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 car accident/personal injury case and its proceedings.)

Moreover, the Notice of Independent Medical Examination of plaintiff expressly states: Further, the scope of said examination shall include and require a history to be given by plaintiff, as well as possible X-rays and any and all clinical and laboratory tests as required by the examining physician. Such X-rays are necessary in light of plaintiff's alleged orthopedic injuries and claim of post-trauma arthritis.

This is clearly improper and grounds for objection. As stated by Weil & Brown, supra, Questioning plaintiff regarding medical history? The statute mentions only a physical examination. Nothing is said about the right to question the plaintiff regarding his or her injuries or prior medical history. Id., § 8:1520. Other demands are improper (e.g., demands for a complete medical history). Plaintiff may object and refuse compliance. Id., § 8:1529.

As for X-rays, Weil & Brown is again instructive:

Limit on X-rays: The Discovery Act reflects public concern regarding excessive exposure to X-rays. It allows an examinee to avoid submitting to X-ray examination by giving the examiner access to existing X-rays of the same portion of the examinee's body. In such event, no additional X-rays may be taken without the examinee's consent or on court order for good cause shown. [Ca Civ Pro § 2032.520]. Id., § 8:1580.

Finally, one of the terms by which Plaintiff agreed to submit to the defense medical examination was that Plaintiff's counsel receives a copy of the report, including any record review, within five days of the Defendants' receipt of said documents. Defendants' counsel would not agree to provide a copy of any record review, but merely with a copy of the "IME report." This is clearly improper, as the plaintiff is entitled to receive a copy of the full report. CCP § 2032.610.

Continue reading "Highly Improper X-Rays Demanded Of Sacramento Car Accident Victim, Part 5 of 5" »

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

PLAINTIFF'S OBJECTIONS TO DEFENDANTS' NOTICE OF MEDICAL EXAMINATION OF PLAINTIFF ARE WELL-FOUNDED

The relevant declarations and exhibits thereto paint a clear picture of the Defendants' intransigent refusal to comply with Code of Civil Procedure §§ 2032.220 and 2032.610, necessitating plaintiff's proper objections.

Plaintiff's Notice of Objection set forth objections to defendants' Notice of Independent Medical Examination, specifically that (a) the examination of a doctor chosen by the defense is not an independent medical examination, but rather a defense medical examination; (b) the date of the examination had not been cleared with Plaintiff or his counsel prior to its setting; (c) the statement defendant is informed and does not believe any clinical or laboratory testing will be necessary is ambiguous, as the statement must state that no clinical or laboratory testing will be performed; (d) x-rays as requested will not be allowed as said x-rays have not been shown to be necessary or indicated; and (e) the clinical and laboratory requests referred to in defendants' Notice will not be allowed as they are not indicated and such testing is inconsistent with the statement in their notice that "defendant is informed and does not believe any clinical or laboratory testing will be necessary."

The propriety of plaintiff's objection to calling the medical examination an "independent medical examination" or "IME" is obvious. Since the examining physician was chosen solely by the defendants and is paid by the Defendants, there is nothing "independent" about his examination of plaintiff, and to suggest by nomenclature that it is "independent" is deliberately misleading and deceptive. (Evidence Code § 352.)

Continue reading "Sacramento Car Accident Defendants Demand Intrusive Medical Exam, Part 4 of 5" »

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

There is no statutory authority permitting Defendants to apply ex parte for an order compelling the medical examination of the Plaintiff, thus Defendants' Ex Parte Application for such an order is fatally defective. Additionally, since Defendants' proposed Notice of Motion and Motion to Compel, submitted concurrently with their Ex Parte Application, fails to state the time, place, identity and specialty of the examiner, and the "manner, conditions, scope and nature of the examination" as required by CCP § 2032.310(b), and also fails to include a separate statement of disputed matters setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled, as required by California Rules of Court Rule 335(a)(6), it too is fatally defective.

It would be anomalous, if not absurd, to grant Defendants' request for an order shortening time to hear a noticed motion to compel that is, in and of itself, procedurally improper and defective.

Moreover, because the date noticed by Defendants for the medical examination of the Plaintiff, on October 24, 2006, has not yet arrived, Defendants' motion would in any event be premature because the issue has not yet ripened. Plaintiff has indicated to Defendants that he will submit to a defense medical examination provided that Defendants comply with the code sections governing medical examinations.

Continue reading "Defense Medical Examination Request Causes Dispute In Sacramento Car Accident Suit, Part 3 of 5" »

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

Finally, defendants' Ex Parte Application for an Order to Continue Trial, Discovery Cut-Off and Time to Designate Expert Witnesses is without merit, as there is no reasonable basis for the relief they are seeking. If defendants would simply agree to conduct their medical examination of the plaintiff in conformity with the code requirements, there is no reason why the defense medical examination of plaintiff cannot proceed on October 24, 2006, thereby obviating the need for any continuance. If, on the other hand, defendants remain steadfast in their refusal to comply with the Code as it relates to the scope and conduct of defense medical examinations, their position can only be construed as a stalling tactic to avoid mediation and trial.

Such tactics do not warrant continuances that would be substantially prejudicial to the Plaintiff, who is prepared to participate immediately in a meaningful mediation in an effort to settle this case and, if necessary, to proceed to trial. The plaintiff should not be further prejudiced by Defendants' transparent stalling tactics. Accordingly, Defendants' Ex Parte Application for a Continuance of Trial, Discovery Cut-Off and Time to Designate Expert Witnesses should also be denied in its entirety.

A MOTION TO COMPEL A MEDICAL EXAMINATION CANNOT BE MADE EX PARTE; IT REQUIRES ADHERENCE TO NOTICED MOTION PROCEDURE

Code of Civil Procedure § 2032.250(a) states:

Continue reading "Sacramento Automobile Accident Victim Fights Intrusive Exam, Part 2 of 5" »

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

PLAINTIFF MILTON WHITE’S COMBINED OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF
MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Defendants' Ex Parte Application to Compel the Independent Medical Examination of plaintiff, is both procedurally defective and premature, and should thus be denied in its entirety. Defendants' motion to compel cannot be made on an ex parte basis, but requires a noticed motion. Defendants' motion is also premature, as the date noticed for the medical examination of car accident victim plaintiff Milton White has not yet arrived.

Further, defendants' proposed motion to compel submitted with their Ex Parte Application is equally defective, in that it fails to state the time, place, identity and specialty of the examiner, and the manner, conditions, scope and nature of the examination as required by CCP § 2032.310(b), and also fails to include a separate statement of disputed matters setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled, as required by California Rules of Court Rule 335(a)(6).

Additionally, defendants' request for monetary sanctions must be denied, not only because of the procedural impropriety of their Ex Parte Application, but also because the prejudice they complain of was visited upon themselves by their own dilatory conduct and their stubborn refusal to adhere to the statutory requirements governing the scope and conduct of defense medical examinations.

Continue reading "Sacramento Car Accident Victim Refuses Unnecessary Medical Exam, Part 1 of 5" »

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

Plaintiff has a long medical history of complaints regarding his lower back, neck, and left leg. Plaintiff was involved in an automobile accident in 1991, during which he reported sustaining back and neck injuries. He received three months of orthopedic treatment following this incident. Plaintiff also reported experiencing back and neck pain after a September 1995 automobile accident. Plaintiff saw a chiropractor for six months following the 1995 incident. Plaintiff later was involved in a mountain bike accident in 2002 following which he reported experiencing back pain. He received five months of chiropractic treatment after the biking accident.

On August 2, 2003 -- just one year prior to the subject accident -- plaintiff was involved in a rear end automobile accident during which he purportedly sustained soft-tissue, lower back and left leg injuries. Plaintiff received five months of treatment for back and left leg pain. An MRI was taken on November 11, 2003, and revealed mild stenosis due to a disc herniation at L2-3 as well as a posterolateral extrusion at L4-5, which probably was hitting the left nerve root causing the dorsal and plantar foot pain in the lower left extremity. Plaintiff underwent three epidural blocks between November and December 2003. Plaintiff eventually settled the claim against the driver who rear-ended his vehicle through the driver's auto insurer.

After the subject accident in September 2004, plaintiff consulted with an orthopedic surgeon, Dr. Mick Greene. Records subpoenaed from Dr. Greene reflect plaintiff admitted his belief that the August 2003 accident was the inciting event for his current complaints regarding back and left leg pain. However, plaintiff claims he was essentially asymptomatic at the time of the September 2004 accident, and that the subject accident re-exacerbated his symptoms.

Continue reading "Sacramento Man Suffers Back Injury In Car Accident, Part 5 of 5" »

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

Miranda Towing has also been named as a defendant and cross-defendant based upon its position as the employer of Mr. Brown. Liability may be imposed against Miranda Towing under the permissive-user statute (Cal. Vehicle Code § 17150) and/or as the principal or employer of a negligent operator under the doctrine of respondeat superior. (See Vind v. Asamblea Apostolica, Christo Jesus (1957) 148 Cal.App.2d 597, 602-604.)

With regard to Vehicle Code § 17150, that statute provides that owners of a motor vehicle may be held liable for injuries to person or property resulting from a negligent or wrongful act or omission in the operation of a motor vehicle by any person using or operating the same with the permission of the owner. However, such liability is limited to the amount of $15,000 for the injury to one person in any one accident. (Cal. Vehicle Code § 17153.)

DAMAGES

Plaintiff's Claimed Injuries And His Extensive History Of Back, Neck, And Leg Pain

Plaintiff, who is 54-years-old, alleges he sustained injuries to his lower lumbar region and left leg as a result of the subject automobile collision. He claims he has pain down the left side of his leg to his foot, and pain in his left calf. He further claims he suffers tingling from his left knee to the bottom of his foot. He also complains of numbness on the bottom of his left foot.

Continue reading "Employer Sued For Sacramento Automobile Accident, Part 4 of 5" »

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

The investigating officer could not make a determination of which party was most at fault due to the lack of physical evidence or an independent witness. None of the parties were cited as a result of the accident. The traffic collision report notes the parties stated that the driver of a red pick-up truck may have been a witness to the incident. However, none of the parties obtained the witness's contact information. Plaintiff confirmed during his deposition that he did not speak to the driver of the red pick-up truck after the vehicles pulled over following the multi-car collision.

Plaintiff commenced this action on September 9, 2005 by filing a complaint for personal injury damages against Mr. Lee, Paul Black, and Universal Market Service, Inc. Paul Black and Universal Market Service were named as the employers of Mr. Lee under a vicarious liability theory. Mr. White has filed Doe amendments to the complaint and named Mr. Brown and Miranda Towing.

On December 20, 2005, Mr. Lee, Paul Black, and Universal Market Service filed a cross-complaint for comparative indemnity and declaratory relief against Mr. Brown and Miranda Towing. An amendment to the cross-complaint named Miranda Towing.

On April 5, 2006, Miranda Towing and Mr. Brown answered the complaint and cross-complaint, and filed a cross-complaint for comparative fault, indemnity, and declaratory relief against Mr. Lee, Paul Black, and Universal Market Service.

Continue reading "Injured Sacramento Man Sues Towing Company After Car Accident, Part 3 of 5" »

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

SUMMARY OF THE FACTS

This matter stems from a three-car accident which occurred on September 21, 2004 at approximately 9:30 a.m. on the eastbound side of the 5 freeway in the city of Sacramento. At the time of the accident, Jack Brown was driving alone in the course and scope of his employment with Miranda Towing in a 1993 Chevy tow truck. Mr. Brown was traveling in the number five of six lanes eastbound on the 5 freeway.

Tony Lee was alone in his 2002 Ford Ranger and was in the number four lane on the eastbound side of the 5 freeway. Plaintiff Milton White was alone in his 1979 Porsche and was in the number three lane on the eastbound side of the 5 freeway.

Mr. Brown was traveling in the number five lane at approximately 60 miles per hour when a large tractor trailer started merging into his lane from the right. In order to avoid the merging tractor trailer, Mr. Brown activated his turn signal and moved his vehicle into the number four lane, which was occupied by Mr. Lee's Ford. Mr. Brown looked in his rear-view mirror and saw Mr. Lee's Ford prior to making his lane change and there was plenty of room for him to move safely. After Mr. Brown merged into the number four lane, he watched Mr. Lee's vehicle in his rear-view mirror.

Continue reading "Multi-Car Accident Injures Sacramento Drivers, Part 2 of 5" »

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

MIRANDA TOWING AND JACK BROWN’S TRIAL BRIEF

STATEMENT OF THE CASE

This lawsuit arises from a vehicular accident which occurred on September 21, 2004, at approximately 9:30 a.m. on the eastbound side of the 5 freeway in the city of Sacramento. The accident occurred when a Ford Ranger driven by defendant Tony Lee sideswiped a Porsche driven by plaintiff Milton White. Mr. Lee claims that he was cut off by a tow truck driven by Jack Brown which caused him to sideswipe plaintiff's Porsche, although the tow truck did not strike either vehicle. Plaintiff has sued Mr. Lee and his employer(s): Paul Black and Universal Market Service, Inc., Mr. Brown and his employer, Miranda Towing, as defendants.

Mr. Brown is not responsible for causing the accident. The evidence shows that the subject accident was solely caused by Mr. Lee. Just prior to the collision, Mr. Brown activated his turn signal and safely moved his vehicle from the number five lane into the number four lane. Mr. Brown looked in his rear-view mirror and saw Mr. Lee's Ford prior to making his lane change and there was plenty of room for him to move safely.

After Mr. Brown merged into the number four lane, he watched Mr. Lee's vehicle in his rear-view mirror. Mr. Lee continued to approach the rear of Mr. Brown's vehicle at a high rate of speed. As Mr. Lee reached the rear of Mr. Brown's vehicle, Mr. Lee applied his brakes suddenly and swerved into the number three lane, striking plaintiff's vehicle.

Continue reading "Sacramento Man Injured On The 5 Freeway In Car Accident, Part 1 of 5" »