| by

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.)

In the absence of an express contract warranting a specific result, lawsuits against physicians resulting from negligent treatment are not based in contract, but in tort. Ibid; Custodio v. Bauer (1997) 251 Cal.App.2d 303; Schwartz v. Regents of the University of California (1990) 226 Cal.App.3d 129-father denied recovery for emotional distress as the alleged direct victim of a psychotherapist even though he participated in counseling sessions to improve the family relationship. The court also held that the simple existence of a contract between a parent and a medical caregiver to provide medical treatment for a child is not in itself sufficient to impose on the caregiver a duty of care owed to the parent. (Id. at 168.)
This was confirmed nearly forty years ago:
It is thoroughly settled in California that In the absence of an express contract the physician or surgeon does not warrant cures. By taking a case he represents that he possesses the ordinary training and skill possessed by physicians and surgeons practicing in the same or similar communities, and that he will employ such training, care, and skill in the treatment of his patients. In the absence of an expressed contract the general rule is applicable that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.’ Custodio v. Bauer, supra, at 314-315
Any doubt about the parents inability to qualify as direct victims stemming from a contract is resolved by our Supreme Court in Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124. There the appellate court reversed a summary judgment granted to the defendant-pharmacy against the parents of an infant injured by medication the parents administered to him, based upon the pharmacist’s erroneous directions to the parents who, unwittingly, administered five times the appropriate medication dose.

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.)

To allow Officer Smith to essentially read to the jury his inadmissible traffic collision report including hearsay statements and impermissible opinions of statutory violation derived from that hearsay is reversible error. Over fifty years ago, the first district of the California Appellate Court opined … (an) objection to the question put to (an investigation policeman) Officer Rakestraw as to whether or not he had issued any citations as a result of the accident was sustainable…. The question in that form was certainly objectionable as it clearly called for the conclusion of the witness as to whether or not there were any law violations and the objection was properly sustained. Hooper v. Bronson (1954) 123 Cal.App.2d, 243, 256.

CONCLUSION

Had Chance’s trial been restricted to the competent, properly admitted and relevant evidence, there is no question the jury would have been compelled to find Davie negligent and causative of Chance’s severe injuries. However, when a jury enthralled by law enforcement was allowed to hear extremely prejudicial testimony of Officer Smith’s opinion of Ms. Chance’s violation of California Vehicle Code 21954a, based solely on the unquestioned and inadmissible hearsay statements of Ms. White, Ms. Chance did not have a chance. By the time Ms. Chance’s counsel questioned Smith of his admitted lack of understanding of White’s inability to see what she reported based on her vantage point as documented by Smith the jury (save for Mr. Brown) had been rendered deaf. When the exact, sworn deposition testimony of Petra White was read to this same jury that contradicted Smith’s hastily summarized and belatedly reported statement of this same witness as to Chance’s manner and location of entry to Fourth Street and the brevity of White’s view due to the bus obstruction, the jury was apparently comatose with indifference.

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.)

Defendant Larry Brown submits the following Memorandum of Points and Authorities is support of his Motion for New Trial or, in the alternative, Remittitur:

INTRODUCTION

A new trial is warranted due to the imposition of excessive damages that were unsupported by the evidence. In the interests of justice, Mr. Brown’s motion for new trial or in the alternative, a reduction in damages must be granted.

BACKGROUND

This action arises out of an automobile versus motorcycle accident which occurred at 8:35 p.m. at the intersection of High Street and Eisenhower Boulevard in Sacramento, California on June 12, 2005. Plaintiff was operation the intersection with Eisenhower. As plaintiff entered the intersection, he collided with the 2004 Mercedes E320 driven by defendant, Larry Brown, who was turning left from southbound High Street onto eastbound Eisenhower.

The matter proceeded to trial on February 2, 2008. Plaintiff testified at trial that following the accident with Mr. Brown, plaintiff stood up and walked over to the curb. When he got to the curb, he sat down and felt pain in his back, as well as pain and weakness in his left leg.

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.)

7. This opinion was offered by an non-designated expert.

Over Chance’s objection, Police Officer Smith opined what vehicle code in his opinion Molly Chance violated on the day of his brief inspection. (RT of Smith’s Testimony, 4/28/08. 29:25 – 30:28, Exh. 1). This expert opinion should never have been allowed Smith had never been designated as an expert as required under C.C.P. 2034 and SDSC Local Rule 2.1.18(3) nor was he offered as a qualified expert even at trial. Further, Smith did not qualify to be an non-designated expert under the two sole provisions of C.C.P. 2034.310(a). That expert has been designated by another party … No party had designated either of the police officers as experts before trial or even designated them as such in the joint witness list. (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial… Officer Smith could not be called to impeach any of the non-party accident eyewitnesses since he had not taken the time to find and interview them except for White who refused to appear.

8. Smith’s opinion impermissibly invaded the exclusive province of the jury as the ultimate finder of fact.

Officer Smith’s opinion went far beyond estimating the point or even area of contact like in the case of Arellano v. Moreno (1973) 109 Cal.Rptr. 421 Cal.App.2.Dist. Instead, his opinion went to the ultimate fact of a party’s negligence per se in violating a statute intended to prevent the type of incident in question. It was the charge of the jury to make a determination if either or both parties were negligent, not Smith.

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.)

6. All eyewitnesses at trial contradicted Ms. White’s hearsay testimony.

During trial, the jury was presented testimony of three eye witnesses other than Petra White to events immediately surrounding a bus versus pedestrian collision: (1) Mrs. Timmon (2) Tina Jones, and (3) Kim Perry. It was uncontroverted that Elm Street’s westbound traffic light was green for both Chance and the bus as the bus entered the southern pedestrian crosswalk at the intersection of 4th and Elm. All these eyewitnesses testified they saw this pedestrian walking (not bolting) in the southern crosswalk before the bus turned into that crosswalk, except defendant’s bus driver who failed to see Chance at all. Ironically, no one had a view better view both south and east of the southern crosswalk of 4th and Elm than the bus driver — had he chosen to look that way.

Unless all four (including White) non-party eyewitnesses were wrong about seeing this pedestrian near or on fourth Street before seeing the bus turn left from westbound Elm St. to southbound 4th Ave., Ms. Chance was clearly visible to the bus driver (as White testified) if had he looked to his left from his position as he described during trial before he hit her. The only credible explanation for not seeing her as she approached the curb and or entered 4th Street is that Davie did not look in her direction or her image in his fisheye rear view mirror did not register in his consciousness. When turning left from a one-way street to another one-way street, the only vehicle traffic that potentially threatens the turning vehicle will be from its right, which is where Davie’ attention obviously was. (See Part 12 of 13.)

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.)

This Court Is the Only Forum in which Defendants Can Realistically Seek a New Trial Based on Excessive Damages Awarded by the Jury

As discussed above, while this Court is able to re-weigh evidence and determine whether damages are excessive based on a standard of reasonableness, the court of appeal is governed by a far different standard. That means if this Court denied this motion, the court of appeal could find the jury’s award excessive only if it found the amount of the award was so high as to clearly have been the result of passion or prejudice on the part of the jury. (Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at p. 507.)

The inability of the court of appeal to re-weigh evidence gives rise to differing standards of review between it and this Court. As Witkin explains, The appellate court does not weigh the evidence on damages, and will reverse a judgment on appeal only if no substantial evidence supports the award. But the trial judge is not bound by the rule of conflicting evidence and may grant a new trial if the award is against the weight of the credible evidence. (8 Witkin Cal. Procedure 4th (2002) sec. 37, p.542.) Necessarily, the court of appeal accords a great deal of weight to the finding of the trial court, when, after a re-weighing of the evidence, the trial court has concluded that the jury’s verdict is reasonable. (See Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614-615.)

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.)

PLAINTIFF JOHN SMITH’S MEDICAL MALPRACTICE TRIAL BRIEF
I. THE PARTIES

Plaintiff: John Smith, date of birth: XX/XX/1967.

Defendants: Dennis Brown, M.D., General Surgeon Bob Garcia, M.D., Vascular Surgeon Paul Green, M.D., Vascular Surgeon, James O’Connor, M.D., Interventional Radiologist and Pulmonologist

Injuries: Laceration of the left iliac vein, laceration of the mesentery and small bowel perforation, posterior laceration of the bifurcation of the abdominal aorta and, an anterior wall laceration, residual injuries including pulmonary embolism, respiratory arrest, massive abdominal bleed, cardiac arrests, and abdominal compartment syndrome. Past Medical Bills: $601,150.12 (Approx.)

Future Medical Care: Monitoring of Deep Vein Thrombosis and potential surgery

Loss $14,636.80, plus sick leave and annual leave earnings for the same of earnings: time frame.

General Damages: $750,000.00.

STATEMENT OF THE FACTS
On June 16,2005, Plaintiff went to the XYZ Surgery Center to have his gallbladder removed, also known as a cholecystectomy. This was suppose lo be a routine procedure performed by general surgeon Dennis Brown, M.D. Defendant Dr. Brown chose to do the surgery using a laparoscopic technique which necessitated the use of a Veres needle to gain access of the abdominal cavity, and a trocar, sharply pointed instruments, use to puncture the peritoneum for placement of the cannulas.

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.)

4. In the present case, Officer Smith had no physical evidence to support his jaywalking opinion.

There was no physical evidence that demonstrated Ms. Chance was anywhere but inside the crosswalk from the time she left the curb until being knocked out of hem shoes by Davie’s bus except White’s hearsay statement. Officer Adams also had noted nothing that could be construed as evidence of where Ms. Chance was at the time she was hit. Since she was found shoeless and sitting in front of the stopped bus, she must have been thrown from someplace earlier in the bus’s path which logically would be somewhere underneath the 40-foot-long stopped bus, whose southernmost point was only18 feet below the Elm Street curb line according to Smith’s measurement. That position would have the bus straddle the subject crosswalk whose borders were defined by the red painted curb only 8 to 10 feet distant (18 feet minus the width of the sidewalk) from the southern most point of the stopped bus.

5. Officer Smith had no reliable hearsay to help form his opinion.

In addition to having no relevant physical measurements to identify the point of impact, Officer Smith had only the hearsay description of Chance’s conduct according to Ms. White that, considering her claimed vantage point of view for this description was impossible for her to have seen.

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.)

3. Further, since Officer Smith’s opinion does not fit into any legally recognized exception to this rule, his opinion is inadmissible.

The recognized hearsay exceptions admit out-of-court statements for their truth on the theory that the underlying circumstances carry the necessary indicia of trustworthiness to make the declarant’s statement sufficiently reliable as substantive proof (e.g., a party would not have made a disserving admission unless the admission was true; a nonparty declarant would not have spoken against his or her interest unless the statement was true, etc.). [See Williamson v. United States (1994) 512 US 594, 599, 114 S.Ct. 2431, 2435; People v. Cudjo (1993) 6 C4th 585, 608, 25 CR2d 390, 404 – hearsay exceptions involve circumstances affording some assurance of trustworthiness to compensate for absence of oath, cross-examination and jury observation.

There is case authority allowing a percipient investigating officer to estimate the location of the point of contact based on physical measurements of which he has percipient knowledge and reliable hearsay statements. Arellano v. Moreno (1973) 109 Cal.Rptr. 421 Cal.App.2.Dist. Possible partial hearsay basis of police officer’s opinion as to location of point of impact went to weight and not to admissibility of opinion where hearsay was reasonably reliable. A police officer trained and experienced in investigation of traffic accidents and in rendering of official reports on the facts and causes of the same may give expert testimony as to point of impact when his opinion is based upon his inspection of the physical evidence at the scene of the accident, however, his opinion as to point of impact is not admissible when based on what witnesses told him rather than on what he himself observed. Francis v. Sauve (1963) 222 Cal.App.2d 102, 115. (See Part 10 of 13.)

Continue Reading ›

| by

(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.)

Jury Misconduct As Grounds For New Trial

Jury misconduct (CCP 657(2): Juror misconduct so seriously infringes on the right to a fair trial that it raises a rebuttable presumption of prejudice. Enyart v. City of Los Angeles (1999) 76 CA4th 499, 507.

Here the entire jury panel took less than one hour (after the court’s response to jury questions #1 & #2) to return a verdict of no liability for the defendant, this after five full days of testimony. The jury deliberated very quickly and it appears they did not review all the evidence or jury instructions, as evidenced by the failure of the jury to read and evaluate the recorded statement of the defendant, or to review all of the testimony offered by both the plaintiff as well as the eyewitness to this accident.

The court should consider such factors as whether the misconduct has diminished a party’s burden of proof on a critical issue, impeached witnesses or contradicted a defense, or conveyed information that would bias the other jurors. Young v. Brunicardi (1986) 187 CA3d 1344.

That a juror concealed a bias or prejudice on voire dire. Bardessono v. Michels (1970) 3 C3d 780; Enyart v. City of Los Angeles (1999) 76 CA4th 499, 506, 509-511.

Continue Reading ›