Southern California Injury Lawyer Blog

California Appellate Court Addresses Expert Testimony Requirement in Johnson and Johnson Lawsuit

February 19, 2020 | Sharifi Firm, APC

Recently, an appellate court issued a ruling on an appeal stemming from a California products liability suit. A woman specifically claimed, amongst other issues, that the company was liable for negligence, false representation, and intentional failure to warn/conceal the asbestos in their cosmetic and baby powders. Further, her husband filed claims based on the loss of consortium. The plaintiff argued that she developed malignant mesothelioma after using the company’s products daily for 20 years.

Johnson & Johnson moved for summary judgment based on its expert testimony that the company’s talcum powder and talc did not contain asbestos. Further, they argued that the plaintiffs did not present any expert testimony refuting the company’s expert testimony. The plaintiffs countered that the evidentiary burden did not shift to them because their discovery answers were sufficient, and in the alternative, their evidence demonstrated that the mines contained asbestos.

Under California law, if a defendant makes a “prima facie showing of the nonexistence of any triable issue” of material fact, the burden shifts to the plaintiff to make a contrary showing. California courts have found that if a defendant manufacturer meets its initial burden of production by making a prima facie showing that the plaintiff does not and cannot produce sufficient exposure evidence, the burden then shifts to the plaintiff. The plaintiff must then present evidence to raise a triable issue of material fact. In instances where a plaintiff’s claim stems from using a product not designed to contain asbestos, plaintiffs must show that it was “more likely than not” that the product was contaminated. Historically, courts have only overruled a defendant’s summary judgment motion in talc asbestos cases when the plaintiff presented expert testimony on the issue of contamination and exposure.

Court Rejects Arbitration Agreement in Southern California Nursing Home Neglect Lawsuit

January 5, 2020 | Sharifi Firm, APC

Recently, a state appellate court issued an opinion in a case against a California nursing home. The case required the court to determine if an arbitration agreement, signed by the resident’s adult daughter, was valid and enforceable. Ultimately, the court affirmed the lower court’s finding that there was substantial evidence suggesting that the resident’s daughter did not have the authority to sign the form and agree to submit any subsequent claims to arbitration. Thus, the court rejected the facility’s request to force the case into arbitration.

According to the court’s opinion, the plaintiff’s mother was a resident at the defendant nursing home. The plaintiff’s mother had a history of diabetes, dementia, end-stage renal disease, generalized muscle weakness, and other debilitating conditions. At some point during her stay, the plaintiff’s mother required hospitalization. Upon her mother being re-admitted to the facility after being discharged from the hospital, the plaintiff signed a two-page document containing an agreement to arbitrate any claims arising out of the facility’s care of her mother. The plaintiff signed on her mother’s behalf. The plaintiff’s mother did not sign the document.

Later, the plaintiff’s mother passed away from a worsening medical condition. The plaintiff filed a wrongful death lawsuit against the facility, and the facility moved to compel arbitration, based on the agreement signed by the plaintiff. The plaintiff argued that the agreement was invalid because, at the time that she signed it, she did not have the legal ability to sign away her mother’s right to access the court system.

California Court of Appeals Rejects Trip and Fall Lawsuit

December 27, 2019 | Sharifi Firm, APC

Under California premises liability law, landowners and public entities can be held responsible for dangerous conditions that result in injuries or death to another person. In order to successfully hold a property owner accountable for an injury-causing hazard, however, certain requirements must be met. In a recently published decision, the California Court of Appeals affirmed a lower court’s judgment in favor of the defendant in a lawsuit filed by a plaintiff who was injured in a Southern California trip and fall accident.

The plaintiff in the recently decided case was injured when she walked into a concrete pillar near the Los Angeles Convention Center. The plaintiff’s lawsuit alleged that the pillar, which was placed in front of the convention center to prevent vehicles from driving into a pedestrian zone, was a dangerous condition negligently constructed in a public thoroughfare.

The City of Los Angeles, which was the defendant in the case, claimed that it was immune from liability under a doctrine known as design immunity. Design immunity is a defense available to public entities that shields these entities from liability if they can demonstrate that a public authority reasonably exercised discretionary authority when approving the design at issue. The trial court granted the city’s summary judgment motion and disposed of the plaintiff’s claim, resulting in the plaintiff’s appeal.

California Driver Strikes and Kills Trick-or-Treating Family While Under the Influence

November 19, 2019 | Sharifi Firm, APC

Recently, a national news report released updates on a tragic trick-or-tricking California pedestrian accident. A young family was walking back to their condo in Long Beach when an SUV crossed onto the sidewalk and slammed into the family. Sadly, the family was just steps away from their condo when the driver struck them. Law enforcement arrested the driver at the scene of the accident, and he was arrested for driving under the influence. In addition to drunk driving charges, the man is facing gross vehicular manslaughter criminal charges. The husband died shortly after impact, his son died on Saturday, and his wife died the following morning.

The California Department of Public Health (CDPH) in conjunction with the National Highway Transportation Safety Administration (NHTSA) collect, study, and report motor vehicle accident statistics. As the access and ease of public transportation in California increases, many more people walk as part of their daily commute. The increase in daily pedestrian traffic in combination with the prevalence of street and community events makes it even more crucial that motorists engage in safe driving.

Unfortunately, almost 20% of California accidents involve pedestrians, which is nearly 60% higher than the national average. The most recent data compilation reveals that there is an average of 238,000 fatal and non-fatal traffic injuries in California, and over 13,000 of those accidents involve severe injuries to pedestrians. Various factors impact the likelihood that a pedestrian will be involved in a traffic accident. Some factors include lighting, time of day, season, and pedestrian location. Most California pedestrian accidents occur during daylight, weekday business hours at non-intersections.

Establishing the Element of Breach in California Personal Injury Claims

October 28, 2019 | Sharifi Firm, APC

When someone is injured as a result of another’s risky or negligent behavior, state law allows them to bring a California personal injury suit to recover for their injuries. In order to establish liability in California, the plaintiff must prove the elements of negligence. First, the plaintiff must prove that the defendant owed her a duty of care. Next, the plaintiff must prove that the defendant breached that duty. Third, the plaintiff must prove that she was injured, and then the plaintiff must establish that the defendant’s breach of duty was a proximate cause of her injury. While this may seem straightforward, a plaintiff can be barred from recovery if she fails to prove just one of these elements.

For instance, take a recent California appellate court case. According to the court’s written opinion, the plaintiff was visiting the defendants’ home in Sonora, California, when she fell on a step leading from the house to the garage. She fell to the floor and suffered injuries to her right wrist and to her humerus. It was later discovered that the garage step violated several provisions of the Uniform Building Code (UBC), although defendants were unaware of these violations at the time of the accident.

The plaintiff brought a lawsuit against the defendants, arguing that they were negligent and that the garage step, due to the UBC violations, was an unreasonably dangerous condition that caused her injuries. While it may seem at first glance that the plaintiff had a strong negligence claim, the court ultimately dismissed her claim because she could not prove that the defendants breached their duty. According to the court, the defendants did owe a duty of care to the defendant, who was visiting their property. Landowners breach this duty of care if they do not take reasonable precautions to ensure that dangerous conditions do not exist on the property, or that visitors are warned if they do. However, in this case, the defendants did not know about the UBC violations. The court found that the plaintiff had not met her burden to prove that the defendants should have known or been on alert for the dangerous condition created by the garage step. As such, missing a critical element of negligence, the plaintiff’s case was dismissed and she was unable to recover.

Court Discusses Scope of Permissible Impeachment Testimony in Recent California Bus Accident

September 17, 2019 | Sharifi Firm, APC

In a recent written opinion, a California appellate court discussed when evidence from an expert witness who is not on a party’s expert-witness list can be considered in a personal injury claim. According to the court’s opinion, in 2013 the plaintiff was an incarcerated in a county jail and was taken to and from court on a county bus. The plaintiff testified at trial that the bus hit a beam while parking, causing the inmate to whom the plaintiff was chained to sway, ultimately pulling the plaintiff off of his seat and onto the floor of the bus. A videotaped interview after the accident showed the plaintiff saying clearly that he was not injured in this accident, but the plaintiff asserts that shortly after the interview he began to feel pain. According to the plaintiff, this injury required he see both a doctor and a chiropractor regularly, amassing significant medical bills.

At trial, the plaintiff’s doctor testified that he believed the plaintiff’s injuries stemmed from the 2013 bus accident, and that the plaintiff required future surgery, estimated at around $90,000. The defendant county called another doctor as an expert witness to testify, but this doctor was not on their list of expert witnesses submitted to the court. Under California law, he was allowed to testify, but only in order to “impeach” the evidence of the plaintiff’s doctor. Impeachment testimony is permissible if it focuses on negating a specific fact used by another party’s witness to draw their conclusion. However, impeachment testimony cannot be simply used as pretext for offering a contrary opinion. The defendant’s added witness testified, stating that the plaintiff’s doctor had reached the wrong conclusion and misunderstood or misapplied medical science. At the end of trial, the jury returned a verdict for the plaintiff but awarding him far less damages than he sought, seeming to rely on the defendant’s expert witness’s testimony undercutting the plaintiff’s doctor.

The plaintiff appealed the verdict, in part arguing that the defendant’s expert witness’s testimony was beyond the scope of permissible impeachment and should not have been considered. The appellate court agreed, finding that the defendant’s witness, when discussing the plaintiff’s doctor testimony, did not aim to negate or deny a specific fact used by the doctor. Instead, according to the court, the defendant’s doctor offered his own, contrary opinion, which went beyond the scope of permissible impeachment. As such, the jury should not have been allowed to consider the testimony, and the court remanded the case for a new trial.

California Appellate Court Considers Excuse Instructions in Recent Car Accident Case

August 27, 2019 | Sharifi Firm, APC

A state appellate court recently considered when an “excuse” jury instruction is appropriate in a California car accident case. According to the court’s opinion, the plaintiff was driving on the highway when a mattress suddenly flew at her vehicle, causing her to swerve and hit the barrier. Eye-witnesses stated that they saw the mattress come from the defendant’s truck, and the plaintiff sued. California law requires that vehicles be loaded so that the materials on them stay put. The plaintiff alleged negligence per se, which is a finding of negligence based on a violation of the law.

The trial court gave a jury instruction stating that a violation of the law is excused if it is found that the defendant was using reasonable care but was still unable to obey the law. The jury found that the defendant was not negligent. However, at trial, the defendant driver stated that there was no mattress in his truck on the day in question. The jury, in reaching its decision, did not state whether it was based on a finding that the defendant’s truck was not the source of the mattress or whether the defendant had an excuse, based on the instruction in question. The plaintiff appealed.

The appellate court agreed with the plaintiff that the excuse instruction was improper and remanded the case back to the trial court. The court explained that the situation at hand did not present the special circumstances necessary to warrant an excuse instruction. There was no evidence that the defendant used reasonable care to ensure there was no mattress in the back of his truck because he relied on his coworker’s word that the truck was empty, even though it would have been relatively easy for him to check himself. Nor was there evidence that the defendant was unable to comply with the law in question, requiring items in trucks to be secured. Because there were no special circumstances, the court held that the excuse instruction was improperly given. Additionally, the court’s opinion explained that the instruction was improperly worded in that it failed to make clear that the burden to establish the excuse is on the defendant, rather than the plaintiff.

Will California Courts Discount Future Damages Awards to Present Value?

July 12, 2019 | Sharifi Firm, APC

In a California personal injury case, a plaintiff can seek various damages depending on the injuries they sustained and the effects those injuries are expected to have in the future. Common types of damages awards include those for lost wages, past medical expenses, and past pain and suffering. However, serious accidents often have lasting consequences on a plaintiff’s life, and, commonly, plaintiffs will suffer damages that occur well after the conclusion of the trial. In these cases, courts allow plaintiffs to seek future damages.

Types of future damages awards include amounts for lost future income, future medical expenses, and for any future pain and suffering. The award of future damages presents an interesting issue in that the future value of these damages award may not be equal to the present value of the same sum. This is because of the effect of compound interest. For example, if someone is promised $1,000 ten years from now, the present value of that $1,000 is less than $1,000.

The actual present value is the amount that, if invested today, will yield $1,000 in 10 years. Of course, this depends on the interest rate, but the effect can be significant. To illustrate the significance of this concept, the present value of $1,000 to be received in 10 years, at a discount rate of 5% is $614.

Establishing Causation in California Negligence Claims

June 26, 2019 | Sharifi Firm, APC

California accident victims can pursue a claim for compensation against anyone they believe to be responsible for their injuries. To successfully bring such a claim, a plaintiff must be able to establish that the defendant’s negligence was the cause of their injury. This is referred to as the element of causation.

To establish causation, a plaintiff must prove that it is more likely than not that the plaintiff’s injury was a result of the defendant’s conduct. However, causation cannot be based solely on speculation. The mere possibility that the defendant’s conduct was the cause is insufficient to prove causation; a plaintiff must prove that the defendant’s breach of duty was a proximate or legal cause of the plaintiff’s injury. Generally, the jury must decide if the plaintiff has proved causation. However, if the issue of causation involves a legal determination, the court can decide whether causation is sufficient in a motion for summary judgment.

California injury cases can be complicated and may involve multiple parties. A defendant’s negligent conduct does not need to be the sole cause of the plaintiff’s injury in order for a jury to find them liable for the injury. California law follows the “substantial factor” test in determining cause-in-fact. That means to meet the causation element, the plaintiff must show that the defendant’s conduct was a substantial factor in bringing about the injury. If a defendant’s conduct took place at the same time as other acts, the defendant’s conduct may be a “substantial factor” if the injury would not have occurred but for the actor’s conduct. If the simultaneous negligence of two parties contributes to the plaintiff’s injury, each person’s acts will be considered the proximate cause, and the plaintiff may recover full compensation from either person, or both.

California Appellate Court Discusses “Firefighter’s Rule” in Recent Personal Injury Case

May 27, 2019 | Sharifi Firm, APC

In April of 2019, a state appellate court issued a written opinion in a California premises liability case discussing the application of the state’s “firefighter’s rule.” Ultimately, the court concluded that the case did not implicate the firefighter’s rule.

The firefighter’s rule is an exception to the general rule that landowners have a duty to ensure that their property is safe for visitors. Originally, the firefighter’s rule applied to firefighters and emergency personnel who put themselves at risk while engaging in the necessary functions of the job. Essentially, the firefighter’s rule prohibits a firefighter from pursuing a claim against a landowner because the firefighter is said to have assumed the risk of injury by agreeing to work in that capacity.

According to the court’s opinion, the plaintiff was a site manager at a home in Beverly Hills. The home was architecturally unique in that there was a cantilevered concrete platform that extended from a steep hill, designed to look as though it was floating. The owner of the property, the defendant, rented the home for special events.