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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 brain injury lawsuit and its proceedings.)

Defendant Matthew Black and City of XYZ’s’s Motion in Limine No. 8 to Exclude Robert Gold, P.E., from Testifying as Plaintiff’s Expert.

Defendants Matthew Black and City of XYZ move the court in limine, before trial and selection of the jury, for an order precluding plaintiffs expert, Robert Gold, P.E., from rendering any expert opinions at the time of trial. Mr. Gold’s expert deposition was taken on February 2, 2010. In light of Mr. Gold’s testimony at deposition, it is apparent that Mr. Gold’s expert opinion is not based upon reliable facts or data, but is instead based upon assumptions and speculation. As such, the Defendant now seeks an Order from this Court precluding Mr. Gold from improperly testifying at trial.

This motion is made pursuant to California Evidence Code §§ 801, 802 and 352 as well as interpretive case law including Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390. 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.

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.)

Dr. Stein also opined in his deposition that the Defendants violated its own policies and procedures as set fort in its Patients’ Rights document.

Dr. Majore will opine that the defendants fell below the standard of care when they failed to take adequate steps to determine the extent of neurological involvement causing Mr. Brown’s symptoms following the surgery of August 20, 2008.

Dr. Majore will be opining that the defendants fell below the standard of care when they failed to properly document the patient’s file with the e-mails discussing the patients’ care.

Dr. Majore will be opining that the attending physicians employed by the defendants fell below the standard of care when they failed to properly sign the medical records.

DEFENDANTS FELL BELOW THE STANDARD CARE WHEN THEY FAILED TO TIMELY DIAGNOSE AND TREAT PLAINTIFF’S INFECTED FLUID COLLECTION/20 ABSCESS AUGUST 31, 2008 THROUGH SEPTEMBER 9, 2008

Dr. Stein’s Declaration (Exhibit “A”) further set’s forth his opinion that the Defendants fell below the standard of care after he was discharged from the hospital on August 27, 2008 as follows:

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 birth injury lawsuit and its proceedings.)

PLAINTIFF’S COMPLAINT LACKS
SUFFICIENT FACTUAL SUPPORT AND IS UNCERTAIN

California recognizes a parent’s cause of action for the wrongful birth of a genetically deformed child where the physician negligently failed to inform the parent of the risk of bearing such a child. (Turpin v. Sortini (1982) 31 Cal.3d 220, 225, 182 Cal.Rptr. 337, 643 P.2d 954) In a successful wrongful birth and wrongful life action, the parents may recover for medical and extraordinary teaching and training expenses incurred during the child’s minority, but the child may not also recover for those same expenses. (Turpin v. Sortini, supra, 31 Cal.3d at p. 236.) The child may only recover medical expenses and special damages where the parents are unavailable to sue or where the expenses are incurred beyond the time of the parents’ legal responsibility for such care. (Ibid.) In addition, the child may not recover for pain and suffering and other general damages (id. at pp. 238-239), or for a loss of earning capacity (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614, 208 Cal.Rptr. 899).

As in ordinary medical malpractice cases, the plaintiffs in a wrongful life and wrongful birth case must establish the following basic elements: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433; Turoin v. Sortini, supra, 31 Cal.3d at pp. 229-230.)

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.)

PLAINTIFFS’ DISCOVERY RESPONSES ARE NOT FACTUALLY DEVOID AND DO NOT ESTABLISH THE LACK OF EVIDENCE OF ANY ELEMENT OF ANY CLAIM, MOREOVER, DEFENDANT XYZ CARE’S MOTION MISCHARACTERIZES PLAINTIFF’S DISCOVERY RESPONSES, FAILS TO ADDRESS PLAINTIFFS’ EXERCISE OF THEIR RIGHT TO REFER TO RECORDS IN THEIR RESPONSE, AND INCLUDES NO AFFIRMATIVE EVIDENCE THAT THE FACTS SET FORTH IN PLAINTIFFS’ DISCOVERY RESPONSES (AND DOCUMENTS REFERRED TO THEREIN) ARE INSUFFICIENT TO ESTABLISH ANY ELEMENT OF PLAINTIFFS’ CLAIMS

Plaintiffs recognize that a defendant moving for summary adjudication may rely on “factually devoid” discovery responses to shift the burden of proof. C.C.P. §437c(p)(2). Circumstantial evidence supporting a defendant’s summary judgment motion can consist of factually devoid discovery responses from which an absence of evidence can be inferred, but “the burden should not shift without stringent review of the direct, circumstantial and inferential evidence.” Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.

The moving papers concede that Plaintiffs’ discovery responses include seven pages of facts which support the claims for which defendants seek summary adjudication, including two pages which specifically pertain to XYZ Care.

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 IN OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS

THE PURPOSE OF SECTION 998 IS TO ENCOURAGE SETTLEMENTS AND TO PUNISH A PARTY WHO FAILS TO ACCEPT A REASONABLE OFFER FROM THE OTHER PARTY.

In Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 C al.App.3rd 692, the court spent considerable time evaluating the purpose of Code of Civil Procedure section 998. The court noted as follows:

“Section 998 should be interpreted so as to effectuate its purpose of encouraging the settlement of lawsuits before trial.” Section 998 achieves its aim by punishing a party who fails to accept a reasonable offer from the other party. 195 Cal.App.3rd at 698-699.

In this case, the parties could have avoided an extremely expensive and time-consuming two-week jury trial had defendant and his insurance carrier accepted an entirely reasonable offer that is nearly half of what the jury ultimately awarded plaintiff.

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 birth injury lawsuit and its proceedings.)

PLAINTIFF’S COMPLAINT IS PROPERLY SUBJECT TO DEMURRER

California Code of Civil Procedure § 430.10 provides the proper grounds for demurrer, stating in pertinent part:

“The party against whom a complaint … has been filed may object, by demurrer … to the pleading on any one or more of the following grounds:(e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain.” As used in this subdivision, “uncertain” includes ambiguous and unintelligible. At this time, demurring defendants demur solely to plaintiff’s Second cause of action for Wrongful Life and Third cause of action for Willful Misconduct, California Code of Civil Procedure § 430.50(a) states in pertinent part, “A demurrer to a complaint … may be taken to the whole complaint … or to any of the causes of action stated therein.”

It is well settled that a plaintiff must set forth specific facts in a Complaint in order to enable a defendant to intelligently respond to the pleading without having to guess or speculate as to the items of material or essential facts. (Ankenv v. Lockheed Missile & Space Company, (1979) 88 Cal.App.3d 531, 537). In addition, in examining a Complaint for its legal sufficiency to withstand a demurrer, [a] demurrer admits all material and issuable facts properly pleaded [citations omitted]. However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Gruenberg v. Aetna Insurance Co, (1973) 9 Cal.3d 566, 572).

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 birth injury lawsuit and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical malpractice action arising from the birth of Sean Brown. Dr. Lee was only involved in the delivery of the infant on July 26, 2000. The action is brought by Sean Brown, a minor, by and through his mother and Guardian ad Litem, Randi Brown. Plaintiff alleges that Defendant negligently provided prenatal health care and treatment to Plaintiff in utero resulting in injuries to Plaintiff and damages. Plaintiff further contends that Defendant was negligent with respect to not offering reasonably safe alternatives to obstetric procedures during the labor and delivery of Plaintiff.

As set forth in the declaration of board-certified OB/GYN Hank Black, M.D., it is Dr. Black’s opinion that the care and treatment rendered to Sean Brown by David Lee, M.D., was within the standard of practice, and did not cause or contribute to any of his injuries.

The present Motion will also show that Plaintiff’s Complaint is time barred by the statute of limitations set forth in Code of Civil Procedure § 340.4. Pursuant to that code section, Plaintiff should have filed his Complaint on or before July 26, 2007, therefore, Plaintiffs instant Complaint is barred by the statute of limitations.

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 automobile accident lawsuit and its proceedings.)

Dr. Lee seeks to strike the following portions of Plaintiff’s First Amended Complaint: (a) portions of Paragraph 6, line 15 regarding Defendant’s malicious and oppressive behavior; (b) Paragraph 32 regarding the details of Dr. Lee’s training at National Hospital; (c) Paragraph 42 regarding Dr. Lee’s malicious and oppressive conduct; and (d) Plaintiff’s prayer for punitive damages against Dr. Lee. Her motion to strike fails on all counts because Plaintiff’s allegations are allowed under the negligence theories pled in his First Amended Complaint and he has pled sufficient facts to justify seeking punitive damages.

STATEMENT OF FACTS
FACTUAL ALLEGATIONS THAT SUPPORT PRAYER FOR PUNITIVE DAMAGES

On June 16, 2009, shortly before 1:00 p.m., Plaintiff, a pedestrian, was jogging on the eastern sidewalk of University Road, near the intersection of Small Way, in El Dorado Hills. Dr. Lee was driving east on University Road. Knowingly and intentionally driving in a fatigued and sleepy condition, Dr. Lee fell asleep while driving and drove up and onto the raised sidewalk and struck Plaintiff from behind. Plaintiff flew violently onto the hood and smashed into the. windshield, then up onto the roof. (Id.) Plaintiff was carried approximately 59 feet east before being thrown off the top of the vehicle. (Id.) Dr. Lee, while still asleep, then dragged Plaintiff approximately 38 feet where Dr. Lee ultimately ran over him again.

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 elder abuse lawsuit and its proceedings.)

DEFENDANT HAS THE INITIAL BURDEN OF ESTABLISHING THE NONEXISTENCE OF ANY TRIABLE ISSUE OF MATERIAL FACT

Summary adjudication is appropriate where there is no triable issue as to any material fact. The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. There is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element… necessary to sustain a judgment in his favor. Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468. As Aguilar, supra, [citation], and Saelzler v. Advanced Group 400, supra, 25 Cal.4th 763, 107 Cal.Rptr.2d 617, 23 P.3d 1143, later made clear, a defendant cannot simply argue that a plaintiff lacks sufficient evidence to establish causation; the defendant must make an affirmative showing that the plaintiff cannot do so. Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 103.

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 Thomas Brown (hereinafter, “Plaintiff”) by and through his attorneys of record, and hereby submits the following Trial Brief on the Scope of Plaintiff’s Experts’ Testimony on Standard of Care.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Dr. Stein testified he had opinions on whether the defendants fell below the standard of care as well as the cause of Plaintiff’s damages. Dr. Majore testified that he would be giving opinions on the standard of care within the scope of his medical practice of pain management.

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

DEFENDANTS FELL BELOW THE STANDARD CARE DURING PLAINTIFF’S HOSPITAL STAY FROM AUGUST 20, 2008 THROUGH AUGUST 27, 2008

Dr. Stein prepared a Declaration which was provided at his deposition and attached as Exhibit “2.” Dr. Stein’s Declaration contains a section entitled “Opinions” which lists 12 opinions. The first six opinions are quoted as follows:

“The following are examples of what exactly fell below the standard of care:

1. No postoperative visit by Dr. White to explain Mr. Brown’s complications and his prognosis.

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