Personal Injury Lawyer Blog

Sexual Harassment of Hispanic Employees By West Sacramento Company, Part 14 of 18

June 3, 2009 | by Moseley Collins

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

82. Defendant UCC and/or its agents and employees, supervisors, managers, officers and/or directors knew or should have known of the harassing actions on the basis of verbal and/or written reports of such actions made by Plaintiff to Defendant UCC’s supervisors, managers, officers and/or directors. Despite Defendant UCC’s actual and/or constructive knowledge of such harassing actions, Defendant UCC failed to take immediate and/or appropriate corrective action to stop the harassment. Furthermore, before the unlawful discrimination, harassment and retaliation occurred, Defendant UCC failed to take all reasonable steps to prevent such unlawful actions from occurring.
83. Defendant UCC also subjected plaintiff to discriminatory enforcement of company rules, arbitrary enforcement of rules, arbitrary write-ups, racially hostile comments, innuendos, and offensive and insulting remarks, unfair performance evaluations, contrived terminations, demotions, punishments and retaliation against Plaintiff for engaging in protected activity.
84. As a proximate result and legal cause of Defendant UCC’s conduct as alleged herein above, Plaintiff has been damaged in that Plaintiff has suffered the loss of wages, salary, benefits, and promotion, in an amount to be proven at time of trial.
85. At all times herein mentioned, Plaintiff was an excellent employees with an outstanding record of dedication, loyalty and efficient service and contribution to Plaintiff’s employer’s goal.

Wrongful Death Of Sacramento Man Due To Medical Negligence, Part 2 of 3

June 3, 2009 | by Moseley Collins

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

II MEDICAL OPINION TESTIMONY MUST BE TO A REASONABLE MEDICAL PROBABILITY

An expert witness – including a medical doctor – must testify on issues of the standard of care, causation and damages, in the field of his expertise, to a reasonable medical probability. Clearly, “[a]bsolute proof or mathematical demonstration is not required.” (Foremost Dairies v. Industrial Acc. Com. (1965) 237 Cal. App.2d 560, 568-569, citing Santa v. Industrial Ace. Com. (1917) 175 Cal. 235, 237.) However, an expert must testify to a reasonable medical probability as opposed to offering mere guess work, speculation, conjecture or bare possibilities.

Conversely, if the expert cannot testify as to a reasonable medical probability as to one of the elements of medical negligence – standard of care, causation, or damage – such testimony cannot be admitted. This fundamental principle that an expert must testify to a reasonable medical probability was stated in Rowley v. Bunnell (1968) 257 Cal. App.2d 324, where establishing the time of death of two testators was at issue:

“Medical witnesses need not testify positively to support a finding of proximate cause. Their opinion of-the probabilities is sufficient for that purpose.” (Emphasis added.) (Rowley, supra, 257 Cal.App.2d at p. 341.) See also Tannyhill v. Pacific Motor Transportation Company (1964) 22 Cal. App.2d 511,521, citing to Travelers Insurance Company v. Industrial Ace. Corn. 22 Cal.2d 685. (See Robertson v. Leigh (1957) 153 Cal. App.2d 730.)

Roseville Family Files Suit For Child’s Traumatic Brain Injury, Part 4 of 4

June 2, 2009 | by Moseley Collins

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

Consequently, Plaintiff submit Judicial Council jury instructions Numbers 340 and 341 on the issue of causation. The above instructions are in accord with BAJI: There may be more than one cause of an injury. When [[negligent] [or] [wrongful] conduct of two or more persons] [or [[negligent] [or] [wrongful] conduct and a defective product]] contribute[s] concurrently as [a] cause[s] of an injury, [the conduct of] each is a cause of the injury regardless of the extent to which such contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. [It is no defense that the [negligent] [wrongful] conduct of a person not joined as a party was also a cause of the injury.] (BAJI No. 3.77.)

And the Second District Court of Appeal has the following language on the use of BAJI No. 3.77: One purpose of BAJI 3.77 is to explain to the jury that plaintiff need not prove that the defendant’s negligence was the sole cause of plaintiff’s injury in order to recover. Rather, it is sufficient that defendant’s negligence is a legal cause of an injury, even though it operated in combination with other causes, whether tortious or non-tortious. (Logacz v. Limansky (2d Dist. 1999) 71 Cal.App.4th 1149, 1158.)

Hospital And Physician In Sacramento-area Sued For Birth Injury, Part 7 of 8

June 2, 2009 | by Moseley Collins

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

The Third District cited the Second District case of Zambrano v. Dorough (1986) 179 Cal.App.3d 169, a medical negligence case wherein the plaintiff asserted the defendant physician’s negligent misdiagnosis caused her hysterectomy; she also asserted emotional distress.

The Third District drew a distinction between the medical negligence action and found the emotional distress based upon a different allegation that the physician refused to treat her:

We are likewise convinced that Zambrano should be permitted to proceed against Dorough for the loss of her reproductive capacity. That injury is of a different type than the emotional distress she allegedly suffered from Dorough’s refusal to treat her and the pain and suffering and out of pocket losses allegedly accompanying the negligent misdiagnosis. The cause of action is based upon the injury to the plaintiff … [ ] If the complaint alleges violation of a different primary right, it states a different cause of action. (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 25, p. 69.) (Emphasis added.) (Zambrano v. Dorough, supra, 179 Cal.App.3d at p. 174.)

To emphasize the point that the medical negligence action was separate from the emotional distress action, the Second District continued: Zambrano’s right to be free of the transitory damages of discomfort and distress is separate from and independent of her right to have children, a much more serious complication not apparent at the time of the earlier 5 problems. (Id.)

Sacramento-area Woman Struck By Bus, Part 1 of 7

June 1, 2009 | by Moseley Collins

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

PLAINTIFF’S TRIAL BRIEF
NATURE OF CASE AND PARTIES

This is a personal injury action for damages sustained by plaintiff Diane Cash when she was struck by a University bus in a crosswalk on February 6, 2005, in Sacramento. Defendant Terry James was the driver of the University bus that struck Diane Cash. At the time of the collision, defendant Terry James was acting within the course and scope of his employment for the defendant University. The bus operated by defendant Terry James at the time of the collision was owned and maintained by defendant University.

LIABILITY

Diane Cash is a 41-year-old senior architect, who has worked for a prominent architecture and design firm for 15 years. She has served as president, vice president and secretary of the local professional architects society with approximately 225 members. She has a degree in architecture from U.C. Berkeley, a residence in El Dorado Hills and numerous friends.

On the evening of February 6, 2005, Diane Cash was walking across Campus Commons Road at University Avenue in Sacramento, on her way to dinner when she was struck by the bus. The intersection is illuminated by street lights. Ms. Cash was using her cell phone, which she held in her right hand. It was raining and Ms. Cash also held an open umbrella, with her left hand. Diane Cash is legally blind in her left eye.

Unlawful Sexual And Racial Discrimination Of Sacramento-area Hispanic Workers, Part 13 of 18

June 1, 2009 | by Moseley Collins

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

74. Defendant UCC maintained and/or allowed a pattern and practice of unlawful sexual and racial discrimination, harassment and retaliation against female workers, including Plaintiff herein.
75. Defendant UCC directly and/or through its agents and employees, supervisors, managers, officers or directors, allowed Plaintiff to be subjected to unlawful sexual and racial discrimination, harassment and retaliation in that Plaintiff’s acceptance of sexual and racial discrimination, harassment and retaliation by Defendants, and/or its agents employees, supervisors, managers, officers and/or directors was an express and/or implied condition to the receipt of certain job benefits and was the cause of tangible detriment to Plaintiff.
76. Such discrimination and harassment also created a sexually hostile and/or offensive working environment for Plaintiff.
77. Plaintiff was led to believe by Defendant Paul Smith and David Smith that her employment opportunities at work would be enhanced by acceding to the sexually hostile remarks, innuendos, and offensive comments.
78. Plaintiff was obliged to work in an atmosphere which was hostile to females by virtue of unsolicited and unwelcome sexual remarks and/or innuendos, advances, requests for sexual favors and other verbal and physical conduct of a sexual nature. The sexual harassment was sufficiently serious and pervasive to alter the conditions of Plaintiff’s employment and create a working environment which was intimidating, insulting, and abusive to female employees.

Expert Testimony In Medical Malpractice Suit By Sacramento Man’s Survivors, Part 3 of 3

June 1, 2009 | by Moseley Collins

In Schnear v. Boldrey (1972) 22 Cal. App.3d 642, plaintiffs appealed a judgment for neurosurgeon Dr. Boldrey on the ground that the trial court had committed error in allowing defendant’s expert to speculate as to the possible causes for plaintiff’s blindness following neurosurgery. The First District Court disagreed, stating that:“… The context and totality of his testimony clearly shows that he was testifying as to medical probabilities, giving what in the light of medical science appeared to be the most probable explanation of the event.” Schnear v. Boldrey, supra, 22 Cal. App.3d at p. 484.

Even where a case goes to the jury with a res ipsa loquitur instruction, medical experts are still required to testify to probabilities rather than bare possibilities or conjecture. In Hale v. Venuto (1982) 137 Cal. App.3d 910, 919, 187 Cal. Rptr. 357, the court found that expert testimony to establish probability of negligence (where plaintiff suffered neurological damage after knee surgery) “need only afford reasonable support for an inference of negligence from the happening of the accident alone,” citing Tomei v. Henning (1967) 67 Cal.2d 319, 431 P.2d 633, where the issue was negligence in suturing plaintiff’s ureter during a hysterectomy.

III CONCLUSION
Where a defense expert speculates as to the cause of plaintiffs’ damages, standard of care, causation and the surrounding circumstances the testimony should be excluded. It is the mere speculation as to possible damage that the plaintiffs seek to preclude on the grounds that they are irrelevant, or, if slightly probative, that jurors will be confused and misled on what amounts to mere speculation, guess work and conjecture.

Mother from El Dorado May Recover For Negligent Infliction Of Emotional Distress Caused By Birth Injury, Part 6 of 8

May 31, 2009 | by Moseley Collins

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

III THE DEFENDANTS VIOLATED TWO PRIMARY RIGHTS: (1) ONE INVOLVING INJURY TO THE CHILD AND (2) ONE INVOLVING INJURY TO THE MOTHER; THE MOTHER MAY ASSERT SEPARATE CAUSES OF ACTION FOR EACH VIOLATION OF A PRIMARY RIGHT

The Third District has explained that in tort law, damages flow from violations of primary rights *Skrbina v. Fleming Companies, Inc. (Cal.App. 3 Dist. 1996) 45 Cal.App.4th 1353, 1364.) As noted in the above discussion on Burgess, [a]ny negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother. (Emphasis added.) (Burgess, supra, 2 Cal.4th at p. 1076.) And as noted above, the mother also suffered damages from her ruptured uterus. Consequently, the Defendants violated two primary rights ; each violation gives rise to a separate cause of action; the mother has a right now to collect separate damages for each violation.

The Third District explained the distinction between causes of action:
California defines a cause of action in accord with Pomeroy’s primary right theory. [Citation.] A cause of action consists of (1) a primary right possessed by the plaintiff and a corresponding primary duty imposed upon the defendant, and (2) a delict or wrong committed by the defendant which constitutes a breach of such primary right and duty. [Citation.]’ (Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1658, 26 Cal.Rptr.2d 655; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, pp. 66-67.)
The cause of action is based on the injury to the plaintiff, not on the legal theory or theories advanced to characterize it. (Emphasis added.) (Skrbina v. Fleming Companies, Inc., supra, 45 Cal.App.4th at p. 1364.) Here the mother suffered two injuries: (1) emotional distress because of injury to her child pursuant to Burgess and (2) physical injury because of her own injuries (Civil Code, § 1714).

Sacramento-area Family Files Medical Malpractice Action, Part 9 of 9

May 31, 2009 | by Moseley Collins

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

DAMAGES

As to Alexandra, the damage to his body speaks for itself. Plaintiffs presented substantial and credible evidence on this issue with the testimony of Dr. Peter W., Dr. Nathaniel T., Dr. Paul U., and Dr. Marilyn S.. All testified to the nature and extent of the severe and permanent injuries suffered by Alexandra, and Dr. W. testified to those things that Alexandra will need in the future by way of the life care plan.

Plaintiffs additionally presented substantial and credible evidence with Dr. David R. and Mr. Anastos concerning the nature and extent of Alexandra’s disability as it related to his ability to work and the economic impact of that disability.

The jury obviously carefully considered the plaintiffs’ expert witness testimony and the defense expert witness testimony and reached a compromise on the economic damages suffered by Alexandra. The award was reasonable and in line with the substantial and credible evidence produced by plaintiffs.

As to general damages, it was the jury’s judgment that Mrs. Brown suffered $1,000,000.00 in general damages being witness to the injuries suffered by her child at birth and dealing with those injuries and their sequela.

Folsom Resident Paralyzed After Automobile Collision, Part 14 of 14

May 31, 2009 | by Moseley Collins

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

Mr. Sunderland sued both Mr. Mazloom and his employer, Lockheed. The appellate court
held Mr. Sunderland was in the course and scope of his employment, noting the following:
1. Mr. Mazloom drove his own vehicle.
2. Lockheed did not pay Mr. Mazloom a mileage allowance while he worked in Lancaster.
3. Mr. Mazloom had already cleared out his office. Thus, his work for Lockheed was finished.
4. Mr. Mazloom made the trip to the fast food restaurant to get food. Thus, it was not a trip that had a mix of personal and business purposes.
5. The trip to In-N-Out Burger had no benefit to Lockheed.
6. Finally, the Court noted that Lockheed had “no control over Mazloom’s choice of
transportation generally, or over his movements at the time he collided with plaintiff’s
vehicle.”
The facts in the present case of Gibbs v.ABC, are critically different and thus require a different

result from the one reached in Sunderland.

1. Unlike Sunderland, Ms. Smythe’s vehicle was provided and paid for by her employer, ABC.
2. Unlike Sunderland, ABC paid for Ms. Smythe’s travel expenses.
3. Unlike Sunderland, Ms. Smythe was in the middle of a multi-day business trip for the benefit of ABC. Mr. Mazloom had already “cleared out his office,” whereas Ms. Smythe was expected by her boss to continue working for ABC in California the day following her collision with plaintiff John Gibbs.