(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 ].)

(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.)

Toyota dealers resumed selling vehicles Thursday that were pulled from the sales lot to address sudden-acceleration problems as the automaker said lost sales and a series of related recalls would cost $2 billion.

That recall price tag would be one of the most expensive in automotive history, said auto information company Edmunds. com.

Also, the California state assembly reacted to Toyota Motor Corp.'s safety recalls and its decision to shutter the state's last auto manufacturing plant by voting Thursday to stop buying Toyota cars for use by lawmakers when they're in Sacramento. The Assembly Rules Committee voted to resume a 2003 policy of buying only U.S.-made cars for its 130-vehicle fleet.

Toyota stopped sales of eight models -- including its top-selling Camry and Corolla -- on Jan. 26, saying the gas pedals could get stuck and cause runaway acceleration. The automaker also shut down production of the vehicles for a week while it examined how to fix the problem, which it attributed to wear on the pedal system.

"We now have more than enough parts at dealers to take care of the flow of repairs. Dealers may sell a new car if the repair is made," said Mike Michels, a Toyota spokesman. "There is no single point in time when the stop sale would be lifted. It will be car by car."

(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].)

(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.)

It is also well settled that misconduct has often taken the form of improper argument to the jury, such as by urging facts not justified by the record or suggesting that the jury may resort to speculation (Malkasian v. Irwin, supra, 61 Cal.2d 738, 747); by informing the jury that an injured party has been compensated by a codefendant (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575); and by informing the jury of an offer of settlement and compromise (Granville v. Parsons (1968) 259 Cal.App.2d 298, 304). City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870.

The issue of negligence by Defendant White was wrongly decided. The issues of causation and Dr. Black's damages were never decided. The argument of defendant's counsel at trial had the effect of injecting irrelevant, prejudicial, and misleading evidence into the proceedings, and resulted in a verdict tainted by passion and prejudice.

The Implication that Dr. Black was Working.

In reality there was no evidence that Dr. Black was employed during the time that he claimed to be disabled. The only income he had during this time frame was disability benefits or residual income. Despite knowing same, defense counsel, over the court's admonition, suggested repeatedly to the jury that Dr. Black was working when he claimed to be disabled - again impugning Dr. Black's credibility. He went so far as to examine Dr. Baker on a telephone message taken by a member of his staff, indicating that Dr. Black "needed a letter for work" and examine Dr. Mark on and thereby admitting into evidence a patient's history form on which Dr. Black reported that he was a CEO of a company.

Despite knowing that the true state of affairs was that plaintiff was not working, the jury was intentionally misled. Over objection, the court permitted the patient questionnaire to be presented into evidence and allowed Mr. Jones to question regarding same.

In Granville v. Parsons, supra, the action before the jury involved only one defendant. In his opening statement counsel for the defendant advised the jury that there had been other defendants, and the court made an inconclusive ruling on plaintiff's objection. Counsel argued that the plaintiffs "know who was the guilty party...because...[he] was a defendant in this action and settlement...." Ibid. at 301-02. When former defendants were called as witnesses the defendant brought out that they had been dismissed as defendants and had paid the plaintiff in settlement for his brain injuries. No admonition or instruction was given to limit the effect of that impeaching testimony.

The court ruled on appeal, "... from the record before us we can come to only one conclusion: that defense counsel got carried away in his enthusiasm and deliberately argued the evidence concerning the dismissal and the settlement for an improper purpose." [Citations.] The case was extremely close. The misconduct was prejudicial. (Granville v. Parsons, supra, 259 Cal.App.2d at p. 304.)

The conduct by defense counsel in the above cited case is directly analogous to that of Mr. Jones's closing argument in the Black trial. This conduct alone would give rise to grounds for a new trial, but in the Black case it was even more inequitable. While allowing the defendant to inappropriately argue or inform the jury that Mr. Lyon had settled, implying fault and compensation, the court precluded the plaintiff from reciprocally being able to inform the jury that Iris Black was a plaintiff and had settled with defendant White. Iris Black did not elect not to sue Mrs. White. Mrs. White made the same decision to settle that Mr. Lyon made in reference to both plaintiffs in this auto accident case. There was in effect not only misconduct, but an unequal playing ground.

Section 1152 of the Evidence Code provides in pertinent part, (a) Evidence that a person has, in compromise ... furnished ... money ... to another who ... claims to have sustained loss or damage ... is inadmissible to prove his liability for the loss or damage or any part of it. Evidence of any settlement with or payment by Lyon was inadmissible to establish his liabilityin the auto collision, so all such references would also be improper. (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575.)

In fact it is well established that under parallel circumstances it is prejudicial misconduct to tell the jury that the injured party has been compensated by another codefendant who has been dismissed from the case and that such fact demonstrates that the remaining codefendant is not liable. Tobler v. Chapman, supra, 31 Cal.App.3d at p. 575 kiting Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 1083-1084; Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 178; and Granville v. Parsons (1968) 259 Cal.App.2d 298, 303, 304.)

The case of Albrecht v. Broughton, supra, is directly analogous to the case at bar. There the Court of Appeal reversed the trial court's denial of Plaintiff's new trial motion, finding prejudicial error in defense counsel's mention of settlement in arguing the issue of liability resulting in a defense verdict. Like Black, Albrecht was a case in which the evidence on liability was in conflict. Like Black, the court allowed evidence of a settlement with a co-defendant. The trial court in Albrecht then permitted in argument reference to the settlement. The Appellate Court held that this was error.

DEFENSE COUNSEL'S MISCONDUCT. [C.C.P. SECTION 657 SUBD. 1. AND 7].

Evidence and Argument of the Lyon Settlement.

Before trial separate statements of the facts to be read to the jury were submitted by the parties. Defendant's statement included that Mr. Lyon was a party, but he had settled. Plaintiff strenuously objected on the grounds of Evidence Code sections 352 and 1152 to there being any reference to that settlement. Alternatively, plaintiff proposed that if there was to be such a reference allegedly to explain Mr. Lyon's current absence as a defendant, then equity demanded that the same explanation "of settlement," be given as to Mrs. Black's absence as a plaintiff against defendant White.

The court, over plaintiff's objection, read to the jury the defense statement of the case, but refused to allow the jury to be told that Mrs. White had settled with Mrs. Black. During the entire course of the trial, from opening statement through questioning and into argument, defense counsel referenced the Lyon settlement, emphasizing to the jury that the party who was at fault, Mr. Lyon, had settled.

The implication clearly was that Mr. Lyon's settlement was an admission of fault in the auto accident and demonstrated Mrs. White was not liable. Such statements further caused the jury to reason plaintiff had at least been partially compensated.

Assuming that inadmissible hearsay utilized by an expert to form an opinion is presented, an inquiry into the prejudicial effect of such matter becomes necessary. Here the Simms testing was used to support the opinion of Dr. Bend that Dr. Black was not telling the truth, that he was faking. The main consideration to the court is the purpose for which the material was presented. Where, as here, the jury is allowed to consider the hearsay (evidence presented by the expert in connection with proof of the matter asserted [i.e., the applicable test results), the principles approved by the Supreme Court in People v. Coleman (1985) 38 Cal.3d 69, 92, are violated, and prejudice is apparent. (Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at p. 1518.)

What could be more prejudicial than telling the jury that "objective" testing establishes that the plaintiff is not credible?

Material that forms the basis of an expert's opinion testimony must be reliable. (1 Witkin, Cal. Evidence (3d ed. 1986) The Opinion Rule, § 477, p. 448.) For the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based. (Kennemur v. State of California (1982)133 Cal.App. 3d. 907, 923.)

Consistent with these well-settled principles, the trial court in this case erroneously ruled that Dr. Bend could build his house on a what amounts to nothing more than a pile of sand; Mary Simms's inherently illegal and unreliable test results - test results from which Dr. Bend based his opinion that Dr. Black was not truthful and falsifying his brain injury.

After plaintiff's counsel's objection was overruled and Dr. Bend testified, she requested to call Ms. Simms in rebuttal. A hearing was held outside the presence of the jury, and her cross-examination established Ms. Simms's lack of experience, knowledge, training and education. Her testimony directly rebutted Dr. Bend's testimony that she was well trained and experienced. Despite same, the court denied plaintiff's counsel's request to call Ms. Simms. Ms. Simms was subpoenaed and available to testify.

Evidence Code section 801 subd. (b) requires that the matter relied upon by the expert in forming his opinion must be of a type that reasonably may be relied upon by experts in forming an opinion upon the subject to which the testimony relates. In large measure this assures the reliability and trustworthiness of the information used by experts in forming their opinion. (Evid. Code section 801 and Law Revision Commission Comments.) Expert opinion must be based on matters that the expert may reasonably rely on and is not otherwise legally precluded as a basis for the opinion. (Evid. Code section 801(b).)

When an expert witness bases his testimony entirely or chiefly on incompetent evidence, the opinion should be rejected. (San Diego Land & Town Co. v. Neale (1891) 88 Cal. 50, 62-63; Young v. Bates Valve Bag Corp. (1942) 52 Cal.App.2d 86, 96.) Herein, Dr. Bend's opinion based on his brain testing was entirely founded on inadmissible and unreliable testing. There was no legal foundation for admitting same.

Dr. Bend's testimony: Neuropsychological Testing Administered by Student Molly Simms:

During the trial, plaintiff timely objected to Dr. Bend expressing any opinion based on the testing performed by his student Molly Simms, on the grounds that it lacked legal foundation. Dr. Bend was not present at this testing. He could not personally verify how the tests were given. His testing assistant, Ms. Simms, is not and was not legally qualified to administer neuropsychological testing to the public.

Ms. Mulligan presented undisputed evidence that Ms. Simms did not meet the requirement of a psychological assistant by the State of California, as required by the California Business and Profession Code §2913, despite the fact that the test documents wrongfully identified her as same. Since she was a psychological assistant she could not legally perform the neuropsychological testing administered to Dr. Black. Therefore, Dr. Bend could not express any opinions based on the results of these tests, and any reference to same must be excluded.

Plaintiff's counsel further objected that Ms. Simms lacked sufficient training, education, and experience to properly administer the tests. Over plaintiff's objection, Dr. Bend was permitted to explain to the jury the tests, the manner in which they were given, the results of the testing and base opinions on these test results. Graphs were even shown to the jury. (Declaration of Shana Mulligan, page 4, paragraph 11.) This was error. (See Part 7 of 12.)

Officer King: His Opinion on the Magnitude of the Collisions:

Defendant called Officer Ben King. Because plaintiff's counsel questioned his capacity to give any expert opinion testimony, the court required a 402 hearing on foundation. At the close of the hearing it was obvious that Officer King lacked sufficient training and experience to express any opinions on the cause, magnitude or number of collisions which occurred. Further, he had no personal information since he was not present at the collision site at the time of the accident. After hearing his testimony the court instructed him not to express his opinions to the jury.

Despite the foregoing and despite multiple admonishments by this court, Officer King intentionally and prejudicially responded to plaintiff's questions. He insisted on placing his opinions on reconstruction before the jury. He gave unfounded expert opinion testimony in an area on which he was directed not to opine, telling the jury that the damage to the Blacks' vehicle was caused by the force of the first collision with Mr. Lyon. This inadmissible testimony is reflected in the decision of the jury, i.e. that Mr. Lyon's negligence caused the damage to the black vehicle and the resulting traumatic brain injury to Dr. Black.

Under Evidence Code section 720 subd. (a), a person is qualified to testify as an expert only if he has special knowledge, skill, experience, training or education sufficient to qualify his as an expert on the subject to which his testimony relates. (Evid. Code section 720 subd. (a)) ... the courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.)

ALLOWING TESTIMONY, WITHOUT PROPER FOUNDATION, AMOUNTED TO ERROR OF LAW [C.C.P. §657 subds. 1 and 7.1

The following witnesses were erroneously permitted to give expert opinion and evidence without proper foundation:

Defendant's Expert Accident Reconstructionist, Dr. Brown's Opinion That There Was a Single Rear-end Impact to the Black Vehicle:

Over objection, and based solely on a single page, page 13, in the police report identifying. three impacts, Dr. Brown was allowed to testify that the Black vehicle may not have been impacted at all by the Escalade after the Escalade was hit by defendant White. That police report is attached as Exhibit 1. Plaintiff's counsel objected that there was no foundation for such an opinion since the report was merely hearsay opinion of the officer's, without a showing of his knowledge, education or training. Defendant was unable to sustain an offer of proof otherwise. Despite the foregoing, the court allowed Dr. Brown to express this opinion.

Subsequently, Officer King, the police officer who wrote that page of the report, testified. His testimony did not establish the necessary foundation for Dr. Brown's opinion. (Declaration of Shana Mulligan, page 3, paragraph 5 and 6.) As Officer Brown explained, outside the presence of the jury, the three point-of-impacts described in his police report represented his opinion that the majority of the damage to the vehicles was done by the first three collisions and not the collisions that followed White striking Lyon.

The well-established standard for the trial court's determination of sufficiency of the evidence was set forth by the California Supreme Court, In the Matter of the Estate of Caroline H. Bainbridge, et al. v. McCarthy (1915) 169 Cal.166:

In the determination of a motion for a new trial, the verdict should be set aside if, in the opinion of the trial court, it is not supported by sufficient evidence; and this is equally true whether there be an absence of evidence or that the evidence received, in the individual judgment of the trial judge, is lacking in probative force to establish the proposition of the fact to which it is addressed. This is the meaning of the terms insufficiency of evidence. (Code Civ. Proc., sec 657, subd. 6.) In the Matter of the Estate of Caroline H. Bainbridge, et al. v. McCarthy, supra, 169 Cal.at p.167.

The appellate court's scope of review is limited, especially when the court exercises its discretion in favor of a new trial. The trial court's exercise of discretion may only be disturbed where a "manifest and unmistakable abuse of discretion clearly appears." See Candido v. Huitt, supra, 151 Cal.App.3d at pp. 922-923, citing Jimenez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387. Our state Supreme Court in Jimenez v. Sears, Roebuck & Co., supra, clarified the limited scope of the court's review on appeal:

The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. Jimenez v. Sears, Roebuck & Co., supra, 4 Cal.3d at p. 387. [citations omitted.]