Category - Personal Injury

1
California Court Of Appeal Limits The Application Of Howell In Cases Involving Medical Finance Companies – Moore v. Mercer (2016) 4 Cal.App.5th 424
2
Immigration Status No Longer Discoverable in Personal Injury Cases
3
Pokémon Go: Green Light for Future Litigation
4
Failure to Maintain Equipment “Integrally Related” to Medical Diagnosis or Treatment Resulting in an Injury is Professional Negligence Under MICRA and Therefore Subject to a One Year Statute of Limitations
5
Courts of Appeal are Reining in Ambiguous Settlement Offers
6
Viability of Contractor’s Express Indemnity Claims are Not Dependent on Allegations In Underlying Third Party Actions

California Court Of Appeal Limits The Application Of Howell In Cases Involving Medical Finance Companies – Moore v. Mercer (2016) 4 Cal.App.5th 424

By: Ashley H. Verdon and Katherine J. Flores
May 25, 2017

In a plaintiff friendly decision, the Third District California Court of Appeal held that an uninsured plaintiff may present evidence of the full billed amount for medical treatment where a healthcare provider has sold its accounts receivable and medical liens to a medical finance company.

In Moore v. Mercer, an uninsured plaintiff executed medical lien agreements with her doctors in order to obtain medical treatment following an automobile collision.  At trial, plaintiff filed a motion in limine to exclude evidence of the medical finance company’s involvement on the grounds that it was irrelevant and prejudicial.  The trial court granted the motion in limine under Evidence Code §352.  Defendant appealed.

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Immigration Status No Longer Discoverable in Personal Injury Cases

By: Jon A. Turigliatto, Esq. and Chelsea L. Zwart, Esq.
December 9, 2016

NEW CALIFORNIA EVIDENCE CODE SECTION 351.2 PROHIBITS DISCOVERY AND ADMISSIBILITY OF A PERSON’S IMMIGRATION STATUS FOR PURPOSES OF LIMITING DAMAGE CLAIMS.

On January 1, 2017, AB 2159, which prohibits discovery related to a person’s immigration status in personal injury and wrongful death actions, will become effective, adding Section 351.2 to the California Evidence Code and overturning Rodriguez v. Kline (1986) 186 Cal.App.3d 1146.

Under Rodriguez v. Kline, an individual injured in the United States who is subject to deportation is not entitled to compensation based upon his or her projected earning capacity in the United States, but rather may only recovery damages for lost future income the individual would have earned in his or her country of origin. Later case law applied Rodriguez v. Kline to the recovery of medical costs, limiting recovery by an undocumented person to the amount the individual would have incurred for medical treatment in his or her country of origin.

Newly introduced Evidence Code Section 351.2 states:

(a) In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.

(b) This section does not affect the standards of relevance, admissibility, or discovery prescribed by Section 3339 of the Civil Code, Section 7285 of the Government Code, Section 24000 of the Health and Safety Code, and Section 1171.5 of the Labor Code.

Proponents of Section 351.2, which effectively invalidates Rodriguez v. Kline, assert that the rationale behind the new law is to ensure that personal injury and wrongful death victims are not penalized for their immigration status and to protect undocumented immigrants from being exploited.  The intent is to equalize compensation received by persons who work and live in California and thus should be entitled to equal treatment in the California court system, regardless of immigration status.

By prohibiting the discovery and admissibility of a plaintiff’s immigration status, the new code section will have a severe impact on defendants’ potential exposure for damages relating to lost income and medical expenses.  After January 1, 2017, an undocumented person’s loss of earnings claim will no longer be limited to wages earned in his or her country of origin, but will rather be based on the individual’s income in the United States, whether here legally or not.  The same will be true for medical expenses, which will be based on those actually incurred.

Historically, many undocumented plaintiffs did not pursue loss of earnings claims as defendants regularly pointed to immigration status as a way to significantly lower potential exposure for such claims. Given that earnings and medical costs are generally substantially higher in the United States than in countries from which people immigrate without documentation, the enactment of Evidence Code Section 351.2 will deliberately result in larger awards for loss of income and medical expenses to injured immigrants.

Pokémon Go: Green Light for Future Litigation

By: Zachary P. Marks
September 30, 2016

Though it debuted to the public just two months ago, Pokémon Go, the latest gaming craze to sweep the nation, broke mobile app download records within one week of its release and achieved more daily active users than any other game on the market.  The game allows users to see animated creatures, known as Pokémon, on their cell phones while the user traverses the real world, with the goal being to “catch” as many Pokémon as possible.  The viral phenomena has already led to numerous claims and violations across the nation, with some bizarre examples to include the following:

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Failure to Maintain Equipment “Integrally Related” to Medical Diagnosis or Treatment Resulting in an Injury is Professional Negligence Under MICRA and Therefore Subject to a One Year Statute of Limitations

By: Kacey R. Riccomini
September 30, 2016

Recently, in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, the California Supreme Court clarified whether and when the general negligence statute of limitations or, alternatively, the Medical Injury Compensation Reform Act’s (“MICRA”) special statute of limitations, applies to health care providers. Generally, a two-year statute of limitations for general negligence applies to personal injury actions. (Code Civ. Proc. §335.1.) However, under MICRA, claims for professional negligence against health care providers must be brought within the earlier of (1) “three years after the date of injury,” or (2) “one year after the plaintiff discovers, or…should have discovered, the injury.”  (Code Civ. Proc. §340.5.)

In Flores, the plaintiff was injured when one of the rails on her hospital bed collapsed. The rail had been raised per the doctor’s orders following a medical assessment of her condition. Almost two years later, Flores sued the hospital, claiming that it negligently failed to inspect and maintain the equipment. The hospital, Presbyterian Intercommunity Hospital (“PIH”), sought to dismiss the claim by way of a demurrer, arguing that the claim was barred by §340.5’s one-year statute of limitations since Flores knew about her injury when she fell out of her hospital bed over a year before filing suit. Flores, on the other hand, argued that PIH’s conduct was ordinary negligence, subject to the two-year statute of limitations under §335.1. The trial court agreed with PIH, and sustained the demurrer without leave to amend.

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Courts of Appeal are Reining in Ambiguous Settlement Offers

By: Craig A. Roeb and Heather M. Patrick
Published by the Daily Journal

California Code of Civil Procedure Section 998 establishes a procedure to shift costs if a party fails to accept a reasonable pre-trial settlement offer. The statute has generally been considered an effective tool to force parties’ hands to settle by encouraging resolution and avoiding needless litigation and trials.  Barba v. Perez, 166 Cal. App. 4th (2008).  However, recent case law demonstrates that they must be carefully planned and composed, or else risk judicial nullification.  Download Full Article

 

Viability of Contractor’s Express Indemnity Claims are Not Dependent on Allegations In Underlying Third Party Actions

By: Chelsea L. Zwart
September 30, 2016

On August 16, 2016, the First District California Court of Appeal held in Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal.App. 5th 620 that a general contractor’s demurrer to a subcontractor’s indemnity claim was erroneously sustained because (1) the allegations of underlying third-party lawsuits were not determinative of liability and (2) the subcontractor’s underlying claim for a worker’s compensation offset did not obviate the subcontractor’s indemnity claim.

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