Personal Injury Lawyer Blog

Tragic Car Accident Leaves Sacramento-area Man Paralyzed, Part 10 of 14

May 22, 2009 | by Moseley Collins

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

6. ABC had the Right to Terminate Smythe at Will
One of the most critical factors has been determined to be the right of the employer to end the service of the employee whenever he sees fit. Press Pub Co. supra, 190 Cal. at 120. Here, there is no doubt that Chan had the authority to terminate Smythe at will. (See Fact No. 14)
Each and every factor outlined in the Restatement 2d of Agency dictates a conclusion that the true relationship between Smythe and ABC from April 2006 through and including the date of the accident at issue here, was one of employer/employee and not one of independent contractor. Because of the financial status of the company, a unique agreement was arrived at between Smythe and Chan, and Smythe was not placed on payroll. Nonetheless, the fact that she was engaged full-time, that she was charged with a wide variety of tasks and duties for the benefit of the company rather than hired for a specific project, the fact that Chan could and did dictate what she was to do and how she was to do it, and the fact that ABC provided her with all instrumentalities necessary for doing the work and, perhaps most importantly, that ABC held her out as president and COO all constitute traits of an employer-employee relationship and not one of independent contractor.
3. SMYTHE WAS IN THE COURSE AND SCOPE OF HER EMPLOYMENT AT THE TIME OF THE ACCIDENT
An employer is vicariously liable for the tortious conduct of its employees committed while the employee is in the course and scope of his or her employment. Rodgers v. Kemper Construction Company (1975) 50 Cal.App.3d 608, 617. The policy is based on an economic rational, with the goal being to place the cost of losses caused by the torts of employees that occur within the conduct of the employer’s enterprise upon the business itself, as a required cost of doing business. Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 959-960.

Charter Bus Company Liable For Seriously Injuring Passenger, Part 5 of 6.

May 21, 2009 | by Moseley Collins

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

2. Olivia Stark further testified about all the incidents caused by defendant JONES:
“Q. After Bobbi slammed on the brakes the first time, did you overhear any kind of complaints about her driving?
A. By the end of the trip, people were starting to wonder.
Q. Can you tell me what people were saying?
A. They were talking about the number of incidents we had this trip, and calling
it ‘the bus trip from hell.’
Q. And the incidents that you refer to are the two times she slammed on the
brakes, and the other time when she – –
A. The windows.
Q. – – the windows?
A. Yes.
Q. Anything else?
MR. COLLINS: She testified to the bus trip delay because the driver left the lights on.
Q. BY MS. LI: Other than the lights, the windows, and the two braking incidents, was there anything unusual about the trip that stood out?
A. That was enough.”
(Depo. of Olivia Stark, pp.28:22-29:18)

Mr. Stark, an experienced bus driver, testified that defendant JONES was not focused as a bus driver on this trip.

“Q. And in fact, you rode with her the first year, and she drove like an experienced bus driver?
A. Yes.
Q. This year, when Nanacy got hurt, she wasn’t driving as well as she drove before, true?
A. True.

El Dorado Mother Sues For Birth Injury, Part 1 of 8

May 20, 2009 | by Moseley Collins

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

Plaintiffs’ Trial Brief: The Mother’s Emotional Distress Action is not Subsumed by Other Actions Nor Does the Mother Have to Show Contemporaneous Observation of the Birth Injury Itself
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION

This is a medical negligence action wherein the minor Plaintiff, KYLIE JAMES, suffered severe birth injuries. The Complaint alleges that the minor suffered damages because of medical negligence. The Complaint also alleges a separate cause of action by the mother, OLIVIA JAMES, for negligence in her treatment. In addition, OLIVIA alleges a cause of action for negligent infliction of emotional distress (NIED) pursuant to Burgess v. Superior Court (Gupta) (1992) 2 Cal. 4th 1064.

1. The mother’s action for NIED is not subsumed by other actions. The defense may assert that the mother’s direct victim emotional distress cause of action under Burgess is subsumed or erased by her separate action for personal injuries. The defense may assert that an obstetrical patient cannot claim a cause of action for negligence separate and distinct from her emotional distress cause of action under the Supreme Court case of Burgess. If a mother’s direct victim emotional distress action is subsumed by her personal injury action, then the mother’s direct victim emotional distress is effectively eliminated for a mother who is involved with obstetrical negligence, has an injured child, and in the process is injured herself. Contrary to what the defense may claim, a mother has a separate action for emotional distress arising from the abnormal event of participating in a negligent delivery and reacting to the tragic outcome …. (Burgess, supra, 2 Cal.4th at p. 1085.)

2. The mother does not have to show contemporaneouss observation under Thing. Contrary to what the defense may claim at trial, under Burgess, the mother is not required to prove that she was contemporaneously aware of a negligent act and harm to her child.

Mexican Workers File Lawsuit Against Sacramento-area Clothing Company, Part 8 of 18

May 20, 2009 | by Moseley Collins

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

STATEMENT OF FACTS RELATING TO PLAINTIFF WHITE
49. Plaintiff incorporates herein by reference each and every allegation contained in paragraphs1 through 28 with full force and effect as though fully set forth herein.
50. White is a Latino male, born XX/XX/1968, and is of Mexican descent and/or national origin. White is presently 40 years of age.
51. On or about January 2006, White was hired by Defendant UCC. His last position with Defendant UCC was working in packaging, earning $7.50 per hour.
52. On or about June 2006, White’s employment with Defendant UCC was terminated by Defendant Paul Smith on the basis that there was no work. That was and is false and is a pretext for abusive employment practices at UCC.
53. While White was employed at UCC, he endured a daily pattern and practice of sexual and racial discrimination, harassment and retaliation resulting from serious and pervasive sexual and racial discrimination and harassment against Latina workers resulting in a sexually and racially hostile work environment, including but not limited to:
a) Defendant Paul Smith vocally announced on many occasions on the work floor to the Latina workers that as the owner he had the right to demand and expect sexual favors from the Latina female workers.
b) Defendant Paul Smith did not make the same statement to the non-Latina female workers.
c) Defendant Paul Smith maintained inside the workplace areas open and notorious sexual relationship with two other women known as Marta and Justine.
d) Defendant Paul Smith made it clear to the Latina work force that things would be better for them at work is they went along with the sexual expectations.
e) Defendant Paul Smith extended more favorable treatment to the women romantically involved with him in the workplace with respect to terms and conditions of employment.

Vicious Dog Attack Leaves Sacramento Woman Injured, Part 5 of 7.

May 20, 2009 | by Moseley Collins

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

At the time Ms. Rich was examined by Dr. Shortley, it was Dr. Shortley’s opinion that surgery was “almost a medical certainty.” However, since that appointment Ms. Rich was examined by Praveen Mummaneni, M.D. with the Department of Neurological Surgery at UCSF. Dr. Mummaneni is recommending surgery. In his report it states:

“Assessment and Planning: The patient, who is a pleasant, 55-year-old right-handed woman presented to my office today at the UCSF Spine Center with complaints of postoperative low back pain radiating down her left leg. Her leg pain supersedes her back pain, and review of her postoperative lumbar MRI with and without contrast, as well as her lumbar CT with post-myelogram CT revealed a recurrent left L4-5 nucleus pulposus. Postoperatively the patient has failed conservative therapy in the form of formal physical therapy with injections. In accordance with the patient’s wishes, she wishes to undergo a reoperative left L4-5 diskectomy. I have gone over the indications, risks, benefits, and alternatives including death, and I have recommended that we obtain a new MRI with and without contrast prior to scheduling surgery. Once this is obtained, we will proceed with a reoperative left L4-5 microendoscopic diskectomy. In the interim, I have instructed her to notify me immediately should any problems arise beforehand that warrant my attention.

Dr. Mummaneni’s records are referenced herein.

Ms. Rich has a pre-surgery consult and MRIs at UCSF on March 11, 2007. Dr. Shortley in his previously quoted report estimates the cost of future surgery to be $125,000.00. Plaintiff will miss additional time from work.

Elk Grove Tour Bus Accident Due To Driver Negligence, Part 4 of 6.

May 19, 2009 | by Moseley Collins

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

On October 19, 2006, Tim Stark and Olivia Stark were deposed. Their condensed depositions are referenced herein. Mr. and Mrs. Stark were passengers on the bus trip. Mr. Stark is a licensed, experienced bus driver, and he was seated directly behind defendant JONES when the incident occurred. Mr. and Mrs. STARK testified that JONES slammed on the brakes too hard, causing NANCY to fall:
Q. And you’re a bus driver?
A. I’ve been one, yes.
Q. You’re qualified to drive a bus?
A. Yes.

(Depo. of Tim Stark, pp.35:25-36:3)

“A. That would be when a car pulled in front of us, and Bobbi slammed on the brakes and Nancy fell.”
(Depo. of Olivia Stark, pp. 15: 12-13)
“A. In other words, I’ve been driving for years. The front of the bus dipped down fairly severely because he braked so hard.”

(Depo. of Tim Stark, pp. 24:14-16)

“Q. And so you’re sitting right behind the driver that morning, and you see this whole thing unfold ahead of you, and see Bobbi slam the brakes, right?
A. Yes.
Q. She could have lightly put on the brakes, and the car would have passed in front of the bus without incident?
A. Yes.”
(Depo. of Tim Stark, pp. 36:18-37:3)

Doctor’s Errors Leave Sacramento-area Parents Distraught, Part 4 of 9

May 19, 2009 | by Moseley Collins

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

Defendant urges that we adopt what amounts to a rigid rule that prejudicial misconduct cannot be cured either by jury self-admonition or by admonitions from the trial court. Such a contention ignores the very purpose of permitting and requiring jury deliberations: through group discussion of the law and the evidence, our common law system trusts that jurors who express wrong ideas about the evidence, the law, and their duty as jurors will be guided to a correct view of the case. In the absence of an opportunity for jurors to express such wrong conceptions and thereafter change their thinking, a jury trial might just as well conclude with the submission of ballots from the jury box at the close of the case.
Romo v. Ford Motor Co., (2002) 99 Cal. App. 4th 1115, 1130.

Plaintiff asserts two additional instances of alleged jury misconduct. The first of these rests upon a discussion by jurors of the source of money to pay a potential judgment. Plaintiff suggests that discussion of where the money for the judgment was to come from was somehow tied to the jury’s impression that defendant was a nice guy. Hence, plaintiff suggests the jury declined to find defendant liable because if was concerned about the financial impact a verdict would have upon him.

Looking to the affidavits we find the following references: Juror Smith states that one juror asked where the money would come from if the verdict was in favor of the plaintiff, whereupon several of the jurors discussed this subject; Juror Michela states that some of the jurors wondered where the money was going to come from if the jury found in favor of the plaintiff; Michela notes, in a separate paragraph that one male juror… said that David Brunicardi was a nice guy. Other jurors agreed with this statement. We find nothing in these affidavits which is sufficient to establish a bias in favor of defendant or to cause the jury to avoid imposing the financial burden on a judgment upon him. Young v. Brunicardi, (1986) 187 Cal. 3d 1344, 1352.

Folsom Man Sues Company For Catastrophic Auto Injuries, Part 9 of 14

May 19, 2009 | by Moseley Collins

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

5. The Parties were Operating as Employer/Employee

One of the factors to be evaluated is how the parties saw the nature of the relationship between them. Smythe had no doubt that she was an employee of ABC. The employment of 2006 was substantially the same as the previous employment between 2000 and 2002. (See Fact No. 5) In her opinion, Chan was her immediate superior who could dictate her activities, and if Smythe disobeyed Chan it would constitute insubordination and subject her to termination. (See Fact Nos. 6, 13, 14, 15, 16) She was working full-time (See Fact No. 25, 29) and during both periods of employment had a company credit card, company office, cell phone, laptop, email account and voicemail. (See Fact No. 27) She had transitioned into a long term, full-time position as President and COO, and she was held out as such by Chan. (See Fact No. 20, 21, 25) Certainly in Smythe’s mind she was a long term employee of ABC. (See Fact No. 24, 25)

Although Chan does not describe Smythe as an employee, she admits that Smythe was introduced as President (See Fact No. 20, 21), directed the work of others (See Fact No. 19) and had a role in hiring, firing, and expending corporate funds. (See Fact No. 31)

Female Sacramento Dog Bite Victim Severely Injured, Part 4 of 7.

May 18, 2009 | by Moseley Collins

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

Comparing the two lumbar MRI reports we see the difference. Following the attack by the dog Franz in 2006 the MRI records:

“A small amount of extruded disc material into the axillary portion of the canal on the left at this level, impinging on the left L5 root at its origin.”

This finding was not present in the earlier MRI.

This finding was also confirmed by Dr. Hambly in his operative report dated April 12, 2006, Dr. Hambly stated:

“Kerrie Rich is a 55-year-old attorney with a large disc herniation on the left at L4-5…there is a large high intensity zone within the substance of the L5-S1 disc.”
IV. FUTURE MEDICAL

As stated previously, Ms. Rich is still treating with Roseville Physical Therapy and with Richard Harty, P.T. Richard Harty’s March physical therapy will cost $360.00. Roseville Physical Therapy costs approximately $120.00 per visit; she is scheduled for approximately five more weeks with at least two visits per week. Therefore, the cost will be at least $1,200.00.

On January 31, 2007, Ms. Rich was examined by orthopedic surgeon, Howard Shortley, M.D. In his report Dr. Shortley discussed in part Ms. Rich’s condition and future medical:

“It is unlikely that Ms. Rich will improve in the future. Given her current age of 55 years, she is likely to grow worse over time. Because of this it is possible that she will require further back surgery.

Baby Suffers Birth Injury In Sacramento Hospital, Part 1 of 8

May 18, 2009 | by Moseley Collins

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

PLAINTIFFS’ OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION

This is a medical malpractice action arising out of a birth injury suffered by the minor, DONALD WHITE. The Complaint alleges that the minor suffered severe and profound damages because of medical negligence at or about the time of birth. For this pregnancy, AMBER WHITE at about 33wks gestation, felt decreased fetal movement; an ultrasound was done found she had excess fluid around the baby and they began doing tests. She was referred to a perinatologist at ABC Medical Center for high-contrast ultrasound. He diagnosed the baby with micrognathia of the lower jaw. He said it was a singular symptom, and that it was not a genetic factor. He recommended the parents deliver at GENERAL HOSPITAL because they would have a higher level of care.

The doctors at GENERAL HOSPITAL assured the parents that the baby would be fine; that the most important part of the delivery was making sure she could breathe once the umbilical cord was cut and then she would have plastic surgery to correct the chin. AMBER WHITE began having pre-term labor which was controlled by medication; her physicians wanted her to get as far as possible. At 37 weeks she began having contractions again; she and her husband, DAVID WHITE went to do pre-admission at GENERAL HOSPITAL on August 2, 2003; they met with the ICU team at that time who assured them that everything would be in place when she went into labor and that an ear, nose, and throat (ENT) surgeon would be there to do a trachea at birth.

On August 6, 2003, AMBER WHITE went to labor and delivery at 3:00 p.m. with contractions, 100% effaced, and 5cm dilated. The monitors were put on and they planned a vaginal delivery. Sometime that afternoon she was told that they would do a c-section because the baby was turned sideways. The c-section was not an emergency; when she was taken to OR, the mother kept asking if the necessary doctors were present, and the parents were assured that everyone was present and were ready for the baby. The baby was born by c-section at 8:15 p.m.; the doctor who was supposed to do the trachea was not present. The baby was bagged but couldn’t be intubated because his throat was not large enough.