Symbol of Justice

We are pleased to announce an important appellate win by Partner Bryan Pyles in a medical malpractice (MICRA) lawsuit alleging medical negligence and wrongful death against our client ambulance company and EMT’s. A full recount of Bryan’s case is summarized as follows:

The Decedent had finished dialysis and was being lifted onto a gurney so she could be moved to a waiting vehicle.  As she was being lifted, the Hoyer lift failed.  Decedent fell and sustained severe injuries. She was then transported to a local hospital.

Three days later, because decedent was non-responsive, she was discharged to a hospice for palliative care.  As EMTs were moving decedent from her hospital bed to a gurney, the gurney unexpectedly moved and plaintiff fell.  Decedent sustained new and different injuries due to this second fall. The transport to hospice was canceled, and decedent was re-admitted to the hospital.  

Decedent passed away four days after the fall at the dialysis facility, and one day after the second fall.

Plaintiff, decedent’s son, filed the complaint 11 months after the fall at the dialysis facility. The complaint named the dialysis facility and DOES as defendants, and solely described the Hoyer lift failure as the basis for a lawsuit. There is no mention in the complaint of the second fall at the hospital. A first amended complaint was filed 45 days after the complaint, again referring solely to the Hoyer lift failure.

A second amended complaint (SAC) was filed 21 months after decedent’s fall at the hospital. In addition to identifying the dialysis facility and Hoyer lift failure, the SAC was the first pleading to name the ambulance company and EMTs as defendants, and the first pleading to describe the fall at the hospital. A demurrer was filed on behalf of the ambulance company and EMTs on the basis the MICRA one-year statute of limitations barred the SAC, but the demurrer was overruled.

A motion for summary judgment on behalf of the ambulance company and drivers was filed after conducting extensive discovery. The trial court granted the MSJ on the basis plaintiff had failed to comply with the MICRA one year statute of limitations.

Plaintiff appealed the granting of the MSJ on the basis equitable estoppel barred asserting the one-year statute of limitations, and/or the SAC related back to the original complaint. The basis for the equitable estoppel exception was that plaintiff had severe difficulties in determining the identities of the ambulance company and EMTs. The basis for the “relation back” exception was that decedent passed away as a result of combined injuries, not just those related to the Hoyer lift incident.

It was argued and proven by Mr. Pyles to the satisfaction of the Court of Appeals that neither exception permitted extending the statute limitations as to the ambulance company or EMTs. First, it was successfully argued equitable estoppel did not apply because plaintiff failed to describe any fraudulent conduct on the part of the ambulance company or EMTs that would prevent them from being identified and directly named as defendants, and there was no evidence plaintiff was induced by the ambulance company or EMTs to refrain from filing a timely action against them. Second, it was successfully argued “relation back” did not apply because the complaint and FAC did not reference the hospital incident or injuries related thereto, and that the SAC was an initial pleading as to the ambulance company and EMTs.

Congratulations to Bryan Pyles on a successful motion for summary judgment, as well as for a big win in the Court of Appeals in this very high exposure matter.

To Prove, or not to Prove: Circumstantial Evidence of Identity as an Exception the Hearsay Rule

SHCP on Hearsay

As most people know, “hearsay” is an out-of-court statement offered to prove the truth of its content. The hearsay objection is invoked by a party to keep testimony or documents of an opposing party out of evidence. In the 2018 case of Hart v. Keenan Properties, Inc., the court clarified an exception to the hearsay rule.

Hart sued Keenan alleging he contracted mesothelioma as a result of installing Keenan’s pipes (which contained asbestos) while working for his employer. But in their responses to discovery, neither Keenan nor Hart’s employer could produce records or invoices for the sale of Keenan’s pipes to the employer.

At trial, Hart’s supervisor testified he recalled seeing Keenan’s name and logo on the invoices for the pipes at issue. Keenan objected to the supervisor’s testimony arguing any reference to “Keenan” on the invoices constituted inadmissible hearsay. The trial court denied the objection, ruling the reference was circumstantial evidence of identity.

On appeal, the appellate court reversed, holding the testimony was hearsay. However, the California Supreme Court ultimately held the testimony referencing the documents is not hearsay because 1) the reference to invoices was not made to prove the contents of the invoices, but as circumstantial evidence of the sale of pipes based on a recollection of the invoices identifying Keenan purchased the pipes, and 2) the evidence was relevant because it had a tendency in reason to prove or disprove a disputed fact.

The Supreme Court also held oral testimony describing an absent writing is admissible where a copy of the writing cannot be produced, and the original writing was not fraudulently destroyed by the proponent of the evidence. In view of the Supreme Court’s findings, parties should not only perform discovery to determine exactly whether documents exist (and any reasons they don’t exist), but also determine what exactly witnesses recall about documents that are no longer available.

As a practical matter, where documents proving identity are not available, lay the foundation for the hearsay exception.

ACA Benefits and MediCal Service Discounts Admissible at Trial as Evidence of Market Value of Future Medical Benefits

In a case certified for publication by the first Appellate District, division one (Contra Costa County), the appellate court determined the trial court erred in ruling that evidence of future ACA benefits is inadmissible.

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Hands Off!

On January 1, 2017 a new law regarding the use of cell phones goes into effect, all with hope it will reduce vehicular accidents. Before its enactment, the law only proscribed handheld cellphone calls or handheld texting. The new law makes all handheld use of a cellphone while operating a vehicle illegal. No more handheld cellphone selfies, and no more handheld GPS searches.

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Code of Civil Procedure, §998 Revisited

After SHCP’s August 14, 2015 blog entry discussing Statutory Offers, Assembly Bill No. 1141 was signed into law by Governor Brown. AB 1141, effective January 1, 2016, amends CCP, §998 to equalize the treatment of expert witness costs awarded to a prevailing party. AB 1141 states, “This bill would clarify that this provision [CCP, §998] requires a plaintiff to cover only expert witness costs that arose postoffer.” AB 1141 will result in both parties being exposed to the same expert fee penalties for turning down a statutory offer and not doing better at trial.

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Reptile Within

Callaghan, a licensed concrete subcontractor, acted as owner-builder for his home improvement project, which included construction of a pool/spa. To minimize noise, the pool equipment was to be installed in an underground vault. The property did not have natural gas service so propane lines were run to the house and backyard. Callaghan did not know installing a propane fueled heater underground is dangerous.

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Minor’s Compromise

A minor’s compromise is always required for settlement of a minor’s claim/lawsuit according to California law. You may have heard of the “below $5,000.00” exception, purportedly allowing for settlement of a minor’s claim/lawsuit without a minor’s compromise hearing. That is not only wrong, it is a dangerous cost-cutting method of attempting to settle a minor’s claim. The “below $5,000.00” exception has arisen from attorneys misconstruing the option which allows a judge to order minor’s settlements below $5,000.00 be managed by the minor’s parents without further supervision of the court.

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Small, Henstridge, Cabodi & Pyles recently had the privilege of participating in a mock mediation for habitability claims developed by The Travelers Insurance Company=s large loss claims department in Denver, Colorado. The participants included several major law firms in California as well as a number of experienced claim representatives.


Assumption of the Risk Doctrine Still Alive and Well in California

Summer is fast approaching which means families will be flocking to amusement parks and carnivals throughout the state.  A recent California appellate case entitled Griffin v. The Haunted Hotel, Inc. (2015) WL 7355112, affirmed the age-old Assumption of the Risk Doctrine in California tort law.
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