Sacramento Car Accident Lawyer Blog

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 versus bus accident lawsuit and its proceedings.)

Orthopedic Exam:

Dr. Stanley Lee met with the plaintiff on April 13, 2009. The defense concedes that plaintiff fractured her right ankle during the accident sequence. The defense also concedes that the surgery performed on her right knee on February 2, 2006 relates to the accident as well. However, we do not concede that the left knee surgery on October 9, 2009, has any relation to the vehicular accident.

Dr. Lee had an opportunity to meet with the plaintiff prior to her left knee surgery. In his report of April 13, 2009, he concluded that the records do not support a significant injury to her left knee and surgical intervention on her left knee was not indicated, in his opinion. Nonetheless, the surgery was performed six months later. Dr. Lee did not find medical evidence to support that she sustained an injury to her left leg during the accident sequence. As it turns out, plaintiff was having problems with her left knee (and with her right knee as well) prior to this accident, and Dr. Lee believes that the surgery of October 9, 2009 more relates to a trip and fall that the plaintiff sustained years ago rather than to the vehicular accident.

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

Continue reading "Sacramento Bus Accident Victim Needs Multiple Surgeries After Collision, Part 7 of 7" »

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 versus bus accident lawsuit and its proceedings.)

DEFENSE MEDICAL EXAMINATIONS

Because of plaintiffs spectacular litany of injuries, she was sent for a neurological examination in March of 2009, and an orthopedic examination in April of 2009. The results of those examinations are set forth below.

Neurologic Exam:

The first examination was performed by orthopedist, Dr. Daniel Stein, at University Health Care. When he examined the plaintiff, she exhibited decreased touch along her right arm and hand. Due to the pattern of claimed sensory loss, Dr. Stein felt that the plaintiff had a credibility issue in this regard. He also had very serious concerns about her claims of cognitive loss. She told Dr. Stein that she had a photographic memory for her entire life, and she went on to describe the various cognitive problems she was having. Dr. Stein felt that the complaints were not credible.

Such devastating symptomatology could be characterized in severe traumatic brain injury cases, but even then, the features described by the plaintiff would be unexpected. It was the opinion of Dr. Stein that her brain injury claims are unreasonable in relation to this particular event and that her cognitive issues are not associated with brain trauma or head trauma.

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

Continue reading "Sacramento Woman Suffers Traumatic Brain Injury In Collision With Bus, Part 6 of 7" »

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 versus bus accident lawsuit and its proceedings.)

Back Pain:

Plaintiff claims pain throughout her entire back. The pain is there all the time. Only the degree of pain varies.

Again, plaintiff believes that all of her back pain is as the result of the subject accident. The pain is concentrated in her upper back and in her lower back, but they both radiate into her midback.

Hearing Problems:

Plaintiff wears a hearing aide in her left ear. She believes her level of hearing has decreased as a result of the accident. She has tinnitus in her left ear.

Sleep Problems:

Plaintiff does not claim a problem going to sleep, but she wakes up almost every night for one of two reasons. First, she often experiences cramping which can affect her back, her hips or her legs. When that happens, she has to get up and walk around, and the cramping is alleviated. Other times she is awakened by nightmares associated with the collision of October 17, 2008.

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

Continue reading "Car Accident Victim From Sacramento Suffers Catastrophic Injuries, Part 5 of 7" »

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 versus bus accident lawsuit and its proceedings.)

Hips:

Because of the pain and problems in her right ankle and right knee, she started to walk with an unnatural gait. This created pain in her hips. Now, however, she concentrates on walking with an appropriate gait, and the pain in her hips is going away.

Neck Pain:

The plaintiff experiences neck pain every hour of every day. The more active she is, the greater the pain. Sometimes it is a sharp pain, and other times it is a dull ache.

Headaches:

Plaintiffs neck pain seems to be associated with headaches. She has constant headaches dispersed throughout her head. The back of her head adjacent to her neck aches, but she also gets headaches toward the front and top of her head as well. For a while, doctors tried her on migraine medications, but they did not help. She claims that the migraine medication caused severe side affects that actually made things worse.

Vision Problems:

When plaintiff was first deposed in October of 2008, she described incidents where she would lose sight in both eyes as if a black curtain was descending over her eyeballs. In 2010, she described the problems with her vision a little differently.

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

Continue reading "Sacramento Car Accident Victim Suffers Multiple Injuries In Crash, Part 4 of 7" »

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 versus bus accident lawsuit and its proceedings.)

The right knee operation was performed on February 2, 2009, at Sacramento Orthopedic Center. An arthroscopy of her right knee was performed. She had a torn medial meniscus and chondromalacia. An MRI of her right knee had been performed on December 7, 2008, and showed a 1.5 centimeter horizontal tear of the posterior horn to the medial meniscus.
It was Dr. Hank Gold who recommended that plaintiff have surgery on her left knee. This recommendation was made by way of an agreed medical examination performed on August 23,2008. Even with that, however, surgery was not performed until two years later on October 9, 2009. On that date, Dr. Paul Brown of XYZ Surgery Center in Sacramento performed an arthroscopic repair to a meniscal tear of plaintiffs left knee. It is this surgery which defendants contend does not relate to the subject accident.

PLAINTIFF'S OTHER COMPLAINTS

Plaintiff was last deposed on January 12, 2010. In that deposition, she set forth her injuries as follows:

Left Knee:

As indicated above, plaintiff underwent surgery on her left knee on October 9, 2009. Plaintiff claims that the left knee is completely numb, and she cannot feel anything in it.

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

Continue reading "Auto Accident Requires Orthopedic Surgery For Sacramento Woman, Part 3 of 7" »

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 versus bus accident lawsuit and its proceedings.)

PLAINTIFF'S EMPLOYMENT

At the time of the incident, the plaintiff was in the course and scope of her employment with Target. Her trip began at the Target store on Madison in Sacramento. She was on her way to the Target Store in Sacramento.

Approximately six months before the accident, in early 2008, plaintiff became a support manager with Target. She wanted to become a supervisor.

As support manager, she was responsible for trouble shooting all departmental positions. She did computer work and generally worked from the middle afternoon until 11:00 p.m. when the store closed.

At the time of the accident, Ms. Anderson was earning $9.80 per hour. She wanted to enter the Assistant Manager Training Program. If she successfully completed that program, she testified that she would earn $14.00 per hour.

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

Continue reading "Woman Suffers Broken Ankle When Her Car Was Struck By Sacramento School Bus, Part 2 of 7" »

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 versus bus accident lawsuit and its proceedings.)

TRIAL BRIEF

Trial Brief of Defendant, Universal Transit, Inc.

THE PLEADINGS

Plaintiff, Robyn Anderson, filed her complaint on August 10, 2009. The complaint contains two causes of action, but they are basically the same. The first is labeled as one for motor vehicle, while the second is labeled as one for negligence. Plaintiff simply asserts that Universal Transit, Inc., is responsible for her injuries and damages because Ellen White operated her school bus in a negligent fashion so as to cause an accident on October 17, 2008.
Universal and Ms. White answered the complaint on September 19, 2009.

FACTS OF THE ACCIDENT

This case arises out of an accident that occurred on Monday, October 17, 2008 at approximately 3:00 p.m., in Sacramento, California. The accident involved a collision between a Universal school bus and a 1997 Ford Taurus automobile which was being driven by plaintiff, Robyn Anderson. Ms. Anderson had a passenger with her at the time, a co-worker by the name of Joanne Li. Ms. Anderson was in the course and scope of her employment with Target at the time of the accident. Consequently, she filed a Workers’ Compensation action as well as this personal injury action.

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

Continue reading "Sacramento Woman Involved In Serious Car Crash With Bus, Part 1 of 7" »

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

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, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. 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, Evidence Code §350 states that (n)o evidence is admissible except relevant evidence. Relevant evidence is defined by Evidence Code §210 as "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."

Evidence Code §352 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. See People v. Cardenas (1982) 31 Cal.3d 897, 904. Evidence Code §402 allows the court to hear and determine the question of the admissibility of evidence outside the presence of hearing of the jury. See Mize v. Atchinson, Topeka v. Santa Fe Ry. Co., (1975) 46 Cal.App.3d 436,448.

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

Continue reading "Sacramento School Bus Driver Causes Car Accident, Part 2 of 2" »

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.)

Plaintiff Robyn Anderson’s Motion in Limine #4 to Exclude Argument or Reference to the Defense Medical Expert as Independent or to Use the Term Independent Medical Examination

Plaintiff respectfully moves the Court for Orders in Limine prohibiting attorneys for all parties from referring to the defense medical expert as independent or to use the term independent medical examination.

This motion is made on the ground that the described order is necessary to ensure that the plaintiff will be accorded a fair trial, and that the trial record in this case will not be tainted, and that the comment or reference to the defense hired expert witnesses as independent creates a substantial danger of prejudice and confusion, and would mislead the jury.

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

MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY

On October 17, 2008, while driving a 2002 Universal school bus, defendant Ellen White entered the intersection of Pierson Boulevard and Tulip Drive in Sacramento, in front of plaintiff, Robyn Anderson, who was traveling northbound on Tulip Drive in her 2003 Ford Taurus.

Continue reading "Sacramento Woman Suffers Catastrophic Injuries In Car Accident, Part 1 of 2" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

PROCEDURES FOR GRANTING A NEW TRIAL

In listing the grounds for granting a new trial, the court should parallel the language of Civil Code of Procedure section 657 as closely as possible. (Mercer v. Perez (1968) 68 Cal.2d 104, 111.) The court must specify in writing the grounds for its decision to grant a new trial, either by minute order or by order signed by the court and filed by the clerk. (Code Civ. Proc. §§ 657, 660.)

In addition to specifying the grounds supporting its decision, the court must specify its reasons for granting a new trial on each of the grounds stated in its order. (Code Civ. Proc. § 657; Mercer v. Perez, supra, 68 Cal.2d at 111.) The specification of reasons must be in writing, oral statements will not suffice. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 62.)

If the court's specification of reasons is not contained in the order granting the new trial, the 10-day period for filing a separate specification of reasons runs from the date the minute order granting a new trial is entered (even if written order is later signed and filed). (Code Civ. Proc. § 657.) The 10-day period may extend beyond the 60-day period for ruling on a new trial motion. (Code Civ. Proc. §§ 657, 660.)

Continue reading "Sacramento Woman Awarded Damages For Brain Injury After Bus Accident, Part 11 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

Nonetheless, Dr. Sutton, plaintiff's vocational rehabilitation expert, testified concerning plaintiff's future earning capacity and potential lost earnings based on the unsupported assumption that plaintiff would have returned to work full time in the CAD industry. Dr. Sutton's conclusions regarding plaintiff's potential future earnings a CAD drafter, placing her in the 90th percentile in terms of salary, were based on speculation and conjecture. Moreover, Dr. Sutton made these assumptions about plaintiff's future salary without knowing or evaluating what her salary rank had been the last time she was employed in the AutoCAD field. While plaintiff returned to school after being laid off from her position as a drafter to study English and accounting, she had not formally upgraded her CAD certifications.

Therefore, Dr. Sutton's opinions regarding plaintiff's potential future lost wages were based on pure speculation and cannot serve as a basis for the jury's award. The evidence was not sufficient to support that plaintiff would have been able to successfully change jobs and would have advanced to the position of a senior CAD drafter.

Continue reading "Jury Awards Huge Damages To Sacramento Bus Collision Victim, Part 10 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

Here, the jury's award of $15.1 million in non-economic damages is excessive in light of the evidence and should be reduced by the court. While the evidence established that plaintiff suffered a severe brain injury, there was no evidence that plaintiff's injury is so debilitating that she cannot function or perform daily activities. Kim Hind, plaintiff's treating occupational therapist, testified that plaintiff was able to exercise independently, prepare and eat breakfast independently, could follow simple directions, was able to select clothes and dress without assistance as well as perform personal hygiene without assistance. Ms. Hind also testified that plaintiff was able to do laundry, vacuum, swim, and write checks all with minimal assistance. Plaintiff is ambulatory and able to walk without the assistance of a wheelchair, a walker, or any other device.

In light of plaintiff's abilities to perform numerous daily functions that are a part of normal life, an award of $15.1 million in non-economic damages is grossly excessive. It is clear the jury made its award based on sympathy and passion, influenced by trial counsel's improper "golden rule" argument, and not based upon the facts of the case.

Continue reading "Bus Company From Sacramento Hits Pedestrian Causing Brain Injury, Part 9 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

A NEW TRIAL IS WARRANTED BECAUSE THE DAMAGE AWARD IS EXCESSIVE.

This court has the explicit ability to grant a new trial based upon [e]xcessive. . . damages. (Code Civ. Proc., § 657, subd. 5.) The court's discretion is particularly broad when it comes to excessive damage awards. The trial judge not only has the discretion to grant a new trial on the ground of excessive damages, but it is his duty to do so, or to provide for a reduction of the verdict, if under the evidence he believes it to be too large. (Collins v. Lucky Markets, Inc. (1969) 274 Cal.App.2d 645, 652; accord Handelman v. Victor Equipment Co. (1971) 21 Cal.App.3d 902, 909.) If the trial court concludes the jury awarded excessive damages, it may grant a new trial on liability as well as damages. (Collins v. Lucky Markets, Inc., supra, 274 Cal.App.2d 645, 649; accord, Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 443; see Code Civ. Proc. § 657, subd. 5.)

Alternatively, if the court finds excessive damages, it may order a remittitur in an amount that the court in its independent judgment determines from the evidence to be fair and reasonable and condition the denial of a new trial on plaintiffs' acceptance of that reduced sum. (Code Civ. Proc., § 662.5.) In ruling on a motion for new trial for excessive damages, the trial judge sits as an independent trier of fact, not in an appellate capacity. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 933.) This role as a fact finder is conferred on the trial court by Code of Civil Procedure section 662.5.

Continue reading "Pedestrian Hit By Sacramento Bus Sues For Brain Injury, Part 8 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

Well, this temporary job, to go through all these things, being in a coma, don't go home, live in a rehab facility, have folks tell you when to get up, when to go to bed, going through all sorts of therapies, do that for almost two years, what would be a - what would be a fair hourly rate if you have to put in a classified ad to get one person to sign up, if you could, what's an hour worth?

[" But think again about the classified ad. Classified ad: full-time job, thirty years plus, sign up today, sign up today, and you will be expected to do the things that [plaintiff] has had to go through and will have to go through the rest of your life. How many people would sign up for that? "].)

Counsel's argument was nothing more than a thinly veiled attempt to ask each juror personally what he or she would expect as compensation for plaintiff's injuries. Indisputably, counsel's statements amounted to an improper golden rule argument that prejudiced the defense. Defense counsel objected to the improper argument, but the trial court overruled the objection.

Continue reading "Sacramento Bus Accident Victim Suffers Brain Injury, Part 7 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

An argument that asks jurors how much money it would take to trade places with a severely injured plaintiff is impermissible for several reasons. First, "it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence." (Cassim, supra, 33 Cal.4th at 798.) Second, it tends to denigrate the jurors' oath to . . . render a true verdict according to the evidence. (Ibid.) Third, it can "tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing." (Loth v. Truck-A-Way Corp., supra, 60 Cal.App.4th at p. 765.)

During closing argument in this case, plaintiff's counsel asked the jury what amount of money it would take to convince someone, reading a newspaper advertisement, to submit voluntarily to the bus accident and injuries sustained by the plaintiff. Specifically, plaintiff's counsel argued:
Say there is a classified ad in the newspaper that said: temporary job, sign up April the 7th and hold that job almost two years, 24 hours a day, seven days a week. . . . All you have to do: If you see a bus coming at you in the crosswalk, let it strike you, hit your head on the pavement, and then go to San Francisco -- [defense counsel's objection overruled] and then you go to San Francisco General Hospital. . . . So the ad says that after the pressure keeps rising, you just have to submit yourself to craniectomy. They go in and actually remove a part of the skull.

Continue reading "Sacramento Woman Suffers Catastrophic Bus Injuries, Part 6 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

Mr. Stanley's testimony concerning how the bus accident occurred was therefore sufficient to support the inference that plaintiff may have failed to exercise due care. (See Hasson v. Ford Motor Co., supra, 19 Cal.3d at p. 548 [ the fact that evidence is circumstantial does not mean that it cannot be substantial. . . . the jury is entitled to accept persuasive circumstantial evidence even where contradicted by direct testimony ]; see also Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, 310 [the question of plaintiff's comparative fault is for the jury if there is any evidence from which a jury might reasonably conclude that plaintiff failed to exercise due care for her own safety ]; Jarvis v. Southern Pac. Transportation Co. (1983) 142 Cal.App.3d 246, 254-255 [in personal injury action, the issue of contributory negligence was properly submitted to the jury where there was evidence from which the jury could reasonably infer that plaintiff should have heard the sounds or vibrations of the oncoming railroad boxcar].)

This testimony, even if disputed, was sufficient to allow the issue of plaintiff's comparative fault to go to the jury. Accordingly, a new trial should be granted.

A NEW TRIAL IS WARRANTED BECAUSE PLAINTIFF'S COUNSEL'S IMPROPER GOLDEN RULE ARGUMENT ENCOURAGED THE JURY TO AWARD EXCESSIVE PAIN AND SUFFERING DAMAGES.

Continue reading "Sacramento Woman Suffers Permanent Brain Injury, Part 5 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

Steve Black, an eyewitness to the accident, testified that "plaintiff was hit by the front of the bus as she was walking in the crosswalk." However, defendant's accident reconstruction expert, Paul Stanley, testified that, contrary to the eyewitness testimony, the point of impact occurred on the side of the bus, not at the front of the bus. Mr. Stanley explained that, based on the point of impact measured by the police officer at the scene and the location of the bus at rest, plaintiff came into contact with the driver's side of the bus. (Neither the location of the bus at rest, as depicted by plaintiff's photograph, nor the measurements of the police officer were objected to at trial).

Mr. Stanley further testified that, as the bus was turning left, it would have obscured Mr. Black's view of the accident. Most importantly, Mr. Stanley testified that there was nothing between plaintiff and the bus that would have obstructed plaintiff's view of the bus as she was walking toward it:
Q. If you go back two or three or four seconds or five seconds when you are doing your recreation, is there anything between the pedestrian and the bus that would preclude the ability to see the bus?
A. No. None at all
[Q. You've got two eyewitnesses say she was in front of the bus at the time of impact. But you have decided that she walked into . . . the left-hand side of the bus?
A. My hands are tied by the science. Like I said, it's uncomfortable to face a jury and say, look, people are saying front, the physical evidence says side, and there is no physical evidence that lets me put it in front of the bus ].)

Continue reading "Woman Suffers Brain Injury When Hit By Sacramento Bus, Part 4 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

The court erred in removing the issue of comparative negligence from the jury as there was sufficient evidence to support a finding of fault on the part of the plaintiff.

It is well settled that the issue of comparative negligence is a question of fact for the jury where there is sufficient evidence to support an affirmative finding. (See Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 [ Where contributory negligence is asserted as a defense, and where there is "some evidence of a substantial character" to support a finding that such negligence occurred, it is prejudicial error to refuse an instruction on this issue, since defendant is thereby denied a basic theory of his defense ] overruled on other grounds in Soule v. Gen. Motor Corp. (1994) 8 Cal.4th 548, 572.) Ordinarily issues of negligence are jury questions and the court may rarely decide comparative negligence questions without submitting them to the jury. (Maxwell v. Colbum (1980) 105 Cal.App.3d 180, 186.)

Here, defendant stipulated it was negligent and that its negligence was a substantial factor in causing plaintiff's injuries. Defendant, however, did not concede its affirmative defense of comparative negligence and requested that the jury be instructed on the issue of plaintiff's comparative fault. Plaintiff's counsel objected on the basis there was no evidence that could support a finding of fault on the part of the plaintiff. (Ibid.)

Continue reading "Sacramento Pedestrian Catastrophically Injured When Hit By Bus, Part 3 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

A NEW TRIAL IS WARRANTED BECAUSE THERE WAS SUBSTANTIAL EVIDENCE FROM WHICH A JURY COULD CONCLUDE THAT PLAINTIFF WAS COMPARATIVELY NEGLIGENT.

A directed verdict is appropriate only where there is no evidence to support a claim or defense.

A directed verdict is appropriate "only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630; see also Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 479-480.) In determining such a motion, the trial court has no power to weigh the evidence, and may not consider the credibility of witnesses. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 629.)

A directed verdict may not be granted where there is any substantial evidence to support the claim or defense, "no matter how slight it may appear in comparison with the contradictory evidence." (Howard v. Owens Corning, supra, at pp. 630-631; see also Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1149-1150 [even slight evidence in support of a fact to be inferred may be sufficient to allow the issue to go to the jury].)

Continue reading "Bus Accident Leaves Sacramento Woman With Brain Injury, Part 2 of 11" »

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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.

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

Defendant, Universal Bus, LLC respectfully submits the following memorandum of points and authorities in support of their motion for a new trial:

INTRODUCTION

Defendant moves pursuant to CCP § 657 et seq, for a new trial on the claims made by plaintiff Jane Wong, a Sacramento resident. A new trial is warranted because:

1. The jury was not allowed to consider the comparative fault of the plaintiff despite evidence from which the jury could have reasonably concluded that plaintiff failed to exercise due care for her safety; and

2. Plaintiff's counsel's prejudicial and improper "golden rule" argument encouraged the jury to award excessive pain and suffering damages; and

3. The jury's award of damages was excessive.

LEGAL ARGUMENT

THE TRIAL COURT HAS BROAD AUTHORITY TO GRANT A NEW TRIAL.

On a motion for new trial, the court reviews the entire case and, if it concludes that a miscarriage of justice occurred on any of the grounds delineated in Code of Civil Procedure § 657, it must grant a new trial. (Mercer v. Perez (1968) 68 Cal.2d 104, 111.)

Continue reading "Sacramento Woman Injured In Bus Accident, Part 1 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Through the present, Diane Cash continues to treat with Dr. S. and Dr. C. and continues to receive counseling from Dr. Y., for her injuries sustained in the bus accident of February 6, 2005. Additionally, as prescribed and instructed by Dr. S., Ms. Cash receives cognitive, speech, physical and occupational therapy. Diane Cash remains disabled by her injuries through the present time.

Medical bills to date total in excess of $50,000.00.

Plaintiff's counsel has retained the services of Life Care Planner, Carol H.. Plaintiff anticipates future expenses for medication and transportation or attendant care in excess of $20,000 per year.

C. Future Medical Expenses.
Diane Cash continues to receive cognitive retraining, physical therapy and speech therapy at St Luke’s Hospital. The monthly charges for this therapy are as follows:

Cognitive retraining $186.00
Physical therapy $186.00
Speech therapy $294.00
TOTAL: $666.00

Ongoing medical expenses, including medication, reduced to present cash value, are anticipated to be $507,000.00.

Continue reading "Brain Damaged Woman Faces Long Recovery After Sacramento Bus Collision, Part 7 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

In 2006, Diane Cash continued to treat with Drs. S. and C., and continued counseling with Dr. Y., for her continuing injuries sustained in the bus accident. In Interrogatory Responses of January 19, 2006, Diane Cash described her continuing symptoms as follows:

Response to Interrogatory 6.4:
Plaintiff continues to have the following: loss of balance, nausea, vomiting, dizziness, impaired speech, disorientation, blurred vision, to be emotionally labile, memory loss, decreased mentation, passivity, difficulty making decisions, loss of confidence, depression, difficulty walking, preclusion from driving. Plaintiff also continues to have pain and/or discomfort at the top of his head, forehead and behind her eyes, and in her back, right foot, and right shoulder (including an area underneath the clavicle).

Diane Cash remained disabled by her injuries in 2006. She continued to take medication prescribed by Dr. S., for vertigo, nausea, depression and pain. She was referred for speech therapy in 2005, continuing into 2006. Ms. Cash used a cane and/or a walker to ambulate, and received some home health care from Professional Health Care providers.

On October 24, 2006, neurologist Dr. S., plaintiff's primary treating physician for her injuries, described his continuing treatment of Diane Cash as follows: "Ms. Cash was referred to me for monitoring of treatment of brain damage sustained in a bus accident where her head hit the ground. Ms. Cash’s symptoms of physical brain damage include headache, vertigo, nausea, vomiting, loss of balance, blurred vision, memory loss, decreased mental ability and comprehension, and impaired speech. I have treated Diane Cash for these symptoms for the last one-and-a-half years. Ms. Cash’s symptoms are within the acknowledged range of symptoms caused by brain damage.

Continue reading "El Dorado Hills Woman Injured By Sacramento Bus, Part 6 of 7" »

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In June 2005, Dr. Y. recommended to Dr. S. that Diane Cash be evaluated by a neuropsychologist in order to assess the extent of cognitive impairment resulting from the brain damage. In addition to continuing to treat with Dr. S., Dr. C. and Dr. Y., as instructed, Ms. Cash obtained a neuropsychological examination from James W., Ph.D., a licensed psychologist, beginning in August 2005. The neuropsychological evaluation, completed in early 2006, revealed, on the basis of extensive testing, that Ms. Cash had sustained brain damage resulting in considerable loss of cognitive function. Dr. W. also concluded, on the basis of the administered testing, that Ms. Cash’s anxiety and mild to moderate depression, experienced following the bus collision, were sequelae of physical injury to the brain, and not of psychopathology.

Dr. W. declared under oath as follows: The extensive neuropsychological testing conducted during the evaluation of Diane Cash evidenced that Ms. Cash sustained acute physical injury to the brain. The organic brain damage sustained by Ms. Cash has resulted in significant loss of cognitive function. Additionally, as a result of the physical injury to the brain, Ms. Cash suffers from decreased memory, inability to concentrate, mental fatigue, anxiety, irritability, mild to moderate depression, vertigo, stammering, stuttering, blurred vision and headache.

Continue reading "Bus Collision In Sacramento Leaves Woman With Brain Injury, Part 5 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

On Monday, February 9, 2005, Diane Cash obtained further treatment for her bus collision injuries from her primary care physician, Kerry C., M.D., in Sacramento. Dr. C. reported the bus accident, and he noted complaints of nausea, rib pain and cervical radiculopathy. At her re-examination on February 17, 2005, Ms. Cash continued to have head pain, to feel slow and confused, as well as having continued neck and back pain. Dr. C. believed that Ms. Cash was suffering from post-concussion syndrome, and he ordered a CT Scan of Ms.Cash’s head and neck.

Diane Cash returned as instructed for further examination by Dr. C. on March 1, 12, 15, 22 and 29, 2005. Ms. Cash continued to have constant right-sided headache, where her head struck the pavement the pain was only slightly relieved by medication. She continued to feel slow and drowsy, and to have blurred vision. There was related neck, right shoulder, knee and right heel pain. Dr. C.’s diagnosis was of post-concussion syndrome with attendant concern for traumatic head injury. Dr. C. prescribed physical therapy and referred Ms. Cash for consultation for head injury to a neurologist, Roberta S., M.D.

On April 5, 2005, Diane Cash was examined by Board Certified Neurologist, Roberta S., M.D. Dr. S. reported bifrontal and occipital headaches, blurred vision, positional imbalance, slow thinking and reduced memory, as well as low back, hip, right side, knee and heel pain. The physical complaints of heel pain improved somewhat since the time of the collision. Ms. Cash was taking Neurontin, Flexeril, and Ibuprofen as prescribed. Dr. S.'s diagnosis was of post-traumatic head syndrome, with reduced memory, slowed mentation, positional vertigo and post-traumatic headache, and paraspinal thoracic and lumbar strains. Dr. S. prescribed continued Neurontin and Ibuprofen, and advised Dr. C. that Ms. Cash would continue to be disabled from her job as an architect, at least through June 1, 2005.

Continue reading "Pedestrian In Sacramento Suffers Brain Injury In Bus Collision, Part 4 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

DAMAGES

A. Physical Injuries.
The bus struck Diane Cash from the left, as she walked eastbound on Campus Commons Road across University Avenue. Ms. Cash fell and hit her head and her right side on the street pavement. Her first recollection is of waking up and lying on wet pavement, staring at the headlights of the bus. She was disoriented and felt like she was going to die. As she laid on the ground, she heard her friend, with whom she had been speaking on her cell phone, calling out to her. Ms. Cash dragged herself in the direction of her friend’s voice. She felt for her cell phone and found it nearby on the pavement. She was able to call 911.

The Sacramento Fire Department responded to the emergency, assisted Ms. Cash, and the medics reported a chief complaint of head pain. Ms. Cash was transported by ambulance to Mercy General in Sacramento.

At Mercy, Ms. Cash was found to have headache, head contusion and cephalic (head) hematoma, in addition to right shoulder, right leg, and back pain. The examining physician stated: There was questionable loss of consciousness although the patient states she felt disoriented. X-rays were taken of the cervical and lumbar spine. The clinical impression, was as follows:

CLINICAL IMPRESSION:

1. Acute motor vehicle accident.
2. Closed head trauma without acute loss of consciousness secondary to number 1.
3. Cervical/lumbar strain secondary to number one.

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According to the police report concerning the bus-pedestrian collision, Diane Cash was approximately two-thirds of the way across the intersection at the time of impact. The impact knocked her to the ground, and her head struck the pavement.

Prior to the collision, defendant Terry James, driving the University bus on its regular route, was traveling westbound on University Avenue. According to defendant James, he came to a stop at the limit line for the stop sign at Campus Commons Road, and then began executing his left turn onto University Avenue. While executing his turn, James saw a shadow in front of his bus which he later determined to be Diane Cash. Defendant James testified that he struck Ms. Cash with the right front portion of the bus.

The investigating officer determined that the primary collision factor was a violation on the part of defendant James of California Vehicle Code Section 21950(a) (failure to yield to a pedestrian within a marked crosswalk). Defendant University investigated the circumstances of the collision, and it concluded that driver James was at fault, and that the accident chargeable to driver James’s record.

At the scene, driver James did not mention any equipment failures to the investigating police officer. At deposition, however, defendant James testified that the windshield wipers on the University bus were not functioning at the time of the collision. Further discovery confirmed that the windshield wipers, and possibly the defroster system on the bus, had not been functioning for a period of at least several days before the collision.

Continue reading "Woman From El Dorado Hills Suffers Brain Injury In Bus Accident, Part 2 of 7" »

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PLAINTIFF'S TRIAL BRIEF
NATURE OF CASE AND PARTIES

This is a personal injury action for damages sustained by plaintiff Diane Cash when she was struck by a University bus in a crosswalk on February 6, 2005, in Sacramento. Defendant Terry James was the driver of the University bus that struck Diane Cash. At the time of the collision, defendant Terry James was acting within the course and scope of his employment for the defendant University. The bus operated by defendant Terry James at the time of the collision was owned and maintained by defendant University.

LIABILITY

Diane Cash is a 41-year-old senior architect, who has worked for a prominent architecture and design firm for 15 years. She has served as president, vice president and secretary of the local professional architects society with approximately 225 members. She has a degree in architecture from U.C. Berkeley, a residence in El Dorado Hills and numerous friends.

On the evening of February 6, 2005, Diane Cash was walking across Campus Commons Road at University Avenue in Sacramento, on her way to dinner when she was struck by the bus. The intersection is illuminated by street lights. Ms. Cash was using her cell phone, which she held in her right hand. It was raining and Ms. Cash also held an open umbrella, with her left hand. Diane Cash is legally blind in her left eye.

Continue reading "Sacramento-area Woman Struck By Bus, Part 1 of 7" »