Sacramento Personal Injury Lawyer Blog

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

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Brad Small is the defense expert on accident reconstruction and biomechanics. Mr. Small testified that he reviewed Mr. Awad's deposition and discovered several significant errors in Mr. Awad's calculations. First, Mr. Awad used the wrong mathematic equation to calculate Ms. Chance's pedestrian speed. (Small deposition, pages 85 to 86.) Second, Mr. Awad also reversed the location of the initial bus/pedestrian contact area or ICA because Awad drew his diagram of the intersection upside down, with north at the bottom and south at the top. (Small deposition pages 74 to 75.), Third, Mr. Awad is overheard on his video taped inspection of the intersection telling Mr. Jones that he has comparative fault here because Ms. Chance stepped out into the crosswalk on the DON T WALK phase of the signal.

Mr. Awad's opinions are based on mathematically incorrect equations, conjecture and unwarranted assumption at best and outright fabrication at worst. Expert opinion testimony, to be admissible, must be based on at least some objective, independent validation of the expert's methodology. The expert's assurances that he has utilized generally accepted scientific methodology are insufficient when the expert's calculations are shown to be incorrect (based n the wrong equation) and based on an upside down diagram that places the area of impact in the wrong location.

More important, where the expert can be heard informing his principal (John Jones) that the plaintiff was at fault for entering the intersection of the DON'T WALK phase of the green light (CVC 21456 (b)), there is no rational basis for allowing this expert to misrepresent the facts and testify in a manner inconsistent with his earlier in time, candid opinion on the issue of whether Ms. Chance was into the street on the WALK or on the DON'T WALK phase of the signal.

Continue reading "Sacramento Woman Was Legally In Croswalk When Hit By Bus, Part 2 of 2" »

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

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

COME NOW defendants Bus USA, and move the Court in limine for an order excluding the expert witness testimony of Joseph Awad, the plaintiffs accident reconstruction and biomechanics expert.

Mr. Awad was deposed in this matter on February 1st. Mr. Awad testified at that time plaintiff Molly Chance entered the crosswalk at Fourth Street and Elm Street on the WALK phase of the green signal and proceeded to cross the street. (Awad deposition page 93.) Mr. Awad also testified that defendant Paul Davie (the bus driver) focused his attention on two pedestrians who were walking from west to east in the same crosswalk and that as a consequence, Ms. Chance walked into a zone of no visibility for the bus driver who proceeded to turn the bus left into Ms. Chance. (Awad deposition, pages 93 to 95 .)

Mr. Awad based the foregoing opinions on the length of the Walk phase of the green signal for Chance's direction of travel as measured at 13 seconds by Mr. Awad on January 30th 2008. (Awad deposition page 91.); the walking speeds of the pedestrians and Ms. Chance (Awad deposition pages 69, 70, and 71.); and upon the unwarranted assumption that on the date of loss Ms. Chance limps or is otherwise "hobbled" due to injuries she sustained in an auto crash in 1998 (Awad deposition, page 71 to 72.). (See Part 2 of 2.)

Continue reading "Expert Challenged In Sacramento Bus Accident Case, Part 1 of 2" »

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

Likewise, Smith would have no basis for his proffered opinion that Ms. Chance left the curb on a "southerly diagonal" :

Q (Bus USA Counsel): Okay. Now, the last question I have is when (Chance) she crossed the street from wherever she was south of the intersection did she go straight across, or did she cross it at a diagonal or at an angle, based on what you saw?
A (White): Well, I didn't - when she jumped off the curl I saw her, but once she started crossing like you said the bus, I couldn't see until he hit her over here. So I don't know what direction she was heading. But when I couldn't see her she could have been -what I saw was -

Q: I don't want you to speculate.
A: What I saw she was going straight across.

Q: You saw her step off the curb, but the bus was going forward and he blocked your view?
A: Right.
(Depo Transcript P. White.)

As the above italicized words demonstrate, White wanted to speculate as to what happened to Chance, which she obviously did when speaking to Officer Smith at the accident scene.

In Ribble v. Cook (1952) 111 Cal.App.2d 903, 245 P2d 593, a police officer's opinion was ruled to lack proper foundation, because it was based on the self-serving declaration of the defendant and the statement of a witness who did not see the impact, which evidence was clearly hearsay. The officer's testimony was adjudged almost worthless, because it depended on the credibility of persons other than himself.

Continue reading "Sacramento Bus Driver Did Not Look In Crosswalk Before Hitting Woman, Part 2 of 2" »

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

Plaintiff Molly Chance ("Chance") requests this court to accept the following supplemental points and authorities to consider in support of her motion to vacate judgment in this matter and order a new trial under C.C.P. § 657.

INTRODUCTION
Plaintiff earlier submitted authorities arguing the inadmissibility of an un designated expert's opinion. Should this court entertain the possibility that Defendant somehow qualified this policeman as an expert despite previously enumerated procedural shortcomings? Plaintiff requests this court further consider the impermissible foundation for his opinion.

ARGUMENT
A hypothetical question must be propounded to an expert based upon facts presented by other witnesses at trial to give foundation for expert opinion that he did not have before testifying.

The opinion that Chance was guilty of jaywalking at the time she was injured by the bus was based on the hearsay statement of Petra White ( White ) as summarized in Officer Will Smith’s ( Smith ) report rather than any testimony received during trial thru the reading of deposition testimony of this same witness. In fact, if Smith had been read the full testimony of Ms. White in the form of a hypothetical question, he would have no basis for his proffered expert opinion that Chance was "outside the crosswalk" upon leaving the curb because White testified that Chance was either 8, 4 or 3 feet from the corner which the court may give judicial notice was the right side boundary of the unmarked crosswalk as Chance approached it. (Deposition Transcript of P. White.)

Continue reading "Conflicting Testimony In Sacramento Bus Accident Trial, Part 1 of 2" »

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

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

The decisive fact in the present case is the appellant's failure to disclose Mitchell's expected testimony ... either at Mitchell's deposition or as required by Sec??ion 2037.3. This failure deprived respondent to prepare for Mitchell's cross-examination.

The Court went on to say that respondent was entitled to rely on Mitchell's disclaimer [regarding the scope of his testimony] until such time as appellants disclosed that Mitchell had conducted further investigation and had reached additional opinions in a new area of inquiry. (Id. at 919.)

Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer v. Cooper, 233 Cal. App. 2d 750, 754 (1965), a case cited with approval in Kennemur, the court stated as follows concerning the scope of required deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for.

Continue reading "Sacramento Woman Hit By Bus Battles Medical Experts, Part 2 of 2 " »

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

Plaintiff's Opposition to Motion in Limine Re Limiting Expert Testimony

Plaintiff MOLLY CHANCE hereby opposes defendant's motion for an order limiting plaintiff's expert's testimony to opinions set forth in expert designations and their depositions.

INTRODUCTION
Defendants filed a Kennemur motion to limit the testimony of experts at trial. Kennemur motions are both widely used and abused. They should not be permitted to excuse an attorney from taking an incomplete deposition. Additionally, a strict limit on testimony arguably beyond the scope of a expert designation is not appropriate when the expert was asked questions on certain subjects and the deposing party had every opportunity, and in fact does provide testimony in response to the expert's opinions.

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

In Kennemur, the plaintiffs expert, Dr. Mitchell, was deposed on three separate occasions over a six-day period by the defendant. The witness was specifically asked whether he was going to testify on accident reconstruction. He specifically stated that he was not and would leave that to a different expert. He said that he was limiting his testimony to the stability of the automobile involved in the accident. (Id. at 912.) At the second session of his deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

Continue reading "Sacramento Bus Accident Victim Battles Trial Experts, Part 1 of 2" »

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

Plaintiff's immigration or residence status is not relevant to the determination of liability. (See Rodriguez v. Kline (1986) 186 Cal.App.3d 1145.)

Plaintiff is pursuing a claim for loss of earning capacity. To the extent that plaintiffs residency status is relevant for that claim, plaintiff has provided evidence that she is currently a legal resident and entitled to work within the United States. Her residency and immigration status prior to this bus accident thus is not relevant to the determination of any damages at issue in this case and should clearly be excluded.

III. Admission of Plaintiff's Immigration Status Would Create Undue Prejudice to PlaintiffEvidence Code Section 352 states that the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. See People v. Cardenas (1982) 31 Cal.3d 897, 904 (if the prejudicial effect of the disputed evidence outweighs the probative value, the trial court should exclude the evidence).

Evidence Code Section 352 justifies the preclusion of the requested evidence in this case. Given the clear lack of relevance, defendant's intention by admitting such evidence can only be to prejudice the plaintiff and cause the jury to look negatively or with ill feelings towards the plaintiff if she was unable to demonstrate residency or immigration status at a time period prior to the subject accident. Certainly, the issues will be confused and the jury will be misled by the admission of such evidence. And clearly the probative value of the evidence is nonexistent.

Continue reading "Sacramento Woman Fights Residency Issues After Bus Accident, Part 2 of 2" »

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

Plaintiff's Motion in Limine for Order Precluding Reference to Plaintiff's Residency or Immigration Status

Plaintiff MOLLY CHANCE hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony or argument relating to plaintiffs immigration and/or residence status.

This motion is made under the provisions of Evidence Code Sections 352 and 350, and is based on the supporting Memorandum of Points and Authorities, the pleadings and papers on file in this action, and upon such of the argument and evidence as may be presented prior to or at the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES

Preliminary Statement

This is a personal injury action arising out of an automobile versus pedestrian accident that occurred on October 27, 2006, where the plaintiff incurred a fractured jaw, brain hemorrhaging, dental damage and cognitive deficit and loss of earning capacity. This motion seeks to preclude the defendant from attempting to present prejudicial and irrelevant evidence relating to the plaintiffs immigration or residency status at the time of trial.

Plaintiff's Immigration Status Is Not Relevant to Any Material Issue in this Case

Evidence Code Section 350 states that (n)o evidence is admissible except relevant evidence. 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 (only relevant evidence is admissible).

Continue reading "Sacramento Bus Acident Victim Fights Immigration Issues, Part 1 of 2" »

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

To allow Officer Smith to essentially read to the jury his inadmissible traffic collision report including hearsay statements and impermissible opinions of statutory violation derived from that hearsay is reversible error. Over fifty years ago, the first district of the California Appellate Court opined ... (an) objection to the question put to (an investigation policeman) Officer Rakestraw as to whether or not he had issued any citations as a result of the accident was sustainable.... The question in that form was certainly objectionable as it clearly called for the conclusion of the witness as to whether or not there were any law violations and the objection was properly sustained. Hooper v. Bronson (1954) 123 Cal.App.2d, 243, 256.

CONCLUSION

Had Chance's trial been restricted to the competent, properly admitted and relevant evidence, there is no question the jury would have been compelled to find Davie negligent and causative of Chance's severe injuries. However, when a jury enthralled by law enforcement was allowed to hear extremely prejudicial testimony of Officer Smith's opinion of Ms. Chance's violation of California Vehicle Code 21954a, based solely on the unquestioned and inadmissible hearsay statements of Ms. White, Ms. Chance did not have a chance. By the time Ms. Chance's counsel questioned Smith of his admitted lack of understanding of White's inability to see what she reported based on her vantage point as documented by Smith the jury (save for Mr. Brown) had been rendered deaf. When the exact, sworn deposition testimony of Petra White was read to this same jury that contradicted Smith's hastily summarized and belatedly reported statement of this same witness as to Chance's manner and location of entry to Fourth Street and the brevity of White's view due to the bus obstruction, the jury was apparently comatose with indifference.

Continue reading "Victim Of Sacramento Bus vs. Pedestrian Accident Sues For Injuries, Part 13 of 13" »

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

7. This opinion was offered by an non-designated expert.

Over Chance's objection, Police Officer Smith opined what vehicle code in his opinion Molly Chance violated on the day of his brief inspection. (RT of Smith's Testimony, 4/28/08. 29:25 - 30:28, Exh. 1). This expert opinion should never have been allowed Smith had never been designated as an expert as required under C.C.P. 2034 and SDSC Local Rule 2.1.18(3) nor was he offered as a qualified expert even at trial. Further, Smith did not qualify to be an non-designated expert under the two sole provisions of C.C.P. 2034.310(a). That expert has been designated by another party ... No party had designated either of the police officers as experts before trial or even designated them as such in the joint witness list. (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial... Officer Smith could not be called to impeach any of the non-party accident eyewitnesses since he had not taken the time to find and interview them except for White who refused to appear.

8. Smith's opinion impermissibly invaded the exclusive province of the jury as the ultimate finder of fact.

Officer Smith's opinion went far beyond estimating the point or even area of contact like in the case of Arellano v. Moreno (1973) 109 Cal.Rptr. 421 Cal.App.2.Dist. Instead, his opinion went to the ultimate fact of a party's negligence per se in violating a statute intended to prevent the type of incident in question. It was the charge of the jury to make a determination if either or both parties were negligent, not Smith.

Continue reading "Sacramento Woman Files Personal Injury Lawsuit After Hit By Bus, Part 12 of 13" »

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

6. All eyewitnesses at trial contradicted Ms. White's hearsay testimony.

During trial, the jury was presented testimony of three eye witnesses other than Petra White to events immediately surrounding a bus versus pedestrian collision: (1) Mrs. Timmon (2) Tina Jones, and (3) Kim Perry. It was uncontroverted that Elm Street's westbound traffic light was green for both Chance and the bus as the bus entered the southern pedestrian crosswalk at the intersection of 4th and Elm. All these eyewitnesses testified they saw this pedestrian walking (not bolting) in the southern crosswalk before the bus turned into that crosswalk, except defendant's bus driver who failed to see Chance at all. Ironically, no one had a view better view both south and east of the southern crosswalk of 4th and Elm than the bus driver -- had he chosen to look that way.

Unless all four (including White) non-party eyewitnesses were wrong about seeing this pedestrian near or on fourth Street before seeing the bus turn left from westbound Elm St. to southbound 4th Ave., Ms. Chance was clearly visible to the bus driver (as White testified) if had he looked to his left from his position as he described during trial before he hit her. The only credible explanation for not seeing her as she approached the curb and or entered 4th Street is that Davie did not look in her direction or her image in his fisheye rear view mirror did not register in his consciousness. When turning left from a one-way street to another one-way street, the only vehicle traffic that potentially threatens the turning vehicle will be from its right, which is where Davie' attention obviously was. (See Part 12 of 13.)

Continue reading "Sacramento Pedestrian Cited For Jaywalking After City Bus Strikes Her In Crosswalk, Part 11 of 13" »

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

4. In the present case, Officer Smith had no physical evidence to support his jaywalking opinion.
There was no physical evidence that demonstrated Ms. Chance was anywhere but inside the crosswalk from the time she left the curb until being knocked out of hem shoes by Davie's bus except White's hearsay statement. Officer Adams also had noted nothing that could be construed as evidence of where Ms. Chance was at the time she was hit. Since she was found shoeless and sitting in front of the stopped bus, she must have been thrown from someplace earlier in the bus's path which logically would be somewhere underneath the 40-foot-long stopped bus, whose southernmost point was only18 feet below the Elm Street curb line according to Smith's measurement. That position would have the bus straddle the subject crosswalk whose borders were defined by the red painted curb only 8 to 10 feet distant (18 feet minus the width of the sidewalk) from the southern most point of the stopped bus.

5. Officer Smith had no reliable hearsay to help form his opinion.

In addition to having no relevant physical measurements to identify the point of impact, Officer Smith had only the hearsay description of Chance's conduct according to Ms. White that, considering her claimed vantage point of view for this description was impossible for her to have seen.

Continue reading "Sacramento Woman Suffers Catastrophic Injuries When Hit By Bus, Part 10 of 10" »

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

3. Further, since Officer Smith's opinion does not fit into any legally recognized exception to this rule, his opinion is inadmissible.

The recognized hearsay exceptions admit out-of-court statements for their truth on the theory that the underlying circumstances carry the necessary indicia of trustworthiness to make the declarant's statement sufficiently reliable as substantive proof (e.g., a party would not have made a disserving admission unless the admission was true; a nonparty declarant would not have spoken against his or her interest unless the statement was true, etc.). [See Williamson v. United States (1994) 512 US 594, 599, 114 S.Ct. 2431, 2435; People v. Cudjo (1993) 6 C4th 585, 608, 25 CR2d 390, 404 - hearsay exceptions involve circumstances affording some assurance of trustworthiness to compensate for absence of oath, cross-examination and jury observation.

There is case authority allowing a percipient investigating officer to estimate the location of the point of contact based on physical measurements of which he has percipient knowledge and reliable hearsay statements. Arellano v. Moreno (1973) 109 Cal.Rptr. 421 Cal.App.2.Dist. Possible partial hearsay basis of police officer's opinion as to location of point of impact went to weight and not to admissibility of opinion where hearsay was reasonably reliable. A police officer trained and experienced in investigation of traffic accidents and in rendering of official reports on the facts and causes of the same may give expert testimony as to point of impact when his opinion is based upon his inspection of the physical evidence at the scene of the accident, however, his opinion as to point of impact is not admissible when based on what witnesses told him rather than on what he himself observed. Francis v. Sauve (1963) 222 Cal.App.2d 102, 115. (See Part 10 of 13.)

Continue reading "Pedestrian In Crosswalk Hit By City Bus In Sacramento, Part 9 of 13" »

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

1. Officer Smith's opinion was based exclusively on one unreliable hearsay witness: Petra White.

What Petra White told Officer Smith at the scene of the accident was quintessential hearsay not subject to any legally recognized exception:
Q. As best you recall, what did Ms. White tell you?
A. [Smith] She said she was on the northeast corner of Fourth and Elm, waiting for the light to turn green so she could continue southbound. She said that she saw a lady bolt from the east curb toward the west in a diagonal direction, I guess, if you will. Then the bus hit her, and then she had flown out of her shoes and she landed in front of the bus.
Q. When she indicated this diagonal direction, did she indicate whether or not this woman bolted in a diagonal direction toward the north or toward the south?
A. [Smith] Toward the south.
Q. So, away from the intersection?
A. [Smith] Correct. (Smith 4/28/08 RT15:9-23)

2. The content of the above testimony is pure hearsay, that is: an out of court statement offered to prove the truth of the matter asserted.

Rationale for Excluding Hearsay-Trustworthiness: The hearsay rule is predicated upon the essential trustworthiness or reliability of evidence. [People v. Ayala (2000) 23 C4th 225, 268,- The general rule that hearsay evidence is inadmissible because it is inherently unreliable is of venerable common law pedigree.] Unlike in-court testimony based on a witness' firsthand knowledge, an out-of-court statement is not subject to cross-examination to test the declarant's perception, memory and veracity when the statement was made. Lacking the be refit of cross to probe the declarant's perception, memory and veracity, hearsay evidence is inherently unreliable as substantive proof. Buchanan v. Nye (1954) 128 CA2d 582, 585, -- essence of hearsay rule is requirement that testimonial assertions shall be subjected to the test of cross-examination.]

Continue reading "Sacramento Woman Struck By Bus In Crosswalk, Part 8 of 13" »

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

D. There was an error in law in permitting Officer Smith to testify as to Chance's Vehicle Code Violation where he was not designated as an expert, not deposed as such, and based his opinion only on inadmissible hearsay. (C.C.P. section 657(7)).

In Richard v. Scott (App. 4 Dist. 1978) 144 Cal.Rptr. 672, 79 Cal.App.3d 57, the court was presented with an injury action arising out of a two-car collision at a controlled intersection. In that case the trial court correctly exercised its discretion in granting plaintiff's motion for new trial on ground that it had committed error in admitting opinion of defendants' accident reconstruction expert that plaintiff was traveling in excess of posted speed limit. The record supported trial court's determination that many of the factual assumptions made by such expert in arriving at his opinion lacked sufficient evidentiary support.

According to all non-party eyewitnesses, Ms. Chance was very visible walking up to, into and in the crosswalk before the bus turned into her path 26 feet beyond the Eastern curb. Since Davie himself testified that the traffic light was green for him as he timed it, it would also have been green for Plaintiff Chance who consequently had the right of way over the bus since she was not turning.

Following this presentation of testimony, the jury was instructed as follows:
(1) CACI 700 Provides in relevant part: A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians ... The failure to use reasonable care in driving a vehicle is negligence. Also,
(2) CACI 705. A driver must use reasonable care when turning; and
(3) CACI 710. The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians. While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians.

Continue reading "Police Officer's Report Presents Problems For Sacramento Bus Accident Victim, Part 7 of 13" »

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

3. Percipient non-party witness #3, Kim Perry saw Ms Chance walking "normal for an old person" in the crosswalk before a big bus turned left striking her in the center of the crosswalk. (RT of Perry's Direct Testimony, 13:10 - 14:13.)

Argument: Like Jones, Perry was more distant and lower to the ground than Davie sitting high in the front seat of a bus with panorama window view including his left and front. (Trial Court Exhibit No. 1, Exh. 7). But for his concern about oncoming southbound traffic on Fourth Street coming from his right, there was no reason he should not have seen Chance as he approached and entered the intersection.

4. Even hearsay non-party witness #4, Petra White, in her sworn deposition, had no problem seeing Chance and indicated that the bus driver saw her as well. White reports seeing the bus start and stop several times in response to Chance stepping off and then retreating back onto the east curb before she entered the crosswalk. (White Depo., 39:14 - 41:20.) Further, White admits to seeing Chance leave the eastern curb of Fourth Street either 8, 4, or 5 feet south of the Elm Street Curb walking straight then losing sight of her due to the bus blocking her view until seeing Chance struck by the front of the bus, knocked out of her shoes and carried by the bus some distance before dropping to the street. (White Depo., 15:7-25; 20:15.)

Continue reading "Bus Passenegers Witness Collision With Sacramento Pedestrian, Part 6 of 13" »

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

SUMMARY OF EYEWITNESS TESTIMONY
All three non-party eyewitnesses testified they saw a pedestrian (Chance) walking in the crosswalk before the turning bus struck her:

1. Percipient non-party eyewitness #1, Annie Timmon, was a passenger on the subject bus sitting behind the driver. She testified via videotape that while sitting at a window several rows behind Davie, she saw Ms Chance walking "normal" on the sidewalk alongside the bus before it turned. She saw Ms. Chance walking beyond the curb, after he front of the bus had also entered the intersection. Ms. Timmon testifies: I saw they were going to touch... I thought I was in Mexico, and in Mexico the pedestrian waits in the middle of the street waiting for the bus to go by. I thought that she was going to stop at the center at the cane - the lane that it's at the center. And when I saw that she was about to have contact with the bus, then I screamed... Q: Did you see what happened to this pedestrian? A: No ... I couldn't see. Q: Where was the pedestrian when you last saw her? A: Ahead when she was about to have contact with the bus. (Timmon Depo., 16:7 - 18:1.)

Argument: This testimony clearly supports Plaintiffs contention that a normally walking Chance was visible to the left of the bus driver Davie after he had entered he intersection but before he started to turn left striking her. Since she was walking alongside the bus, she was in the crosswalk area just having exited the sidewalk. Molly Chance had every right to enter the crosswalk on a green signal even after the bus had entered the intersection because she was walking straight and therefore had the right of way over the turning Davie just like eastbound pedestrians Davie had stopped for. If Timmon could see Chance as bus and pedestrian passed each other, certainly Davie should have seen her too, if he had looked to his left.

Continue reading "Many Eyewitnesses To Bus Hitting Sacramento Woman, Part 5 of 13" »

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

Although Chance's ten-year-old car accident failed to illuminate any issue before the jury, the information did help assuage any pangs the juror's consciences may otherwise have felt for leaving her disabled and confused for the rest of her life without compensation. When they learned, again over Plaintiff counsel's objection, that Ms. Chance concealed/forgot a 10-year-old automobile accident during which she broke her leg without head trauma and that Ms. Chance was treated at that time under a different name, she was the subject of jury speculation as to her character for lying and fraud.

However, under the influence of the aforementioned improper and fatally prejudicial testimony, the jury was motivated to and the majority of them did ignore the courts instructions and failed to deliberate any evidence inculpating Defendant of negligence. The jury was charged as its first task to answer the special verdict question: Was Defendant Davie of USA negligent? Instead of taking the trouble to consider three days of testimony, photographic evidence and law provided them to answer that question, as juror Mike Brown's declaration makes clear, the jury majority jumped to the question Was Molly Chance negligent? which required no time or thought at all based on their vivid recollection of Police Officer Smith's opinion and their newly acquired negative predisposition to a lying, "cheating" Chance.

C. There is insufficient evidence to support the jury's verdict. (C.C.P. section 657(6))
In Hendricks v. Pappas (App. 1947) 82 Cal.App.2d 774, 187 P.2d 436, the trial court granted the plaintiffs new trial motion following a jury trial involving an action against a motorist by a pedestrian for injuries sustained by the pedestrian when struck by automobile while he was crossing street.

Continue reading "City Bus Collides With Sacramento Pedestrian, Part 4 of 13" »

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

B. It was an abuse of discretion for the court to allow remote, irrelevant but highly prejudicial testimony to be admitted concerning Chance's ten-year-old traffic accident and hospitalization. (C.C.P. section 657(1))

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Ev.C. § 352.

Defendant argued and the court ruled that the relevance of this information went to the veracity of the Chance but this analysis is flawed in two ways:

First, Ms. Chance's "veracity" was never in issue. No fact or contention at trial was supported by her testimony and was never solicited by either party. Because of her brain injury and retrograde amnesia, she neither testified as to how the accident happened nor to the nature and extent of her injuries. A fortiori, both sides extensively tested her for signs of attempts to game the mental impairment evaluation process. On all occasions she passed with high scores for veracity. Brain damage is a significant part of Chance's consequential damages as presented by multiple eminent mental health care professionals including defendant's own designated neuropsychologist expert, Dean C. Delis, Ph.D., Professor of Psychiatry, UCSD School of medicine. The fact of her brain injury was also evidenced just days after the bus accident at the brain injury clinic referral in the initial emergency hospitalization discharge records. As such, Chance's cognitive faculties were objectively proven to be permanently impaired including memory and judgment without any reliance on her direct testimony.

Continue reading "Female Pedestrian From Sacramento Injured By City Bus, Part 3 of 13" »

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

LEGAL STANDARD FOR MOTION
C.C.P. section 657 provides, in part: The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
2. Misconduct of the jury.
3. Insufficiency of the evidence to justify the verdict or other decision.
4. Error in law, occurring at the trial and excepted to by the party making the application.

ARGUMENT
A. Ignoring the Court's Limiting Instruction as to the Import of Officer Smith's Determination of Chance's Violation of the Vehicle Code was Misconduct of the Jury, as Was their Refusal to Deliberate the Foundational Facts of Officer Smith's Opinion (C.C.P. section 657(2))

Following Officer Smith's testimony opining Chance was in violation of the vehicle code by her failure to yield right of way to oncoming traffic outside a crosswalk (CVC 219548(a)) aka jaywalking ) the court gave the jury a limiting instruction as follows: The officer's determination that Ms. Chance violated the vehicle code does not mean that she's at fault. He is not saying who is at fault for the accident, so that everyone is aware of that. (Reporter's Transcript ( RT ) of Smith's Testimony, April 28, 2008, 31:5-8.) According to the declarations of Jurors Mike Brown and Alice Greene, the jury disregarded that instruction instead treating Smith's opinion as a finding of fault inculpating Chance of the accident. Compounding that misconduct, the jury then refused to deliberate the evidence that contradicted Smith's opinion despite exhortations of the jury foreman to do so. In Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 65 Cal.Rptr.2d 321, the cour: explained that the jury must deliberate collectively. In that case, prior to deliberations, one juror wrote out a statement of her opinions and read it to the other jurors. The Court explained that this was permissible only if that juror was willing to continue with deliberations as required by C.C.P. section 611. The trial court accurately explained to the jury that A position on paper does not add or detract from anything, except that you may not simply say, Here. Read this, I have nothing else to say,' because, if you do that, you are not deliberating. Id. at 262.

Continue reading "Woman From Sacramento Hit By Bus, Part 2 of 13" »

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

Plaintiff Molly Chance moves this court to vacate judgment in this matter and order a new trial under C.C.P. section 657.

INTRODUCTION
Following five days of testimony, a jury rushed to verdict within minutes of electing a foreperson. Despite sworn testimony of all four non-party eyewitnesses clearly seeing Plaintiff Molly Chance ( Chance ) before being struck by a bus, a jury found Defendant's employee, Paul Davie ( Davie ) who had a closer and less obstructed view than any of the other witnesses, not negligent in failing to see Chance either before or while making a left turn consequently hitting her with his employer's bus. As will be discussed in the following points and authorities, this travesty of justice was the product of jury misconduct motivated by extreme prejudice fomented against Chance by objected, inflammatory, irrelevant and otherwise inadmissible evidence.

In contravention of the court's instructions, there was no deliberation concerning the law and evidence that addressed Davie's duties and conduct. Only the jurors' collective recall of an investigating traffic police officer's unfounded opinion that Chance was jaywalking when struck by defendant's bus was deliberated. Already biased against Chance due to irrelevant and prejudicial evidence of a ten-year-old accident, the policeman's opinion was enough for a majority of the jurors to place all the responsibility for the incident on her In the interest of serving justice, this verdict should be set aside and a new trial ordered. (See Part 2 of 13.)

Continue reading "Sacramento Pedestrian Hit By Bus, Part 1 of 13" »

In an effort to be better prepared for an actual bus crash emergency, Yolo County emergency personnel used staged crash.

Rumsey Rancheria firefighter Joseph Perez yelled, asking if anyone inside an overturned bus could hear him. As instructed, the 20 Esparto High School students played their roles as victims of a bus crash well. Some moaned, some whimpered for help, and a few who only had minor "injuries" walked out. Heather Lopez, 15, slumped over a cracked and "blood"-stained window, pretended to be lifeless. Mock injuries on the teenagers' faces, parts of their bodies and clothes made it look like they were bleeding.

Saturday's simulated exercise comes at the heels of a spate of high-profile bus crashes in the past year and bears many similarities to the one that killed 10 people near Williams in October.

The real-life deadly crash took place on a small farm road, with a chartered bus bound for Colusa Casino Resort carrying mostly Hmong-speaking elderly residents from the Sacramento area.

Saturday's mock exercise took place along rural Highway 16 in Yolo County, near Cache Creek Casino Resort.

During a briefing before the drill, Rumsey Rancheria Fire Chief Michael Chandler said many lessons were learned from the fatal crash.

"One of the problems was who are our patients and where do they go?" Chandler said.

A review of the deadly crash showed failure in a communication system led to troubled transits for helicopters carrying patients. One had to hover over UC Davis Medical Center in Sacramento, low on fuel, because the helipad was full. Meanwhile, the paramedic coordinating transport at the scene wasn't aware that Sutter Roseville and Mercy San Juan medical centers had helipads.

On Saturday, nurse Joaquin Franz said the agencies practiced using an electronic system that informs users of the load that each hospital can manage during a mass-casualty incident.

Continue reading "Yolo Emergency Workers Use Bus Crash Drill To Better Prepare" »