Personal Injury Lawyer Blog

Birth Injury Leaves Sacramento Baby With Brain Damage, Part 3 of 8

May 14, 2009 | by Moseley Collins

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

And again, at the time of delivery, the defendants assured MRS. WHITE that an ENT indeed was present:

A. IT WAS SOMEBODY IN THE ROOM THAT ASKED DR. X., THAT SAID, MRS. WHITE WOULD LIKE TO KNOW IF THE ENT AND ALL NEEDED PERSONNEL ARE IN THE ROOM. AND DR. X. HAD ACTUALLY LOOKED IN THERE AND SAID, YES, MRS WHITE, DON’T WORRY ABOUT A THING EVERYBODY IS HERE. (Deposition of David White, at pp. 12:19-24.)

And DAVID WHITE knew his son was injured – by directly viewing the child’s injured body because an ENT was not present:

Q. AND WHAT DID YOU SEE WHEN THEY SHOWED YOU DONALD [in the delivery room]?

A. BLUE, LIFELESS.

Q. WAS THAT —

A. HE WASN’T BREATHING.

Q. OKAY

A. JUST LIFELESS.

Q. AND WAS THAT DIFFERENT FROM WHAT YOU HAD EXPECTED TO SEE?

A. YES.

Q. HARD TO REMEMBER WHAT YOU SAW, BUT SHE SEEMED TO BE LIFELESS AND BLUE?

A. I SAW HIS FACE. HIS FACE WAS BLUE. EVERYTHING WAS BLUE. (Brackets added.) (Deposition of David White, at pp. 52:14-55:11.)

Thereafter, the defendants told DAVID WHITE about the health care providers failure to get an airway into the baby – with an ENT not present:

Q. DURING YOUR FIRST CONVERSATION WITH DR. SEAN Z., THAT’S IN THE HALLWAY WHEN HE TAKES YOU OUT OF THE OPERATING ROOM TO SPEAK WITH YOU. WAS IT YOUR UNDERSTANDING AT THE TIME DR. Z. WAS SPEAKING WITH YOU, THAT THE PEOPLE WHO WERE TAKING CARE OF DONALD STILL HAD NOT BEEN ABLE TO GET AN AIRWAY IN THERE EFFECTIVE TO GIVE HIM PROPER OXYGENATION?

A. YES.

Man From Folsom Now Quadriplegic After Car Accident, Part 6 of 14

May 14, 2009 | by Moseley Collins

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

The employer’s control is the most important factor, and the others are to be considered “secondary elements.” Toyota, supra, 220 Cal.App.3d at 875; Isenberg v. California Emp. Stab. Com., (1947) 30 Cal.2d 34, 39. “Moreover, it is not the control actually exercised, but that which may be exercised which is determinative.” Toyota, supra, 220 Cal.App.3d at 875.
In applying the factors to the evidence of Ms. Smythe’s employment status, the inescapable conclusion is that she was operating as an employee rather than an independent contractor at the time of the accident that injured plaintiff John Gibbs.
1. Employer Right of Control
Smythe had worked at ABC previously as an employee between January 2000 and July 2002. (See Fact No. 1) She returned to work ABC at in April 2007, and was terminated in July 2007. (See Fact No. 2) During the initial period of employment between 2000 and 2002, she reported directly to CEO Victoria Chan until the end of that period, when David Grillo took over. (See Fact No. 3) Victoria Chan controlled and directed her work for that two-and-half-year period. (See Fact No. 4) Upon her return to the company in April 2007, her relationship was similar; Victoria Chan told her what to do, and Chan could terminate her at will. (See Fact No. 5, 14)
With regard to the conference that Smythe was attending in northern California at the time of the accident, she had been instructed by Chan to attend the ITC conference in Marin. (See Fact No. 6) It would have been an issue if Smythe had declined to attend the conference. (See Fact No. 7) She was told what her objectives were while at the conference. (See Fact No. 8) She was told to travel to the conference, stay at the company house, attend the conference, and take a team to represent ABC. (See Fact No. 9) She did what she was told. (See Fact No. 10) By her second stint with ABC, she had a lot of experience, but Chan was still in charge of her work. (See Fact No. 11)

Sacramento-area Company Sued For Sexual Harassment, Part 5 of 18

May 13, 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 BROWN
29. Plaintiff incorporates herein by reference each and every allegation contained in paragraphs 1 through 28 with full force and effect as though fully set forth herein.
30. Brown is a Latina female, born XX/XX/1959, and is of Mexican descent and/or national origin. Brown is presently 49 years of age.
31. On or about 2004, Brown was hired by Defendant UCC. Her last position with Defendant UCC was working in packaging, earning $7.50 per hour. On or about July 11, 2006, Brown’s employment with Defendant UCC was terminated by Defendant David Smith who stated that there was no work. That was and is false and is a pretext for abusive employment practices at UCC.
32. While Brown was employed at UCC, she was subjected to a daily pattern and practice of sexual and racial discrimination, harassment and retaliation as a result of 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. For example, 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.

Dog Attacks Sacramento Attorney, Part 2 of 7.

May 13, 2009 | by Moseley Collins

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

In addition, on the same day that Ms. Rich was attacked by Franz, the dog was found to be loose and the dog charged animal control as well. The Animal Control Report by J. Crickenberger stated in part:

“Observed female black lab with purple collar. No ID. Loose at C/A. Dog ran to front porch area. I attempted to contact at door, no response. Female black lab with purple collar showed A-Type behavior by charging at me. I had to use snare to capture dog safely.”
Despite defendant’s acknowledgement and awareness of his dog’s vicious nature, and history of charging and attacking people, Paul Stevens failed to confine his dog. He allowed his dog to run free and attack Ms. Rich.

A copy of the Vicious Dog Notification and Animal Control Reports are referenced herein.

IV. INJURIES

Immediately after the incident, Ms. Rich had severe low back pain. She took Motrin and Flexeril for the pain hoping she would get better. When she grew worse with left side radiating pain she went to the emergency room where she was given pain medication, referred to follow up with orthopedics, including an MRI. Records are referenced herein.

Tour Bus Accident Leaves Sacramento-area Woman Injured, Part 1 of 6

May 12, 2009 | by Moseley Collins

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

Plaintiff, NANCY KLEIN, hereby submits the following Mediation Brief.

I. BACKGROUND

At the time of the incident, plaintiff, NANCY KLEIN, was 60 years of age. She lived with her husband of 33 years, Kevin, on their 60 acre plant farm outside Sacramento, California. Together they also leased an additional 50 acres of land for fruit farming. Prior to the bus accident, NANCY was a very active farmer of 34 years working 10-12 hour days on their farm. She did not smoke. She did not have any respiratory complaints. She also went on yearly scuba dives, and loved to bicycle and work on the farm. Today, because of her injuries she can perform only 15 percent of her previous duties as a farmer and land owner.

II. INCIDENT

NANCY and her husband are members of the California Rose Farmers Association. It is a non-profit organization for farmers and growers who enjoy roses and plants. Each year the group charters a bus from the defendant bus company to take the group on a two-day fun-filled “Rose Tour” visiting farms and orchards in Central California.

On May 12, 2006, plaintiff was a passenger on a chartered bus operated by defendant, XYZ CHARTER TOURS and driven by its employee, BOBBI JONES. This was the group’s two-day bus trip to the Central Valley for 2006. As the bus was traveling down Interstate 5 in Elk Grove, an unidentified car passed in front of the bus. Defendant JONES slammed too hard on the brakes. The brakes were applied so hard it even caused the bus to “dip down.” Because the driver slammed on the brakes, NANCY fell, injuring her right side.

Birth Injury At Sacramento-area Hospital, Part 1 of 9

May 12, 2009 | by Moseley Collins

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

Alexandra BROWN., a minor by and through her guardian ad litem, Winona Brown; Winona Brown; Sean Brown., Plaintiffs, v. Linda X., M.D., Linda X., M.D., Inc., General Medical Center, a Corporation, and Does 1 through 250, inclusive, Defendants.

March 2005.

Plaintiffs’ Opposition to Defendants’ Motion for New Trial (Medical Malpractice/Birth Injury)

TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES
I. THE IRREGULARITY IN THE PROCEEDINGS – JURY AFFIDAVITS
II. THE ISSUE OF INFORMED CONSENT
III. THE ISSUE OF VERDICT BASED ON INSUFFICIENT EVIDENCE
IV. DAMAGES
V. CONCLUSION
MEMORANDUM OF POINTS AND AUTHORITIES

On December 8, 2004 the jury rendered a verdict in plaintiffs’ favor. As set forth below the verdict is supported by substantial evidence and law. On or about January 3, 2005 the Court entered judgment on the verdict.

Plaintiffs will address each issue raised by the defendants in the order in which they were advanced in the Motion for New Trial.

THE IRREGULARITY IN THE PROCEEDINGS – JURY AFFIDAVITS

The four juror declarations submitted by the defendant are replete with discussions about the juror mental processes. The Evidence Code states in unequivocal terms that such evidence is inadmissible.

(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct; condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

Sacramento Parents Witness Birth Injury Of Child, Part 4 of 8

May 12, 2009 | by Moseley Collins

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

Q. WAS IT YOUR UNDERSTANDING, WHEN YOU WERE TALKING WITH DR. Z. IN THE HALLWAY, THAT THAT PROBLEM OF GOT [SIC] BEING ABLE TO GET DONALD OXYGENATION WAS STILL AN ONGOING PROBLEM?

A. YES.

Q. AND DID YOU HAVE AN UNDERSTANDING THAT WHILE YOU WERE TALKING WITH DR. Z. ABOUT THE FACT THAT THE MEDICAL PROVIDERS STILL COULD NOT PROVIDE PROPER OXYGENATION TO DONALD, AND THAT WAS CAUSING HER A CONTINUING INJURY?

A. YES. (Deposition of David White, at pp. 77:12 – 78:20.)

Q. WAS IT YOUR UNDERSTANDING, WHILE YOU WERE TALKING WITH DR. Z. IN THE HALLWAY, THAT THE CONDUCT OF THE DOCTORS OR THE LACK OF CONDUCT OF THE DOCTORS WHO WERE CARING FOR DONALD IN THAT NICU TRANSITIONAL WAS CONTINUING TO CAUSE INJURY TO DONALD?

A. YES. (Deposition of David White, at p. 79:12-17.)

In other words, the health care providers promised an ENT would be present; and when the ENT failed to show, the father knew the child was not being properly treated. And, the child’s injuries were so apparent that DAVID WHITE thought his son was dead – then the injury cause by failure to obtain an airway caused damage of which the father was aware.

III THE EVIDENCE SHOWS THE ELEMENTS OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PURSUANT TO THING
The father was present at and viewed the continuing injury – the lack of oxygen – to the child. The fourth cause of action of the Complaint for the father properly alleges all the elements of negligent infliction of emotional distress pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644. Thing set forth the three requirements for the bystander cause of action for negligent infliction of emotional distress:

Hispanic Workers File Sexual Harassment Claim, Part 4 of 18

May 11, 2009 | by Moseley Collins

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

GENERAL STATEMENT OF BACKGROUND FACTS
22. At all times herein mentioned, Defendant UCC is a family owned company, operated by and owned by Paul Smith. Defendant UCC operates as merchant wholesaler with a garment factory manufacturing clothing for men, and manufacturing women’s, children’s, and infant’s clothing. The family also operates two factories in China.
23. At all times herein mentioned, Plaintiffs are informed and believe that: Defendant Paul Smith is of Iranian nationality, and of Muslim culture and heritage; Defendant Paul Smith is the principle owner and operator of Defendant UCC; Defendant Paul Smith is the father of Defendant David Smith.
24. At all times herein mentioned, Defendant David Smith is the son of Defendant Paul Smith and is an agent, supervisor, manager and/or managing agent of Defendant UCC at the subject premises.
25. At all times herein mentioned, Plaintiffs worked on the manufacturing plant floor area of UCC while the plant was then located at 123 East Blvd., Sacramento, CA. Plaintiffs last worked at the subject location during 2006. During 2006, there were about 50 to 60 average number of workers per day on the manufacturing plant floor during peak months and approximately 10 to 20 average number of workers per day on the manufacturing plant floor during the slower months.

Sacramento Woman Bitten By Dog, Part 1 of 7.

May 11, 2009 | by Moseley Collins

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

Plaintiff, KERRIE RICH, hereby submits the following Mediation Brief:

I. BACKGROUND

At the time of the dog attack, attorney Kerrie Rich was 45-years-old. She was in good health, and was an attorney of 20 years working at various locations. She was married and resided with her husband, Robert, in Sacramento, California. She was an athlete who ran, trained for triathalons, and worked out daily.

II. THE INCIDENT
On March 17, 2006, plaintiff was out for her daily walk next to her home in a cul de sac,

when “Franz,” a dog belonging to defendant, Paul Stevens, came running, growling with teeth showing at Ms. Rich. The dog aggressively charged Ms. Rich and tried to bite her arms and legs. In the attack, Ms. Rich was knocked to the ground, landing on her back and buttocks.

Ms. Rich reviewed the pictures of the defendant’s dog, Franz, and provided to plaintiff by defendant. Ms. Rich confirmed that this was the dog that attacked her. In plainitff’s fax she states:

“This is the dog that attacked me.”
III. LIABILITY

This is a case of clear liability. The dog Franz has a history of violent behavior. On April 22, 2004, Paul Stevens signed a Vicious Dog Notification pursuant to Sacramento Municipal Code 7-125 (herein after referred to as “SMC 7-125”) and was cited for violation of SMC 7-124 (Dogs running at large – Unlawful). Defendant was advised that this dog must be chained and kept confined at all times. The animal control report by F. Dobales dated April 22, 2004, stated in part:

Sacramento-area Driver Catastrophically Injured, Part 5 of 14

May 11, 2009 | by Moseley Collins

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

7. President Smythe’s job was not finished on July 17. Smythe intended to do some work for ABC on the morning of July 18, including checking e-mail and voicemail, doing follow-up, and preparing for her day using an ABC-issued phone and laptop issued for these purposes. Any such work would have been billed accordingly. [Smythe deposition, at 119:7-16; 119:21-121:2.]
B. Nancy Smythe Was an Employee of ABC
The seminal and well-reasoned case of Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, discusses at length the factors to be evaluated in determining employment status.
The most significant factor in determining whether the status of a person performing services for another is an employee or an independent contractor is the right to control the manner and means of accomplishing the result, that is, the details of the work. ‘If the employer has the authority to exercise complete control, whether or not that right is exercised with respect to all details, an employer-employee relationship exists.’

Id. at 873-874, quoting Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33, 43.

In addition to the determination regarding the right to control the manner and means of the work, the Toyota court also recognized factors set forth in the Restatement (2nd) of Agency, section 220, as additional matters of fact that must be considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;