Sacramento Injury Lawyer Blog

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

Paul Smith gags when he tries to drink water. Steven Davis has nightmares about his family dying. Mike Jones still has flashbacks during which he sees Sherrie Johnson in the room with him. All three of these men feel tremendous guilt that they survived the contest, and Sherrie did not. Under Fletcher, supra, it is the Court's job at this juncture to determine whether, on the evidence, emotional distress can be found. Plaintiffs have each established not only that such emotional trauma can be found, but has been diagnosed at the clinical level, and is being treated by professionals. Against this scientific, clinical showing of severe emotional distress Defendants cannot show the absence of a triable issue as to any material fact. On that basis, the Motion must be denied.

Emotional Distress That Arises as a Consequence of Sherrie Johnson's Death is Recoverable When Plaintiffs Were Exposed to the Same Risk of Harm

Defendants mistakenly rely on Thing v. La Chusa (1989) 48 Cal. 3d 644 and its progeny to argue that because none of the Plaintiffs were related to Sherrie Johnson or even actually witnessed her death. This completely misses the point. The line of cases cited by Defendant involves claims by plaintiffs who were not themselves the target of the same wrongful conduct that resulted in harm or injury to the other person. Here, each of the Smith Plaintiffs suffered physical injury as a result of participating in the same contest that killed Sherrie Johnson. Their physical symptoms ran the gamut from vomiting to nausea, discomfort, pain, headaches and skinned up arms and legs (Paul Smith, caused when he had to crawl to the bathroom).
California has long defined a bystander as one who claims, damages for emotional distress caused by observing the negligently inflicted injury of a third person. Thing, supra, 667-668.

Here, none of the Smith Plaintiffs claim IIED because they witnessed the death of Sherrie Johnson. Rather, their claims are based on participating in the same contest and being a victim of the same conduct that killed her. They are not bystanders; they are direct victims of an event that resulted in the death of one participant and injuries to others, including these three women. For that reason, none of the authorities cited by Defendants with respect to bystander liability relate to the claim for intentional infliction of emotional distress.

Continue reading "Sacramento Men Suffer Severe Emotional Injuries From Deadly Radio Contest, Part 6 of 6" »

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

Thus, it is not unusual or atypical that the extent and nature of these emotional conditions was not discerned as part of Defendants’ somewhat cursory depositions of the Plaintiffs. For the same reason we cannot rule out emotional harm merely because the victims are not particularly adept at expressing their symptoms, especially in a crowded room filled with lawyers, a court reporter and a video camera (each Plaintiff was video-taped at deposition). What is critical is that, "all [three plaintiffs] have described incidents of recurring nightmares; fear; heightened anxiety; and deep feelings of guilt that arose in close proximity to the incident," and have expressed markers consistent with a PTSD diagnosis, e.g., changes in personality; feelings of permanent damage; shame over surviving (i.e., survivor guilt); and persistent feelings that they and their families are still at risk of injury.

Clearly Paul Smith, Steven Davis, and Mike Jones have provided ample evidence not only of severe emotional distress, but of substantial quantity and endearing quality to satisfy Fletcher, Christensen and every other authority cited by Defendants, with perhaps one exception. Defendants rely on Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 for the proposition that a minor plaintiff who alleged that her 48-year old doctor, who drugged, raped, intoxicated and abused her for eight months did not allege sufficient facts to demonstrate severe emotional distress. On an even cursory examination it is clear that Angie M. does not support Radio's position.

Continue reading "Wrongful Death Suit Filed In Sacramento-Area Radio Contest, Part 5 of 6" »

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

Dr. Everstine has diagnosed the following emotional and psychological injuries secondary to the subject incident: 1) Paul Smith: PTSD; anxiety; major depression; phobia with respect to water consumption; 2) Steven Davis: PTSD; general anxiety disorder; major depression, agitated type ; 3) Mike Jones: PTSD; anxiety disorder; panic attacks; sleep disorder; major depression, agitated type.

Each of these men has experienced dramatic, intense and severe emotional and psychological injury due to the death of their co-contestant. Dr. Everstine opines that each will not only require years of therapy and medical management by a psychiatrist to recover, but that Mike Jones also should undergo couples counseling to help him learn how to effectively share his feelings with his spouse and others.

According to Dr. Everstine the discovery of such emotional trauma is the province of experts.
The fact that these individuals may not have articulated any particular symptoms does not mean the symptoms were not present immediately after the incident... "Such disclosures would not typically be made outside the confines of appropriate questioning by a trained professional."

Continue reading "Sacramento Radio Contestants Suffer Psychological Injuries, Part 4 of 6" »

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

Dr. Everstine has opined that this treatment is reasonable, necessary and causally related to the subject incident. Dr. Everstine opines that, “each of the three men exhibit symptoms consistent with a diagnosis of chronic PTSD. Each will require, "ongoing therapy and medical management through the use of appropriate medications." This condition is secondary to the contest, during which, "each [man] experienced a severe emotional reaction as a result of participating in an event which caused the death of one person and which could have resulted in the death or serious injury to these other individuals." In addition to PTSD, Dr. Everstine opines that each Plaintiff is also suffering from various stages of depression secondary to the event, along with general anxiety disorder consistent with significant emotional trauma.

In terms of symptoms, Dr. Everstine noted the following:

1. Paul Smith's symptoms include severe survivor guilt; severe emotional alienation; water phobia (fear of drinking water) to the point that he is unable to drink water without gagging; flashbacks of Sherrie Johnson; sleep problems; intrusive thoughts; obsessive behavior; avoidant behavior and thought patterns; mood swings; depression; personality change; generalized anxiety with panic attacks; social alienation and social anxiety; damaged self-esteem and loss of self-confidence and reoccurring fears something similar will happen to his family.

Continue reading "Three Sacramento Males Severely Injured In Fatal Radio Contest, Part 3 of 6" »

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

DISCUSSION
Because Defendants Offer Insufficient Undisputed Material Facts to Shift the Burden to Plaintiff, the Motion Must Fail

The party moving for summary adjudication must show that plaintiff cannot establish an essential element for a cause of action. C.C.P. §437c(p)(2). As a threshold, the moving party must show, that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.C.P. §437c(c) (emphasis added). Here, of the 34 undisputed material facts proffered by Defendants, only three are undisputed. Of the remaining 31 facts, four are disputed as irrelevant. The balance of 27 material facts are each disputed on substantive, material grounds. In addition, Plaintiffs offer 45 disputed material facts that bear directly on the severe, clinical and chronic emotional distress and related psychological injuries suffered by each of them. Because Defendants fall far short of the threshold burden to demonstrate there is no triable issue as to any of the material facts offered in support of summary adjudication, the motion must fail.

Defendants Cannot Establish the Absence of Disputed, Material Facts in Light of Plaintiffs' Showing of Severe Emotional Harm and Psychological Distress

Defendants cite Fletcher v. Western Nat. Life Ins. Co. (1970) Cal.App.3d 376, 396-397 for the proposition that, it is the court that determines whether, on the evidence, severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. They aver that to prove intentional infliction of emotional distress, plaintiffs, must show they suffered severe emotional distress. Motion, 7:16-17, citing Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903. Defendants refer to civil jury instructions which defines severe emotional distress as a condition which is, not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it. Motion, 7:20-23, citing California Jury Instruction 1604. Defendants identify that courts have traditionally considered factors like intensity; duration; and psychological manifestations of emotional distress when determining severity. Motion, 7:23-8:4, citations omitted. Against any backdrop articulated by Radio, it is clear that each of the Smith Plaintiffs have suffered severe emotional distress due to the wrongful death of their co-contestant.

Continue reading "Sacramento-Area Radio Station Sued For Fatal Contest, Part 2 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.) Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendant Radio Roseville’s Motion for Summary Adjudication INTRODUCTION In their latest attempt to escape liability, the Radio Defendants ask the Court to rule that Plaintiffs Paul Smith, Steven Davis, and Mike Jones (hereinafter, "the Smith Plaintiffs" ) cannot establish an essential element of their respective claims for Intentional Infliction of Emotional Distress, i.e., severe emotional distress. Defendants mistakenly assume that because they did not adduce what Defendants consider to be "evidence of severe emotional distress," then Plaintiffs cannot have suffered it. Not only is this position logically flawed, but by its nature finds Defendants relying almost exclusively on irrelevant facts and unsupported assumptions. Radio's motion is fatally flawed; it fails utterly to demonstrate the absence of material, disputed facts with respect to the severity of each Plaintiffs' emotional injuries. Among other flaws, Defendants imply, without foundation in fact or law, that because the physical symptoms of hyponatremia faded for each within days following the contest, the Smith Plaintiffs cannot have sustained emotional harm. In fact, each Plaintiff has been diagnosed as suffering from Post Traumatic Stress Disorder, in addition to a variety of other psychological conditions ranging from anxiety, survivor guilt and water phobia to major depression. To address these issues each Plaintiff is being treated by a variety of mental health care professionals. Even if the Court somehow found sufficient absence of triable, material facts to consider whether the burden shifts to Plaintiffs, the motion must still fall. Plaintiffs submit 45 Disputed Facts establishing that each of the Smith Plaintiffs has been clinically diagnosed with severe emotional harm, including PTSD; severe survivor guilt; severe anxiety; irrational fear; phobias; and major depression.

Continue reading "Sacramento Plaintiffs Sue Radio Station Due To Wrongful Death, Part 1 of 6" »

(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" »

In Southern California, a lawsuit is being brought against Los Angeles County for the death of a 43-year old woman. The personal injury case seeks $45 million, claiming negligence, wrongful death, and medical malpractice against the county-staffed Martin Luther King Jr.-Harbor Hospital.

According to reports, the woman, Edith Rodriguez, was at the Los Angeles hospital’s emergency room, withering in pain for 45 minutes. During this time she was screaming for help and vomiting blood, but was refused to be seen. Instead, she was discharged and placed on a bench located outside of the hospital. County officers brought her back inside to try and get help, but Edith was again not seen.

Edith eventually became unresponsive and was, at last, taken into be seen. Sadly, this step was too late. Edith died in the emergency room from a perforated bowel. The hospital has since been downsized since this incidence as it was found not to meet Federal health standards.

Unfortunately, horrible situations like the one above do occur. Wrongful death arises when someone unintentionally causes another person to die, because of their own negligence or misconduct. It is a horrible situation to lose someone who could have lived if another person had acted accordingly. If someone you love died because of another person’s negligence, please call me at the Law Offices of Moseley Collins.

Web Resources:

Family of woman who died after US hospital workers refused to treat her files $45M lawsuit, Find Law

When someone you love dies, it can be one of the most difficult struggles to deal with. When that person is killed because of someone else’s negligence or intentional actions, it is nothing less than devastating. When this occurs, it is called wrongful death, meaning someone is killed because of another person’s misconduct, negligence, or intentional action.

Often times when a wrongful death occurs, the family of the deceased can receive compensation for the money and support they would have received if the person was still living. For example, if a father suffered from a wrongful death, the mother and children of the father may be able to receive compensation for the money the father would have provided to take care of his family. Money, of course, will never be able to replace the one you love.

If you have a loved one who has suffered a wrongful death, you should contact a knowledgeable and competent attorney who can explain your situation and following options. If you would like to talk to me, please call the Law Offices of Moseley Collins. I can give you the advice and help that you are looking for.

Take care of yourselves…

For further information on wrongful death lawsuits, please click here.