The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing 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 medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)
DEFENDANT LMN HOSPITAL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DISCOVERY RESPONSES
INTRODUCTION AND STATEMENT OF RELEVANT FACTS
Plaintiff, William Brown, initiated a medical malpractice action against LMN Hospital on May 11, 2007.
On October 23, 2007, defendant LMN Hospital served a Request for Statement of Damages, Form Interrogatories, Special Interrogatories, and Request for Production of Documents by way of regular United States mail on plaintiff. Plaintiff’s statement of damages was due on or before November 12, 2007. Plaintiff’s responses to form interrogatories, special interrogatories and request for production of documents were due on or before November 30, 2007. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
On December 3, 2007, our office sent a meet and confer letter to plaintiff’s counsel regarding the discovery. We asked plaintiff to provide objection free responses on or before December 23, 2007, to avoid a motion to compel. This motion is now necessitated by plaintiff’s continued failure to provide any discovery responses.
Request for Statement of Damages
Code of Civil Procedure § 425.11 (b) provides:
When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought.
The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within fifteen days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.
Aside from the statutory authority provided above, the California Court of Appeal has made clear that a defendant risks waiving his or her right to exclude damages evidenced at trial if that defendant does not make the appropriate motion to compel the production of a statement of damages. See Argame v. Werasophon (1997) 57 Cal.App.4th 616.
Defendant LMN Hospital served a Request for Statement of Damages on October 23, 2007. Plaintiff’s response was due on or before November 12, 2007. Plaintiff has failed to provide any response to defendant’s Request for Statements of Damages. Defendant respectfully requests this court to issue an order compelling plaintiff to provide a statement of damages. (See Part 2 of 2.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.