Personal Injury Lawyer Blog

Sacramento Physicians Mishandle Baby During Delivery Resulting In Birth Injury, Part 12 of 12

August 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 birth injury case and its proceedings.)

DEFENDANTS’ DESTRUCTION OF CRUCIAL RECORDS OR PREVARICATION ABOUT FACTS MAY SUPPORT EVIDENTIARY SANCTIONS OR AN INFERENCE OF LIABILITY

Universal’s failure to produce legible copies of the fetal monitor strips is the equivalent of a failure to produce evidence and will support an evidentiary sanction so that the defendant cannot benefit from loss of the evidence. Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3d 877, 885, 217 Cal.Rptr. 602 (even unintentional loss of evidence justifies evidentiary sanctions sufficient to cure any advantage that party might gain over opponent); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 739, 149 Cal.Rptr. 499; Caryl Richards Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 305, 10 Cal.Rptr. 377; Newland v. Superior Court (1997) 40 Cal.App.4th 608, 47 Cal.Rptr.2d 24.

Such orders may put the requesting party in the position it would have been in had the requested discovery been entirely favorable (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 227, 240 Cal.Rptr. 489, excluding all evidence of economic loss as sanction for failure to produce financial documents), or preclude any evidence which might have been impeached by the destroyed matter. People v. Michael L. (1984) 151 Cal.App.3d 1052, 199 Cal.Rptr. 207.

A jury may find that the hospital’s records or Dr. X.’s account of the birthing procedure are so far from the actual facts as to constitute willful misrepresentation, or that they willfully falsified the medical records so as to conceal what really happened. A false exculpatory statement can be evidence of consciousness of liability, and evidence that a party falsely denied knowledge of a fact permits the jury to infer that he or she had guilty knowledge. Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1841, 41 Cal.Rptr.2d 192; Evidence Code §413; Biondi v. Amship Corp., supra, 81 Cal.App.2d 751.

Severely Injured Sacramento Man Sues Police Officer, Part 8 of 9

August 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 brain injury case and its proceedings.)

Ends of Justice/Prejudice

Defendants speculate that a single trial may confuse the liability issues or result in prejudice in that a jury might look past liability. However, defendants cite no empirical evidence suggesting that trying liability and damages in a single trial would cause any prejudice to defendants. Certainly the fact that Mr. Santoro suffered a severe injury is no reason to bifurcate. Serious injury cases are tried in the courts of Sacramento County and other counties routinely without bifurcation and with no evidence of prejudice to defendants.

Jurors are routinely instructed they must find liability before considering damages and they appear to do so with little problem. Defendants offer speculation, but no evidence to the contrary. Further, as discussed above, the jury in this case would be aware of the seriousness of the injury in the liability phase in any event. The issue will be discussed in voir dire, as will many issues relating to Mr. Santoro’ injury and damages, for there is only one opportunity to voir dire the jury before it is empaneled. See Bly-Magee v. Budget Rent-A-Car 24 Cal.App.4th 318, 332-344 (1994).

Further, the fact that Mr. Santoro suffered a fractured skull, a severe brain injury and was in a coma for weeks, etc. will be admissible on the amount of force used, to show that the amount of force used was unreasonable and excessive. Similarly, Mr. Santoro’s injury must be discussed to some extent by medical professionals to explain to the jury why Mr. Santoro’s memory loss is so extensive and, importantly, that his inability to recall any part of this incident is real and not feigned.

Sacramento Fire Department Sued For Discrimination, Part 2 of 19

August 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/sex discrimination case and its proceedings.)

To sum up plaintiff’s position, there are at least four independent reasons that support the jury’s determination that plaintiff filed a timely charge with the Department of Fair Employment and Housing:

1) The jury had evidence to find that actionable conduct occurred within one-year of the June 10, 2005 administrative filing with the DFEH. These acts included:

a) Sending Mr.Carter to a fitness for duty evaluation on August 11, 2004.

b) Soliciting a follow-up fitness for duty evaluation on September 4, 2004.

c) Pursuing what the jury determined was a retaliatory and discriminatory disability retirement application from April 26, 2004 through January of 2005, despite many opportunities to retract the application, and/or take acts that would potentially have eliminated the need for the Retirement Board to act.

d) Failing to accommodate Mr.Carter from April 26, 2004 (the date the retirement application was submitted) all the way through the end of his employment in January of 2005. This included the City’s decision on July 12, 2004, to refuse plaintiff’s reasonable request to have his perceived mental disability and capacity to work evaluated by an independent physician. This also included the City’s ongoing failure to consider transferring Mr.Carter to a vacant position outside the Fire Department. It also included the City’s ongoing failure to consider extending Mr.Carter’ medical leave rather than moving forward (unnecessarily) with a retirement application that the jury determined was discriminatory and retaliatory. Finally, it included the City’s failure to allow Mr.Carter to return from a mental health leave of absence on multiple occasions, despite releases 23 from his physician on February 2, 2004, as well as August 10, 2004.

Malpractice At Sacramento Hospital Causes Birth Injury, Part 11 of 12

August 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 birth injury case and its proceedings.)

EVIDENCE OF TREATMENT BELOW THE STANDARD OF CARE REQUIRES DENIAL OF THE MOTION

The fundamental rule on summary judgment is that the motion may not be granted where there is any triable issue as to a material fact. There is direct controverting evidence as to defendants’ neglect, and a clear causal connection between that neglect and the injuries suffered by Sean Taylor.

In a medical malpractice action involving a birthing injury against a hospital and delivering obstetrician, the appellate court reversed a non-suit granted to defendants based on plaintiffs’ failure to sufficiently establish the element of causation. Espinoza v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 37 Cal.Rptr.2d 541. The Court addressed the nature of plaintiffs burden of proof as follows:

Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is some substance to plaintiff’s evidence upon which reasonable minds could differ…. [Citations.] (Carson v. Facilities Development Co., supra, 36 Cal.3d at pp. 838-839, 206 Cal.Rptr. 136, 686 P.2d 656.) If the existence of facts sufficient to support a recovery can logically and reasonably be inferred from the evidence, the motion must be denied, regardless of whether the evidence is also susceptible to conflicting inferences. [Citation.]… When there is doubt in the court’s mind about the inferences that may reasonably be drawn from the evidence it is the duty of the court to let the case go to the jury. [Citations.] [Citation.] (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611, 278 Cal.Rptr. 900, emphasis added.) [31 Cal.App.4th at 1313]

Baby Injured During Delivery Due To Sacramento OB/GYN’s Malpractice, Part 10 of 12

August 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 birth injury case and its proceedings.)

The declaration of defendant’s expert herein is no more enlightening than that in Kelley as to the merits of Plaintiffs’ case. The defense expert simply attests that he read the records and did not see anything in it that fell beneath the standard of care. He recites, for example, that the Woods corkscrew maneuver in the McRoberts position was applied, without any evidence that it was properly performed. In effect, he regurgitates the hearsay of the records and announces that the records do not contain any admission of neglect.

Nor has Universal’s expert demonstrated his competence to attest to the standard of care governing nurses, stated what that standard is so that the Court can assess his opinion, or established that there is no evidence of nurse neglect in the Woods or McRoberts procedures.

Universal’s failure to give its expert the photographs taken during delivery actually supports an inference against it. Hagy v. Allied Chemical & Dye Corp. (1953) 122 Cal.App.2d 361, 372, 265 P.2d 86 (defendant’s failure to provide its expert with data regarding concentration of toxic fumes supports inference against it); Biondi v. Amship Corp. (1947) 81 Cal.App.2d 751, 185 P.2d 94.

Insurance Company Denies Coverage To Sacramento Couple, Part 1 of 11

August 15, 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 automobile accident/insurance coverage case and its proceedings.)

Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Blue Shield offered health care coverage to plaintiffs based on an on-line application which Blue Shield’s insurance agent, Kenny Shulman, prepared and forwarded to Blue Shield after plaintiff Sally Lawrence delivered her paper application for individual family coverage to Mr. Shulman. Sally Lawrence understood that the application asked for only her health history, and she provided it. Had Blue Shield’s paper application been clearer and less ambiguous, or had Mr. Shulman asked plaintiffs each question on the paper application as the application’s certification section required, the on-line application which Mr. Shulman prepared and sent to Blue Shield would have been amended to include the health histories of Bob Lawrence and their son, Sammy Lawrence, and to accurately reflect the history and status of Sally Lawrence’s irritable bowel disclosure.

Significantly, Blue Shield issued coverage (effective December 15, 2000) based on Mr. Shulman’s incomplete and inaccurate on-line application. Had Mr. Shulman performed his duty, Blue Shield would likely have denied coverage, in which case plaintiffs would have obtained other coverage which would have been in effect on the date of Mr. Lawrence’s March 19, 2001, automobile accident.

Sacramento Beating Victim Suffers Brain Injury, Part 7 of 9

August 15, 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 case and its proceedings.)

B. Economy and Efficiency

The above discussion highlights the fact that far from promoting economy and efficiency, bifurcation would add significantly to the time and expense of litigating this case and would add significantly to the logistical difficulties of scheduling and re-scheduling witnesses, including experts, some of whom will have to testify twice.

In terms of economy, there is little question that a second trial will occur in this matter, particularly given the fact that comparative fault will apply. Given the number of procedures and training guidelines violated by Officer Doe and the extreme amount of force he applied to Mr. Santoro under very benign circumstances, it is most unlikely that a jury would not assign some percentage of fault to Officer Doe, if not a substantial percentage.

Not only would a second trial require several witnesses to testify twice, second opening statements, closing arguments, jury instructions and jury deliberations would be necessary. This would extend this trial well beyond the time necessary to conduct a single trial. This would not serve the goal of judicial economy at all. A single trial will not be much longer than a bifurcated liability phase, particularly since there is very little dispute among the experts about Mr. Santoro’s damages. Indeed, the defense neuropsychologist has recently testified that Mr. Santoro has greater deficits and will need more care during his life than plaintiffs expert.

Child Suffers Birth Injury At Sacramento Hospital, Part 9 of 12

August 15, 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 birth injury case and its proceedings.)

UNIVERSAL’S EVIDENCE FAILS TO CARRY ITS BURDEN AS TO DIRECT LIABILITY

Universal relies upon the recitation of medical records in the declaration of Peter Fine, concluding with the opinion that the conduct described therein complies with the standard of care. As Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122, held, conclusory declarations without sufficient factual foundations are not sufficient to demonstrate the absence of a triable issue regarding standard of care.

In Kelley, the defendant physician submitted an expert declaration citing the records reviewed and then, after three paragraphs describing the records, announcing that At all times.. Dr. Trunk acted appropriately and within the standard of care under the circumstances presented. (Id. at 522) The Court of Appeal found that the declaration was inadmissible and failed to carry defendant’s burden on summary judgment.

Expert witnesses normally testify concerning the bases for their opinions, and the court may require the expert to state the bases before giving his opinion. (See Evid.Code, §§802.) Standard instructions give juries the common sense directive that [a]n opinion is only as good as the facts and reasons on which it is based.’ (BAJI 2.40.) An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. (Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58, 45 Cal.Rptr. 129,403 P.2d 385; Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847, 73 Cal.Rptr. 773 [expert opinions, though uncontradicted, are worth no more than the reasons and factual data upon which they are based]; BAJI 2.40 [ [Y]ou may not arbitrarily or unreasonably disregard the opinion testimony… which was not contradicted … unless you find that it is not believable… ].)
Applying the foregoing standards here, we conclude that summary judgment was improperly granted.

Sacramento Firefighter Sues For Workplace Discrimination, Part 1 of 19

August 14, 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’s Opposition to Defendant City of Sacramento Fire Department’s Motion for a New Trial
INTRODUCTION AND SUMMARY OF THE ARGUMENT

The defendant’s Motion for a New Trial is based on recycled arguments that have already been rejected by both the Trial Court and the Jury. As the court will recall, the jury in this case rendered a nearly unanimous verdict in plaintiff’s favor on each of his four causes of action, resulting in a Judgment against the Defendant in excess of 1 million dollars.

The defendant’s central argument is premised on getting the Court to adopt an extremely strict approach to the statute of limitations. Any such interpretation would be directly at odds with multiple California Supreme Court decisions, which have repeatedly held that the FEHA’s statute of limitations is to be interpreted liberally to promote the resolution of potentially meritorious claims on the merits. See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028; Richards iv CH2M Hill, Inc. (2001) 26 Cal.4th 798; Romano v. Rockwell (1996) Cal.4th 479.

The defendant’s argument can be fairly summarized as follows: The FEHA provides for a one-year statute of limitations, which is set forth in Government Code §12960. Plaintiff filed his charge with the Department of Fair Employment and Housing on June 10, 2005. Therefore, the argument goes, plaintiff is prohibited from suing on discriminatory or retaliatory acts that occurred prior to June 10, 2004. It should be noted that the defendant made precisely the same argument in its Motion in Limine #4. Plaintiff opposed the motion, contending that not only were there discriminatory and retaliatory acts that occurred within 1-year of the June 10, 2005 DFEH charge, but that acts occurring before June 10, 2004 were actionable due to the continuing violation doctrine, as described in the landmark California Supreme Court case of Yanowitz v. L’Oreal. The Court denied defendant’s Motion in Limine #4, and the case proceeded to trial.

Physician At Hospital In Sacramento Sued For Medical Malpractice, Part 8 of 12

August 14, 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 birth injury case and its proceedings.)

Nothing in the moving papers addresses the question of whether Universal complied with its duty to assure the competence of physicians – including Dr. X. – practicing in its facilities. The bare assertion that plaintiffs cannot prove their anticipated claim is an improper attempt to shift initial burden to the responding party. To support summary judgment on a theory that plaintiff has no evidence to prove an element of his case (Rio Linda School District v. Superior Court (1997) 52 Cal.App.4th 732, 735, 60 Cal.Rptr.2d 710, Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653), it is not enough to simply suggest that plaintiff cannot prove its case. Certain Underwriters at Lloyd’s of London v. Superior Court (1997) 56 Cal.App.4th 952, 955-957, 960, 65 Cal.Rptr.2d 82.

Allowing the moving party to allege that the opposing party has no evidence would effectively place an initial burden upon the opposing party that would directly contradict the procedure for burden shifting expressly set forth in the amended statute. Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 81, 81 Cal.Rptr.2d 360. The moving party is required to make an affirmative showing of the absence of evidence to establish a prima facie case. (Id. at 83) To do so, the moving defendant should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186, 48 Cal.Rptr.2d 197. The burden does not shift until a review of all direct, circumstantial and inferential evidence available to the moving defendant establishes the absence of evidence to support the plaintiffs cause of action. Scheiding, supra, 69 Cal.App.4th at 83.