Brief Trial

Cal. Super. - 6th Dist.October 15, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1QCV356926 Santa Clara - Civil R. San BRENDAN C. GANNON, SBN 303410 by Superior Court of CA, RAINS LUCIA STERN ST. PHALLE & SILVER, PC county of Santa CIara’ 2300 Contra Costa Boulevard, Suite 500 on 1/28/2022 10.58 AM Pleasant Hill, CA 94523 Reviewed By: R. Sandoval T61: (925) 609-1699 Case #1 9CV356926 Fax: (925) 609-1690 Envelope: 8163622 E-mafl: PersonallnjuryGroup@RLSlawyers.corn Attorneys for Plaintiffs KEVIN STANLIN DAVILA PATZAN, individually; ANA CARMELINA DE DAVILA, individually; BENJAMIN ARMANDO DAVILA PATZAN, individually; ANA ANGELINA NATY DAVILA, individually; and CESAR ARNLANDO DAVILA ALVAREZ, individually SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION KEVIN STANLIN DAVILA PATZAN, CASE NO.: 19CV356926 individually; ANA CARMELINA DE DAVILA, individually; BENJAMIN ARMANDO DAVILA PLAINTIFFS’ SUPPLEMENTAL TRIAL PATZAN, individually; ANA ANGELINA BRIEF NO. 2: ON THE USE OF NATY DAVILA, individually; and CESAR DEMONSTRATIVE EVIDENCE ARMANDO DAVILA ALVAREZ, individually, Complaint Filed: 10/ 15/19 Plaintiffs, Trial Date: 01 /31 /22 VS. DWAYNE HEINZ HALL; and DOES 1 through 100, inclusive, Defendants. Plaintiffs intend to use demonstrative evidence in this trial, including photographs, maps, models, diagrams, timelines, illustrations, animations, Videos, and charts. This evidence is relevant and is admissible under California law after proper authentication. Plaintiffs Will be able t0 provide a proper foundation during trial for all demonstrative evidence exhibited to the jury. I. INTRODUCTION In this case, the Plaintiffs’ vehicle was hit by Defendant Hall’s vehicle When Defendant Hall made 1 PLAINTIFFS’ SUPPLEMENTAL TRIAL BRIEF NO. 2: ON THE USE OF DEMONSTRATIVE EVIDENCE joval 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an unlawful lane change on the 101 Southbound near Palo Alto at 7:00 am on a Saturday morning in the summer 0f 2018. Defendant Hall was ticketed by the CHP officer behind Whom the accident occurred. The post-accident vehicle photographs and crash data (“black box”) scientifically shows that Defendant Hall caused the accident by making an unlawful lane change in Violation 0f California Vehicle Code Section 22107. As a result 0f Defendant Hall’s negligence, all Plaintiffs sustained injury. Plaintiffs claim past and future medical expenses, loss 0f consortium damages, and general damages. Plaintiffs will present the testimony of retained and non-retained experts in a variety of medical fields. Defendant contests Plaintiffs’ claims regarding liability, the causation of Plaintiffs’ injuries, the extent of their injuries, their functional limitations and ability to work, and their medical and loss of consortium damages. 1) Maps and diagrams 0f the automobile coflision site t0 illustrate the site of the incident; 2) Films and computer animations to illustrate expert opinion 0n how the accident occurred based on Witness testimony and physical evidence; 3) Photographs 0f the incident scene, the involved vehicles, and the damage to Plaintiffs’ vehicle; 4) Radiology films t0 illustrate the testimony 0f Plaintiffs” medical experts; 5) Medical diagrams to illustrate the testimony of Plaintiffs’ medical experts; 6) Medical/anatomical models (spine, cervical spine, lumbar spine, neck, shoulders); 7) Timelines, chronologies, and summaries 0f Plaintiffs’ medical treatment, pharmacy medications, work status, and work history; 8) Tables illustrating Plaintiffs’ recommended future medical treatment, illustrating the testimony 0f Plaintiffs’ treating physicians and experts; 9) Listings 0f witnesses who have testified as to certain facts and/or opinions; 10) Tables itemizing and summarizing Plaintiffs” economic damages (past and future medical expenses). It is well established that courts have wide discretion in allowing the use of demonstrative evidence in order to illustrate the testimony of witnesses in the case and in opening statement. 2 PLAINTIFFS’ SUPPLEMENTAL TRIAL BRIEF NO. 2: ON THE USE OF DEMONSTRATIVE EVIDENCE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. LEGAL ARGUMENT A. Demonstrative Evidence, Whether or Not Admissible, is Appropriate for Illustrative Purposes During Opening Statement. Courts have regularly admitted demonstrative evidence in opening statement, as this suits the illustrative purpose 0f opening statement. CACI 101 sets out the admonition regarding opening statement: An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. Also, because it is often difficult t0 give you the evidence in the order WC would prefer, the opening statement allows you t0 keep an overview 0f the case in mind during the presentation of the evidence. You cannot use it t0 make any decisions in this case. (CACI 101.) The purpose of the opening statement “‘is t0 prepare the minds 0f the jury t0 follow the evidence and t0 more readily discern its materiality, force and effect’ [citation]. . . .” (People v. Green (1956) 47 Cal.2d 209, 215, overruled 0n other grounds, People 1/. Mame (1964) 6O Cal.2d 631, 648-649.) During opening statement, the trial court may allow use 0f a chart, diagram, 0r other Visual aid that is not itself admissible in evidence. “Even Whise a map 0r sketch is not independently admissible in evidence it may, Within the discretion of the trial court, if it fairly serves a proper purpose, be used as an aid t0 the opening statement.” (People v. Green, supra at 215 (emphasis added) [dictum because Visual aid used in opening subsequently received in evidence].) B. Demonstrative Evidence Is Appropriate Where It Fairly Illustrates the Witness’ Testimony During trial, a Witness may testify that a chart, diagram, or other Visual aid is illustrative 0f his testimony. A chart, diagram, Video, 0r model may assist the Witness’ explanation 0f his testimony regarding an event, medical procedure, listing 0f people or events, or other things. Foundation for the demonstrative evidence is established by testimony 0r other evidence demonstrating that the Visual aid is a fair representation of the underlying witness testimony or other evidence. (People v. Ham (1970) 7 Cal.App.3d 768, 780.) Prior t0 the use 0f the Visual aid, the witness will offer foundational testimony as t0 the representative accuracy and illustrative value of the Visual aid. Counsel may be permitted to question a Witness regarding demonstrative evidence, Without 3 PLAINTIFFS’ SUPPLEMENTAL TRIAL BRIEF NO. 2: ON THE USE OF DEMONSTRATIVE EVIDENCE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 offering it as evidence. (People v. C0556} (1950) 97 Cal. App.2d 101, 112 [chart listing financial transactions used in cross-examination but not admitted].) C. Specific Categories 0f Demonstrative Evidence 1. Medical Illustrations and Models Courts regularly allow the use 0f Visual aids t0 illustrate the plaintiffs injuries and allow for a better understanding 0f causation. (See, People v. Riel (2000) 22 Cal.4th 1153 [use 0f mannequin to illustrate Victim’s stab wounds was permissible, Where pathologist testified that the mannequin showed the approximate angles 0f the knife wounds].) Plaintiffs wish to use medical illustrations and models of Plaintiffs’ spines that are illustrative of plaintist experts’ opinions regarding the causation of his injuries. Several 0f Plaintiffs” medical illustrations are derived directly from photos, X-rays, or MRIs of Plaintiffs’ actual injuries. Photographs, X-rays, and MRIs of Plaintiffs’ injuries are independently admissible as evidence. (People v. La Veigm’ (1966) 64 Cal.2d 265, 271 [photos showing parties’ injuries are admissible]; Sing 12. Owem (1 949) 33 CaLZd 749, 759 [X-rays admissible With expert authentication].) The use 0f photographs intended later t0 be admitted in evidence as visual aids is appropriate. (Gram, supra, 47 CaLZd at 215; People v. Kirk (1974) 43 Cal.App.3d 921, 929.) Some 0f Plaintiffs’ medical illustrations 0r models demonstrate general anatomical and medical principles relevant t0 Plaintiffs’ injuries. Models are admissible in the court’s discretion t0 assist the jury in understanding the testimony of a Witness. (People v. Cummzflgs (1993) 4 Cal.4th 1233, 1291 [mannequin used to illustrate bullet wounds and paths].) 2. Animations Illustrating Witness Testimony Plaintiffs will offer computer animations to illustrate lay and expert testimony. Animations are “tantamount t0 drawings,” and are admissible just as hand drawings are admissible upon authentication by a qualified Witness. (People v. Howl (1997) 53 Ca1.App.4th 965, 969.) Courts permit counsel t0 offer Videos as demonstrative evidence if they fairly illustrate a witness’s testimony and accurately portray the matters depicted. (People v. Cmpem‘er (1997) 15 Cal.4th 312, 385-386.) A computer animation is demonstrative evidence offered t0 help a jury understand expert 4 PLAINTIFFS’ SUPPLEMENTAL TRIAL BRIEF NO. 2: ON THE USE OF DEMONSTRATIVE EVIDENCE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testimony or other substantive evidence. Unlike computer simulations, which analyze data and then reach a new conclusion, computer animations are not offered t0 draw any independent conclusions, but rather attempt t0 recreate a scene or process. Thus, an animation is treated like a demonstrative aid, and is admissible if “it is a fair and accurate representation 0f the evidence t0 Which it relates.” (People u Dummy (2012) 55 Cal. 4th 1, 20, 21-23 [in shooting case, computer animation 0f proposed bullet trajectories was admissible t0 illustrate expert’s opinions]) Here, Plaintiffs’ animations Will include some computer animations illustrating expert testimony regarding how the incident occurred, based on the evidence and testimony. Plaintiffs also intend t0 provide animations related t0 Plaintiffs’ physical injuries, according to medical opinion testimony. Plaintiffs’ witnesses and experts, Will testify that that the animations fairly represent their testimony, and are not used as a foundation basis for any expert to form an opinion. 3. Map/Diagram of Incident Scene The trial court may allow use of a photo, diagram, and/or map to illustrate testimony regarding the scene of the incident at issue and the movements 0f subject vehicles. (Rab/z/es 2’?” Rab/vey, 1m. v. Ambm‘ (1953) 118 Cal.App.2d 465 [map admissible in evidence as illustrative 0f plaintist testimony in boundary dispute]; People v. Sbcgfler (1 940) 38 Cal.App.2d 421 [Dept 0f Interior map properly admitted Whose Witness had personally covered the territory and had Visited area in map].) Plaintiff intends to use photographs, diagrams, and maps of the location 0f the incident, to illustrate the circumstances of the incident. 4. Photographs of Vehicle Damage Plaintiffs intend to show photographs of the damage to Plaintiffs’ and defendant’s vehicles in order to demonstrate how the incident caused Plaintiffs’ spinal injuries, pursuant to Plaintiffs’ testimony, the medical records, and expert opinion testimony. 5. Charts and Listings Courts permit counsel to offer illustrations that sum up evidence and the testimony 0f a number 0f witnesses, and permit summaries 0r surveys 0f evidence in the form of a chart. (People v. C056} (1950) 97 Cal.App.2d 101 [counsel properly permitted t0 exhibit a number of large, legible charts Which listed out 5 PLAINTIFFS’ SUPPLEMENTAL TRIAL BRIEF NO. 2: ON THE USE OF DEMONSTRATIVE EVIDENCE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 financial transactions] .) Plaintiffs Wish to illustrate testimony in summary charts, including a listing 0f Witnesses Who will testify to certain facts and opinions, charts, listings and timelines 0f Plaintiffs’ medical care and treatment III. CONCLUSION For the foregoing reasons, Plaintiffs request that the Court permit Plaintiffs t0 use demonstrative evidence to illustrate critical issues t0 the jury, in accordance with the Evidence Code and California law relating to the admissibility of evidence Dated: January 28, 2022 Respectfully submitted, RAINS LUCIA STERN ST. PHALLE & SILVER, PC ”332%“. .__. By: Brendan C. Gannon Attorneys for Plaintiffs KEVIN STANLIN DAVILA PATZAN, individually; ANA CARMELINA DE DAVILA, individually; BENJAMIN ARMANDO DAVILA PATZAN, individually; ANA ANGELINA NATY DAVILA, individually; and CESAR ARMANDO DAVILA ALVAREZ, individually 6 PLAINTIFFS’ SUPPLEMENTAL TRIAL BRIEF NO. 2: ON THE USE OF DEMONSTRATIVE EVIDENCE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Hayley M. Fearing, am employed in the City of Encino, State 0f California. I am over 18 years 0f age and not a party t0 this action. My business address is Rains Lucia Stern St. Phalle & Silver, PC, 16130 Ventura Blvd, Suite 600, Encino, CA 91436. On the date below I served a true copy of the following document(s): PLAINTIFFS’ SUPPLEMENTAL TRIAL BRIEF NO. 2: ON THE USE OF DEMONSTRATIVE EVIDENCE 0n the interested parties t0 said action by the following means: D (BY U.S. MAIL) By placing a true copy 0f the above, enclosed in a sealed envelope With appropriate postage, for collection and mailing following our ordinary business practices. I am readily familiar With this business’s practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course 0f business with the United States Postal Service, in a sealed envelope with postage fully prepaid. (BY OVERNIGHT DELIVERY) By placing a true copy of the above, enclosed in a sealed envelope With delivery charges t0 be billed t0 Rains Lucia Stern St. Phalle & Silver, P.C., for delivery by an overnight delivery service t0 the address(es) shown below. (BY FACSIMILE TRANSMISSION) By transmitting a true copy of the above by facsimile transmission from facsimile number (925) 609-1690 to the attorney(s) or party(ies) shown below. EDD (BY MESSENGER) By placing a true copy 0f the above in a sealed envelope and by giving said envelope to an employee of First Legal for guaranteed, same-day delivery t0 the address(es) shown below. E (BY E-MAIL 0r ELECTRONIC TRANSMISSION) Based on an agreement of the parties to accept service by e-mail 0r electronic transmission, I caused the documents to be sent t0 the persons at the e-mafl addresses listed below. I did not receive, within a reasonable period of time, after the transmission, any electronic message or other indication that the transmission was unsuccessful. See Attached Service List. I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. DATED: January 28, 2022 b7; I Hayley M. Fe’aring 7 PLAINTIFFS’ SUPPLEMENTAL TRIAL BRIEF NO. 2: ON THE USE OF DEMONSTRATIVE EVIDENCE SERVICE LIST Davila Patzan vs. Hall Santa Clara Case N0.: 19CV356926 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTORNEYFOR DEFENDANT, DWAYYVEHEINZHALL IVIichael]. Dodson, Esq. JEANETTE N. LITTLE 8c ASSOCIATES Employees of the Law Department State Farm Mutual Automobile Insurance Company 4450 Rosewood Drive, Suite 450 Pleasanton, CA 94588 Telephone: (925) 225-6838 Facsimile: (855) 732-9437 Email: mike.dodson@statefarrn.c0rn Assistants: Email: mariae.sparr.giti@statefarm.com Email: alvssapearcvfcrj@statefarm.com 1 SERVICE LIST