Sacramento Injury Lawyer Blog

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

The Kentucky Supreme Court reversed a punitive damages award and remanded for a new trial in a suit against an insurance company alleged to have made a bad-faith effort to settle a auto-injury claim, because the trial court improperly admitted evidence of the defendant's allegedly similar effort to stonewall another claimant. Citing State Farm, the court held that the evidence was improperly admitted because the Constitution sharply limit[s] the use of evidence of other transgressions to prove entitlement to punitive damages. Ky. Farm Bureau Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 819 (Ky. 2005).

In each of the above cases, just as in this case, the plaintiff wished to tell the jury about other acts the defendant committed, beyond the acts that caused the harm for which compensatory damages were awarded. In each of the above cases, just as in this case, there was a plausible connection between those acts and the conduct that harmed the plaintiff. In each of the above cases, just as in this case, the plaintiff was able to describe a course of conduct that encompassed both the conduct that harmed him and the evidence of other acts. And in each of the above cases, the appellate courts eventually held that it was error to admit the evidence of other acts.

Indeed, there are striking parallels between the evidence that plaintiff wants to introduce here and the evidence at issue in the above cases. Just as the plaintiff in this case argues that USA Tobacco engaged in a decades-long scheme of fraudulently inducing consumers to buy dangerous defective products, the plaintiff in State Farm claimed that the defendant had a national scheme to meet corporate fiscal goals by capping payouts on claims company wide. And just as plaintiff in this case argues that USA Tobacco blames anything and anyone except itself for the results of its conduct, the Holdgrafer plaintiffs argued that the evidence of other oil spills demonstrated a company policy of denying responsibility for such accidents. Time and again, the appellate courts have rejected these arguments. Even where other bad acts are sufficiently connected to the conduct that harmed the plaintiff to be marginally relevant to demonstrate the reprehensibility of that conduct, the potential for prejudice usually far outweighs the probative value.

Continue reading "Wrongful Death Suit Filed By Sacramento-Area Woman, Part 6 of 7" »

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

3. Other cases
Holdgrafer is far from the only post-State Farm appellate decision vacating a punitive award after holding that other acts evidence was improperly admitted. Courts around the country have repeatedly done the same:

The Arkansas Supreme Court ordered a new trial on punitive damages in a case brought against a chemical manufacturer by farmers whose wheat crops were rendered unfit for sale when they were sprayed with an insecticide that was later determined to be unsafe for use on wheat. The plaintiffs had introduced evidence that the defendant had recommended the product for use not only on plaintiffs' farms, but also on various other farms in Mississippi. The Court held that this evidence should not have been admitted, because it improperly invited the jury to impose punishment for conduct that harmed farmers other than the plaintiff. See FMC Corp. v. Helton, 360 Ark. 465 (2005).

The Indiana Court of Appeals vacated a punitive award in a negligence suit brought against a drunk driver because the trial court had allowed the jury to hear evidence of the defendant's other DUI arrests. That court recognized that evidence of the defendant's similar acts might, in rare situation[s], assist the jury in determining the level of punitive damages necessary to deter future transgressions. But, citing State Farm, the court held that any relevance which [the defendant's] subsequent acts could have had upon the issue of punitive damages was substantially outweighed by the danger that the jury would use this evidence to punish [him] for his subsequent acts instead of the conduct that gave rise to [the plaintiffs] actual damages. Wohlwend v. Edwards, 796 N.E. 2d 781,785, 787 (Ind. Ct. App. 2003).

Continue reading "Roseville Woman Seeking Punitive Damages, Part 5 of 7" »

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

After hearing this evidence and argument, the jury returned a $10 million punitive award that the trial court reduced to $5 million. The Second District reversed, holding that it was error for the trial court to admit evidence of the two other spills. Even though that evidence also involved damage from oil spills and Unocal's refusal to compensate landowners for their damages in a timely manner, the other cases were different from the Holdgrafers': they involved different kinds of leaks, different kinds of contamination, different company personnel, different responses, and different methods of avoiding responsibility. The Court of Appeal therefore held that the evidence was too dissimilar to shed significant light on the reprehensibility of the conduct that had actually harmed the plaintiff, and that to the extent it was marginally relevant, its potential for prejudice far outweighed its probative value. (See Cal. Evid. Code § 352.) The court vacated the award and remanded for a new trial on punitive damages.

This reasoning tracks the California courts' application of Evidence Code § 1101, which provides that character evidence is inadmissible to prove that the defendant engaged in misconduct consistent with that bad character on the occasion at issue in the trial. In Clark v. Optical Coating Lab., Inc., 165 Cal. App. 4th 150 (2008), the First District explained that Section 1101 applies to corporate defendants and precludes a plaintiff from offering evidence of a defendant's other bad acts absent a showing of distinctive similarities or common features between the two instances of conduct. Id. at 175. Applying that rule, the court held that evidence of groundwater contamination at the defendant's own facility was inadmissible in support of the plaintiffs' claim that the defendant had disposed of chemicals improperly on the plaintiffs' property. Id. at 174-75.

Continue reading "Tobacco Company Challenges Punitive Damages Award For Sacramento-Area Woman, Part 4 of 7" »

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

2. Holdgrafer v. Unocal
In Holdgrafer, decided by the Court of Appeal for the Second District, the defendant was Unocal, an oil company that owned a network of undergrounds oil pipes throughout California. The plaintiffs, who owned a plot of land adjacent to one of Unocal's facilities, claimed that their property had become contaminated by oil leaks from Unocal's facilities. A jury awarded $2.5 million in compensatory damages.

In support of their punitive damages claim, the plaintiffs introduced evidence of two other oil spills that had occurred elsewhere in California. Those spills caused considerable damage to wildlife and wetlands, and there was evidence that Unocal had intentionally concealed the severity of the contamination and its own responsibility. Like the plaintiff in State Farm, the Holdgrafer plaintiffs justified their introduction of this evidence by arguing that it undermined Unocal's claims of innocent mistake: they contended that Unocal's conduct toward them was part of a company policy of concealing its responsibility for oil leaks and spills. At one point, for example, plaintiffs' counsel asked the jury: You gonna buy this story that they're giving you that it's just a simple act of negligence, that all this evidence that we put on of the [other] spill[s] and the misrepresentations ... is just simple negligence? I got a word for it. Baloney. 160 Cal. App. 4th at 934.

Continue reading "Punitive Damages An Issue In Wrongful Death Case For Roseville Plaintiff, Part 3 of 7" »

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

1. State Farm v. Campbell
The first case to explicitly discuss the use of other acts evidence for purposes of assessing reprehensibility in punitive damages trials was the United States Supreme Court's decision in State Farm. That case was a suit against an insurance company brought by one of its former policyholders for bad-faith failure to settle a personal-injury claim against the policyholder.

The jury found for the plaintiff on compensatory liability and damages. During the punitive phase, State Farm defended by asserting that its initial refusal to settle was an honest mistake. The plaintiff countered by introducing evidence showing that State Farm had a policy of stonewalling in cases like his: the plaintiff alleged that for 20 years, State Farm had engaged in a national scheme to meet corporate fiscal goals by capping payouts on claims company wide. (538 U.S. at 415.) Over State Farm's objections, the trial judge allowed this evidence so that the jury could determine whether State Farm's conduct in the Campbell case was indeed intentional and sufficiently egregious to warrant punitive damages - i.e., because the court thought it bore on the reprehensibility of State Farm's conduct toward the Campbells. Id. The jury evidently believed that State Farm's conduct was reprehensible: it returned a $145 million punitive damages award.

After several levels of appeals, the U.S. Supreme Court granted certioriari and vacated the punitive award. The Court did not question the jury's evident conclusion that State Farm's corporate practices were reprehensible, but it held that the Constitution does not permit juries to use punitive damages awards in individual lawsuits to punish nationwide behavior directed at large groups of theoretical plaintiffs.

Continue reading "Sacramento-Area Woman Shows Reprehensible Conduct By Tobacco Company, Part 2 of 7" »

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

Defendant's Bench Brief on the Relevance of "Dissimilar Conduct" Evidence to "Reprehensibility"

Plaintiff acknowledges, as she must, that there has been a sea change in the governing constitutional law since this case was tried in 2002. The United States Supreme Court has now held - and the California Supreme Court and the Court of Appeal for the Second District have recognized - that a jury in an individual lawsuit may not impose punitive damages to punish conduct that did not harm the plaintiff. (See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); Philip Morris USA v. Williams, 549 U.S. 346 (2007); Johnson v. Ford Motor Co., 35 Cal. 4th 1191, 1203-04 (2005); Holdgrafer v. Unocal Corp., 160 Cal. App. 4th 907 (2008); M. v. Philip Morris USA Inc., 159 Cal. App. 4th 655, 701 (2008)).

Nevertheless, plaintiff claims that she is permitted to try the same case as she did in 2001 - when the proceedings were dominated by evidence of conduct that could not have harmed Nancy M. - because such evidence is relevant to demonstrate the reprehensibility of the conduct that did harm her. For plaintiff, reprehensibility has become a magic word: in her view, once a jury has determined that USA Tobacco harmed Ms. M., any arguably "reprehensible" conduct the company ever committed - no matter how tangentially related to Ms. M.'s actual injuries - can be paraded before the jury to underlie a claim for punitive damages.

But reprehensibility is not a magical incantation that allows in all bad company evidence. The jury's task is to assess reprehensibility of the conduct that harmed the plaintiff, not the world at large. Plaintiff rarely cites actual case law in support of her that bears on reprehensibility argument. That is because the cases that discuss the relevance of this sort of evidence are all cases in which the appellate courts reversed - either by massively reducing punitive awards on appeal, or by granting new trials altogether.

Continue reading "Wrongful Death Claim Against Tobacco Company By Roseville Family, Part 1 of 7" »

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

Dr. XY is incorrect when he asserts that no new facts have been alleged to support Plaintiffs' cause of action for elder abuse. New facts have been alleged in the TAC and incorporated by reference in paragraphs 34-35.

For these reason, Defendants' Demurrer should be overruled and this lawsuit be allowed to proceed to discovery and trial by jury.

CIVIL CODE SECTION 337.4 LIMITATIONS DO NOT APPLY
Defendant DAVID XY, M.D. claims that Decedent' s pain and suffering does not survive her death. He further claims that because recoverable damages are an essential element, Plaintiffs cannot make out a cause of action for Intentional Infliction of Emotional Distress. Welfare and Institutions Code Section 15657.5(b)(1) specifically provides:

The limitations imposed by Section 377.4 of the Code of Civil Procedure on the damages recoverable shall not apply.

As argued above, Plaintiffs have alleged facts sufficient to state a cause of action for abuse of Decedent, a dependent adult within the meaning of Welf & Inst. Code §§ 15600, et. seq. Therefore, Section 377.4 does not apply to pain and suffering by the defendant caused by abuse in the form of custodial neglect in this case.

Continue reading "Wrongful Death Suit Filed On Behalf Of Sacramento Woman In Nursing Facility, Part 8 of 8" »

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

Nursing notes written approximately six hours before Ms. Fine's family called the paramedics include the following entries: "Resident alert and responsive. Fluids tolerated well. Vital signs normal, no pain. No shortness of breath. No acute distress at this time. Dr. XY aware of recent lab results. Resident resting in bed, turned every two hours for comfort..."

Dr. W's notes from ABC Hospital compiled in the Emergency Department, minutes after Claire Fine left Eastern, tell a very different story. The hospital records describe Claire Fine as dehydrated, in shock due to an infection with a blood pressure of 63/37, and suffering from kidney failure. She had a feeding tube in place that was not being used to feed her. She had poor skin turgor, decubitus ulcers and contractures. Dr. W. had originally asked that she be transferred to University Medical Center but her condition was so critical that the paramedics took her to ABC Hospital because it was closer to Eastern

Dr. W. stated in his notes that Decedent was unable to respond to his questions. Perhaps the most disturbing finding was rhabdomyolysis, a condition caused by the breakdown in muscle tissue releasing a compound toxic to the kidneys. The condition occurs when a person is left to lie in one place for prolonged periods of time. Dr. W. felt rhabdomyolysis had been present for about one week. The nursing home was unable to reach Dr. XY, who returned a call placed to him by the nursing home only after Decedent had been transferred by paramedics. She died 10 days later. Claire was 53 years of age. Records indicate that she had been suffering from cancer for over one year that had gone undiagnosed and untreated.

Continue reading "Elder Abuse At Sacramento Convalescent Home Results In Death, Part 7 of 8" »

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

Despite repeated complaints from family members and assurances that Decedent's complaints of pain would be addressed, neither the nursing staff nor Dr. XY intervened in an effort to determine what was causing Decedent's deteriorating physical condition and pain.

On a visit in late October, family members were convinced Decedent was very ill. They demanded that decedent be transferred to a hospital. The nursing staff and Dr. XY refused to co-operate with the family. Because Eastern refused to seek medical attention for Decedent, and because Dr. XY failed to come to the facility to examine Decedent and refused to authorize a transfer to an acute care facility, the family called the paramedics to Eastern.

When paramedics arrived, the nursing staff refused to allow them entry to attend to Decedent. The family ultimately gained access to Eastern for paramedics. The family then fired Dr. XY and asked Dr. Steven W. to care for Decedent. Decedent was transferred to Olympic Medical Center.

“The nursing notes from Eastern compiled on the days leading up to her transfer to Olympic Hospital, an acute care hospital, forced upon Eastern by the family, read as if Decedent was awake, alert, with normal vital signs and eating a healthy diet. There is one mention of skin breakdown on her sacrum but no other indication that she is not well, in pain and not alert.

Continue reading "Doctor At Sacramento Skilled Nursing Facility Sued For Elder Abuse, Part 6 of 8" »

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

Plaintiffs' FAC alleges in paragraphs 9, 19, 20, 21, 24, 25 27, 28 and 29 that while in the care and custody of the moving party, Decedent suffered severe malnutrition, was unreasonably and continuously restrained, suffered pain that went untreated, suffered stage III decubitus ulcers, severe infection, acute untreated kidney failure, and severe dehydration. These paragraphs further allege that Defendant Dr. XY had a duty as her attending physician to ensure that her basic physical, safety and medical needs were attended to. Plaintiffs also allege that the above referenced maladies and other occurred because Dr. XY failed to monitor and assess her condition, failed to maintain accurate records, failed to provide nutrition to prevent malnutrition and fluids to prevent dehydration, failed to take proper measures to prevent skin breakdown and to monitor skin integrity, failed to monitor and respond to notification by the nursing staff that Decedent's condition had deteriorated and required his medical attention.

C. Defendants Acted with Recklessness, Oppression and Fraud.
In order to make out a claim for abuse of a dependent adult the EADACPA, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. These three categories involve intentional, wilfull, or conscious wrongdoing of a despicable or injurious nature. College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721. These are the same allegations that are required to make out a claim for Wilful Misconduct under Civil Code §3294 which is Plaintiffs' First Cause of Action in their FAC. Defendant's Demurrer to this cause of action was previously overruled by this Court. Recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of action with knowledge of the serious danger to others involved. (Id., at 721.)

Continue reading "Elder Abuse Claim Filed In Sacramento-Area Nursing Facility, Part 5 of 8" »

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

C. There Is No Requirement That Plaintiffs Show That Dr. XY Was The Custodian of Claire Fine.
In his moving papers, Dr. XY maintains that he cannot be held liable under a theory of abuse of a dependent adult because he was not Decedent's custodian. This argument is wholly without merit. In Mack v. Soung (2000) 80 Cal. App. 4th 966, the children of an elderly woman sued her physician under the Elder Abuse statute. Dr. Soung maintained that he could not be liable under EADACPA because he was not the decedent's custodian. In overruling his argument the court specifically found:

Dr. Soung additionally claims he cannot be liable under the Elder Abuse Act because he was not Girtha's custodian or caretaker...He is wrong... neglect is not restricted to care custodians. Instead it applies generally to anyone having care or custody of the elder, and specifically mentions the [f]ailure to provide medical care for the physical and mental health needs.

The Mack court further pointed out that Dr. Soung's argument was vitiated by the California Supreme Court's decision in Delaney v. Baker (1999) 20 Cal. 4th 23. In that decision, the court held that health care professionals are not exempt from the heightened remedies triggered by § 15657 when they are guilty of reckless neglect. Here, Dr. XY had responsibility as the attending physician of Decedent to ensure that she was fed, hydrated, medicated, free of abuse, and that her medical needs were attended to.

Continue reading "Woamn Dies From Neglect In Sacramento Skilled Nursing Facility, Part 4 of 8" »

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

A. Decedent Was a Dependent Adult Within the Meaning of Welfare & Institutions Code § 15610.23
Welfare & Institutions Code § 15610.23 defines a dependent adult as an individual between the ages of 18 and 64, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to persons who have physical or developmental disabilities... Plaintiffs' Fourth Amended Complaint (FAC) alleges in part:

In September 2001, forty-five year old Decedent, CLAIRE FINE, suffered a severe heart attack. Decedent ultimately survived the heart attack but was left with severe brain damage due to lack of blood flow to her brain. She was diagnosed with hypoxic encephalopathy or brain damage caused by lack of oxygen.

Due to her severe brain damage, Decedent was unable to feed herself, speak, walk or attend to her personal needs, including bowel and bladder hygiene. Defendants, and each of them, were aware of her mental and physical disabilities when she was admitted to Eastern Convalescent Hospital and knew that these disabilities continued up to the time of her transfer to an acute care facility.

B. Decedent Suffered Egregious Custodial Neglect While in the Exclusive Custody and Care of Defendants, Including Dr. XY.
Statutory Elder Abuse is defined by Welf & Inst. Code § 15610.57 in part as: (a) Neglect means either of the following:

Continue reading "Wrongful Death Of Woman In Sacramento Convalescent Home, Part 3 of 8" »

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

PLAINTIFFS AGREE TO DISMISS THEIR FOURTH CAUSE OF ACTION AS TO DR. XY
Plaintiffs agree to dismiss their Fourth Cause of Action for Fraud-Concealment as to defendant Dr. XY. Therefore, this court need not consider defendant's moving papers as to this cause of action.

PLAINTIFFS HAVE PLEAD FACTS SUFFICIENT TO STATE A CAUSE OF ACTION FOR ABUSE OF A DEPENDENT ADULT
The purpose of Welfare and Institutions Code 15600 et. seq. or the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse or custodial neglect, Delaney v. Baker (1999) 20 Cal. 4th 23, 33. The statute provides for recovery of enhanced remedies, including attorneys fees, in civil actions, for abuse of dependent adults when clear and convincing evidence proves that (1) the defendant committed physical abuse or neglect and 2) the defendant was guilty of recklessness, oppression or fraud or malice in committing this abuse or neglect.

The essential factual elements for a cause of action for physical abuse under Welf & Inst. Code §§ 15657, 15610.63 appear in the Judicial Council of California Civil Jury Instructions (2008), CACI No. 3107. In order to maintain a cause of action for abuse of a dependent adult Plaintiffs must allege and ultimately prove by clear and convincing evidence:

Continue reading "Sacramento Family Files Suit After Mother Dies From Elder Abuse, Part 2 of 8" »

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

Plaintiffs' Opposition to Dr. David XY's Demurrer to Fourth Amended Complaint; Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

THIS COURT LACKS JURISDICTION TO RULE ON DEFENDANTS' DEMURRERS TO CAUSES OF ACTION ONE AND EIGHT

All Defendants in this action filed Demurrers to Plaintiffs' Second Amended Complaint (SAC). Their moving papers included Demurrers to Plaintiffs' First Cause of Action for Wilful Misconduct and Plaintiffs' Eighth Cause of Action for Negligence. Hearing on the Demurrers took place on June 26, 2008, the Honorable Madeline King presiding. The court overruled all defendants' Demurrers to plaintiffs first and eighth causes of action. A Notice of Ruling was served on all parties on June 27,2008. Defendant Dr. XY did not file an Objection to the Notice of Ruling. Plaintiffs' respectfully request that this court take Judicial Notice under Evid Code § 452 (d) of the Notice of Ruling served by plaintiffs wherein item number 3 specifically states that all parties Demurrers to Causes of Action One and Eight were overruled. Plaintiffs further request that the court take Judicial Notice of the Minute Order from the June 26, 2008 hearing.

A. This Court Lacks Jurisdiction Under C.C.P. § 1008.
Code of Civil Procedure § 1008 forbids trial courts from reconsidering orders previously entered by the judge-either their own or those made by other judges--unless made according to this section. Bennett v. Suncloud, (1997) 56 Cal App. 91. Code of Civil Procedure § 1008 provides in part:

Continue reading "Sacramento-Area Nursing Facility Sued For Abuse, Part 1 of 8" »