Personal Injury Lawyer Blog

Medical Experts Battle In Sacramento Car Accident Suit, Part 5 of 7

September 28, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

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.

INDEPENDENT MEDICAL EXAM (IME)

Plaintiff attended a defense medical examination on July 24, 2008, conducted by Dr. Stuart U.. Dr. U. is a board certified neurologist and is, also, a board certified psychiatrist. Dr. U. could find nothing wrong with plaintiff. Dr. U. suggested that plaintiff’s complaints of pain and achiness might be related to his heavy work for Williams-Sonoma (e.g., moving furniture and other items to and from photo shoots at various locations). Dr. Stuart U. concluded that plaintiff has no restrictions and needs no ongoing treatment as a result of the accident. At no time, excluding the x-rays of plaintiff’s feet in the ER and by Dr. V. and the findings by Dr. Z., the gastroenterologist, did any doctor make any objective findings that correlate with plaintiff’s plethora of subjective complaints.

Doctors must believe their patients, but jurors need not do so. Thus, this trial will involve the credibility of plaintiff, both as to liability and as to causation of injuries and damages. There are a number of inconsistencies with respect to plaintiff’s history and complaints as set forth in medical and other records, not specified herein.

Alleged Special Damages
a. Medical Specials
Plaintiff’s counsel informs us that plaintiff’s medical specials total approximately $18,000.00; the defense has been able to determine only $4,100.00.
Plaintiff’s Vehicle Code and Traffic Code Violations

California Vehicle Code Section 21200(a) provides, in substance, that every person riding a bicycle on the highway is subject to all of the provisions applicable to the driver of a vehicle. Plaintiff is culpable of violating the following California Vehicle Code sections that directly caused the accident, thus creating a negligence per se situation:

Vehicle Code Sections
21201(d)(1) Failure to have a headlight at night
22450(a) Failure to stop at stop sign
21650 Failure to ride bicycle on right half of roadway
21802(a) Failure to stop at stop sign and yield right of way
21804(a) Failure to yield right of way on entering or crossing highway

Court Reviews Firefighter’s Suit For Workplace Harassment, Part 18 of 19

September 28, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

Nowhere does Dr. X. challenge the Retirement Board’s January of 2005 decision to retire plaintiff. There simply isn’t any testimony relating to the decision of the Retirement Board.

Dr. X. was also critical in establishing that the fitness-for-duty evaluators acted unprofessionally (not just incompetently) which bolstered plaintiff’s argument that the evaluators and the City had a tacit understanding that the goal was to get rid of Mr. Carter by way of the evaluation. Finally, the fact that there was no reasonable basis to conclude that plaintiff was “unfit” at the time the evaluation was initially scheduled, but that Dr. Z. found Mr. Carter was unfit anyway, despite normal psychological testing, further buttressed plaintiffs arguments that he was set up. Again, this did not attack the decision of the Retirement Board, which was to retire plaintiff.

EXCESSIVE DAMAGE

The jury’s verdict on future lost earnings was completely consistent with the testimony at trial. Had the City not referred Mr. Carter to what the jury found was a retaliatory and discriminatory fitness-for-duty evaluation, he would have returned to work and continued on with his career as a firefighter. There would never have been a Retirement Board Hearing. In calculating plaintiffs damages, plaintiffs expert, Dr. Y., assumed that plaintiff was not sent to a fitness-for-duty evaluation in February of 2004, and instead returned to work. He then assumed that plaintiff worked until the age of 65 and calculated future wage loss on that basis.

It is also significant to note that the jury found that the City’s decision to apply for Mr. Carter’s disability retirement was an act of retaliation and discrimination. Obviously, if the City did not pursue a retaliatory and discriminatory retirement application, there would have been no Retirement Board Hearing. Instead, plaintiff would have returned to work and continued to earn his pay and benefits as a firefighter well into the future.

Bicyclist From Sacramento Suffers Long-Term Injuries From Car Collision, Part 4 of 7

September 26, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

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.

Plaintiff alleges that as a result of the automobile accident, he also suffered lingering pains that consisted mostly of: headaches, neck aches, back and low-back pain, a knee that seems to dislocate or give-way, ankle pain and cramping of his feet. Plaintiff’s current residuals are alleged to be primarily his feet/toes, neck and low-back. Plaintiff alleges that his current residuals are, essentially, (a) pain and stiffness at the three fracture sites and painful ambulation, (b) crepitus in plaintiff’s neck, a crackling not associated with pain and (c) mild recurrent low-back pain. Plaintiff also fears the onset of arthritis as a result of his injuries.

Plaintiff’s Treatments
After discharge from the ER, plaintiff’s next medical visit was seven months later, when plaintiff was first examined by his doctor, Dr. Kyle X., a generalist, on May 22, 2007, seven months post-accident. The given reason for the examination, as Dr. Kyle X. testified at his deposition, is that plaintiff’s chief complaint was pain to the right groin, which is what brought plaintiff to Dr. Kyle X.. The examination was not, according to Dr. Kyle X., because of the accident. Dr. Kyle X. was told about the accident, but did not consider that he was treating plaintiff as a result thereof. Dr. Kyle X. prescribed physical therapy, lab tests and a return to his office. Dr. Kyle X.’s records reflect that his final determination was Impression: Well CPE (i.e., that plaintiff was found to be well after a Comprehensive Physical Examination ). Plaintiff did voice complaints about low-back and abdominal pains and Dr. Kyle X., therefore, told plaintiff to see a neurologist, a Dr. Stan Y.. Plaintiff did not do so, plaintiff did see a different neurologist, Dr. Alice W., but not until April 11, 2008, about 16 months post-accident.

Firefighter Sues For Unlawful Termination By Sacramento Fire Dept., Part 17 of 19

September 26, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

IT WAS NOT ERROR TO ALLOW EVIDENCE OF ACTS THAT OCCURRED PRIOR TO JUNE 10, 2004
A. Events from February of 2004 to January of 2005.

For reasons exhaustively explained earlier in this brief, including the continuing violation doctrine, the court correctly overruled the defendant’s Motion in Limine #4, thus permitting the jury to consider actionable events during the period between February of 2004 and January of 2005.

B. Background Evidence from 1999-2002

The court also permitted plaintiff to describe events that occurred between 1999 and 2002 as relevant background information. For this same reason, presumably, the court allowed the City to introduce evidence relating to plaintiff’s 1994 vandalism conviction.

This was a retaliation case where the plaintiff had filed many racial discrimination complaints over the years. The jury would have had great difficulty understanding the case, including assessing whether the City ultimately acted in good faith, without allowing Mr. Carter to describe the cause and severity of his many complaints. The City’s failure to respond to these complaints was also highly relevant to the consideration of whether it ultimately had innocent motivations when it got rid of Mr. Carter. An innocent employer would presumably have thoroughly investigated the complaints and issued findings. An uncaring employer was more likely to have retaliated against Mr. Carter. Moreover, the City claimed that it sent Mr. Carter to a fitness for duty evaluation, in part, because he had filed numerous unfounded discrimination complaints. By allowing plaintiff to present relevant, limited background evidence of his racial discrimination complaints, the jury learned that the City never bothered to investigate Mr. Carter’s complaints, and thus had no basis to conclude that they were unfounded. The evidence was appropriately admitted.

THE COURT CORRECTLY ALLOWED DR. X. TO CALL INTO QUESTION THE FINDINGS OF DR. Z.

Plaintiff contended that the City’s decision to send him to a fitness-for-duty evaluation and then to pursue an involuntary retirement application against him caused him emotional harm. It would have been a manifest injustice to prevent plaintiff from introducing Dr. X.’s testimony on this point. This would effectively have prevented him from putting on a general damages case.

Repeated Harassment By Employer Leads To Suit By Sacramento Woman, Part 14 of 19

September 25, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

iv. Failure to follow its own policies is evidence of pretext

Defendant’s failure to follow its own policy is evidence of pretext. See Hill v. Seaboard Coast Line Railroad Co., (11th Cir. 1989) 855 F.2d 804, 811; Christine v. Foremost Ins. Co., 785 (7th Cir. 1986) F.2d 584, 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff’s claims of harassment. Mr. Davis never did anything to investigate Plaintiff’s claims of harassment after she claimed she was harassed. He never informed Team Member Services that Ms. Smith was claiming she was being harassed. He never obtained any written statements from Ms. Smith about the harassment. He never reported any results of any harassment investigation to Ms. Smith. No one from Defendant ever talked to Plaintiff about her complaints of harassment, got a written statement or told her of the results of any investigation into her complaints. All of which was required to do.

DEFENDANT’S LEGAL AUTHORITY AND FACTUAL CLAIMS ARE WRONG

Defendant mis-cites the legal authority on establishing a prima facie case. Defendant says timing is not enough to show a prima facie case. (pg. 12). First, Plaintiff has much more evidence than timing. However, the cited cases do not say that. Loggins v. Kaiser Permanente Intern., (2007) 151 Cal. App. 4th 1102, 1112-1113 says the opposite. Timing is enough to show a prima facie case, just by itself is not enough to show enough pretext. Arteaga v. Brink’s Inc., (2008) 163 Cal. App. 4th 327, 353 says the same thing. Timing is enough to show a prima facie case, but by itself is not enough pretext. Id.

Sacramento Automobile Driver Challenges Some of Bicyclist’s Injuries, Part 3 of 7

September 23, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

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.

Alleged Injuries

It is not disputed that plaintiff sustained a fracture of each of his big toes and, also, a fracture of the second toe of his right foot. It is, also, not disputed that plaintiff currently has some reduced range of motion in curling the toes that were fractured (flexion) and that in the first phalange of his second right toe there is about 15degrees of obliquity with respect to the second phalange thereof.

Additionally, it is not disputed that plaintiff sustained abrasions (road rash) to the top of his head, his face, abdomen, both hands and both knees. Said injuries were described in the paramedic records and in the ER records at General Hospital. There was no loss of consciousness and plaintiff’s GCS (Glasgow Coma Scale- a measure of brain injury potential) was a perfect 15 out of 15. Plaintiff was given a small injection of morphine sulfate and was given a prescription for Vicodin tablets. Plaintiff underwent x-rays of his chest and neck at the ER, which were negative.

Sacramento Firefighter Subjected To Workplace Harassment, Part 16 of 19

September 23, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

B. The Application for Involuntary Disability Retirement was an Adverse Employment Action

The defendant cynically claims that it had a duty to apply for plaintiffs disability retirement because of the following language in Government Code §21153:

Notwithstanding any other provision of law, an employer may not separate because of a disability a member otherwise eligible to retire for disability but shall apply for disability retirement of any member believed to be disabled… [emphasis added]

This argument can be dispensed with very quickly: First of all, the duty to retire only comes into play once a decision to separate a disabled employee is made. In other words, there is no duty to retire an employee believed to be disabled “unless a decision has first been made to separate that employee from employment. The problem this creates for the defendant is that the jury found that the City’s motivation in separating Mr. Carter was unlawful retaliation and disability discrimination, not because of any sincerely held belief that he was permanently disabled as a firefighter.

Importantly, the jury was instructed that Government Code §21153 only comes into play when the employer believes that the employee has a permanent disability. That is because many disabled employees have temporary conditions, or chronic conditions that are likely to get better over time or with treatment. Obviously, there is no rule that requires the City to automatically separate all employees believed to be disabled. The disability must sincerely believed to be permanent. That is devastating to the defendant because Roni Moore admitted under cross-examination that she submitted plaintiffs retirement application, and then pursued that application for months with no information on his prognosis. The jury found that the retirement application was motivated by retaliation and prejudice-not a good faith assessment of Mr. Carter’s long-term ability to work.

Sexual Harassment In Workplace Leads To Suit By Sacramento Woman, Part 7 of 7

September 22, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Several California cases strongly encourage the Court to exercise its discretion liberally to permit amendments of the pleadings. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. In fact, the judicial policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified:

[w]hile a Motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court…it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may be properly present his case… If the motion to amend is timely made and the granting of the Motion will not prejudice the opposing party, it is error to refuse permission to amend; and, where the refusal also results in a party being deprived of their right to assert a meritorious defense, it is not only error but an abuse of discretion (emphasis added). Calif. Cas. Gen. Ins. Co. v. Superior Court. (1985) 173 Cal.App.3d 275, 278; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.

Moreover, under California Code of Civil Procedure § 426.50, leave to amend the pleading to assert a new cause of action must be given if the party who failed to plead the cause of action has acted in good faith. California Code of Civil Procedure § 426.50 specifically provides that it should be liberally construed to avoid forfeiture of causes of action.

In Hirsa v. Superior Court, the court expressly held that because trial courts are vested with the discretion to allow amendments to pleadings in furtherance of justice, they are to liberally permit such amendments, at any stage of the proceedings. (1981) 118 Cal.App.3d 486. This well-established California policy rests on the fundamental policy that cases should be decided on their merits. (Id.)

Sacramento-Area Store Told Pregnant Employee To Quit, Part 13 of 19

September 22, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

ii. The negative comments about Plaintiff’s pregnancy, accommodation requests and complaints of harassment show pretext:

Statements by a decision maker, which shed light on the employer’s true motivation, demonstrate evidence that the termination was pretextual. Reeves v. Sanderson Plumbing Products, Inc., (2000) 530 U.S. 133, 148. Pretext can be inferred when decision makers make statements that show discriminatory animus. Cook v. Arrowsmith Shelburne. Inc., (2nd Cir. 1995) 69 F.3d 1235, 1238. Here, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability in response to her pregnancy and accommodation requests. Second, the other comments that were made (i.e., We don’t give a shit about your claims of harassment; pregnant women have hormones and attitudes and you should quit or go on disability; can’t ask for help to lift things, etc…) were made by Mr. Davis and Mr. Chan as well right before she was fired. Third, when Plaintiff asked to go to the doctor she was suspended from going back to work.

iii. The termination reasons are false which establishes pretext as well
One of the ways to establish pretext is to show that the reasons given for the termination are not true. University of So. Calif. v. Sup. Ct., 222 Cal.App.3d at 1036. When a record contains evidence demonstrating not only that the legitimate, non-discriminatory reason for the adverse employment decision is false the grant of an employer’s motion for summary judgment is inappropriate. King v. Preferred Technical Group, (1999) 166 F.3d 887, 894. Here, the reason articulated is totally false.

Sacramento Chiropractic’s Negligence Leads To Malpractice, Part 3 of 4

September 22, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

11. As a further direct and proximate result of Defendants’ negligence, Plaintiff suffered severe and debilitating pain, anxiety and emotional distress, and will continue in the future to suffer severe and debilitating pain anxiety and emotional distress, in an amount not yet determined but to be shown according to proof at trial.

12. As a further direct and proximate result of Defendants’ negligence. Plaintiff incurred medical expenses for past medical care, and will continue in the future to incur medical expenses in an amount not yet determined, but to be shown according to proof at trial.

13. As a further direct and proximate result of Defendants’ medical negligence, Plaintiff incurred losses in her earnings and earning capacity and will continue in the future to lose earnings in an amount not yet determined, but to be shown according to proof at trial.

14. On this cause of action, Plaintiff is entitled to all compensatory damages available against defendants for their negligence, including any and all Economic Damages, without limit, and all Non-Economic Damages, subject to the limitations of California’s Medical Injury Compensation Reform Act of 1975 (M.I.C.R A.).

COUNT TWO: WILLFUL OR RECKLESS MISCONDUCT/MEDICAL BATTERY
[Brought by Plaintiff Sura Bhandi as against all Defendants]

15. Sura Bhandi hereby incorporates by reference the foregoing allegations and realleges the same as though set forth in full herein.