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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

An expert must base his opinion either on facts personally observed or on hypotheses that find support in the evidence; Pacific Gas & Electric Co. v G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal 2d 33, 69 Cal Rptr 561, 442 P2d 641, and not on irrelevant, conjectural, or speculative data, Roscoe Moss Co. v. Jenkins (1942) 55 Cal. App.2d 369, 130 P.2d 477; Hyatt v Sierra Boat Co. (1978) 79 Cal App 3d 325, 145 Cal Rptr 47.

Thus, in personal injury actions against lawn mower and tire manufacturers experts were not permitted to testify about articles and statistical surveys dealing with other mowers and tire failures, where the proponent of the evidence failed to show any similarity between the other tire failures and mower accidents, none of the material the experts consulted constituted the type of professional technical literature that reasonably may be relied on by an expert in forming an opinion, and the opinions were based on mere speculation, Luque v McLean (1972) 8 Cal 3d 136, 104 Cal Rptr 443, 501 P2d 1163; Stephen v. Ford Motor Co. (2005) 134 Cal App 4th 1363, 37 Cal Rptr 3d 9.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this boating accident/brain injury lawsuit and its proceedings.)

5. Moving Defendant never explains what it Is about this Individual case and these individual plaintiffs that will create a substantial risk the jury will ignore its oath and Instructions by awarding damages in the absence of liability. This Court, not to mention civil trial courts across the State, has tried catastrophic injury cases without habitual bifurcation. Plaintiffs are not aware of a single appellate case mandating bifurcation due to the significance of the individual plaintiff’s injuries.

6. As a practical matter, the jury will hear evidence in any liability phase regarding how Plaintiffs Hall and Black were injured as a result of the alleged design defects. At the very least, the jury will have to be told that both sustained injury as the result of a propeller impact, which will certainly create an image for the jury as to the injuries each Plaintiff likely sustained. This will also require testimony from retained biomechanical experts to explain the mechanism of injuries for each Plaintiff, and from other experts regarding the design and engineering defects that led to such injuries. Such testimony will necessarily depend to some extent on evidence of injuries sustained. Piquing the jury’s curiosity about such a core matter without permitting evidence of such injuries can only restrict the ability of the injured parties to plead their case.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

MEMORANDUM OF POINTS AND AUTHORITIES
THIS COURT MAY HEAR AND DETERMINE THE ADMISSIBILITY OF DR. LEE’S TESTIMONY, OUT OF THE PRESENCE AND HEARING OF THE JURY
(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article;
(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury;

(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute, California Evidence Code §402.

DR. LEE SHOULD BE PRECLUDED FROM EXPRESSING OPINIONS ABOUT THE REASONABLENESS OF PLAINTIFF’S MEDICAL BILLS, BECAUSE THERE IS NO PROPER BASIS FOR HIS OPINIONS.

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

When this case is presented at trial, Defendants will have prepared their defense in reliance on the representations of Dr. White, that he has expressed every opinion to which he might testify at the time of trial. As such, Defendants are acting in reliance of Dr. White’s representations throughout his deposition. Defendants have relied on his testimony that on the date of, and prior to his deposition, he had not formed an opinion as to the causation of Plaintiff’s injuries.

Further, he testified he could not form an opinion as he was not versed in chiropractic manipulations, thus expressing that he was not qualified to form an opinion as to causation. Lastly, Defendants relied on Dr. White testimony that not only did he not form an opinion as to causation, but that an opinion as to causation could not be established unless he internally inspected the meniscus within 48 hours. It would therefore be tremendously prejudicial, and would cause Defendants irreparable harm, if Dr. White was permitted to testify at trial to opinions not previously disclosed during their depositions. Moreover, to allow the same would run contrary to the Discovery Act in eliminating the element of surprise at the time of trial, especially in light of the fact that Defendants were not provided any notice to the contrary. Plaintiff failed to provide Defendants notice during Dr. White’s deposition, or after, pursuant to Easterby.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

THIS COURT MAY EXCLUDE PREJUDICIAL OR IRRELEVANT EVIDENCE IN ADVANCE OF TRIAL BY WAY OF A MOTION IN LIMINE

The court has the inherent power to grant a motion in limine to exclude “any kind of evidence” which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451; Peat. Marwick. Mitchell & Co. v Superior Court (1988) 200 Cal.App.3d 272, 288, Evidence Code §350 states that (n)o evidence is admissible except relevant evidence. Relevant evidence is defined by Evidence Code §210 as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

Evidence Code §352 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. See People v. Cardenas (1982) 31 Cal.3d 897, 904. Evidence Code §402 allows the court to hear and determine the question of the admissibility of evidence outside the presence of hearing of the jury. See Mize v. Atchinson, Topeka v. Santa Fe Ry. Co., (1975) 46 Cal.App.3d 436,448.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

For example, in this regard, Dr. Hill testified as follows:

He does not believe Dr. Li was performing an adjustment on plaintiff’s knee. It is his understanding that plaintiff’s knee hurt and that Dr. Li decided to do something about it and during her evaluation she mentioned that she does not feel comfortable with Dr. Li touching the knee and that he did a manipulation anyway that made her knee worse.

He does not know if plaintiff received a knee adjustment from defendant facility or defendant prior to the date in question because that information is not written in the chart, and it does not say who treated her on any one date.

He could not tell what chiropractic adjustment was done to Ms. Welden on May 25, 2007, because he could not read the notes very well; he could not understand the chart.

He does not know the specific forces used during defendant’s adjustment of plaintiff because he doesn’t know what adjustment defendant used. He can only base his opinion on what the patient says was done. He does not know if Dr. Li did an evaluation of plaintiff’s knee prior to the adjustment because the identity of the person who did the evaluation is not noted.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

INTRODUCTION

On March 7, 2011, Plaintiffs Motion in Limine regarding collateral source payments was discussed. It is plaintiffs understanding that the issue was taken under submission, and on March 8, 2011, the court tentatively indicated that the court may entertain a motion post trial to reduce any finding of medical specials, based on amounts paid. However, the amount of medical billings would be admissible at trial.

In this case, when Dr. Lee was deposed on August 28, 2010, he was asked, “Have you reviewed those medical bills relating to Robyn Anderson’s treatment in this case?”

Answer: I have reviewed some of them and commented on some.

Question: Okay. In preparation for today’s deposition, did you go through and do a line-item-by-line-item commentary on her bills to date?

Answer: No. I did not.

Question: But if I understand you correctly, you haven’t been provided by defense counsel with a packet of the billing with the intention of you going through and commenting on that billing; is that correct?

Answer: Right. I have not been provided a packet of just the billing and provided a comment on those specific bills. That’s correct.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this boating accident lawsuit and its proceedings.)

3. Bifurcation will save little Court time, because the liability phase will be far more extensive. Even the moving Defendant concedes that it “does not dispute that [Plaintiffs] sustained propeller injury as a result of the accident …”

A. While extensive damages experts have been disclosed, Plaintiffs have been engaged in the process of winnowing the number of medical professionals who will be needed to provide testimony at trial. Expert disclosures are always over-inclusive, because of the need to cover all bases In the event that any of the physicians are on call or engaged in emergency procedures during the time they would otherwise have to testify.

B. Realistically, Plaintiffs’ medical presentation for all plaintiffs will not last more than 3-5 days, especially since there is no apparent dispute about the nature and extent of the injuries. It appears there will be some dispute regarding future medical and care needs, but this testimony will not take more than 1 day of the 3-5 days needed for the damages presentation.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Plaintiff Robyn Anderson’s Motion in Limine #4 to Exclude Argument or Reference to the Defense Medical Expert as Independent or to Use the Term Independent Medical Examination

Plaintiff respectfully moves the Court for Orders in Limine prohibiting attorneys for all parties from referring to the defense medical expert as independent or to use the term independent medical examination.

This motion is made on the ground that the described order is necessary to ensure that the plaintiff will be accorded a fair trial, and that the trial record in this case will not be tainted, and that the comment or reference to the defense hired expert witnesses as independent creates a substantial danger of prejudice and confusion, and would mislead the jury.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY
On October 17, 2008, while driving a 2002 Universal school bus, defendant Ellen White entered the intersection of Pierson Boulevard and Tulip Drive in Sacramento, in front of plaintiff, Robyn Anderson, who was traveling northbound on Tulip Drive in her 2003 Ford Taurus.

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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

“The overarching principle in Kennemur, Jones, and Bonds is clear: a party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult.” (Easterby v. Clark, (2009) 171 Cal. App. 4th 772, 780)

In Easterby, the plaintiff’s doctor testified, at his deposition, that he would not be testifying as to causation; however, later, upon learning additional facts, changed his mind and said he would testify as to the causation of plaintiff’s injuries. The plaintiff’s counsel wrote and delivered a letter to defense counsel to this affect. Despite this notice, defense counsel opted not to re-depose plaintiff’s doctor and successfully motioned to have his testimony excluded at trial. The Appellate Court concluded that the Trial Court erred by striking the plaintiff’s doctor’s testimony because defense counsel had notice that the plaintiff’s doctor would be testifying as to causation.

In the case at bar, Hiram White, M.D., consistently testified throughout his deposition on February 19, 2010, that he had not formed an opinion as to the causation of Plaintiff’s alleged injuries.

Q. Did you ever form an opinion as to whether or not what she [Plaintiff] described to you was the cause of any of her injuries that you either saw on that MRI or found at the time of surgery? A. No.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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