Sacramento Car Accident Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)

Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer 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 required 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. In this case, Dr. Brown and Dr. Smith testified in their depositions as to their observations and opinions and they should not be limited by defense counsel's failure to conduct a more thorough deposition, as is common in a personal injury case.

DEFENDANTS' MOTION IS PRECISELY THE TYPE CRITICIZED BY THE COURT IN KELLY VS. NEW WEST FEDERAL SAVINGS

An important recent case on in limine motions, Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, addressed itself to precisely this type of motion and expressly found that such motions are not proper. The Court stated as follows at pages 670-673:

[M]any of the motions filed by Amtech were not properly the subject of motions in limine, were not adequately presented, or sought rulings which would merely be declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses. For example: MIL No.7, previously referred to, sought to limit the opinions of plaintiffs' experts to those rendered at deposition and in written reports. Again, there was no supporting evidence to suggest what opinions had been rendered at the depositions, leaving the court and the parties to guess what opinions during trial may be included within the scope of the ruling.

Continue reading "Car Accident Victim From Sacramento Catastrophically Injured, Part 4 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)

THE AUTHORITIES CITED BY THE DEFENSE ARE NOT APPLICABLE TO THE FACTS OF THIS CASE

Defendants' reliance on Kennemur v. State of California, (1983) 133 Cal.App.3d 907 is misplaced. Even a cursory review reveals the case to be inapposite.

In Kennemur, the plaintiff's expert, Dr. Mitchell, 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. He specifically stated that he was not and would leave that to a different expert He 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 his 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.

The issue before the Court was not whether Dr. Mitchell could testify to areas into which opposing counsel had failed to delve but rather whether he could testify on accident reconstruction issues abut which he was specifically asked and had stated he had no opinion.

Continue reading "Sacramento Auto Accident Victim Battles Experts, Part 3 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)

In addition, Defendants' blanket and vague Motion in Limine is inappropriate. They have not set forth or highlighted any specific testimony they seek to exclude. As set forth in Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, Motions in Limine which are declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses are inappropriate. Id. at 670.

Further, the defendants have inaccurately claimed that they have not been provided with Dr. Smith's raw data. This is simply not the case; Plaintiff's counsel has confirmed that Defendants' expert, Dr. White, has been in receipt of said raw data since October 19, 2005. Consequently, as set forth herein, Defendants' Motion is inappropriate and should be denied.

THE DEFENSE INTERPRETATION OF THE LAW WOULD REWARD DEFENDANTS FOR TAKING INSUFFICIENTLY THOROUGH DEPOSITIONS

Defendants are asking the Court to preclude an expert from saying anything that he has not already said in his deposition. This is clearly contrary to the law and would create a possible loophole in the expert discovery statute. A defendant would simply have to ask very few questions and thereby block the expert from testifying about anything other than what he was asked. Surely the Defendants cannot possibly be asking the Court to make such a ruling in such a horrific personal injury case.

Continue reading "Sacramento Man Suffers Brain Injury In Car Accident, Part 2 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)

This Opposition will be based upon this Notice, the attached Memorandum of Points and Authorities, any supplemental briefs submitted on the issues, as well as on the pleadings, papers, files, and records in this matter, and upon such other further documentary and oral evidence as may be presented at the hearing on this matter.

(1) Plaintiffs' experts are allowed to respond to the opinions given by Defendants' experts, especially where the Defendants' experts were deposed after the Plaintiffs' experts; and

(2) Counsel should be allowed the right to present all relevant evidence which will assist the jury. There is no basis for a restriction based on an abstract in limine ruling.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff opposes the Motion in Limine #1 submitted by Defendants to the extent that it seeks to exclude testimony of Plaintiffs' experts that either the Defendant did not elicit from the expert at the time of deposition, or constitutes comment or opinion regarding the testimony of opposing experts.

California Code of Civil Procedure section 2034(j) governs the exclusion of expert testimony. A Court may exclude testimony of an expert only if a party did not list the witness as an expert, did not submit an expert witness Declaration that complied with the expert information disclosure statute, did not produce the expert's reports, or did not make the expert available for deposition. California Code of Civil Procedure § 2034(j); Bonds v. Roy (1999) 20 Cal.4th 140.

Continue reading "Sacramento Man In Horrific Car Accident, Part 1 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Thus, the court determined it was proper to place the entire medical charges before the jury, as better evidence of the degree of harm, and effect a post-verdict reduction of damages to account for the difference between the amounts paid by private health insurance and the amounts billed by the health care provider.

Nishihama is not dispositive. To the extent that Olszewski limited Hanif's application to the Medi-Cal context, it implicitly overruled Nishihama's extension of Hanif to the realm of private insurance. Moreover, the Supreme Court reserved the issue in connection with private insurers. In Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595, 611, fn. 16, the Court explicitly declined to reach the question of whether Olszewski and Hanif "apply outside the Medicaid context and limit a patient's tort recovery for medical expenses to the amount actually paid by the patient notwithstanding the collateral source rule."

Regardless of whether this Court agrees with Nishihama, it does not alter the fact that under the collateral source rule the tortfeasor should be precluded from reducing the injured plaintiff's recovery because his or her insurer was able to contract with the health care provider to treat Plaintiff below its normal rates.

Continue reading "Jury's Damage Award In Sacramento Car Accident Case Subject To Court's Scrutiny, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

(More re Medi-Cal payment ruling challenge.)

However, in Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 826-817, the Supreme Court expressed disapproval of restricting a tort victim's medical specials to the amounts paid by Medi-Cal. The Court recognized that the tortfeasor escapes liability for the full amount of the medical expenses he or she wrongly caused. Such a result benefits the tortfeasor at the expense of the blameless provider and harms society as a whole. The Court urged the Legislature to remedy this inequity. Id. at 827. These policy reasons favor following the collateral source rule over the appellate courts' disregard of that rule.

In Nishihama, supra, 93 Cal.App.4th 298, another appellate court extended the Hanif limitation beyond Medi-Cal to private insurance without distinguishing the collateral source rule. In Nishihama, the injured plaintiff'sought recovery of medical expenses which had been paid by her employer-obtained medical insurer (Blue Cross). That insurer in turn had negotiated for reduced rates (i.e. rates below what is ordinarily charged) at the facility where the plaintiff was treated. The jury awarded the plaintiff damages based on what the facility ordinarily charged. In the context of discussing whether the plaintiff could recover damages based on the hospital's ordinary rates, the court first observed:

A plaintiff in a personal injury action is entitled to recover from the defendant tortfeasor, the reasonable value of medical services rendered to the plaintiff, including the amount paid by a collateral source, such as an insurer. As medical expenses fall into the category of economic damages, they represent actual pecuniary loss caused by the defendant's wrong. Id. at 306.

Continue reading "Sacramento Car Accident Victim Fights Reduced Damage Award, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

COURTS DISCUSSING LIEN RIGHTS HAVE IMPROPERLY ERODED THE COLLATERAL SOURCE RULE

While it appears uniform that under the collateral source rule a tortfeasor is not entitled to introduce evidence that the injured plaintiff has insurance for purposes of proving that the plaintiff has not been injured to the extent an insurer has already paid for those injuries, some appellate courts have either directly or indirectly ruled that the tortfeasor is able to introduce evidence of the amount the plaintiff's insurer has paid in order to cap the amount of the plaintiff's recovery. These courts have reasoned that if the insurer has a separate agreement with the health care provider to furnish medical care at a rate below what is normally charged, then that reduced rate becomes the plaintiff's true damages for purposes of fixing his or her recovery.

The first reported case to take this path was Hanif, supra, 200 Cal.App.3d 1635. There, in the context of an action where the injured plaintiff's medical care was paid for by Medi-Cal, the court initially explained:

Preliminarily, we note there is no question here that Medi-Cal's payment for all injury-related medical care and services does not preclude plaintiff's recovery from defendant, as special damages, of the amount paid. This follows from the collateral source rule.
Id. at 640.

However, without any further reference to the collateral source doctrine, the court proceeded to reason:

Continue reading "Sacramento Auto Accident Victim Challenges Medi-Cal Payment Ruling, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

California's Legislature has recognized the collateral source rule by carving very limited exceptions to that rule which are meaningful only if the rule itself exists. For example, Government Code § 985 sets forth a detailed procedure for when a public entity provides collateral services to an injured plaintiff. That section is applicable only where the public entity is a defendant. It allows the court, post-verdict, to consider giving the public entity credit for the collateral source payments, after taking evidence concerning the nature of the benefits and plaintiff's reimbursements obligations.

The statute makes clear that "[a]ny collateral source payment paid or owed to or on behalf of a plaintiff'shall be inadmissible in any action for personal injuries or wrongful death where a public entity is a defendant." The public entity can seek recovery of collateral benefits following a verdict which includes "damages for which payment from a collateral source listed below has already been paid or is obligated to be paid for services or benefits that were provided prior to the commencement of trial..." Id.

Likewise, the Legislature also created a statutory exception to the rule for medical malpractice defendants when it enacted it as an aspect of MICRA (Civil Code § 3333.1, et. seq.). As with the public entity exception, the Legislature crafted a compromise procedure for the evidentiary handling of the exception, and accompanied the change with fundamental changes in the structure of attorney's fees and general damages in medical malpractice cases. Specifically, the MICRA statutes provide the plaintiff an opportunity to introduce a host of relevant and admissible evidence as to the reasonable value of the medical services provided, including not simply the billed charges, but also evidence of the premiums paid to secure health insurance benefits and other evidence of the reasonable value of those services.

Continue reading "Huge Wage Loss At Center Of Sacramento Auto Accident Case, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

THE COLLATERAL SOURCE RULE IS UNQUESTIONABLY THE CONTROLLING LAW IN CALIFORNIA

The collateral source doctrine has been the rule in California since at least 1925. Clark v. Burns Hamman Baths (1925) 71 Cal.App. 571, 575. The doctrine "expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities." Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 10. The California Supreme Court explained the rationale behind the rule: if the tortfeasor were allowed to mitigate damages with payments from plaintiff's insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. The defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance. Id. at 10.

The Court elaborated on the related rule prohibiting the introduction of collateral source evidence, citing to Hrnjak, supra, 4 Cal.3d 725. In Hrnjak, the trial court allowed the defendant in a personal injury action to introduce evidence that the plaintiff had received insurance benefits, asserting the evidence was relevant to the plaintiff's motives in seeking medical help and his credibility as a witness. Id. at p. 728. The Supreme Court held that this ruling was an abuse of discretion under Evidence Code § 352 because [e]ven with cautionary instructions, there is substantial danger that the jurors will take the evidence into account in assessing the damages to be awarded to an injured plaintiff.

Continue reading "Sacramento Man Challenges Damages Ruling In Car Accident Trial, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

RECENT CASE AUTHORITY CONFIRMS THAT THE TOTAL AMOUNT OF A PLAINTIFF'S MEDICAL BILLS ARE ADMISSIBLE

In Olsen, supra, WL 2486789, plaintiff was injured by defendant's motorized wheelchair and incurred over $62,000 in medical expenses. The court granted plaintiff's motion to present the full amount that her providers billed her for treatment and denied defendant's motion to introduce the amount actually paid. After trial, the court reduced the jury's verdict to the amount actually paid on plaintiff's behalf.

The appellate court held that this reduction was in error because there was insufficient evidence of what amount was paid, "written off" and remained to be owed. However, the court further held that the full amount of plaintiff's medical charges was properly presented to the jury, citing Nishihama's explanation that the usual rates billed was a stronger indicator of the extent of a plaintiff's injuries than the specially negotiated rates obtained by an insurance company.

In Greer, supra, 141 Cal.App.4th at 1152-1153, the plaintiff was seriously injured in an automobile accident. His medical bills were $216,000. Plaintiff's employer paid plaintiff's health care providers $132,000, satisfying plaintiff's entire medical tab. Prior to trial, defendant moved in limine to exclude evidence of medical expenses that exceeded the amount paid on plaintiff's behalf to his medical providers.

Continue reading "Court Reduced Sacramento Man's Car Accident Award After Trial, Part 3 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Second, Nishihama violates the California Supreme Court decisions of Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729, 734 and Helfend v. So. Calif. Rapid Transit Dist. (1970) 2 Cal.3d 1, 4 which have unequivocally confirmed the application of the collateral source rule in California. To rule otherwise would ignore the historical importance of the collateral source doctrine and the principle of stare decisis. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ( Under doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction; decisions of Supreme Court are binding upon and must be followed by all California state courts... Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court .).

Third, even defendant's expert Lee Brown testified that although he intends to testify that the reasonableness of the bills is merely the adjusted amount accepted by the facilities, he has no way of knowing for sure what that amount is. Consequently, there is no basis to limit the introduction of the total amount billed to the Plaintiff.

Fourth, the prejudicial effect of introducing reduced medical bills to the jury would undermine Plaintiff's claim for personal injury damages. If, for example, the jury is informed that Plaintiff's medical bills are substantially less than the $278,000 which were charged by his health care providers, that fact may diminish Plaintiff's general damages claim in the jury's eyes and reduce his general damages award.

Continue reading "Auto Accident Leaves Sacramento Man With Huge Damages, Part 2 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

PLAINTIFF’S TRIAL BRIEF REGARDING INTRODUCTION OF HIS MEDICAL BILLS
MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY OF FACTS AND ARGUMENT

This is an admitted liability case.

Plaintiff Billy White’s vehicle was rear-ended at high speed by defendant Thomas Smith’s vehicle as Mr. White was stopped at a lighted intersection in Sacramento. Plaintiff' suffered a serious low back disc herniation at L5-S1, which eventually required a fusion surgery. He may need future revision procedures. Plaintiff’s medical bills exceed $278,000. His loss of earnings exceeds $600,000-$750,000.

Defendants want to restrict evidence of Plaintiff's medical specials at trial to the contract rate the healthcare providers accepted from Plaintiff's health insurance carrier pursuant to Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298.

The motion should be denied for the following reasons:

First, recent judicial decisions affirmed the right of a plaintiff to introduce the full amount of her medical bills notwithstanding that they exceeded the amount paid by insurers to plaintiff's medical providers. In Olsen v. Reid, 2008 WL 2486789, the court of appeal "squarely rejected" defendant's argument that the jury should be barred from hearing evidence of the full measure of plaintiff's medical damages. Similarly, in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157, the court permitted Plaintiff to present the full amount that was billed to him, subject only to a possible post-verdict reduction.

Continue reading "Sacramento Man Sues To Recover Damages After Auto Accident, Part 1 of 8" »