| by

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.)

Plaintiffs Betty Hall and Susan Black’s Opposition to Defendant National, Inc.’s, Motion to Bifurcate Liability From Damages at Trial
INTRODUCTION AND SUMMARY OF PLAINTIFF’S POSITION

Plaintiffs respectfully oppose the motion to bifurcate liability and damages.

1. Irrespective of whether any of the product liability defendants avoid liability in this matter, bifurcation will not save Court time. There will be a damages trial as to Defendant David White under any set of circumstances. The interpleader complaint pertaining to the White insurance policy limits has been dismissed. At the very least the likelihood is very high that a reasonable jury will find Mr. White at fault to some degree in this matter. Absent a defense verdict as to White a damages phase of the trial is virtually guaranteed irrespective of anything that happens with the product liability defendants.

2. Through discovery, Plaintiffs have amassed significant evidence showing that the subject boat was defectively designed. This includes failures to warn of the exact type of occurrence involved herein.

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

Continue Reading ›

| by

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.)

DR. LI IS RESPONSIBLE FOR THE DISCREPANCY ABOUT WHETHER HE PERFORMED A RIGHT KNEE ADJUSTMENT OR A LEFT HIP ADJUSTMENT

Continue Reading ›

| by

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 to Preclude Defendants’ Expert Witness, Stanley Lee, M.D., from Expressing Opinions as to the Reasonableness of Plaintiff’s Medical Bills

Plaintiff Robyn Anderson respectfully request that this court hear and determine the question of the admissibility of the following evidence, out of the presence or hearing of the jury, pursuant to California Evidence Code § 402, and issue an order, in limine, prohibiting Defendants’ expert witness, Stanley Lee, M.D., from expressing opinions as to the reasonableness of Plaintiffs medical bills.

This motion is made on the grounds that any opinions and conclusions on this subject would lack foundation and be based on mere speculation, California Evidence Code § 803, any probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time and create substantial danger of undue prejudice, confusing the issues, and misleading the jury, per California Evidence Code §352.

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

Continue Reading ›

| by

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 policy of full disclosure of expert opinion at pre-trial deposition was confirmed by the Second District Court of Appeal in the case Jones v. Moore (2000) 80 Cal.App.4th 557. In the Jones matter, the plaintiff’s expert was asked whether he believed the defendant’s conduct fell below the standard of care in areas other than the negotiation of the underlying divorce settlement. The expert stated that he was not prepared to testify to that issue at this time. When asked if he anticipated arriving at any other opinions, the expert testified “no, but if I do, you will be notified well in advance, so as to be able to properly exercise your discovery rights.” (Id. at 563.)

At trial, the expert in the Jones matter testified that the defendant’s conduct fell below the standard care when he failed to properly secure the source of the plaintiff’s marital support income, a task unrelated to his negotiations of the underlying settlement and judgment. The court excluded this opinion holding under the circumstances, exclusion of testimony going beyond the opinions he expressed during his deposition was justified. When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he tends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial.

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

Continue Reading ›

| by

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.)

DR. HILL SPECIFICALLY STATED HIS OPINIONS AT THE TIME OF HIS DEPOSITION

In addition to basing his opinions upon reliable medical evidence as set forth above, Dr. Hill clearly stated what opinions he is going to express at the time of trial:

1) He is going to be testifying regarding both general standard of care or lack thereof for chiropractors.

2) He is going to be offering opinions regarding how chiropractic adjustment can cause injury.

3) He is going to be offering opinions as to what the standard of care requires for obtaining a history.

4) He is going to be offering an opinion as what the standard of care requires when conducting a physical examination.

5) He is going to be offering an opinion as to when the standard of care calls for ordering an x-ray and/or an MRI..

6) He is going to be offering an opinion specifically as to the standard of care as it applies to the manner in which defendant Daniel Li, D.C., performed the adjustment on plaintiff.

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

Continue Reading ›

| by

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.)

As noted in Gallo v. Peninsula Hospital (1985) 164 Cal.App.3rd 899, 903, the need for pre-trial discovery as an aide to the preparation of cross-examination and rebuttal is greater with respect to the expert witness than it is in the case of an ordinary fact witness. Full disclosure is required because if not, the result:

“Would introduce ‘gamesmanship’ into the discovery proceedings; a result in direct conflict with purpose to make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” (Id. at 904.)

In Bonds v. Roy (1999) 20 Cal.4th 140, the Supreme Court recognized the full pre-trial disclosure of expert opinion as crucial to meaningful trial preparation:

“Indeed, the very purpose of the expert witness discovery statute is to give fair notice of what an expert will say at trial. This allows the parties to … fully explore the relevant subject area at any such deposition … the opportunity to depose an expert during trial, particularly if the testimony relates to a central issue, often provides a wholly inadequate opportunity to understand the expert’s opinion and to prepare to meet it.”

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

Continue Reading ›

| by

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 insurance bad faith lawsuit and its proceedings.)

Universal Street was damaged in 2007, shortly after a sale collapsed. There was no rental income of the property at the time. This is information is known to XYZ, that is why they are denying the claim. The Halls have provided documents showing a sale price for the house two months prior the fire. Since the fire, property values have dropped. This places a variable in the equation that is hard for plaintiffs to adequately calculate a hard figure. Plaintiffs are not required to submit expert opinions at this point, and to guess would not be fair.

Plaintiffs are under the belief that defendants are not willing to accept the amount that plaintiffs are requesting to settle this lawsuit for two reasons: One they want to establish that the plaintiffs damages are over $75,000 per recent Request for Admissions, in order that they may return to federal court, now that all state defendants have been dismissed. Two: they want to maintain the litigation while seeking to lock plaintiffs into a fixed figure before discovery is completed. If these motives are true, in fact, XYZ’s motion to compel was brought for improper reasons.

REQUEST FOR SANCTIONS ARE UNWARRANTED

Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery … but the court may not impose sanctions which are designed not to accomplish the objects of discovery but rather to impose punishment, as quoted in Vallbona v. Springer, 43 Cal.App.4, 51 Cal Rptr. 2d 311.

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

Continue Reading ›

| by

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.)

ARGUMENT
DEFENDANTS’ CONTENTION THAT PLAINTIFF’S EXPERT MUST BE EXCLUDED BECAUSE THE EVIDENCE HE RELIED UPON IN FORMING HIS OPINIONS LACKS FOUNDATION IS INCORRECT MISLEADING AND WITHOUT MERIT
Dr. Hill is plaintiff’s standard of care expert and has clearly demonstrated his expertise, and is qualified to express his opinion in the area of chiropractic care. Dr. Hill’s testimony rests upon a review of plaintiff’s medical records from defendants’ facility and chiropractors therein, and an MRI report ordered by the Defendant/Defendant facility, from XYZ Radiology of Sacramento, dated July 28, 2007, of Plaintiff’s right knee. Dr. Hill also had an understanding of plaintiff’s version of how the event occurred as recited to him by Plaintiff’s attorney, co-counsel, Navid White, who read those portions of plaintiff’s deposition wherein she described how the subject event occurred.

Dr. Hill testified in his deposition as to the records he reviewed and relied upon in forming his opinions. Specifically, at his deposition:

1. Dr. Hill had a stack of records in front of him which consisted of the XYZ Radiology report from Sacramento Imaging, and the records from Defendant’s facility, Universal Chiropractic. Dr. Hill reviewed these records in anticipation of his deposition.

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

Continue Reading ›

| by

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 insurance bad faith lawsuit and its proceedings.)

ARGUMENT THREE
COURT HAS DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND COMPLAINT WHERE AMENDMENT CAN CURE DEFECTS IF ANY ARE FOUND

It is judicial policy to liberally construe a pleading’s allegation with view to ensure substantial justice for both parties per Code of Civil Procedure, section 452. Daniel Black’s relationship with the Halls regarding their policy for Holly Street and their reliance on his advice indicates that there are grounds to make him personally liable for negligence, intentional emotional stress, negligent emotional stress, misrepresentation, negligent misrepresentation.

The premise of Black’s demurrer is that he cannot be sued as an agent of the insurer, and the complaints generally states he acted within his scope of employment. The meaning of the statement to plaintiffs is that he committed acts while employed by XYZ, whether some of the acts were outside the scope of his employment. The Halls could not discern at the time the complaint was filed shortly before the statute of limitations all the facts to allege.

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

Continue Reading ›

| by

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 insurance bad faith lawsuit and its proceedings.)

XYZ’S ARGUMENT FOR A STATEMENT OF DAMAGES IS WITHOUT MERIT IN THAT THEY ARE ALREADY AWARE OF THE DAMAGES SOUGHT BY PLAINTIFF
Plaintiffs Pleaded Damages to be Shown by Proof at Time of Trial

Plaintiffs filed their original complaint on May 9, 2008. At the time, plaintiffs were under the belief they were entitled to certain damages and to continue plead such in the First Amended Complaint, until proof may be obtained. At the time that the statement of damages were requested, plaintiffs produced a certain figure of for their damages. Plaintiffs had not calculated any other damages and asked clarification as to XYZ’s interpretation of the Code and what in particular did they additionally want from plaintiffs. XYZ now states plaintiffs are also seeking attorney fees and emotional distress damages.

Plaintiffs’ letters as indicated above included the attorney fees that the Halls have paid. As to the emotional distress damages, this has not been determined at this time and this is the first time that XYZ has clarified this issue.

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

Continue Reading ›