Sacramento Injury Lawyer Blog

Family of Man Exposed to Asbestos Presents Wrongful Death Injury Lawsuit in Sacramento, Part 4 of 4

Tue, 31 Jan 2012 08:37:34 -0800

The following blog entry is written to illustrate an example of an injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

In addition to the above mentioned, it was believed and further alleged that decedent was exposed to asbestos fibers, particles, and dust as a result of construction remodel work performed on his own personal residences and during the time employed as a maintenance worker at the JV School District, which occurred from the mid-1960s until the late 1970s. As a result of such work, decedent mixed, sanded, and applied joint compound products manufactured/supplied/sold by the following defendants: BI Inc./PM International Inc., sued individually and as successor-in-interest to PM Inc. (BD joint compound); GP Corporation (GP joint compound); and KG Company Inc. (KG joint compound). Upon information and belief, such joint compound did not have a warning on the containers regarding the dangers associated with asbestos, and decedent, as such, did not protect himself with a mask when working with the joint compound products.

CLAIMED INJURIES
According to Defendant: Death; loss of consortium.

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

Man Claimed to Have Been Killed From Asbestos in Sacramento Injury Lawsuit, Part 3 of 4

Tue, 24 Jan 2012 08:36:19 -0800

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

During the time decedent performed the various jobs described, and while working on his own personal automobiles, decedent worked on and/or worked around others working on disc brakes, drum brakes, and manual transmissions. Plaintiffs alleged that decedent and his co-workers routinely replaced, maintained, and performed brake repairs and clutch repairs. Specifically, decedent testified to working on the brake assemblies on automobiles, big rig trucks, delivery trucks, and school buses, which included preparing the wheel wells to replace worn and used brakes and sanding, grinding, and arcing brake shoes for a proper fit to the brake drums. Plaintiffs also alleged that decedent blew dust out of the brake drum, as well as cleaning the brakes using his hands and brushes and/or blowing out the dust in the brakes. Decedent additionally testified to preparing clutches for installation and cleaning out the clutch assemblies with either his hands or an air hose in preparation for replacement. Moreover, after such work was performed, decedent and his co-workers would sweep up. Upon information and belief, this work with asbestos-containing friction products caused decedent to be exposed to airborne asbestos fibers.

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

Sacramento Injury Lawsuit in Asbestos Case Resulting in Wrongful Death, Part 2 of 4

Tue, 17 Jan 2012 08:34:57 -0800

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

Defendants also contended that plaintiffs had previously blamed the U.S. Navy and several other entities. They contended that decedent was exposed to various asbestos-containing equipment, products, or auxiliary equipment while serving on board ships in the U.S. Navy, including, but not limited to: C Company (C valves); GS Technologies LLC, sued individually and as successor-in-interest to G Inc. (G gaskets and packing); OMI Industries Inc., sued individually and as successor-in-interest to DLS Turbine Company (DL pumps and turbines); and Y Corporation (Y steam traps and valves).

Plaintiffs had also previously alleged that decedent was also exposed to asbestos fibers, particles, and/or dust from the work with (including installation, maintenance, overhaul, replacement, repair, and/or removal), or supply of, asbestos-containing products or materials from the following defendant contractors: MS and Associates Inc., TD Engineering Company Inc., and TAM Shop Inc. Moreover, upon information and belief, none of the above-mentioned contractor/supplier defendants provided decedent with any warning about the dangers of asbestos or provided him with a mask to protect him from such exposures. As a result, decedent was unaware of his need for any type of safety devices to specifically reduce his possible exposure to, or inhalation of, asbestos fibers, particles and/or dust, and did not use any such devices.

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

Family Brings Injury Case Against Corporations for Wrongful Death, Part 1 of 4

Tue, 10 Jan 2012 08:31:12 -0800

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

CASE INFORMATION
FACTS/CONTENTIONS
According to Defendant: Decedent, a 75-year-old retired maintenance man, shade tree mechanic, home remodeler, and former boiler tender/fireman in the Navy, died of pleural mesothelioma on October 11, 2007. Plaintiffs, surviving spouse, and adult children alleged that several defendants manufactured, distributed, or sold asbestos-containing products to which decedent was exposed.

Plaintiffs alleged that decedent's exposure to work as a shade tree mechanic and work while a part-time mechanic for four years exposed him to brake-wear debris and wear debris from clutches that contained asbestos. Decedent would use an air hose to blow out brake wear debris from brake drums. Plaintiffs also alleged that decedent's work with ABC joint compound exposed him to asbestos in the joint compound.

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

Sacramento Families Seek Punitive Damages For Persistent Elder Abuse At Nursing Facilities, Part 7 of 7

Sat, 24 Dec 2011 05:31:31 -0800

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

PROPOSED TRIAL SEQUENCE cont.

Phase II: Jury Trial on the Amount of Punitive Damages. If the predicates for punitive damages are established in Phase I, the same jury would decide the amount of punitive damages.

Phase III: Bench Trial on UCL and FAL Claims. In this phase, the Court would resolve plaintiffs' claims under the UCL and FAL statutes, including the amount of restitution, if any, and plaintiffs' claim for injunctive relief. The Court would also determine the amount of the civil penalties, if any, pursuant to the District Attorney's claims under the UCL. Plaintiffs anticipate that most (if not all) of the evidence pertinent to the liability and remedy issues on the equitable claims will be introduced in Trial Phases I and II. To the extent necessary, however, the Court could take additional evidence concerning the UCL and FAL claims.

Phase IV: Claims Administration. If plaintiffs prevail, plaintiffs recommend that the Court direct a third party claims administrator to distribute the aggregate class award to individual class members. (See Code of Civil Procedure § 384.) In other words, this phase would be a nonadversary administrative claims procedure in which the overall class award would be allocated to individual class members. (See In re Cipro Cases I & II (2004) 121 Cal. App. 4th 402, 417 [claim administration is an internal class accounting question "that does not directly concern the defendant" as liability and overall damages have already been determined].)

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

Class-Action Lawsuit Filed On Behalf Of Sacramento Elder Abuse Victims And Families, Part 6 of 7

Wed, 21 Dec 2011 05:29:22 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

Plaintiffs' Equitable Claims Under the UCL and FAL Statutes

Legal Background

The UCL prohibits unlawful, fraudulent, or unfair business practices. Because the UCL statute is written in the disjunctive, liability can be established under any of these three prongs. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) Plaintiffs' UCL claim is based on all three prongs of the UCL statute. Plaintiffs also seek recovery for defendants' false advertising under the FAL. Because the UCL and FAL claims are equitable claims, they are tried to the Court, not the jury.

Plaintiffs' unlawful practices claim is based on ABC's violations of the underlying staffing requirements, including Health and Safety Code sections 1276.5 and 1599.1.

Plaintiffs' fraudulent practices claim is based on ABC's statements and conduct that were likely to deceive the public into believing that ABC provides adequate nursing staff and complies with the state-mandated minimum of 3.2 PPD. The same evidence of misrepresentations and omissions under plaintiffs' CLRA claim provides an independent basis for liability under the fraudulent practice prong.

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

Chronic Elder Abuse At Sacramento Facilities Leads To Lawsuit, Part 5 of 7

Sat, 17 Dec 2011 05:28:04 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

Plaintiffs' CLRA Claim

The CLRA prohibits unfair practices in transactions involving consumers, including representing that defendants' services have characteristics which they do not have or are of a particular standard or quality when they are of another. (Civil Code § 1770(a)(5) and (7).) While the CLRA requires proof of actual damages to recover, that element is easily met for all class members who paid money for services. (The specific number of private pay class members will be confirmed in deposition discovery later this month.) Even if a class member did not pay money, evidence of transactional or lost opportunity costs will suffice. (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 640-41, n.1.).

Non-disclosures are actionable under the CLRA. (Falk v. General Motors Corp. (N.D. Cal. 2007) 496 F.Supp.2d 1088, 1094; see Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 834-35.) Here, defendants both failed to disclose and actively concealed their understaffing, as evidenced by their manipulation of time records, failure to posting actual staffing numbers, and submittal of inflated nursing PPD numbers to the State of California.

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

Wrongful Deaths At Sacramento Nursing Homes Prompt Class Action Lawsuit, Part 4 of 7

Wed, 14 Dec 2011 05:26:52 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

Statutory Damages Under Section 1430(b)

Section 1430(b) entitles each affected resident to recover up to $500 for each violation. Each day that a facility fails to meet the minimum and/or adequate nurse staffing requirements constitutes a separate violation for each resident in the facility on the understaffed day. For days when the facility failed to provide at least 3.2 PPD, plaintiffs will ask the jury to find a single violation for each patient in the facility, as opposed to two violations for failing to provide adequate staffing (§1599.1) and minimum staffing (§1276.5).

Although plaintiffs need not prove personal injury or actual harm to recover under Section 1430(b), that does not mean that defendants' understaffing resulted in only hypothetical harm, as defendants contend. Through testimony from class members, current and former employees, and expert witnesses, plaintiffs will show that understaffing results in real and tangible consequences.

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

Sacramento Man Suffers Elder Abuse At Local Skilled Nursing Facility, Part 3 of 7

Fri, 09 Dec 2011 05:24:24 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

The Evidence of Understaffing

Plaintiffs' evidence of understaffing is based primarily on Key Factor Reports prepared each day by ABC's facilities at the express direction of ABC Healthcare, LLC. ABC's witnesses have uniformly testified that the Key Factor Report is the only document kept by the facilities that tracks on a daily basis whether they are in compliance with state law. These Key Factor Reports show more than 10,900 days under 3.2 PPD. An additional 550 violations are confirmed in deficiencies and citations issued by the Department of Public Health (previously DHS). This evidence is corroborated through defendants' admissions in deposition testimony and email.

In addition, ABC destroyed and/or refused to produce Key Factor Reports for roughly 9,250 days. Because defendants admittedly destroyed and have refused to produce these Key Factor Reports, the Court should deem ABC to have failed to provide adequate staffing for each of the days for which no Key Factor Report was produced.

On November 17, 2010, ABC produced, for the first time, its own revised "PPD Analysis." This analysis has apparently been a work in progress for months (if not years).

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

Sacramento Family Sues Nursing Home For Elder Abuse, Part 2 of 7

Sun, 04 Dec 2011 05:34:15 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

Plaintiffs' Section 1430(b) Claim

Legal Background

Section 1430(b) creates a private right of action for residents of ABC nursing facilities to recover up to $500 for each facility's violation of any state or federal law or regulation. Under plaintiffs' single enterprise allegations, all defendants are jointly and severally liable for their violations of Section 1430(b) and the other claims asserted.

Plaintiffs' Section 1430(b) claim is predicated on defendants' violations of both (1) Health & Safety Code section 1276.5, which requires each facility to provide a minimum of 3.2 nursing hours per patient (3.2 PPD), and (2) Health & Safety Code section 1599.1, which imposes the additional obligation to employ an adequate number of qualified personnel (including nursing personnel) to carry out all of the functions of the facility.

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

Sacramento Skilled Nursing Facilities Part Of Elder Abuse Lawsuit, Part 1 of 7

Thu, 01 Dec 2011 05:31:36 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

PLAINTIFFS’ TRIAL BRIEF

OVERVIEW OF PLAINTIFFS' CLAIMS

This class-action lawsuit concerns chronic understaffing at twenty-two California skilled nursing facilities operated by ABC Healthcare, LLC and its parent company, ABC Healthcare Group, Inc (hereinafter “ABC”). Plaintiffs are current and former residents of ABC's nursing homes (Resident Class) and family members that paid money to place residents at those facilities (Family Member Class). Several of these facilities are located in Sacramento.

Plaintiffs allege that ABC failed to meet California's minimum staffing requirements and concealed from the consuming public the fact that its facilities were understaffed. These and related allegations support plaintiffs' four causes of action based on violations of: (1) Health and Safety Code section 1430(b); (2) the Consumers Legal Remedies Act (CLRA); (3) unlawful, unfair, and fraudulent business practices under California's Unfair Competition Law (UCL) (Bus. & Prof. Code, §§ 17200 et seq.); and (4) California's False Advertising Law (FAL) (Bus. & Prof. Code, §§ 17500 et seq.).

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

Sacramento Veterinary Group Sued For Medical Negligence, Part 4 of 4

Tue, 29 Nov 2011 05:37:28 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this veterinary medical malpractice lawsuit and its proceedings.)

A [veterinarian] is not necessarily negligent just because [he/she] chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice.In Williamson v. Prida, supra, the plaintiff's expert testified that he didn't agree with some of the defendant veterinarians' treatment decisions, that he "couldn't see the reason" for their choice and that he thought their treatment was overzealous. The court of appeal confirmed that such expressions of personal preference or personal opinion are not probative of any issue before the court in a professional negligence case:

That is not evidence of standard of care. [T]he fact that another physician or surgeon might have elected treat the case differently or use methods other than those employed by [the] defendant does not of itself establish negligence. [Citations] ... This disagreement does not establish the standard of care, or a violation thereof.Id. at 75 Cal.App.4th at 1425-1426.

The personal preference in the performance of a prepurchase examination of plaintiff's expert witness, or the fact that he might have selected a different approach or course than the Veterinary Defendants did, is not relevant or probative, and carries the risk that the jury will be confused or misled. Accordingly, such testimony can and should be excluded.

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

Sacramento Veterinary Malpractice Suit Filed After Champion Horse Dies, Part 3 of 4

Fri, 25 Nov 2011 05:00:22 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this veterinary medical malpractice lawsuit and its proceedings.)

The fact that certain veterinarians may disagree as to the usage, preference, or desirability as to any particular method for conducting a prepurchase examination indicates the existence of a professional difference of opinion only. It does not establish a standard of care.

The relevant legal precedent on this issue was established the California Supreme Court in Meier v. Ross General Hospital, 69 Cal.2d 420 (1968). In an action against a psychiatrist in a hospital for the death of a mentally disturbed patient who jumped from a second story window, the court established that negligence could not be found merely because another treatment acceptable to, or even preferred by, other physicians could have avoided the death of the patient. The Meier case stands for the proposition that in determining whether a defendant breached a standard of care, the court may not engage in "but-for" reasoning. This basic rule was reaffirmed in Clemens v. Regents of the University of California, 8 Cal.App.3d 1, 13 (1970):

A difference of medical opinion concerning the desirability of one particular medical procedure over another does not ... establish that the determination to use one of the procedures was negligent. (Meier v. Ross General Hospital, 69 Cal.2d 420).

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

Sacramento Family's Prized Horse Dies After Veterinary Malpractice, Part 2 of 4

Sun, 20 Nov 2011 05:51:14 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this veterinary medical malpractice lawsuit and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES

This action involves allegations of professional negligence against a veterinarian and a veterinary clinic. As with any other professional negligence claim, plaintiff's prima facie case must include a showing that there exists an accepted standard of care and that the Veterinary Defendants' conduct fell below that standard. The law is well settled that such a prima facie case can only be made by the introduction of appropriate expert testimony:

Ordinarily, where a professional person is accused of negligence in failing to adhere to accepted standards within his profession, the accepted standards must be established only by qualified expert testimony unless the standard is a matter of common knowledge.Osborne v. Irwin Memorial Blood Bank, 5 Cal.App.4th 234, 277 (1992); see also Wilson v. Irwin Memorial Blood Bank, 14 Cal.App.4th 1315 (1993). This rule has been explicitly held to apply to claims against veterinarians. Williamson v. Prida, 75 Cal.App.4th 1417, 1424-1425 (1999).

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

Experts Battle In Sacramento Veterinary Medical Malpractice Case, Part 1 of 4

Tue, 15 Nov 2011 05:36:31 -0800

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this veterinary medical malpractice lawsuit and its proceedings.)

Defendants’ Motion in Limine to Preclude Plaintiff's Expert Witness from Expressing Personal Opinions re Mode of Treatment

Defendants Donald Brown, DVM, and the Valley Equine Group, Inc. (hereinafter collectively referred to as Veterinary Defendants ) hereby move this court in limine for the following ruling and instructions:

That any and all testimony and any questions which would lead to or elicit a response thereto, call for plaintiff's expert witness to express personal opinions or preferences relating to the care and treatment of horses or other animals, or from stating what that witness "would do in any particular medical circumstance" as opposed to stating what the operative "standard of care" for reputable veterinarians would be in that same circumstance, be excluded.

Said motion is made pursuant to and in accordance with Evidence Code Sections 350 and 351, on the grounds that such evidence is not relevant to any issue herein and that the probative value of the evidence is outweighed by the probability that such evidence will prejudice. confuse, or mislead the jury.

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