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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.)

This legislative note alludes to the fact that, while the statute had on its face previously required a finding of “passion or prejudice,” this requirement was contrary to valid Supreme Court case authorities, which had embraced the reasonableness standard based on a re-weighing of the evidence. Even though this Court need not find passion or prejudice influenced it, the award of damages here surely can be viewed that way. Given the parade of experts and the inflated numbers submitted to the jury, the outrageous amount here could be set aside for that reason, if it were necessary. (See Beagle v. Vasold (1966) 65 Cal.2d 166, 179-180 [ [W]hatever manner of calculation is proposed by counsel or employed by the jury, the verdict must meet the test of reasonableness….

If the jury’s award does not meet this test, the trial court has the duty to reduce it ]; Sinz v. Owens (1949) 33 Cal.2d 749, 760 [the Court refers to a line of cases which “realistically conclude that an order for a new trial on the basis of excessive damages” necessarily is granted on the ground of the insufficiency of the evidence to sustain a verdict for the amount awarded by the jury]; Van Ostrum v. State (1957) 148 Cal.App.2d 1, 7 [court holds that, [t]he trial judge had the duty as well as the power to set aside the verdict when he found, pursuant to his own independent appraisal of the evidence, that it did not support an award of $4,000; it was not necessary for him to find passion or prejudice on the part of the jurors ].)

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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 Are Within the Scope of His Expertise and Plaintiffs’ Designation

Defendants first argue that Mr. Black’s opinions exceed the scope of his expertise and designation. In their expert witness designation, plaintiffs described the general substance of the testimony Mr. Black is expected to give as custom and practice of municipal employers in setting and enforcing sexual harassment policies and procedures for responding to complaints, and defendants’ sexual harassment policies and procedures and compliance or failure to comply therewith. Mr. Black’s expert qualifications are set forth in his Expert Report, and include the following:

30 years’ experience in interpreting federal, state, and local rules, regulations, guidelines and procedures regarding equal employment opportunity [ EEO ] enforcement;
Advising city departments and commissions on compliance programs with equal employment opportunity laws, regulations, policies, and procedures;
Serving as agency-wide EEO Division Manager of the equal opportunity contracting program in connection with the 3 billion dollar San Francisco International Airport Terminal Master Plan Project; As EEO Division chief, educating prospective bidders regarding the City of San Francisco’s nondiscrimination policies, including its Zero Tolerance Policy against sexual harassment in the workplace.
Educating scores of contractors, architectural engineering firms, and professional services consultants on non-discrimination in employment, including harassment prevention practices and procedures, when bidding for city, state and federally financed contracts.
Performing hundreds of wrongful termination investigations related to race, sex, sexual orientation, gender, disability.

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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.)

LIABILITY

BROWN CAUSED THE COLLISION BY DRIVING THROUGH A SOLID RED LIGHT IN VIOLATION OF VEHICLE CODE § 21453(a).

This is a case of clear liability on the part of Defendant Brown and his employer California Gas Company. The California Highway Patrol confirmed Brown caused the collision, and violated section 21453(a) of the California Vehicle Code for running the solid red signal. Calif. Vehicle Code § 21453 (a): A driver facing a steady circular red signal alone shall stop at a marked limit line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection, and shall remain stopped until an indication to proceed is shown, except as provided in subdivision (b).

Investigating Officer Andy Williams: The conclusion that I came to was that Mr. Brown had drove through a steady circular red light and that Miss Martin had a green turn arrow, and she was broadsided while making her left turn.

In his deposition, Dan Brown admitted that he did not look at the light prior to entering the intersection and that he did not brake prior to impact with the Martins’ vehicle:

Q: On the date of the collision, as you approached White Road did you see the light turn red?
A: No.
Q: Did you see the light turn yellow?
A: No.
Q: Was the light green as you went through the intersection?
A: I did not see the light.
Q: Did you look at the light as you went through the intersection?
A: If I didn’t see it, I don’t think I looked at it.

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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.)

REPLY OF DEFENDANT KENNETH BROWN, M.D., TO PLAINTIFFS’ OPPOSITION TO DEMURRER

This medical malpractice case involves allegations that the defendants negligently provided medical treatment causing the transmission of the bacteria Group B streptococcus to pass to [the minor-plaintiff] during birth.

The plaintiff-parents now deny they tried to allege a negligen infliction of emotional distress (NIED) cause of action based upon a bystander theory, though the allegations clearly demonstrate that was their intent. Rather, the plaintiff-parents argue that they stated a right to recover for NIED based upon a contractual direct victim duty. They have pleaded no direct victim claim, directly or by reasonable inference. The demurrer should be sustained, and as to the father, without leave to amend.

NO DUTY TO THE PARENTS CAN BE PREMISED UPON CONTRACT.
Plaintiffs cannot circumvent the body of law pertaining to parasitic NIED claims, by a bare allegation that their claim arises out of a duty imposed by a so-called contract. Plaintiffs argue that a contractual relationship was pled at paragraph 11 of their complaint, though review of those allegations seems to demonstrate otherwise. Even had plaintiffs plead the existence of a contract, the result is still the same, no tort duty can be premised thereon.

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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.)

Initially, it is important to note that the statute establishes exactly what the court must find in order to determine that an award of damages is excessive. It must find, based on the evidence presented at trial, that the jury’s verdict–the amount of damages–was unreasonable and therefore should have been different. Unlike a court of appeal sitting in review of an order denying a motion for new trial, the trial court need not find that the award is so large that it must necessarily have resulted from “passion or prejudice” on the part of the jury. The Supreme Court explained the reason for this distinction in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498:

The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented it becomes his duty to reduce them. When the question is raised his denial of a motion for new trial is an indication that he approves the amount of the award. An appellate court has no such powers. It cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors. (Id. at p. 507, quoting Holmes v. Southern California Edison Co. (1947) 78 Cal.App.2d 43, 51.)

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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.)

1. Officer Smith’s opinion was based exclusively on one unreliable hearsay witness: Petra White.

What Petra White told Officer Smith at the scene of the accident was quintessential hearsay not subject to any legally recognized exception:
Q. As best you recall, what did Ms. White tell you?
A. [Smith] She said she was on the northeast corner of Fourth and Elm, waiting for the light to turn green so she could continue southbound. She said that she saw a lady bolt from the east curb toward the west in a diagonal direction, I guess, if you will. Then the bus hit her, and then she had flown out of her shoes and she landed in front of the bus.
Q. When she indicated this diagonal direction, did she indicate whether or not this woman bolted in a diagonal direction toward the north or toward the south?
A. [Smith] Toward the south.
Q. So, away from the intersection?

A. [Smith] Correct. (Smith 4/28/08 RT15:9-23)

2. The content of the above testimony is pure hearsay, that is: an out of court statement offered to prove the truth of the matter asserted.

Rationale for Excluding Hearsay-Trustworthiness: The hearsay rule is predicated upon the essential trustworthiness or reliability of evidence. [People v. Ayala (2000) 23 C4th 225, 268,- The general rule that hearsay evidence is inadmissible because it is inherently unreliable is of venerable common law pedigree.] Unlike in-court testimony based on a witness’ firsthand knowledge, an out-of-court statement is not subject to cross-examination to test the declarant’s perception, memory and veracity when the statement was made. Lacking the be refit of cross to probe the declarant’s perception, memory and veracity, hearsay evidence is inherently unreliable as substantive proof. Buchanan v. Nye (1954) 128 CA2d 582, 585, — essence of hearsay rule is requirement that testimonial assertions shall be subjected to the test of cross-examination.]

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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.)

B. Verdict Or Other Decision Against The Law (CCP 657(6)

A motion for new trial may be granted on the ground of insufficiency of the evidence to justify the verdict or other decision against the law. (CCP 657(6).)

In jury trials, each party in fact has two hearings, one before the jury and the other before the court as a thirteenth juror. Norden v. Hartman (1952) 111 CA2d 751, 758. As explained by one court: In weighing and evaluating the evidence, the court is a trier of fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there is sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence is against the verdict. Candido v. Huitt (1984) 151 CA3d 918, 923. It is the trial judge’s responsibility on motion for new trial to determine the weight of the evidence: A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision… unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (CCP 657.)

In this vicious dog bite case, based upon all of the testimony offered by the plaintiff, including, but not limited to, the inconsistent testimony of Topp and Cantor, coupled with the accuracy of the animal control officer’s testimony, the jury clearly should have reached a different verdict.

This includes the power to consider the credibility of witnesses and to draw reasonable inferences contrary to those drawn by the jury. Valdez v. J.D. Diffenbaugh Co. (1975) 51 CA3d 494, 512; Fountain Valley Chateu Blanc Homeowner’s Ass’n v. Department of Veterans Affairs (1998) 67 CA4th 743, 751. New trial motions allow judges to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury.

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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.)

D. There was an error in law in permitting Officer Smith to testify as to Chance’s Vehicle Code Violation where he was not designated as an expert, not deposed as such, and based his opinion only on inadmissible hearsay. (C.C.P. section 657(7)).

In Richard v. Scott (App. 4 Dist. 1978) 144 Cal.Rptr. 672, 79 Cal.App.3d 57, the court was presented with an injury action arising out of a two-car collision at a controlled intersection. In that case the trial court correctly exercised its discretion in granting plaintiff’s motion for new trial on ground that it had committed error in admitting opinion of defendants’ accident reconstruction expert that plaintiff was traveling in excess of posted speed limit. The record supported trial court’s determination that many of the factual assumptions made by such expert in arriving at his opinion lacked sufficient evidentiary support.

According to all non-party eyewitnesses, Ms. Chance was very visible walking up to, into and in the crosswalk before the bus turned into her path 26 feet beyond the Eastern curb. Since Davie himself testified that the traffic light was green for him as he timed it, it would also have been green for Plaintiff Chance who consequently had the right of way over the bus since she was not turning.

Following this presentation of testimony, the jury was instructed as follows:
(1) CACI 700 Provides in relevant part: A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians … The failure to use reasonable care in driving a vehicle is negligence. Also,
(2) CACI 705. A driver must use reasonable care when turning; and

(3) CACI 710. The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians. While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians.

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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.)

BRIEF STATEMENT OF FACTS

In this action, Mr. and Ms. Ward sought to recover for injuries he sustained in an automobile accident that occurred on October 15, 2004; liability was admitted. Following the completion of jury selection, the trial of this action commenced on June 7, 2007 and finished on June 26, 2007. The jury reached its verdict the following day, after about four hours of deliberation. It awarded a total of $10,105,711 consisting of: $3,185,711 to Mr. Ward in future medical expenses, $5,200,000 to Mr. Ward in past and future non-economic damages, and $1,620,000 to Ms. Ward for loss of consortium.

LEGAL DISCUSSION

Each of the jury’s three basic awards of damages is unreasonably excessive and unsupported by the evidence presented at trial. The awards must be reduced by this Court under Code of Civil Procedure section 662.5(b). In the event that plaintiffs are unwilling to accept remittitur, this Court should order a new trial.

This Court Can and Must Order a New Trial Where the Damages Awarded by the Jury Are Clearly Excessive Based on a Reasonableness Standard

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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.)

CLAIMED SPECIAL DAMAGES
Plaintiff has consulted with expert rehab nurse, Tamara Evans, BSN, RN, PHR, CCM. Ms. Evans believes that Ms. Green has a number of needs. These needs include:
1. CNA level care for 8 – 12 hours per day;
2. Housekeeping care once week for 4 hours;
3. A motorized wheelchair;
4. A lift;
5. A minivan with ramp;
6. Ramps at her home;
7. Physical therapy; and

8. A new mattress for her hospital bed.

Don Black, a local Ph.D., has placed a present value on the ongoing expenses. He places this value, which is primarily for the CNA level care at 1.4 million. In addition, there are present costs for items which add $100,000.00 (van, wheelchair, lift, etc.).

In addition to these expenses, there is the cost of replacing plaintiff’s insurance. UH billed her $983,031.64. Of that, $485,000.00 was paid by her insurance. However, this payment exhausted her $500,000.00 per condition coverage related to the back surgery and any complications. Plaintiff cannot replace the coverage to offset the loss. A substandard replacement, according to expert testimony, would cost $900.00 – $1,000.00 per month. This, according to Dr. Black, is an added present value loss of $274,000.00.

Plaintiff’s economic damages thus total $1,750,000.00.

GENERAL DAMAGES

Plaintiff is profoundly disabled and unable to provide for her basic needs. She is depressed and in pain. She seeks the $250,000.00 limit for general damages.

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