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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 birth injury/personal injury case and its proceedings.)

In Zavala v. Arce. 58 Cal.App.4th 915, 68 Cal.Rptr.2d 571 (4th Dist. 1997) an individual brought a medical malpractice action against her former obstetrician arising from the in utero death of plaintiff’s post-term fetus, seeking emotional distress damages on a “direct victim” theory of liability. The trial court granted summary judgment for defendant.

The Court of Appeal reversed the judgment and remanded the case to the trial court for further proceedings. The court held that the trial court, in granting summary judgment for defendant, erred in ruling as a matter of law that plaintiff could not state a claim for direct victim emotional distress damages. Because a pregnant woman who experiences negligent antenatal care is no bystander but a “direct victim” instead, the strictures of Thing v. La Chusa do not apply, and she may sue for her emotional distress even if she did not realize, while it was going on, that her doctor was acting negligently.

CONCLUSION
The plaintiffs cause of action is based on a direct victim rationale and not a bystander theory. The limitations asserted in Thing v. La Chusa are not applicable as for they only deal with actions asserted under a bystander theory. The plaintiffs pleadings are sufficient and the court should overrule the defendants’ demurrer.

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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.)

After Paul was discharged from the hospital, he attended outpatient rehabilitation for approximately three months. At this point it was clear that Paul was much slower to process information, had significant memory and motor-skills problems, and could not engage in many of the activities he used to enjoy. During the initial three-month recovery period, Paul suffered from daily severe headaches due to his brain trauma for which he treated with Vicodin.

Paul spent the remainder of his eighth-grade year in a homeschool program designed to help him during the recovery period. Paul attempted to go back to Sacramento Junior High School but he could not cope with the confusion and the chaos of a regular school program.

A teacher assigned from the Sacramento Unified School District came to the home two to three times per week to assist Paul with his school work. In ninth grade, Paul was home-schooled with the California Virtual Academy (an internet-based schooling program). Sherrie stayed home from work during this year to assist Paul with his recovery and learning.

At the beginning of Paul’s tenth-grade year in the fall of 2007, Paul participated in an independent studies homeschooling program affiliated with the Sacramento High School. The students in this program work from the home and visit the school once per week for grading and extra help. Paul did not function well in this program and the school representatives recommended that Paul return to Sacramento High School. Due to his severe cognitive impairment, Paul has been unable to successfully matriculate into Sacramento High School. Paul’s physicians have recommended an intensive residential based rehabilitation program, in which he is currently in the process of admission.

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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.)

3. Percipient non-party witness #3, Kim Perry saw Ms Chance walking “normal for an old person” in the crosswalk before a big bus turned left striking her in the center of the crosswalk. (RT of Perry’s Direct Testimony, 13:10 – 14:13.)

Argument: Like Jones, Perry was more distant and lower to the ground than Davie sitting high in the front seat of a bus with panorama window view including his left and front. (Trial Court Exhibit No. 1, Exh. 7). But for his concern about oncoming southbound traffic on Fourth Street coming from his right, there was no reason he should not have seen Chance as he approached and entered the intersection.

4. Even hearsay non-party witness #4, Petra White, in her sworn deposition, had no problem seeing Chance and indicated that the bus driver saw her as well. White reports seeing the bus start and stop several times in response to Chance stepping off and then retreating back onto the east curb before she entered the crosswalk. (White Depo., 39:14 – 41:20.) Further, White admits to seeing Chance leave the eastern curb of Fourth Street either 8, 4, or 5 feet south of the Elm Street Curb walking straight then losing sight of her due to the bus blocking her view until seeing Chance struck by the front of the bus, knocked out of her shoes and carried by the bus some distance before dropping to the street. (White Depo., 15:7-25; 20:15.)

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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.)

DEFENDANTS’ MOTION FOR NEW TRIAL
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

The trial court is the sole line of defense against excessive jury verdicts. This Court is thus empowered to re-weigh the evidence, and to determine independently whether the evidence justifies the amount awarded by the jury. That power should be exercised here, if ever there were a time to do so.

Here, the jury awarded the astonishing amount of $10.2 million against Zenkov for injuries suffered by Mr. Ward, and the loss of consortium suffered by Ms. Ward. Yet there was no catastrophic injury here of the type justifying $10.2 million. This amount is not an amount which a reasonable person would estimate as fair compensation for plaintiff’s serious–but not catastrophic– injuries. These awards are utterly unreasonable, and this Court must act. For if it does not, then Zenkov will have no practical other legal avenue by which to seek a reduction of the monstrous amount which has been awarded against him.

Mr. Ward did, of course, present evidence at trial that he has suffered serious–but not catastrophic–injuries due to the auto collision. The evidence is of injuries to his neck, back, and knee, which cause him to suffer chronic pain for which he must take powerful drugs, and which will require surgery in the future. These injuries, while substantial, simply do not justify an award of $10.2 million. This is so because, while the evidence may have shown that Mr. Ward’s injuries have affected his quality of life, the same evidence also showed conclusively that his injuries have come nowhere close to destroying his life.

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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 automobile accident/personal injury case and its proceedings.)

Contrary to Defendant’s argument that it is necessary for a meeting between co-conspirators for form a conspiracy, The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and circumstantial evidence. It is not necessary to show a meeting of the alleged conspirators or the making of an express or formal agreement. (BAJI California Jury Instructions, Civil 9th Ed., 2002, P. 205) (Emphasis added) Kidron v. Movie Acquisition Corp. 40 Cal.App.4th 1571, 1583 (1995)

It is clear from the events that occurred the night of December 19 and early morning of December 20, 2006, that Stacy Greene and El Mexicano knowingly conspired to violate Business & Professions Code Sec. 25602.1, planning their wrongful acts, assisting each other, knowing their acts were wrongful and unlawful. El Mexicano andStacy knowingly conspired to violate Business & Professions Code Sec. 25602.1. Plaintiff’s TAC has alleged numerous facts to establish thatStacy knowingly co-conspired with El Mexicano Restaurant to “sell, furnish, give or cause to be sold, furnished or given away any alcoholic beverage” to an “obviously intoxicated minor,” Matt Smith, in violation of Business & Professions Code Sec. 25602.1. There must be a showing of knowledge of the planned tort and intent to aid in its commission. Wyatt v. Union Mortgage Co. 24 C.3d 773,784 (1979)
Stacy brought the minors to El Mexicano so that they could be entertained on the night and early morning of December 19, 20, 2006.

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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.)

Defendants Have Not Shown That Expert Witness Michael Black’s Opinion Testimony Is Inadmissible.

Defendants argue that any and all testimony by plaintiffs’ sexual harassment expert, Michael Black, should be excluded allegedly because some of the opinions in his report: (1) go beyond the scope of his expertise and designation; (2) exceed the bounds of permissible expert testimony by offering legal conclusions; and (3) would place inadmissible hearsay before the jury. Defendants further argue that Mr. Black’s expert opinion regarding whether defendants’ conduct violated internal policies and procedures is not relevant to any issue in this personal injury case, and that its admission would create substantial danger of undue prejudice by confusing or misleading the jury into wrongly believing that Mr. Black’s statements of law or fact are accurate or that his opinions pertain to the issues to be determined in this case.

As a threshold matter, it is important to note that defendants seek to exclude all of Mr. Black’s expert opinion testimony based on their objections to some of the opinions in his Expert Report. In considering defendants’ motion in limine, plaintiffs request that the Court keep the following background in mind: First, defendants chose not to designate their own sexual harassment expert. They should not be permitted to keep out testimony by plaintiffs’ expert just because they could not find an expert who could support what they did in this case. Second, defendants chose not to depose Mr. Black who was timely designated. They should not be permitted to keep out all of his expert opinions just because they failed to explore the scope and bases for those opinions by deposing Mr. Black.

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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 court may decide to disregard a witness’ testimony because untrustworthy in light of inconsistencies and vagueness; then, weighing the remaining evidence, the motion for new trial should be granted if the verdict clearly cannot stand without that witness’s testimony. CCP 657, para 10; Montijo v. Western Greyhound Lines (1963) 219 CA2d 342; Locksley v. Ungureanu (1986) 178 CA3d 457; Dominguez v. Pantalone (1989) 212 CA3d 201, Ashcraft v. King (1991) 228 CA3d 604, 616-617.

In this case, the testimony of defendant Topp and Cantor falls directly into the category of inconsistent and vague testimony. In fact, their testimony was downright perjurious and false. In cross-examination, both Topp and Cantor admitted that the information contained in the declaration they signed were not accurate. This was with respect to the most material facts of this case (i.e., what kind of dog was it; how many times had it been to the defendant’s property; had it bitten before, etc…). On the basis of the vague and inconsistent testimony, the motion for new trial should be granted, as the weight of the evidence indicated that the defendant was strictly liable for this incident.

The trial court has wide discretion in granting or denying a motion for new trial. Its ruling will not be upset on appeal unless the court demonstrated a manifest and unmistakable abuse or discretion, or based its order exclusively upon an erroneous concept of legal principles. Schelbaur v. Butler Mfg. Co. (1984) 35 C3d 442; Ashcraft v. King (1991) 228 CA3d 604, 616; Neal v. Montgomery Elevator Co. (1992) 7 CA4th 1194, 1199-1200

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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.)

SUMMARY OF EYEWITNESS TESTIMONY

All three non-party eyewitnesses testified they saw a pedestrian (Chance) walking in the crosswalk before the turning bus struck her:

1. Percipient non-party eyewitness #1, Annie Timmon, was a passenger on the subject bus sitting behind the driver. She testified via videotape that while sitting at a window several rows behind Davie, she saw Ms Chance walking “normal” on the sidewalk alongside the bus before it turned. She saw Ms. Chance walking beyond the curb, after he front of the bus had also entered the intersection. Ms. Timmon testifies: I saw they were going to touch… I thought I was in Mexico, and in Mexico the pedestrian waits in the middle of the street waiting for the bus to go by. I thought that she was going to stop at the center at the cane – the lane that it’s at the center. And when I saw that she was about to have contact with the bus, then I screamed… Q: Did you see what happened to this pedestrian? A: No … I couldn’t see. Q: Where was the pedestrian when you last saw her? A: Ahead when she was about to have contact with the bus. (Timmon Depo., 16:7 – 18:1.)

Argument: This testimony clearly supports Plaintiffs contention that a normally walking Chance was visible to the left of the bus driver Davie after he had entered he intersection but before he started to turn left striking her. Since she was walking alongside the bus, she was in the crosswalk area just having exited the sidewalk. Molly Chance had every right to enter the crosswalk on a green signal even after the bus had entered the intersection because she was walking straight and therefore had the right of way over the turning Davie just like eastbound pedestrians Davie had stopped for. If Timmon could see Chance as bus and pedestrian passed each other, certainly Davie should have seen her too, if he had looked to his left.

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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 birth injury/personal injury case and its proceedings.)

The plaintiffs allege in paragraph 11 of their complaint that a contractual relationship existed between “plaintiffs and said defendants.” Further, in paragraph 14 of the complaint it is alleged that the defendants negligently cared for plaintiff causing injury. Therefore a cause of action for medical negligence was pleaded for the plaintiff-parents due to the birth injury.

In Burgess v. Superior Court. 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 618, P.2d 1197 (1992) A mother filed a medical malpractice action against an obstetrician and a hospital after her child suffered permanent brain and nervous system damage, allegedly as a result of oxygen deprivation during the delivery. Defendants brought a motion for summary adjudication that the mother was not entitled to recover damages for emotional distress, since she did not contemporaneously observe the baby’s injury as required for recovery in a bystander situation. The trial court granted defendants’ motion. The Court of Appeal, granted the mother’s petition for a writ of mandate to vacate the trial court’s order, concluding that the mother was a “direct victim” rather than a bystander.

The Supreme Court modified the judgment of the Court of Appeal to direct the trial court, in addition to reversing its order of summary adjudication, to enter an order in accordance with the views expressed in the Supreme Court’s opinion. The court held that the negligent causing of emotional distress is not an independent tort, but the tort of negligence, with the traditional elements of duty, breach of duty, causation, and damages. The court also held that in contrast to bystander cases in which a plaintiff seeks to recover for emotional distress caused by being a percipient witness to the injury of another, “direct victim” cases are those in which damages for serious emotional distress are sought as a result of a breach of duty owed to the plaintiff arising from a preexisting relationship between the plaintiff and the defendant. Inasmuch as the obstetrician owed a duty of care to the mother to avoid injuring her child, which arose from their physician-patient relationship, the obstetrician’s alleged negligence breached a duty of care owed to the mother.

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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.)

DAMAGE ISSUES
Plaintiff’s medical records contain the following descriptions:
This a 57-year-old Caucasian female status post anterior spinal fusion complicated with left lower extremity neuro deficit, abdominal wound infection, and occluded left common iliac artery. The patient underwent an anterior spinal fusion L4-S1. It was found during this operation the patient had some fibro-arterial occlusive disease. Her left iliac artery was occluded and required embolectomy and Dacron interposition graft to the left common iliac artery.

Postoperatively, the patient had an unhealed abdominal wound. The patient has a history of diabetes mellitus. Postoperatively, the wound had undergone Wound-Evac therapy. At various times the patient was offered a split-thickness skin graft. he wound also required multiple debridments and its was debrided on 08/26 and 08/29. Secondary to her diabetes, she did develop a wound infection with Pseudomonas and she was on appropriate antibiotics for a period of time. Endocrine was consulted for a tight control of her diabetes in order to promote wound healing.

57-year-old female developed paralysis of the left leg after she undervent anterior spine fusion which was complicated by iliac artery thrombosis and subsequent iliac bypass surgery on 7/22/02. She does not have sensation below the mid thigh level. She has history of diabetes and history of traumatic injury to the right upper extremity and amputation of the right leg. She is currently on an I.V. heparin drip.

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