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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.)

Obviously, plaintiffs’ interest in including such evidence is to attempt to curry favor with and sympathy from the jury despite this evidence having no connection with this action. Accordingly, evidence of Mr. West’s service in the military and his status as a veteran of WWII must be excluded on the grounds that such evidence: (1) is irrelevant to this action pursuant to Evidence Code section 350; (2) is an improper attempt to prove good character pursuant to Evidence Code section 1001; and (3) will necessitate undue consumption of time, create substantial danger of undue prejudice, and confuse or mislead the jury pursuant to Evidence Code section 352.

This motion is made upon this notice, the following Memorandum of Points and Authorities, and upon all books and papers found within the Court’s file, and upon all such other evidence, oral or documentary, as may be presented at the hearing of this motion.

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

MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
This is a personal injury case brought by Anna Brown and Alex West, arising out of a single vehicle accident that occurred on August 25, 2008, in the early afternoon. The accident occurred in a residential area in the city of Sacramento, California.

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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.)

Defendant XYZ Tire, Inc.’s Motion in Limine No. 10 to Exclude Reference to Plaintiff Owen West’s Military History or References to Him as a “War Hero”

XYZ Tire, Inc. (hereinafter, “XYZ”) moves this court in limine for an Order precluding plaintiff Owen West, his attorneys, and all witnesses and experts from referring to, commenting upon, or otherwise attempting to introduce at trial any and all testimony or evidence pertaining to plaintiff Owen West being a veteran of World War II, including references to his involvement in Pearl Harbor and D-Day or attempting to portray plaintiff as a “war hero” or “patriot,” or any variation or derivative thereof throughout the course and scope of this tria,l pursuant to Evidence Code §§ 210, 350 and 352.

The admission of evidence or testimony concerning Owen West being a veteran of World War II and his involvement in two of the most well known military battles, D-Day and Pearl Harbor, both of which occurred over a half-century ago (66 and almost 69 years respectively) cannot possibly be relevant to any issue in the present action.

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 medical malpractice case and its proceedings.)

UNIVERSAL’S NEGLIGENCE WAS A DIRECT CAUSE OF DECEDENT’S DEATH

And last, Universal next asserts that its conduct was not a cause of Decedent’s death according to the declaration of its expert. However, Universal’s expert does provide any reasoning for this opinion. The declaration instead simply states, without explanation, that nothing the nurses did or failed to do was a substantial factor in the death of decedent. Klein Decl. 10:18-20. It is also noteworthy that this statement makes no mention of the wrongdoing of Universal’s CEO, who is the focus of Plaintiffs’ claim against Universal.

In any even, the opinion of Universal’s expert on causation is contradicted by that of Plaintiffs’ expert, Dr. White. As he explains, Universal’s breaches of the standard of care resulted in unnecessary delay in getting Decedent to a medical center where he could be properly treated. This delay proved fatal. Had it complied with the standard of care, in Dr. White’s opinion Decedent would not have died.

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.)

In Kennemur, the plaintiffs expert was deposed on three separate occasions over a six-day period by the defendant. The witness was specifically asked whether he was going to testify on accident reconstruction. The witness specifically stated that he was not and would leave that to a different expert. The witness said that he was limiting his testimony to the stability of the automobile involved in the accident. [Id. at 912]. At the second session of this witness’ deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

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

The issue before the Kennemur court was not whether this witness (Mitchell) could testify to areas into which opposing counsel had failed to delve, but rather, whether he could testify on accident reconstruction issues about which he was specifically asked and had stated he had no opinion.

The Court stated:

“The decisive fact in the present case is the appellant’s failure to disclose Mitchell’s expected testimony … either at Mitchell’s deposition or as required by Section 2037.3. This failure deprived respondent to prepare for Mitchell’s cross-examination.”

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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.)

Plaintiffs’ Motion for Directed Verdict Against Universal Memorial Hospital, Inc. on Ostensible Agency Issue
INTRODUCTION

Plaintiffs hereby move that the Court determine, as a matter of law, that the Universal Hospital Conditions of Admission form signed by Decedent David Hall, Jr. is an unenforceable with respect to the provision therein stating the physicians attending to him are independent contractors.

The motion is based on two distinct reasons: (1) Because Mr. Hall lacked the responsibility and capacity to validly execute a binding agreement acknowledging such legal relationships and concurrently waiving his rights at the time he signed it; and (2) because the Form constitutes an unenforceable adhesion contract. Accordingly, Plaintiffs respectfully request that the Court remove the agency issue from consideration by the jury, rule that the clause at issue is void and has no legal effect herein as a matter of law, and further rule that all physicians who attended Mr. Hall during his stay at Universal are declared to be ostensible agents of the hospital, as a matter of law. In addition, Plaintiffs request that the Court instruct the jury that the Universal physicians were ostensible agents of the hospital, as a matter of law. (See Part 2 of 9.)

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 wrongful death action and its proceedings.)

Steven White, M.D.

Defendants anticipate that plaintiffs will attempt to introduce similar testimony from Dr. Steven White, who is an internist/infectious diseases physician, not an emergency physician. At deposition, Dr. White opined that Dr. Gold did not evaluate the patient quickly enough upon his arrival at Universal and that this delay was below the standard of care. However, Dr. White admitted that he has never worked as an emergency medicine physician at any facility during his career. (Deposition of Dr. White) Thus, Dr. White’s opinion testimony relative to the standard of care for an emergency room physician should be excluded at trial pursuant to Section 1799.110.

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

EVIDENCE CODE SECTION 352 ALLOWS THE COURT TO PRECLUDE PLAINTIFFS FROM INTRODUCING THIS EVIDENCE AT TRIAL
Evidence Code Section 352 provides that evidence may be excluded if its probative value is substantially outweighed by the probability that its admission will … create substantial danger of undue prejudice … or of misleading the jury. Here, it cannot be disputed that any reference to the phantom prior incidents will unduly prejudice the defendants.

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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 medical malpractice case and its proceedings.)

UNIVERSAL WAS NEGLIGENT

Turning to the merits of the first cause of action, Universal asserts that it complied with the standard of care in its care and treatment of Decedent, and submits a declaration from its expect to that effect. In response, Plaintiffs submit a declaration from their expert, Steven White, M.D., in which he disagrees with Universal’s expert and opines that the standard of care was not met. Specifically, according to Dr. White, Universal Hospital fell below the standard of care on both August 10 and August 11, 2008.

In his declaration, Dr. White notes the testimony of Dr. Lee (which Universal’s expert ignores entirely) indicating that he spoke with the hospital CEO, Paul Smith, on August 10, 2008, informing him that Decedent had necrotizing fasciitis and recommending his urgent transfer to a major medial center in order to receive appropriate care, and that in response Dr. Lee was told to “mind his own business.” These facts are ignored in the declaration of Universal’s expert. According to Dr. White, this conduct on the part of the hospital CEO is below the standard of care. The standard of care requires the hospital to act reasonably in protecting the health and safety of its patients. This standard was not met.

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.

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.)

Defendant’s Motion in Limine Limiting the Testimony of Robert Hill, M.D.

Defendant Universal Partners, Inc., hereby moves this court in limine, before jury selection and the commencement of trial, for an order precluding plaintiff’s expert, Robert Hill, M.D., from testifying to, mentioning, being interrogated upon, or in any other manner conveying to the jury his personal opinions as to why he has testified on behalf of plaintiffs more often in the last five years, and specifically preclude him from providing the testimony noted in this motion or any similar testimony regarding these issues.

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

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
This is a medical malpractice case involving plaintiff Mark Smith brought by his guardian and mother, Alana Smith.

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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 wrongful death action and its proceedings.)

It is clear that all of Dr. Li’s criticism against the hospital flow from his criticism of Dr. Gold’s initial evaluation of the patient. But for Dr. Gold’s failure to promptly contact an on-call general surgeon, there would have been no delay in properly treating the patient. According to Dr. Li, had Dr. Gold made that call, a general surgeon presumably would have been able to timely evaluate the patient and perform the debridement surgery. The performance of the debridement surgery at Universal would have negated the necessity of a transfer and ambulance transport to San Diego, of which Dr. Li was also critical. (Deposition of Dr. Li) Unfortunately, none of this testimony will be admissible at trial, per Section 1799.110.

In Miranda, appellant/plaintiff retained an orthopedic surgeon who had been on-call in hospital emergency departments to testify relative to emergency room physicians standard of care issues. At deposition, the physician admitted that he was not an emergency room physician. Miranda, supra, at 907. Rather, he was an orthopedic specialist who was on-call to the emergency room to consult on and treat orthopedic injuries. Id. The trial court granted a defense in limine motion to preclude the orthopedist from testifying at trial on emergency physician standard of care issues, per Section 1799.110. The Court of Appeal agreed with the trial court’s decision, indicating that it “lacked the discretion” to allow the doctor to testify on those issues at trial. Id.

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 wrongful death action and its proceedings.)

Experts who do not have substantial professional experience in the emergency department within the last five years cannot testify as to the standard of emergency care, regardless of his or her expertise. Sigala v. Goldfarb (1990) 222 Cal.App.3d 1450, 1455-56 [266 Cal.Rtpr. 96].
Section 1799.110 applies to any suit involving a claim of negligent emergency room treatment by a hospital emergency room physician whether or not a physician is named as a defendant. Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637,646-47 [242 Cal.Rptr. 74].

Whether a proposed expert witness satisfies the requirements of Section1799.1 10 is an appropriate subject of a motion in limine. Miranda, supra, at 899, fn. 4.

Donald Li, M.D.

Defendants anticipate that plaintiffs will seek to admit the testimony of Dr. Donald Li, their retained general surgery expert, for the purposes of establishing that the treatment and care provided by Universal’s emergency room physician, Dr. Andrew Gold, was below the standard of care. At deposition, Dr. Li testified that Dr. Gold’s alleged failure to immediately contact an on-call general surgeon upon the patient’s presentation to the emergency department was below the standard of care. (Deposition of Donald Li, M.D.)

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

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