Personal Injury Lawyer Blog

Asbestos Exposure Leads To Suit Against Roseville Company, Part 5 of 14

July 10, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

D. Universal Exercised Complete or Substantial Control Over its Franchises

Universal first started franchising its stores in 1972 to further merchandise its products and increase profits. Universal wanted its franchises to operate along the same lines as Universal’s stores and Universal made sure that its customers cannot tell the difference between whether a particular Universal store was company- or franchisee-owned. Indeed, if a Universal franchisee went out of business, Universal then operated the store as a company-owned store. Universal placed certain mechanisms in its subleases, franchise agreements and Management Manual ( Universal Manual ) to ensure that its franchises operated and appeared the same as Universal-owned stores. Also, Universal employees regularly inspected and advised the franchises to ensure profitability and compliance with Universal’s standards.

3. Universal’s Management Manual
Universal required its franchisees to operate according to the Universal Manual. The Universal Manual outlined good business practices for the franchisee to follow to ensure profitability. Indeed, if a franchisee willfully or negligently deviated from the high quality service and maintenance standards set forth in the Universal Manual, Universal could terminate the franchise agreement. The Universal Manual required the franchisee to:
1. Follow Image Standards that included the maintenance and cleanliness of the facility;
2. Hire the most qualified and competent employees;
3. Train its employees on a daily on-going basis with, among other things, Universal’s complete range of training materials ;
4. Purchase necessary training aids and to make training time available to employees ;

(The discovery issues presented in this personal injury case are common to most civil cases.)

Suit Filed For Failure To Pay Sacramento Insureds For Accident With Uninsured Motorist, Part 5 of 6

July 9, 2009 | by Moseley Collins

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

SECOND CAUSE OF ACTION
Breach of Implied Covenant of Good Faith and Fair Dealing

(Plaintiffs against Defendants XYZ and DOES 1-20)

29. Plaintiffs incorporate by reference each and every allegation of this Complaint as though fully set forth in this cause of action.

30. At all times relevant herein, Defendants, and each of them, agreed to act in good faith and deal fairly with Plaintiffs in all matters related to the Policy, and insurance claims arising from losses covered thereunder, including the uninsured motorist and medical expense claims.

31. Said Defendants assumed a special relationship with, and fiduciary obligations to, and agreed to abide by the duties commensurate with these obligations. Nevertheless, Defendants refused and failed to act in good faith and deal fairly with Plaintiffs, and breached said obligations, as set forth more particularly herein.

32. Defendants engaged and continue to engage in an unreasonable course of conduct to further their own economic interests in violation of their contractual and fiduciary obligation to Plaintiffs, including but not limited to:

a) Unreasonable and bad faith failure to make a full and fair settlement of Plaintiffs’ medical expense claims;
b) Unreasonable delay and/or denial of payment of policy benefits without proper cause;

Sacramento-Area Hospital Sued For Medical Malpractice, Part 2 of 2

July 8, 2009 | by Moseley Collins

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

IN ESPINOSA v. LITTLE COMPANY OF MARY HOSPITAL, THE SECOND DISTRICT REJECTED ARGUMENTS IDENTICAL TO DEFENDANTS’ ARGUMENTS HERE

Included in the Sources and Authorities supporting CACI 430, is a Court of Appeal case from the Second District, Espinosa, which applies the substantial factor standard specifically to a medical malpractice case. As the Honorable Justice Croskey stated in Espinosa, in cases alleging negligence, the proper test for proving causation is the one set out in BAJI no. 3.76 (8th ed. 1994 bound vol.): The law defines cause in its own particular way. A cause of injury, damage, loss of harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (31 Cal.App.4th at 1313.) CACI 430 restates the substance of BAJI 3.76, in somewhat more plain and understandable language. Defendants ignore this controlling Second District case.

Also in Espinosa, as here, the Defendants relied primarily on Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal.App.3d 396. (Compare, 31 Cal.App.4 th at 1320-1321, with Defendants’ Special Instruction # 1.) As the Second District noted, Jones is not a medical malpractice case. (31 Cal.App.4 th at 1320.) Perhaps more importantly, as the Second District also noted, Jones is distinguishable because it concerns causes of cancer which are yet unproven, which causation had to be proven by testimony about the statistical risk or likelihood of brain damage. (31 Cal.App.4th at 1320.) In Jones, as in the present case, causation does not depend on statistical probabilities. As Espinosa, here it also would be error to fail to apply the substantial factor standard of causation.

3. CACI INSTRUCTIONS OTHER THAN CACI 430 INSTRUCT THE JURY ON THE BURDEN OF PROOF AND THE DEGREE OF PROOF

Defendants seek to supplement CACI 430 apparently because it does not require that Plaintiffs establish causation to a reasonable degree of medical probability. To the contrary, reasonable medical probability means more likely than not. (See, Espinosa v. Little Company of Mary Hospital, supra, 31 Cal.App.4th at 1316.)

CACI instruction no. 400, with medical added before negligence as required by CACI Instruction no. 500, instructs the jury that the Plaintiff must prove the elements of medical negligence, including causation. CACI instruction no. 200 instructs the jury on the requisite degree of proof to establish the elements of the negligence cause of action. Therefore, together CACI nos. 200 and 400 [as modified by 500] instruct the jury that Plaintiff must prove the elements of his case, including causation, by the more likely than not standard. An additional instruction on this same issue, stated in legalese ( reasonable medical probability ) rather than plain language ( more likely to be true than not true ), would place undue emphasis on Plaintiffs burden and confuse the jury.

4. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the court refuse Defendants’ special instruction # 1.

Woman Dies From Neglect In Sacramento Skilled Nursing Facility, Part 4 of 8

July 8, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

C. There Is No Requirement That Plaintiffs Show That Dr. XY Was The Custodian of Claire Fine.

In his moving papers, Dr. XY maintains that he cannot be held liable under a theory of abuse of a dependent adult because he was not Decedent’s custodian. This argument is wholly without merit. In Mack v. Soung (2000) 80 Cal. App. 4th 966, the children of an elderly woman sued her physician under the Elder Abuse statute. Dr. Soung maintained that he could not be liable under EADACPA because he was not the decedent’s custodian. In overruling his argument the court specifically found:

Dr. Soung additionally claims he cannot be liable under the Elder Abuse Act because he was not Girtha’s custodian or caretaker…He is wrong… neglect is not restricted to care custodians. Instead it applies generally to anyone having care or custody of the elder, and specifically mentions the [f]ailure to provide medical care for the physical and mental health needs.

The Mack court further pointed out that Dr. Soung’s argument was vitiated by the California Supreme Court’s decision in Delaney v. Baker (1999) 20 Cal. 4th 23. In that decision, the court held that health care professionals are not exempt from the heightened remedies triggered by § 15657 when they are guilty of reckless neglect. Here, Dr. XY had responsibility as the attending physician of Decedent to ensure that she was fed, hydrated, medicated, free of abuse, and that her medical needs were attended to.

Sacramento-Area Man Exposes Girlfriend To Work-Related Asbestos, Part 4 of 14

July 8, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

B. Universal Exposed Tina Gomez to Asbestos

Decedent Tina Gomez met David Plaza during the summer of 1981. They soon began an 18-month relationship with Mr. Plaza living in Ms. Gomez’s home and working as a mechanic at the West Facility.

Universal admits it owned and operated the West Facility until March 1, 1982. As Universal’s counsel and its person most knowledgeable ( PMK ) candidly admit, if Universal owned and operated a tire and automotive center, such as the West Facility, Universal thus controlled the operative details of the work, conduct, and safety of its employees. After March 1, 1982, Universal subleased the West Facility to Unity. The West Facility had a retail space, store room area and a mechanical space with six repair bays. Mr. Plaza worked five days a week, eight hours a day, at the West Facility during the entire time he lived with Ms. Gomez. Mr. Plaza lived with Ms. Gomez at least five or six months before Universal subleased the West Facility in March 1982.

Universal manufactures and distributes various automotive products. Universal stores removed and installed asbestos-containing automobile brake linings as part of its brake service. The primary brands Universal purchased through suppliers included Wagner, Raybestos, and Bendix. Tina Gomez visited David Plaza at the West Facility at least twice a week. She saw him work on brakes and saw brake boxes on the floor of the West Facility near Mr. Plaza.

When they lived together, Tina Gomez saw David Plaza wear his work clothes every day. He had five uniforms, one for each work day, consisting of a pair of pants and a light-blue shirt that bore the Universal logo. After he came home from work, Mr. Plaza piled his filthy and dusty work clothes either in the bedroom or garage where they remained until Ms. Gomez washed them on Saturday. Ms. Gomez laundered Mr. Plaza’s work clothes every week using the washer and dryer in her home. The washer and dryer were located within two feet of the bedroom. She always washed Mr. Plaza’s work clothes as a separate load because they were really bad and grungy. The dust on the worn work clothes was dark and blackish. She shook the dust off of the work clothes in the garage.

Automobile Insurance Company In Sacramento Sued For Bad Faith And Unfair Dealing, Part 4 of 6

July 7, 2009 | by Moseley Collins

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

FIRST CAUSE OF ACTION
Breach of Contract

(Plaintiffs against Defendants XYZ and DOES 1-20)

23. Plaintiffs incorporate by reference each and every allegation of this Complaint as though fully set forth in this cause of action.

24. On or about December 16, 2008, Plaintiffs made a claim for insurance benefits under the Policy, for personal injuries sustained as a result of the automobile accident described in this Complaint.

25. Under the Policy, Defendant owed duties and obligations to Plaintiffs, including but not limited to, payment of claims for insurance benefits covered under the Policy.

26. Defendant has unreasonably denied and/or delayed settlement and payment of Plaintiffs’ rightfully demanded claims. In failing and refusing to provide the benefits under the Policy, Defendant has breached the terms and provisions of the Policy.

27. Plaintiffs have performed all of the terms and conditions of the Policy and have performed all obligations under said Policy, and are rightfully owed their benefits under the Policy.

Wrongful Death Of Woman In Sacramento Convalescent Home, Part 3 of 8

July 6, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

A. Decedent Was a Dependent Adult Within the Meaning of Welfare & Institutions Code § 15610.23

Welfare & Institutions Code § 15610.23 defines a dependent adult as an individual between the ages of 18 and 64, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to persons who have physical or developmental disabilities… Plaintiffs’ Fourth Amended Complaint (FAC) alleges in part:

In September 2001, forty-five year old Decedent, CLAIRE FINE, suffered a severe heart attack. Decedent ultimately survived the heart attack but was left with severe brain damage due to lack of blood flow to her brain. She was diagnosed with hypoxic encephalopathy or brain damage caused by lack of oxygen.

Due to her severe brain damage, Decedent was unable to feed herself, speak, walk or attend to her personal needs, including bowel and bladder hygiene. Defendants, and each of them, were aware of her mental and physical disabilities when she was admitted to Eastern Convalescent Hospital and knew that these disabilities continued up to the time of her transfer to an acute care facility.

B. Decedent Suffered Egregious Custodial Neglect While in the Exclusive Custody and Care of Defendants, Including Dr. XY.
Statutory Elder Abuse is defined by Welf & Inst. Code § 15610.57 in part as: (a) Neglect means either of the following:

Lawsuit Filed After Roseville Couple Exposed To Asbestos, Part 3 of 14

July 6, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiffs’ enterprise/market-share liability causes of action allege that the nature of the asbestos-products industry and market were such that decedent Tina Gomez likely used or was exposed to each defendant’s fungible products; defendants, including Universal, cooperated in the manufacture, design and labeling of a uniformly defective product and knowingly adhered to an industry-wide safety standard that failed to warn plaintiffs and others of the disease hazard posed by ordinary uses of their products; defendants delegated research, investigative and other safety functions to various trade associations and industry leaders who failed to adequately investigate the risks caused by the use of asbestos, and actively minimized and suppressed the publication of information showing that asbestos is hazardous; and defendants jointly created and controlled the risk that was the proximate cause of the mesothelioma that killed Ms. Gomez. Nowhere in Universal’s separate statement does it negate, let alone address, that its asbestos-containing products were fungible ; that plaintiffs joined in this lawsuit the makers of a substantial percentage of those products; or that plaintiffs lack evidence in support of any essential element of the complaint’s enterprise/market-share liability causes of action.

Nowhere in its separate statement does Universal reference any purported facts contained in the Declaration of Betty McElroy. Ms. McElroy searched Universal’s employment records for information regarding David Plaza, but she did not search for Mr. Plaza’s true first name, Lawrence. Although she had access to and can search for Mr. Plaza’s employment records using his Social Security Number, she did not do so.

Sacramento Plaintiffs File Action Against Insurance Company Regarding Uninsured Motorist Coverage, Part 3 of 6

July 5, 2009 | by Moseley Collins

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

BRIEF FACT SUMMARY cont.

16. On or about April 13, 2009, Plaintiffs again requested an explanation for Defendant’s denial and unreasonable delay in settling Plaintiffs’ claims. At the same time, Plaintiffs submitted a demand for arbitration.

17. On April 30, 2009, Defendant sent a response to Plaintiffs’ April 13, 2009 demand, by making an unreasonably low settlement offer. Defendant then represented that the matter would be sent to Defendant’s counsel to consider Plaintiffs’ demand for arbitration, and said counsel would contact Plaintiffs shortly.

18. Subsequently, Plaintiffs relied on Defendant’s representations that the matter would be reviewed by its counsel, and communicated to Defendant that they considered compelling arbitration, but would wait for further communication from Defendant.

19. However, on May 13, 2009, Defendant again corresponded with Plaintiffs, not by way of counsel, but only to communicate that a new claims representative was assigned to handle Plaintiffs claim. Instead of forwarding the matter to counsel as Defendant represented, it merely assigned a new representative to the matter.

Sacramento Family Files Suit After Mother Dies From Elder Abuse, Part 2 of 8

July 4, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

PLAINTIFFS AGREE TO DISMISS THEIR FOURTH CAUSE OF ACTION AS TO DR. XY

Plaintiffs agree to dismiss their Fourth Cause of Action for Fraud-Concealment as to defendant Dr. XY. Therefore, this court need not consider defendant’s moving papers as to this cause of action.

PLAINTIFFS HAVE PLEAD FACTS SUFFICIENT TO STATE A CAUSE OF ACTION FOR ABUSE OF A DEPENDENT ADULT

The purpose of Welfare and Institutions Code 15600 et. seq. or the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse or custodial neglect, Delaney v. Baker (1999) 20 Cal. 4th 23, 33. The statute provides for recovery of enhanced remedies, including attorneys fees, in civil actions, for abuse of dependent adults when clear and convincing evidence proves that (1) the defendant committed physical abuse or neglect and 2) the defendant was guilty of recklessness, oppression or fraud or malice in committing this abuse or neglect.

The essential factual elements for a cause of action for physical abuse under Welf & Inst. Code §§ 15657, 15610.63 appear in the Judicial Council of California Civil Jury Instructions (2008), CACI No. 3107. In order to maintain a cause of action for abuse of a dependent adult Plaintiffs must allege and ultimately prove by clear and convincing evidence: