Personal Injury Lawyer Blog

Sacramento-Area Radio Station Sued For Contestant’s Death/Brain Injury, 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 brain injury/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.

Despite the Smith Plaintiffs’ withdrawal of any brain injury claim, it appears that Plaintiffs’ counsel aims to improperly prejudice and confuse the jury by nonetheless presenting Dr. X.’s testimony that the volume of water consumed during the Hold Your Wee for a Wii contest possibly could be expected to cause brain damage.

ARGUMENT

Evidence regarding whether the amount of water consumed during the Hold Your Wee for a Wii contest could or would be expected to cause brain damage would be irrelevant, highly prejudicial, confusing to the jury, and time consuming.

First, evidence or argument regarding brain damage is not relevant. Cal. Evid. Code § 210 (irrelevant evidence inadmissible). The evidence does not prove or disprove any disputed fact that is of consequence to the determination of the action. Cal. Evid. Code § 210 (defining relevant evidence). The Smith Plaintiffs do not claim that any of them have actually suffered brain damage. Furthermore, it is not disputed that Sherrie Johnson died as a result of pulmonary edema stemming from hyponatremia. While impaired brain function probably was involved in her death, there is no evidence or claim that she suffered from brain damage. Any discussion of whether the amount of water consumed by Jennifer Strange (the second-place finisher) could or would be expected to cause brain damage would be nothing more than a back-door attempt to argue that the amount of water consumed by Lucy Davidson (the contest winner) could or would be expected to cause brain damage. This is particularly concerning because before the Smith Plaintiffs withdrew their brain damage claim, they focused heavily on Paul Smith’s possible injuries.

Wrongful Termination Action Filed By Sacramento Firefighter, Part 15 of 19

September 21, 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.)

PLAINTIFF WAS SUBJECT TO AN ADVERSE EMPLOYMENT ACTION
A. The Fitness for Duty Evaluations

The jury in this case determined that the defendant sent Mr.Carter to an involuntary psychological fitness for duty evaluation in retaliation for his numerous complaints about workplace discrimination. Incredibly, the City’s Human Resources Director, Roni Moore, admitted that this was one of her reasons for sending Mr.Carter to a fitness-for-duty evaluation. And Ms. Moore testified at trial that she could understand how outsiders, including the jury, could easily perceive her actions as retaliatory.

As a result of the City’s decision to send Mr.Carter to a fitness-for-duty examination, he was not permitted to return to his work as a firefighter, notwithstanding a medical release from his treating psychiatrist. This caused him both economic and emotional harm. The evidence also strongly suggested that the City tried to bias the fitness-for-duty examiner against Mr.Carter by disparagingly referring to his “numerous” discrimination complaints as “unfounded,” and by providing the examiner with uniformly negative information about Mr.Carter’s long career as a firefighter.

When Mr.Carter was re-evaluated by his treating physician on August 10, 2004, and cleared to return to work, the City refused to allow him to return, instead sending him to another fitness-for-duty exam with the same biased Psychology Office that had declared him unfit the first time around. This again prevented Mr.Carter from returning to his job, causing him both economic and emotional damage. When Mr.Carter objected to going back to a biased examiner, the City solicited a follow-up report from that examiner anyway, even though there had been no follow-up. Plaintiffs expert at trial, Dr. X., testified that this action was completely outrageous and unprofessional.

Sacramento Car Accident Leaves Bicyclist With Fractured Feet, Part 2 of 7

September 20, 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.

Description of Street at Accident Scene

The intersection of River and Ridge is controlled by a tri-light signal system. There is no tri-light signal facing the frontage road or facing the sidewalk; the tri-light signal faces the Boulevard (i.e., the four main travel lanes of River). The frontage road has a stop sign controlling each corer; the sidewalk has a walk/don’t walk signal at River and Ridge.

At the area of the accident, River is a relatively new Boulevard Project, inaugurated in the summer of 2006. The Boulevard has two through lanes going north and two through lanes going south; these four through lanes are divided by a raised concrete median, four feet wide, planted with trees. There is no parking along the through-lanes, which are each 11 feet wide (i.e., narrower than a standard freeway lane). Instead, there is another four-foot wide raised concrete median at each outer edge of the through lanes, also planted with trees. These latter medians border the through lanes on the east and west edges thereof. Next, there is an 18-foot wide paved street, marked One Way eastbound and westbound (also part of the Boulevard Project) for motorized traffic, bicycles and for parking. The parties refer to this street as the Frontage Road.

Sacramento-Area Car Driver Collides With Bicyclist, Part 1 of 7

September 18, 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.

Defendant’s Trial Brief
Type of Action
This is a two-party bodily injury action arising from a traffic accident involving a bicycle and an automobile.Factual Summary
Description of Accident

The defense contends that plaintiff is solely to blame for causing the subject accident (hereafter “the accident” ) and defendant is not liable for any injuries or damages that plaintiff sustained.

This is a contested liability, contested injuries/damages action arising from a bicycle versus auto collision that occurred on Halloween night, October 31, 2006, at approximately 9:20 p.m. Defendant Tina Lu, then age 23, was making a right turn from northbound River Drive onto Ridge Road, driving her 2004 Toyota Camry. Plaintiff Paul Nathan, then age 22, was riding a bicycle without a helmet, down the hill on River toward Ridge. Prior to defendant’s right turn, the parties were traveling parallel to each other (northbound), though not on the same street, as explained below. It is contested whether plaintiff was riding on the sidewalk as contended by defendant, or whether plaintiff was riding on the Frontage Road (defined below) as contended by plaintiff. In either event, plaintiff was attempting to cross Ridge and continue northward at the same time that defendant was attempting to turn right and head eastbound on Ridge. The parties were at right angles to one other at the moment of impact.

Workplace Suit Filed By Sacramento Firefighter, Part 14 of 19

September 18, 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.)

In Birschtein v. New United Motor Manufacturing, Inc. (2002) 92 Cal.App. 4th 994, 1004, the California Court of Appeals noted that the foundation of the [California Supreme Court’s] rationale supporting application of the continuing violation doctrine in FEHA discrimination litigation is not so much accommodation itself as a process of conciliation. It is clear from these authorities that the statute of limitations on plaintiff’s claims did not begin running as soon as the City applied for involuntary retirement. The limitations period only began running when that decision had a permanence or finality attached to it, which was on the date of the formal discharge, or January 20, 2005. In other words, the conciliation efforts that intervened, including plaintiff filing a grievance over the retirement application, the requests for accommodation, the submission of new medical releases, the requests for a neutral and independent second medical opinion, and the repeated efforts to prompt a good faith interactive dialogue, delayed the running of the one-year statute of limitations period until well after June 10, 2004.

B. Plaintiff’s Disability Discrimination / Failure to Accommodate Claim
Plaintiffs failure to accommodate and failure to engage in the interactive process claim are also subject to the continuing violation doctrine. Indeed, in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the California Supreme Court specifically applied the continuing violation doctrine to a FEHA claim involving an alleged failure to accommodate a disability. The Court reasoned that the FEHA statute of limitations should not be interpreted to force upon a disabled employee engaged in the process of seeking reasonable accommodation the unappealing choice of resigning at the first sign of disability discrimination or, on the other hand, persisting in the reconciliation process and possibly forfeiting a valid claim should that process prove unsuccessful. See Yanowitz, supra, citing Richards, at 821.

Pregnant Sacramento Worker Files Claim For Retaliatory Action By Employer, Part 12 of 19

September 17, 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.)

PLAINTIFF CAN ALSO ESTABLISH A PRIMA FACIE CASE OF RETALIATION

First, the prima facie case is designed to be quite easy to meet. Hodgens v. General Dynamics Corp., (1st Cir. 1998) 144 F3d 151, 161 (under the McDonnell Douglas framework the prima facie burden is quite easy to meet). It is designed to be a de minimis burden. Texas Dept. of Community Affairs v. Burdine, (1981) 450 U.S. 248, 253-254.

To establish a prima facie case for retaliation under FEHA, a plaintiff must establish that: (1) she was engaged in a protected activity; (2) was thereafter subjected to an adverse employment action; and (3) there was a causal link between the two. Addy v. Bliss & Glennon, (1996) 44 Cal.App.4th 205, 217. In response, the employer must set forth a legitimate, non-retaliatory explanation for its conduct. Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 476. Then, the employee presents evidence to show that the reason is pretextual. Id.

Here, the prima facie case is met: 1) Plaintiff was engaged in protected conduct: Employers cannot retaliate against an employee for requesting accommodation or for complaining of pregnancy harassment. Cal Govt Code § 12940(h) & (m). Plaintiff requested accommodation in the form of a weight lifting restriction and in the form of a finite amount of time off as a medical leave[FN1]. Also, Plaintiff complained of pregnancy harassment multiple times; 2) Plaintiff was terminated; 3) Plaintiff can establish a casual link as set forth below.

The plaintiff may establish a causal link between protected conduct and an adverse employment action by showing temporal proximity or that they occurred closely in time. King v. Preferred Technical Group, 166 F.3d at 893. Here, the last accommodation request came on June 21, 2006 and the last two complaints of harassment came on June 21 and 22, 2006. There were not plans to fire Plaintiff prior to her last complaint of harassment in the meeting with Mr. Chan on June 22, 2006. The decision to fire Plaintiff was made on June 23, 2006. It was the final decision and nothing would change it.

The causal link is also shown by the false reasons for the termination. Howard v. BP Oil Co., 32 F.3d at 526-527; University of So. Calif, 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.

Female Sacramento Employee Subjected to Workplace Harassment, Part 6 of 7

September 16, 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.)

PLAINTIFFS MAY RECOVER DISGORGEMENT OF PROFITS OR RESTITUTION UNDER BUSINESS AND PROFESSIONS CODE § 17200

Injunctions and restitutionary relief (disgorgement of money or property unlawfully obtained) are available under the Unfair Competition Law. See Herr v. Nestle U.S.A., Inc., supra, 109 CA4th at 789, 135 CR2d at 485, fn 5 – employer engaging in age discrimination in violation of FEHA was subject to prohibitory injunction under Unfair Competition Law. Therefore, Plaintiff is allowed to recover disgorgement of profits or restitution under Business and Professions Code § 17200 since their causes of action are brought under FEHA.

D. IN THE ALTERNATIVE, PLAINTIFF REQUESTS THIS COURT GRANT LEAVE TO FILE ITS FIRST AMENDED COMPLAINT.

If Plaintiffs Complaint is deficient in any way, several California Code of Civil Procedure provisions both permit and strongly encourage the Court to grant Plaintiffs leave to amend their Complaint. Under California Code of Civil Procedure § 473, the court may in furtherance of justice, and on any terms as may be proper, allow any party to amend any pleading or proceeding. Under California Code of Civil Procedure § 576, any judge at any time before or after commencement of a trial, in furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading…. Under California Code of Civil Procedure § 426.50:
[A]ny party who fails to plead a cause of action subject to the requirements of this article whether through oversight, inadvertence, mistake, neglect or other cause, may apply to the court for leave to amend his pleadings…to assert such cause at any time during the course of the action.

Medical Malpractice Action Filed By Sacramento Woman, Part 2 of 4

September 16, 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.)

Complaint For Damages cont.

5. At all times mentioned herein, Defendants, and each of them, were the agents, principals, servants, or employees of each of the remaining Defendants, and were at all times acting within the purpose and/or scope of such agency, service and/or employment. Each Defendant, including Does I through 100, consented, ratified, permitted, encouraged, directed, and/or approved the acts of each other Defendant.

6. For the year prior to October of 2008, Plaintiff Sura Bhandi had consulted with and employed Defendants Wellness Center, Tim Jones, D.C., and DOES 1 through 100, inclusive, and each of them, to examine, diagnosis, treat and provide chiropractic care for soreness in her shoulders and back.

7. Defendants, and each of them, owed a duty to Plaintiff to exercise the degree of knowledge, skill, prudence and diligence as other members of their respective professions commonly possess and exercise.

8. Defendants, and each of them, breached their respective duties owed to Plaintiff, and failed to exercise the degree of knowledge, skill, prudence and diligence as other members of their respective professions commonly possess and exercise, including but not limited to the following:
A. Defendants, and each of them, negligently examined Plaintiffs injuries;
B. Defendants, and each of them, negligently failed to diagnose the true nature and extent of Plaintiffs injuries;
C. Defendants, and each of them, negligently prescribed treatment that made Plaintiffs injuries permanent and more severe;
D. Defendants, and each of them, negligently overrated the Plaintiff causing her permanent injuries requiring immediate surgery;
E. Defendants, and each of them, failed to render medical care with the knowledge, skill, prudence and diligence that is commonly possessed and exercised by competent chiropractors.

F. Defendants, and each of them, failed to properly refer Plaintiff to a competent medical provider, to address her medical concerns so she could attain adequate care.

Radio Contestants From Sacramento Suffer Possible Brain Injuries, Part 2 of 4

September 16, 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 brain injury/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.

“These men [the Smith Plaintiffs] had symptoms of increased intracranial pressure that did not cause unconsciousness or seizures; nevertheless their brains were subjected to compression with the potential for loss of neurons that may have subsequent effects on these individuals.” (Declaration of Ken X., M.D., Ph.D., in Opposition to Defendant Geary’s Motion for Summary Adjudication.)

If the body is able to excrete water fast enough to avoid lethal brain swelling, sodium balance is gradually re-established. As that happens, symptoms gradually subside, although this does not mean that permanent damage, especially brain damage, has not already occurred due to swelling. (Id. at 7:17-24 (emphasis added).)

“Given the significant amount of water she [Paul Smith] consumed, it would be expected that he sustained some degree of permanent brain damage.” (Id. at 8:10-11) To support this brain injury claim, the Smith Plaintiffs also designated an expert allegedly specializing in brain injury, Dr. Monica Y..

Sacramento Man Injured When Car Collides With His Bicycle, Part 3 of 3

September 16, 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.)

Plaintiff will contend the automobile accident happened after 9:00 p.m., on Halloween Night. The evidence will demonstrate this location, just a few blocks from University Avenue, was particularly congested with pedestrian traffic at that time. Defendant was driving too fast in view of the prevailing conditions and failed to see Mr. Nathan before starting her right turn. Her turn took her across another lane of northbound traffic on River Drive and through a pedestrian crosswalk which is controlled by a signal on the same sequence as north-south River Drive traffic.

Plaintiff’s Damages

Mr. Nathan was taken to Sacramento General’s trauma center via ambulance immediately after the accident. He underwent a variety of x-rays and other diagnostic tests, was given IV Morphine and then Vicodin prior to being released the following day. Because he had sustained fractures in both feet he was sent home by taxi and with immobilizing devices on both feet. He was off work for four to six weeks and was subsequently treated for persistent headaches; abdominal pain; low back pain and bilateral foot pain.

During the course of treatment he was seen in consultation by two neurologists, and a podiatrist. He also had a very brief course of physical therapy. He has continuing complaints of occasional headache pain and of stiffness, lack of mobility and pain in both feet. There is every probability he will suffer from arthritis in both feet and will do so for the remainder of his life.