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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 BLACK WAS 100% AT FAULT IN CAUSING THE ACCIDENT

Defendant GHI has admitted in response to admissions that defendant Black was their employee on the day of the incident. Defendant Black has admitted in admissions that his negligence caused the accident. Defendant Black also testified at his deposition that neither Mr. White nor anyone else had done anything that caused or contributed to causing this three vehicle collision. Thus, the issues in this case are the nature and degree of injuries plaintiff suffered in the accident.

THERE WAS NO COMPARATIVE FAULT ON THE PART OF PLAINTIFF

At the time of the collision, Mrs. White was wearing her seat belt as determined by CHP Officer Hall. By wearing her seat belt and timely stopping for traffic ahead of her, Mrs. White did all the law required of her. Mrs. White was not comparatively at fault.

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 wrongful death 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 action and its proceedings.)

The Consent to Admission Form, or at least the “Independent Contractor” provision, constitutes an unenforceable adhesion contract.

The evidence of record established these facts as undisputed:

1. The admission form signed by Mr. Hall at Universal contained a provision characterizing Universal physicians as independent contractors, which was located approximately two-thirds down from the top of the document.

2. This independent contractor provision was in the same small print as the rest of the document, was not in bold type, highlighted, or in any way emphasized or set apart from the rest of the text so as to draw the reader’s notice. Absolutely no evidence was offered suggesting that Mr. Hall’s attention was drawn to this provision in any way, either in writing or orally.

3. Mr. Hall was required to sign the form in order to receive admission and treatment at Universal, and had little if any bargaining power under the circumstances (which he was incapable of exercising at that time, even if it existed).

A contract of adhesion has been defined as ” … a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” Bruni v. Didion (4th App. Dist. 2008) 160 Cal. App. 4th 1272, 1289. Stated another way, ” … a contract of adhesion is a standardized contract drafted by the party with stronger bargaining power, such that the weaker party has no choice other than to accept it or reject it.” Id at 1291.

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 IRRELEVANT AND SUBSTANTIALLY PREJUDICIAL EVIDENCE IN ADVANCE OF TRIAL BY WAY OF A MOTION IN LIMINE

The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. FMC Corp. v. Plaisted & Cos. (1998) 61 Cal. App. 4th 1132, 1168. 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, because said evidence is irrelevant or subject to discretionary exclusion as being unduly prejudicial or a piece of evidence that will mislead the jury. 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. One of the main purposes of motions in limine is to properly narrow the issues for trial and preclude irrelevant evidence from flooding the courtroom. The advantage of such motion is to avoid the obvious futile attempt to “unring the bell” in the event a motion to strike is granted in the proceeding before the Court related primarily to irrelevant and prejudicial evidence. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 337.

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

Evidence Code §350 regulates that only relevant evidence is admissible. This is because relevancy is not an inherent characteristic of evidence but exists as a relation between an item of evidence and a proposition sought to be proved. See McCormick on Evidence, 3rd, § 185. Accordingly, evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of the action. Evidence Code §210.

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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 medical malpractice action and its proceedings.)

As expressed by the Court in Kelly v. New West Federal Savings, (1996) 49 Cal.App.4th 659, 672, the court held that [i]t is a misuse of a motion in limine to attempt to compel witness or party to conform their trial testimony to preconceived factual scenarios based on testimony given during pretrial discovery. (Id., at 672-673.) The Court of Appeal in Kelly specifically criticized this type of motion as improper and meaningless motion unless and until plaintiffs attempted to call such witnesses. (Id., at 670-671.)

Additionally, the Kelly Court observed in some cases, a motion in limine may not satisfy the requirements of a motion to exclude under Evidence Code §353. For example, it may be difficult to specify exactly what evidence is the subject of the motion until that evidence is offered. Actual testimony sometimes defies pretrial predictions of what a witness will say on the stand. Events in the trial may change the context in which the evidence is offered to an extent that a renewed objection is necessary to satisfy the language and purpose of §353. Until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility. In these kinds of circumstances, an objection at the time the evidence is offered serves to focus the issue and to protect the record. (Id. 660-661.)

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 wrongful death 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 action and its proceedings.)

Stanhope was among the authority relied on by the Fourth Appellate District Court in Mejia at 1448, 1454-1459, wherein the Mejia court noted that this rule applies with greater force in cases where the plaintiff-patient is seen in the emergency room, emphasizing its agreement with “…the Stanhope holding that emergency room patients cannot be expected to inquire as to whether treating physicians are independent contractors.” Mejia involved a plaintiff whose broken neck was allegedly misdiagnosed by ER physicians, resulting in paralysis. Surveying the law of other jurisdictions, the court observed, ” …because it is commonly believed that hospitals are the actual providers of care, ostensible agency can be readily inferred whenever someone seeks treatment at a hospital.” Id at 1456. The Court concluded California law should be interpreted consistently with this majority view.

Alternatively, if Mr. Hall signed the “Consent to Admission” form after receiving a dose of Dilaudid, an opiate-based narcotic, it may be presumed that his judgment was impaired, particularly given the long duration of his severe pain prior to receiving the medication and his declining vital signs. Either way, this dying man could not be held responsible to analyze a legal document he was required to sign in order to receive treatment to ease his misery, as a matter of law. See Mejia, supra, 99 Cal. App. 4th at 1454, 1458-1459.

The application of this general principle-that patients who enter a medical facility under circumstances indicating that they are unable to effectively consider and accept the terms of an agreement they must sign in order to be admitted should not be bound by its terms-has been applied in a broad range of situations. It extends even to patients who are not in pain, medicated, or seeking admission on an emergency basis.

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.)

Plaintiffs are claiming the tire was defective solely because of its chronological age. Based upon this, plaintiffs claim that XYZ should have warned Ms. Brown that the tire was too old to still be in service. XYZ disputes these claims and contends that the tire failed because it was poorly maintained and had sustained impact damage before this accident. Defendants also contend that Ms. Brown stepped on the accelerator rather than applying her brakes and thereby drove her van into the telephone irrespective of the tire failure. XYZ also disputes the nature and extent of plaintiff’s claimed injuries stemming from this auto accident.

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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 medical malpractice action and its proceedings.)

In this case defendants deposed plaintiff’s designated pediatric neurology expert, Dr. Robert Hill on September 1, 2010. During the deposition Dr .Hill testified as to his personal opinions regarding why he has testified on behalf of plaintiffs in medical malpractice cases more often in the last five years. Essentially, Dr. Hill testified that during the first twenty to 25 years he was acting as an expert, a majority of the cases were reviewed for the defense. However, over the last 10 to 15 years, a gradual transition occurred to the point now 80 % of the cases in which he is deposed as an expert are on behalf of the plaintiff.

When asked about the reason for the transition Dr. Hill testified, There’s some reasons that are flattering to you and some that are not. I’ll give you one reason and one reason only for now, and that is, in the last 10 or 15 years, cases on behalf of families and children are far better prepared and far more meritorious, in association with very superior plaintiff lawyers than they were in the 70s, 80s, and even early 90s. So today I’m seeing plaintiff cases that have been well worked up by highly capable lawyers and the cases are very credible.

In addition, in the case of Dylan White v. XYZ Hospital, Dr. Hill was deposed as a medical expert.

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 medical malpractice action and its proceedings.)

Indeed, in Mayer v. Cooper, (1965) 233 Cal.App.2d 750, 754, a case cited with approval in Kennemur, the Court stated as follows, concerning the scope of deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for.

The Court in Kennemur continued, “the principles articulated in Mayer are sound. The only difference when in the expert arena is that the expert must reveal the general substance of his testimony (as opposed to every possible specific opinion).” [Kennemur, Id., at 919].

Defendants’ Instant Motion in Limine is Improper, and Seeks to have the Court Rule in a Factual Vacuum

California law is clear that unsupported Motions in Limine are improper [Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 672].

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

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| by

It is worth noting that situations similar to those described in this wrongful death 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 action and its proceedings.)

THE PHYSICIANS WHO DEALT WITH MR. HALL AT UNIVERSAL WERE OSTENSIBLE AGENTS OF THE HOSPITAL, AS A MATTER OF LAW

A. Because he was gravely ill and in severe pain, Mr. Hall lacked the capacity to validly execute a contract, purporting to contain a waiver of rights.

The evidence of record has established these facts as undisputed:

1. Mr. Hall signed the Universal admission form at about the same time he was admitted to the hospital floor on August 11,2008, which the records indicate was approximately 10:30 p.m.

2. At that time of his admission, Mr. Hall had been suffering pain he reported to be 9 – 10/10 for nearly 2 1/2 hours.

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

3. Mr. Hall’s Universal chart indicates that at approximately 10:30 p.m., he was finally given an intravenous dose of two to three milligrams of Dilaudid (with the usual dose ranging from one to two milligrams when so administered). Dilaudid is a narcotic pain reliever that takes immediate effect when given intravenously, and which may impair thinking and judgment.

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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.)

INTRODUCTION
Plaintiff Melissa White’s Trial Brief

This case arises out of a three (3) vehicle collision on Highway 50, caused when a commercial van driven by Sean Black rear-ended the Plaintiff’s vehicle.

Prior to the January 24, 2008 traffic accident, Plaintiff Melissa White was a healthy, physically active 57-year-old senior bank vice-president. After more than a 25-year career in banking, she was making $87,500.00 base salary, not including benefits and bonuses as a senior vice-president with County Bank. Mrs. White had a nice home and a happy and fulfilling life. All that changed in an instant on a rain-slick highway in the early evening of January 24, 2008. Through no fault of her own, a van driven by a GHI Distributing Company employee, Richard Black slammed into the back of Mrs. White’s BMW which was stopped for traffic on SR50. At the time of impact, the GHI van was going at least 40 mph. (Plaintiff thought that Black’s vehicle was going more than 50 mph.) In the accident, Mrs, White’s vehicle was smashed into the vehicle ahead of her. As a result of the collision, Melissa White suffered a mild traumatic brain injury/post-concussion syndrome, injury to her left shoulder, and post-traumatic cervical and lumbar spine injuries.

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

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