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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 insurance bad faith lawsuit and its proceedings.)

Plaintiffs William and Susan Hall’s Memorandum of Points in Authority in Opposition to XYZ’s Motion to Compel Discovery and Sanctions
INTRODUCTION

XYZ brings a motion to compel further responses and production of documents, and a statement of damages. Plaintiffs have tried diligently to respond to all of XYZ’s demands but they are insistent that plaintiffs responses are incomplete. Plaintiffs have responded to the best of their knowledge, yet XYZ refuses to accept the responses. They seem to believe that plaintiffs should respond according to their frame of thoughts or better put, in the way they believe will best serve their interest.

Plaintiffs believe this motion to compel was brought to harass, annoy, and burden plaintiffs and their counsel. As plaintiffs worked steadily to provide the information to XYZ, it appears XYZ was not willing to work toward a resolution, but rather bring the matter before the court for sanction purposes.

STATEMENT OF FACTS

On November 3, 2008, the Halls received discovery from XYZ consisting of two sets of Form Interrogatories to Plaintiffs William Hall and Susan Hall respectively; Request for Production of Documents, and Special Interrogatories exceeding 35 in number. William Hall’s responses to the form and special interrogatories, and responses to the production of documents were faxed to defendants on December 8, 2008.

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.)

Plaintiff’ Anna Greene’s Opposition to Defendants’ Motion in Limine No. 5 to Exclude Plaintiff’s Expert, Ronald Hill, D.C.; Memorandum of Points And Authorities In Support Thereof.

Plaintiff submits this Opposition to Defendants’ Daniel Li and ABC Chiropractic, Inc.’s (collectively Defendants ), Motion in Limine No. 5, for an order excluding the testimony of plaintiff’s standard of care expert, Ronald Hill, D.C.

This Opposition is based on the following Memorandum of Points and Authorities, the exhibits attached hereto, and on such further argument, evidence or supplemental points and authorities as may be presented at the time of the hearing.

MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION
CURRENT POSTURE

Plaintiff’s complaint alleges causes of action for professional negligence, battery, assault, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress.

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.)

PUNITIVE DAMAGES ARE ALLOWABLE IN THIS NEGLIGENCE ACTION

The California Supreme Court has determined there are circumstances under which punitive damages can be awarded in unintentional tort actions. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004. In particular, the Supreme Court has upheld punitive damages in cases of negligent driving. See Peterson v. Superior Ct. (1982) 31 Cal.3d 147; Taylor v. Superior Ct. (1979) 24 Cal.3d 890, 894.

In Taylor, the Supreme Court explained the availability of punitive damages to plaintiffs in motor vehicles tort actions:

A conscious disregard of the safety of others may constitute malice within the meaning of Section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully [sic] and deliberately failed to avoid those consequences.Id. at 895. (emphasis added.) Taylor and Peterson are directly applicable to this case. Plaintiff’s prayer for punitive damages, which is based on Dr. Lee’s inarguable awareness of the probable dangerous consequences of operating a vehicle under fatigue and while asleep and her actions of deliberately failing to avoid the dangerous consequences by driving in a fatigued state, is undeniably supported by California law.

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 birth injury 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.)

Here, Plaintiff is alleging that as a result of Defendant’s negligence, he suffered “Shoulder Dystocia and Brachial Plexus Palsy” while being delivered at ABC Hospital on July 26, 2000. Specifically, Plaintiff’s Complaint alleges negligence including negligently failing to conform to the standard of care with respect to the prenatal care and treatment to plaintiff in utero and to his mother, and with respect to the use of all reasonably safe medical alternatives of obstetric procedures during labor and delivery of plaintiff. Plaintiff is clearly claiming birth-related injuries.

Since Code of Civil Procedure § 340.4 was enacted in 1994, more than ten years after Code of Civil Procedure § 340.5 was enacted, and because Code of Civil Procedure § 340.4 more particularly pertains to birth related injuries caused by medical malpractice, the former statute should override the latter. Therefore, and according to Code of Civil Procedure §340.4, Plaintiffs opportunity to commence this action expired on July 26, 2007.

The Supreme Court has held that when the plaintiff is a minor, it is the knowledge or lack thereof of the parents which determines when the cause of action accrues . Whitfield v. Roth (1974) 10 Cal, 3d 874, 885. Here, based upon the nature of the alleged injuries, Plaintiff, by and through his parents and legal guardians, would have had knowledge of the claimed injury long before the Complaint was filed. Infants with Brachial Plexus Palsy are usually identified in the newborn nursery during the first week of life. The most obvious feature of the disorder is lack of mobility in the arm. Arguably, as such, Plaintiff’s parents would have had knowledge of Plaintiff’s injury over eight years prior to the filing of their Complaint, and before the tolling of the statute of limitations pursuant to Code of Civil Procedure § 340.4.

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.)

Defendants, Daniel Li, D.C. and XYZ Chiropractic, Inc., hereby move this Court, in limine, for an order precluding plaintiff Anna Greene’s orthopaedic expert Hiram White, M.D. from testifying to any opinions not expressed during his deposition.

Defendants further move for the Court’s instructions on the following:

1. An instruction precluding Plaintiff’s Counsel and Plaintiff’s witnesses from conveying the jury, directly or indirectly, the facts provided in this motion without, first, obtaining permission of the Court outside the presence and hearing of the jury; and

2. An instruction precluding Plaintiff, Plaintiff’s Counsel and Plaintiff’s witnesses from making any reference to the filing of this motion.

This motion is based upon the attached memorandum of points and authorities, the pleadings and papers already on file in this matter, and on such further oral and documentary evidence that may be presented at the hearing of this motion.

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 insurance bad faith lawsuit and its proceedings.)

PROCEDURAL HISTORY

The Halls filed a complaint in the Sacramento County Superior Court in May 2008, alleging several causes of actions against defendants XYZ Insurance Company, Paul Smith, and Daniel Black. XYZ answered the complaint in August 2008, and removed the case to the U.S. District Court. In tandem they filed a motion to dismiss Daniel Black and Paul Smith on the premise that plaintiffs intentionally joined these defendants to defeat diversity, alleging they were fraudulently joined for that purpose.

The Halls filed a motion to remand the case back to the state court because it did not meet the jurisdictional requirement for the federal courts. The U.S. District Court agreed and remanded the case to the state court on October 10, 2008, without hearing a dismissal motion for Black and Smith.

On November 3, 2008, XYZ sent notice that they were going to demurrer to the complaint as to Daniel Black and Paul Smith as defendants. The demurrer was not filed until January 8, 2009. This is nearly 90 days after the receipt of the order to remand to the state court. Code of Civil Procedure section 430.90 requires an answer or a demurrer be filed within 30 days after receipt of the remanded case in the state court.

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.)

The First Amended Complaint does not contain mere allegations that the Defendant’s actions were carried on with willful and conscious disregard of the rights of others. In this regard, Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 and Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 163, are inapposite to the present case. Unlike Brousseau and Grieves, Plaintiff did not merely allege that Defendant’s actions were “willful” or “malicious.” Plaintiff refrained from making the sort of conclusory arguments that were scorned in Brousseau and Grieves, The claim for punitive damages in Brousseau and Grieves were not based on specific facts. In this case, Plaintiff pled approximately four pages of detailed facts that allege Dr. Lee acted without regard for the safety of others in her operation of a vehicle while sleeping.

As alleged throughout the First Amended Complaint, Dr. Lee was incompetent and unfit to safely operate a vehicle because she was fatigued. From her residency training, she knew that she was a foreseeable threat to the health and safety of the public if she drove in a fatigued or sleepy condition. She deliberately was disregarding the high probability that she would fall asleep behind the wheel and cause permanent harm to another person.

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 insurance bad faith lawsuit and its proceedings.)

Plaintiffs William and Susan Hall’s Request for Dismissal and Opposition to the Demurrer
STATEMENT OF CASE
Plaintiffs, William and Susan Hall (hereinafter, “Halls”), file this objection to the demurrer filed by XYZ Insurance Company of behalf of Daniel Black and Paul Smith and request its dismissal.

The Halls met Daniel Black, an agent for XYZ Insurance Company sometime prior to 1982 regarding insurance coverage. The Halls have records of premium payments dating from 1982 to present for automobiles and real property. The Halls and Daniel Black developed a long term relationship regarding their insurance policies. Throughout the years, Black answered the Halls insurance questions on coverage, premium payments, and purchase of various policies.

The Halls relied heavily on Black’s advice regarding their policies and a trust developed between them. The Halls had regularly discussions with Black and believed Black would advise them about their policy coverage if it was not in their best interest. As they say, he was their “insurance man,” as one would have a private doctor, or lawyer. Due to the length of the relationship, the frequent communications between the parties, and the number of premiums that they held with Black, they relied on the belief that he would take care of them and inform them of any necessary coverage problems.

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

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| 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 brain injury lawsuit and its proceedings.)

EXPERT OPINION IS PROPERLY EXCLUDED WHEN BASED ON ASSUMPTIONS, SPECULATION OR CONJECTURAL EVIDENCE

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.

Plaintiff should not be allowed to present expert opinions by Mr. Gold which are based on assumptions of fact without evidentiary support and pure speculation. An expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence. Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390. California Evidence Code § 801(b) provides, If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is … perceived by or personally known to the witness or made known to him at or before the hearing … Further, pursuant to California Evidence Code § 352, the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate an undue consumption of time or create substantial danger of undue prejudice, confusing the issues and/or misleading the jury.

Mr. Gold’s expert opinions are based on assumptions and speculation. For example, at deposition Mr. Gold provided the opinion that the Plaintiff could have been walking when crossing the crosswalk.

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 elder abuse 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 to the motion attacking Plaintiff’s claim of wilful misconduct, XYZ Care fails in the fundamental purpose of providing Plaintiff of any form of notice as to the issues presented by the motion for summary adjudication. The issue, as set forth (“plaintiffs have no evidence that moving defendant committed any intentional wrongful conduct toward plaintiffs’ decedent”) is too broadly stated to provide any meaningful notice which would comply with the due process aspect of the separate statement as expressed in Elcome and San Diego Watercrafts, supra. Defendants’ initial burden in bringing a motion for summary adjudication is to show that one or more elements of claim cannot be established. Marron, supra.

Accordingly, in compliance with the obligation of the moving party to provide adequate notice, in the notice of motion and Separate Statement, it is incumbent to frame the issues in such a manner that Plaintiffs are informed what element or elements of the claim Defendant asserts the purported undisputed facts prove cannot be established. Otherwise, Plaintiffs (and the court) is left to speculate what element of the claim (i.e., what element of Wilful Misconduct, – duty, breach, knowledge of peril, knowledge of probable injury, failure to avoid peril, causation or damages) is under scrutiny, and for which opposing evidence must be presented.

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

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