Sacramento Brain Injury Lawyer Blog

The following blog entry is written to illustrate how a brain injury lawsuit could develop and resolve. Reviewing this summary 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 brain injury lawsuit and its proceedings.)

SETTLEMENT DISCUSSIONS
According to Plaintiff One: Demand: $6 million in December 2008. Prior to trial commencing, the demand was $8 million, and during trial the demand went to $14 million. Offer: XYZ made no offers in response to the statutory demands. XYZ then made a statutory offer before trial for $1.5 million. The time to accept that offer expired before trial. At the time of trial, XYZ indicated that was the extent of its offer. During settlement conversations during trial, XYZ never came off of its $1.5 million offer. Defendant tendered his $1 million policy prior to trial. The tender was not accepted. Plaintiff Two Demand: Plaintiff Two made a demand for $200,000 in December 2008.

EXPERT TESTIMONY
According to Plaintiff: Plaintiffs' liability engineering experts, Kim Lyle and Evan French, opined that there was no rational basis from an architectural/engineering perspective for these design features and that the risks of the design had no cognizable benefits. Plaintiffs' warning expert, Bob Kalma, testified that XYZ failed to provide warnings of any kind to the operator or passengers about proper weight distribution or the risks of overloading the bow. Plaintiffs' experts Lyle and biomechanical engineer Dr. Ted Hamm also testified that the expanded bow lacked sufficient handrails to provide a chance of preventing being washed overboard; no handrail was within reach of Plaintiff One, who was seated at the very front of the vessel. Defendant's expert Ryan Thomas admitted that the capacity number provided by XYZ Company was incorrect and should have been 16 people or 2,224 pounds.

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

Continue reading " Boat Malfunctions Cause Young Girl Serious Brain Injury in Accident, Part 3 of 3 " »

The following blog entry is written to illustrate how a brain injury lawsuit could develop and resolve. Reviewing this summary 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 brain injury lawsuit and its proceedings.)

XYZ argued that Defendant allowed too many passengers on board (there were 19 on board, who had a combined weight of 2,830 lbs, which was under the weight capacity number at the time on the incident), too many people in the bow, and that he failed to shift the throttle to neutral once water started swamping the bow. XYZ argued that none of these acts were foreseeable and attributed 100 percent of the responsibility for the incident to Defendant.

Although Defendant had been drinking before the incident, he registered a blood-alcohol level of 0.05 percent 45 minutes after the event, below the legal limit. He was arrested at the scene and later pleaded no contest to negligent operation of a watercraft. Defendant testified that he was aware of the capacity limits but believed the boat could operate at maximum capacity.

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

Continue reading " Brain Damage and Physical Deformities Result in Sacramento Boat Accident, Part 2 of 3 " »

The following blog entry is written to illustrate how a brain injury lawsuit could develop and resolve. Reviewing this summary 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 brain injury lawsuit and its proceedings.)

CASE INFORMATION
FACTS/CONTENTIONS
According to Plaintiff: On June 9, 2006, Plaintiffs, ages 22 and 23, both students at ABC State University, were passengers in a XYZ wakeboarding boat on a lake in Sacramento County, California. XYZ holds itself out as a world leader in recreational wakeboard and ski boat manufacturing. XYZ sells recreational wakeboard and ski vessels throughout the U.S. and internationally. Defendant, a 27-year-old farmer and the boat's owner, was towing a wakeboarder who fell. Just prior to that wakeboarding run, a number of people had moved to the bow in order to produce a quality wake for the boarder and because the boat was not getting “on plane.” Defendant slowed the vessel to 5 mph, then made a slow 180-degree turn to retrieve the fallen boarder. After completing the turn and traveling partway back to the boarder at a speed of from 3 to 5 mph, the bow of the boat suddenly swamped without warning. The force of water carried both plaintiffs off the bow and into the lake. The operator thought that it was a wake and accelerated to get through the wake. The propeller struck Plaintiff One in the head, fracturing her skull, slicing through her left frontal lobe and left eye. Plaintiff One’s injuries proved nearly fatal, but she was provided tremendous medical care, which saved her. Plaintiff One was left with significant, permanent brain damage. The propeller slashed Plaintiff Two across her lower back, leaving deep and permanent scars plus muscle and nerve damage.

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

Continue reading " Sacramento Boat Accident Results in Permanent Brain Damage, Part 1 of 3 " »

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 brain injury lawsuit and its proceedings.)

RELEVANT EVIDENCE IS ADMISSIBLE

Relevant evidence is defined by Evidence Code Section 210 as having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. See People v. Kelly (1992) 1 Cal.4th 495, 523. A party is entitled to have all competent, material and relevant evidence admitted if it tends to prove or disprove a material issue raised by the pleadings. Bole v. Bole (1946) 76 Cal.App.2d 344-345-346.

Plaintiffs' expert witness David Goldberg will be expressing opinions consistent with those outlined in the expert designation served by the plaintiffs. As explained above, such testimony is directly relevant to the issues in dispute. Therefore, plaintiffs oppose defendant's motion in limine #6 to limit plaintiffs' expert testimony at trial.

CONCLUSION

Based on the foregoing, plaintiffs respectfully request that the court deny defendants' motion in limine # 6 seeking an order limiting plaintiffs' expert witness, David Goldberg, from testifying about biomechanical issues at trial.

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

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 brain injury lawsuit and its proceedings.)

DEFENDANTS DO NOT CHALLENGE THE NEED FOR EXPERT TESTIMONY AS TO BIOMECHANICAL ISSUES

An expert witness's testimony is that which is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact," and "based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing ... " Evid. Code § 801(a)-(b). On direct examination an expert witness may state the reasons for his opinion and the matter, including his special knowledge, skill, experience, training and education. Evid. Code § 802.

Defendants will have every opportunity to question Mr. Goldberg about his expertise and training, and the jury will have every opportunity to weigh his testimony in light of that evidence. California's Evidence Code provides for adequate mechanisms by which defendants' concerns regarding the lack of Mr. Goldberg's official degree can be addressed. Therefore, defendants' motion should be denied.

COURT HAS BROAD DISCRETION TO ALLOW EXPERT TESTIMONY

The California Supreme Court has explained that trial courts have broad discretion in determining the qualifications of expert witnesses. People v. Ramos (1997) 15 Cal.4th 1133,1175. In another decision, the Court indicated trial courts have considerable latitude in determining an expert's qualifications. People v. Davenport (1995) 11 Cal.4th 1171, 1207.

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

Continue reading " Defendants Challenge Sacramento Brain Injury Victim's Trial Experts, Part 5 of 6 " »

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 brain injury lawsuit and its proceedings.)

LAW AND ARGUMENT cont.
EXPERT WITNESS QUALIFICATIONS ARE NOT BASED UPON RIGID CLASSIFICATIONS, BUT RATHER THE CIRCUMSTANCES OF THE CASE

Mr. Goldberg's 1,500-plus hours of specialized training include, without limitation, topics such as Injury Biomechanics & Occupant Kinematics, Biomechanics of Accidents, Biomechanics of Impact Trauma - Limits of Human Tolerance. (Exhibit 1, pp. 1-2) In fact, Mr. Goldberg's specialized training in biomechanics and accident reconstruction has accumulated steadily since he received his undergraduate degree in 1986, and his experience includes is over twenty-seven years with the Sacramento Sheriff's Department as a traffic accident investigator. (Exhibit 1.) Finally, Mr. Goldberg has testified in over 150 trials. (Exhibit 1, p. 8.) Under these circumstances, defendants' assertions that Mr. Goldberg has no value as an expert witness due to his lack of formal education and/or his lack of experience with boimechanical issues fall flat.

Based on Mr. Goldberg's special knowledge, skill, experience, and training accumulated over his lifetime of working and studying in these areas, he has the qualifications necessary to testify as an expert about liability, accident reconstruction and biomechanics.

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

Continue reading " Accident Experts Battle In Sacramento Brain Injury Lawsuit, Part 4 of 6 " »

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 traumatic brain injury lawsuit and its proceedings.)

LAW AND ARGUMENT

EXPERT WITNESS QUALIFICATIONS ARE NOT BASED UPON RIGID CLASSIFICATIONS, BUT RATHER THE CIRCUMSTANCES OF THE CASE

It is well established that a witness with special knowledge and expertise in a field can offer expert testimony. Evid. Code § 720; People v. Brown (2001) 96 Cal.App.4th Supp.l, 36-37 (Expertise is "not subject to rigid classification according to formal education or certification.") Evidence Code section 720(a) refers to the necessary qualifications of an expert witness in the disjunctive: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." Further, a trial court need only determine the qualifications of an expert, and then the degree of his knowledge is a matter affecting the weight of his testimony, not its admissibility. Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658.

In this case, plaintiffs designated David Goldberg as an expert witness to testify about issues pertaining to liability, accident reconstruction and biomechanics. Defendants only challenge plaintiffs' expert David Goldberg's qualifications to testify as a biomechanics expert on the claim he "lacks the special knowledge, skill, experience, training or education sufficient to qualify him as a biomechanical expert."

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

Continue reading " Auto Accident Leaves Sacramento Man With Catastrophic Brain Injuries, Part 3 of 6 " »

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 traumatic brain injury lawsuit and its proceedings.)

STATEMENT OF FACTS

Plaintiffs designated David Goldberg as an expert witness to testify about issues pertaining to liability, accident reconstruction and biomechanics. Mr. Goldberg's curriculum vitae outlines his extensive training, education and experience over the last twenty-five plus years. (Exhibit 1.) Specifically, he has "investigated more than 5,000 traffic collisions" and he has "completed more than "1,500 hours of specialized training in traffic investigation, reconstruction and biomechanics." (Exhibit 1, p. 8.) His areas of expertise include accident reconstruction, biomechanics, occupant kinematics, occupant protection systems and fraud. (Exhibit 1 generally and p. 8.) Mr. Goldberg's 1,500-plus hours of specialized training include, without limitation, topics such as Injury Biomechanics & Occupant Kinematics, Biomechanics of Accidents, Biomechanics of Impact Trauma - Limits of Human Tolerance.

Mr. Goldberg's specialized training in biomechanics and accident reconstruction has accumulated since he received his undergraduate degree in 1986, and his experience includes is over twenty-seven years with the Sheriffs Department as a traffic accident investigator. (Exhibit 1.) Finally, Mr. Goldberg has testified in over 150 trials. (Exhibit 1, p. 8.) Under these facts and circumstances, defendants' motion to limit Mr. Goldberg's testimony to exclude opinions and testimony pertaining to biomechanical issues must be denied.

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

Continue reading " Automobile Experts Testify In Sacramento Brain Injury Case, Part 2 of 6 " »

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 traumatic brain injury lawsuit and its proceedings.)

Plaintiffs' Opposition to Defendants' Motion in Limine #6 to Limit Testimony of Plaintiffs' Expert Witness David Goldberg; Memorandum of Points and Authorities in Support Thereof in this Traumatic Brain Injury and Car Accident Case.

Plaintiffs Samuel Smith and Linda Smith hereby oppose defendants' motion in limine to limit the testimony of plaintiffs' expert witness, David Goldberg. This opposition is based on the ground that Mr. Goldberg's qualifications as an expert witness to testify about liability, accident reconstruction and biomechanics are clearly set forth in his curriculum vitae, as well as the fact that California statutory and case law establish that the degree of an expert's knowledge is a matter affecting the weight of his testimony, not the admissibility of his testimony. Further, the definitive criteria in determining whether a witness qualifies as an expert rest on the witness's occupational experience, not on the existence of any specific degree as claimed by the defendants' motion.

Importantly, defendants do not challenge the need for expert testimony to assist the jury in understanding the biomechanics of this case, including the forces involved in the accident, the movements of the plaintiff's body and the threshold for injury based upon the load exerted on plaintiff's body.

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

Continue reading " Sacramento Family Files Lawsuit For Car Accident-Related Brain Injuries, Part 1 of 6 " »

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 traumatic brain injury lawsuit and its proceedings.)

THIS EVIDENCE IS MORE PROBATIVE THAN PREJUDICIAL AS TO PLAINTIFF'S FUTURE ECONOMIC DAMAGES

Under Evidence Code section 352, the probative value of evidence must be weighed against the potential for prejudice. (Ev. Code § 352.) Here, defendant is entitled to introduce evidence to show that plaintiffs' contention that Browne's academic failures are related solely to alleged injuries suffered in the subject accident is not entirely accurate. Defendants are entitled to establish that there are additional reasons he will have difficulty finding gainful employment.
Plaintiffs' are attempting to introduce this incident as another example of plaintiff's ongoing memory and cognitive difficulties, which enhances their claim, but simultaneously attempt to keep defendants from introducing the evidence to support their contentions. Evidence cannot be introduced for the benefit of one party, but then be deemed off-limits for comment by the adverse party. If plaintiff should be permitted to introduce the gun-incident as evidence of his injuries, defendants should be permitted to utilize evidence of the incident to show that plaintiff's post-accident difficulties, and potential future difficulties, do not entirely stem from accident-related incidents.

CONCLUSION

The Court is respectfully requested to deny plaintiffs' instant Motion in Limine.

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

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 traumatic brain injury lawsuit and its proceedings.)

Plaintiff seeks to exclude evidence which specifically meets the parameters of relevance, which is intimately tied to the subject matter of the action. See C.C.P. §2017.010; Norton v. Superior Court, 24 Cal.App.4th 1750, 1760. At test of relevancy sometimes used by the Courts is the reasonable inference test, where the general test of relevancy of indirect evidence is whether it tends logically, naturally, and by reasonable inference to prove or disprove a material issue. People v. Jones (1954) 42 Cal.2d 219, 222.

Here, there is a direct relationship between the evidence plaintiff seeks to exclude and critical issues of causation and damages. Plaintiff contends that his academic difficulties are related solely to his traumatic brain injury, and seeks to exclude evidence that his failure to finish high school was related to the entirely unrelated incident involving the gun and knife. The issue is what consequences plaintiff can prove were attributable to his underlying cognitive injuries. Thus, any evidence that impacts that issue is relevant and admissible before the trier of fact.

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

Continue reading " Sacramento ATV Accident Victim's Brain Injury Causes Academic Hardship, Part 3 of 4 " »

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 traumatic brain injury lawsuit and its proceedings.)

EVIDENCE OF PLAINTIFF BROWNE’S ACADEMIC SUSPENSION IN EXTREMELY PROBATIVE TO THE ISSUES OF DAMAGES AND FUTURE DAMAGES

Plaintiff contends that his traumatic brain injury has caused him severe memory and cognitive deficits, and attributes many of the post-accident occurrences in his life to those injuries. He has not been able to complete his high-school education. His academic success at school, after the accident, was poor and as a result he was not eligible for baseball or other athletics. He attributes these academic struggles solely to the 2008 subject accident, irrespective of pre-accident academic difficulties.

In his mediation brief, plaintiff alleges that his medical experts believe the 2010 gun-incident is directly derived and related to the traumatic brain injury. Dr. Randall Hill has opined that plaintiff "did not have the executive functions needed to keep in mind that he had left the rifle in his car, although now attending school, or that his action in doing so would have consequences." Similarly, Dr. Li was also called upon to opine whether or not the gun and knife expulsion incident was related to his TBI.

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

Continue reading " All-Terrain Vehicle Accident Leaves Sacramento Boy With Traumatic Brain Injury, Part 2 of 4 " »