is not justified by the evidence, and the court has the discretion to consider the evidence anew, and set aside the verdict as unjust. (Arellano v. City of Burbank (1939) 13 Cal.2d 248) It is also the trial judge’s duty to grant a new trial upon the issue of damages if he believes that the damages awarded by the jury are too high. (Los Angeles County v. Bitter (1951) 103 Cal.App. 2d 385.) If the recovery is disproportionate to any compensation reasonably warranted by the facts, it raises a presumption that it was the result of passion and prejudice rather than honest and reasoned judgment. (Gackstetter v. Market Street Rail Company (1935) 10 Cal.App.2d 713, 724.)

Code of Civil Procedure §662.5(b) provides in pertinent part as follows:
In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion:
b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.

Continue Reading ›

| by

(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 immigration or residence status is not relevant to the determination of liability. (See Rodriguez v. Kline (1986) 186 Cal.App.3d 1145.)

Plaintiff is pursuing a claim for loss of earning capacity. To the extent that plaintiffs residency status is relevant for that claim, plaintiff has provided evidence that she is currently a legal resident and entitled to work within the United States. Her residency and immigration status prior to this bus accident thus is not relevant to the determination of any damages at issue in this case and should clearly be excluded.

III. Admission of Plaintiff’s Immigration Status Would Create Undue Prejudice to PlaintiffEvidence Code Section 352 states that the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. See People v. Cardenas (1982) 31 Cal.3d 897, 904 (if the prejudicial effect of the disputed evidence outweighs the probative value, the trial court should exclude the evidence).

Evidence Code Section 352 justifies the preclusion of the requested evidence in this case. Given the clear lack of relevance, defendant’s intention by admitting such evidence can only be to prejudice the plaintiff and cause the jury to look negatively or with ill feelings towards the plaintiff if she was unable to demonstrate residency or immigration status at a time period prior to the subject accident. Certainly, the issues will be confused and the jury will be misled by the admission of such evidence. And clearly the probative value of the evidence is nonexistent.

Continue Reading ›

| by

(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 Motion in Limine for Order Precluding Reference to Plaintiff’s Residency or Immigration Status

Plaintiff MOLLY CHANCE hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony or argument relating to plaintiffs immigration and/or residence status.

This motion is made under the provisions of Evidence Code Sections 352 and 350, and is based on the supporting Memorandum of Points and Authorities, the pleadings and papers on file in this action, and upon such of the argument and evidence as may be presented prior to or at the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES
Preliminary Statement

This is a personal injury action arising out of an automobile versus pedestrian accident that occurred on October 27, 2006, where the plaintiff incurred a fractured jaw, brain hemorrhaging, dental damage and cognitive deficit and loss of earning capacity. This motion seeks to preclude the defendant from attempting to present prejudicial and irrelevant evidence relating to the plaintiffs immigration or residency status at the time of trial.

Plaintiff’s Immigration Status Is Not Relevant to Any Material Issue in this Case

Evidence Code Section 350 states that (n)o evidence is admissible except relevant evidence. Relevant evidence is defined by Evidence Code Section 210 as having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. See People v. Kelly (1992) 1 Cal.4th 495, 523 (only relevant evidence is admissible).

Continue Reading ›

| by

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 remaining amount of nearly $2,000,000 in the “life care plan” includes $837,000 for interventional pain therapies that Mr. Ward’s own experts admit he may or may not need; $413,400 in household help and attendant care that he may or may not need; and $350,000 for lumbar and cervical spine surgeries based on the estimate of Dr. Sam Stein. The lesser amounts are for items which are even more speculative: $113,838 for supposedly anticipated medical evaluations and treatment in every conceivable field of medicine (including psychiatry, psychology, podiatry, dentistry, gastroenterology, urology, neurology, and internal medicine) which his experts and attorneys are once again being disingenuous in suggesting are tied to actual anticipated expenses; “other therapeutic interventions” in the projected amount of $90,855; additional diagnostic studies totaling $51,743; and a projected cost of $34,625 for emergency room visits.

These costs simply bear no rational relation to any expected, concrete future expense. And those few that do bear at least some rational relation (e.g., the surgeries by Dr. Stein and the interventional pain therapies consisting of the opium pump) are wildly inflated and unsupported as to their amounts.

Continue Reading ›

| by

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.

In terms of future treatment and care, Dr. Jones testified that the only treatment he could offer plaintiff for this injury was physical therapy and medication. He released plaintiff to go back to work in November 2005 and since that time, plaintiff has returned to his office 1-2 times a year for flare ups at which time Dr. Jones has taken him off work for 1-2 weeks. Dr. Jones testified that he expected that plaintiff would have on-going pain for 3-5 years following the accident however, because the case was already 3.5 years after the accident, he would expect that plaintiff will have the on-going pain for another 1.5 years.

Since being released back to work in November 2005, plaintiff estimated that he has missed a total of six weeks of work due to this motorcycle accident. Plaintiff testified that his total past lost wages were $28,686 however, there was no documentary evidence was admitted in support of this testimony.

THE VERDICT
he matter was submitted to the jury on February 5, 2008. In or about February 5, 2008 the jury rendered the following Special Verdict:

Continue Reading ›

| by

(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 Are Based on Proper Matters and Do Not Constitute Legal Conclusions.

Defendants then argue that Mr. Black’s opinions are based on improper matters, e.g., speculative and incomplete facts, and constitute legal conclusions which invade the province of the Court and the jury. Mr. Black lists the information upon which he relied to formulate his expert opinions in this case on page 4 of his Expert Report. That information includes, inter alia, the California Department of Fair Employment & Housing Sexual Harassment Case Analysis Manual, defendants’ internal memoranda and administrative manuals with respect to sexual harassment policy in general and this case in particular, and transcripts of the depositions taken by plaintiffs and defendants in this matter. Defendants do not even attempt to explain how this information constitutes speculation or conjecture — which actually would be improper — or why this is not the kind of information experts reasonably rely upon in forming an opinion on the subject matter involved.

Further, as with their argument that Mr. Black’s opinions exceed the scope of his designation, the only “opinions” to which defendants refer are Mr. Black’s conclusions that plaintiffs have established a prima facie case of sexual harassment, including the failure to prevent sexual harassment, and retaliation, and were deprived of their right to privacy. Defendants conveniently ignore all the opinions set forth in his Expert Report which led Mr. Black to reach those conclusions.

Continue Reading ›

| by

(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.)

The investigation performed by the Gas Company’s experts confirmed that the speed of Mr. Brown’s Ford F-150 was 50.7 to 60.3 miles per hour. This report, prepared by Dr. Kevin Fish of the Institute of Risk and Safety Analyses, further states “We found no evidence that the traffic signals were not properly functioning at the time the subject collision occurred.” The report concludes It is clearly evident that Mr. Brown caused the subject collision by violating California Vehicle Code § 21453, failure to stop for a steady circular red signal.

Although the Gas Company has not formally accepted responsibility for causing this collision, Brown could not deny fault when pressed at deposition.
Q: Do you admit that you are at fault for this accident?

A: Yes. (Whitely deposition.)

SHERRIE MARTIN CANNOT BE APPORTIONED ANY RESPONSIBILITY FOR CAUSING THE SUBJECT COLLISION
The single eye-witness to the collision, Mr. Walkup, confirmed in his statement to the California Highway Patrol that Brown was completely at fault in causing the collision. Mr. Walkup stated that he was driving his vehicle northbound on White Road and was stopped at SR-40 waiting for his light to change. He observed the Martin vehicle stopped in the westbound left turn lane and after the signal cycled, she began a normal left hand turn. Mr. Walkup stated that the Martins were in a normal turn and were not in a hurry, and that Brown “came out of nowhere eastbound on SR-40, ran the red light and collided with the Martins.”

Continue Reading ›

| by

(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.)

June 16, 2005, Initial Surgery
Dr. Brown’s placement of the first trocar or Veres needle caused multiple vascular injuries, including a laceration to the left iliac vein, requiring immediate repair by a vascular surgeon. As a result, Dr. Garcia identified and repaired a 0.5 cm laceration to the left common iliac vein. During the course of the repair to the iliac vein, Dr. Garcia placed DeBakey clamps in the area of thebifurcation of the abdominal aorta. As a vascular surgeon, Dr. Garcia had the duty and the obligation to inspect the area and discover any additional sources of in ury or bleeding. This would include inspecting the aortic and iliac vessels to rule out a more deep and penetrating vascular injury from the trocar. Dr. Garcia claims that as of his surgery on June 16th there was no separate injury to the bifurcation of the abdominal aorta and no injury to the iliac vein in that area

Dr. Brown and Dr. Garcia examined the peritoneal cavity for other area; of injury. Dr. Brown and Dr. Garcia inspected the small bowel and mesentery and found a laceration to the mesentery. The third injury to the small bowel was missed. Plaintiff’s surgical site was closed and he was transferred to XYZ Hospital.

June 19, 2005, Respiratory Failure

Three days after the original surgery, Plaintiff was in respiratory distress. A CT pulmonary angiogram was performed which revealed a large right pulmonary arterial embolus. The following day, Defendant Dr. O’Connor began treating Plaintiff for respiratory failure and complications of aspiration pneumonia and pulmonary embolism. Dr. O’Connor opined that the respiratory failure was not just from the pulmonary embolism, but that he also had an aspiration event. The blood clot which caused the pulmonary embolism had developed in Plaintiff’s left iliac vein at the site lacerated during the cholecystectomy. All experts agree the pulmonary embolism was a direct result of Dr. Brown’s laceration of the left iliac vein.

Continue Reading ›

| by

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 $3,185,711 Economic Damages Award to Mr. Ward Is Excessive

The jury awarded Mr. Ward economic damages consisting of future medical expenses in the amount of $3,185,711. This was based on the testimony of Dr. Frank Shin, the substance of which is reflected in Dr. Shin’s “Life Care Plan,” which states a purported total cost figure of $4,685,561. That means the jury awarded roughly 68% of the amount asked for by the plaintiffs.

Dr. Shin’s “Life Care Plan” purports to state the precise cost of surgical procedures, individual medications, and medical treatments of every imaginable variety. (Dr. Shin’s testimony was the only evidence presented at trial in support of the amounts stated on this document.
The life care plan states an estimated lifetime cost for medications totaling the unbelievable sum of $2,708,200. This sum was reached by multiplying Mr. Ward’s supposed remaining life expectancy of 35 years (i.e. 420 months) by the monthly cost of a total of ten different medications, plus an additional $250,000 for botox injections. (This amount in particular is clearly overstated, since the total cost is listed as $5,000 per year, which, multiplied by a 35-year life expectancy comes only to $175,000, not $250,000.)

Continue Reading ›