Richard Bassman vs. Andres Betts

Opposition

Cal. Super. - 4th Dist.April 29, 2014

OO 0 9 O N Wn BA W N NN N N N N N N N N N H m E e e m a e a c o I O N Wn» kA W I N D = O OO O N I N N R E = O Steven R. Young, Atty. Bar 96258 William F. Zulch, Atty. Bar 94696 Edwin B. Brown, Atty. Bar 89497 Maria M. Rullo, Atty. Bar 87542 LAW OFFICES OF STEVEN R. YOUNG, APLC Civil Justice Attorneys ELECTRONICALLY FILED 600 Anton Blvd., Suite 650 superior Court of California, Costa Mesa, CA 92626 County of Orange (714) 673-6500 Fax: (714) 545-0355 04/01/2016 at 11:25:00 Awl Email: bestlawyer@aol.com Clerk of the Superior Court Lo. . By hara Gina Barr, Deputy Clerk Attorney for Plaintiff Richard Bassman SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE RICHARD BASSMAN, CASE NO. 30-2014-00719142-CU-MM-CIJC Plaintiff, Hon. Frederick P. Aguirre , DAES OFF OSITION TO ANDRES BETTS, M.D. LIMINE NO. 2 Defendants. Trial Date: April 4, 2016 Complaint Filed: ~~ April 29, 2014 Plaintiff opposes Defendants’ Motion in Limine No. 2 as follows: Here defense counsel did not cite excerpts from the deposition of Dr. Wailes that he was asked and gave all his opinions relating to the case. While defense counsel at the outset of the deposition at page 7 tells Dr. Wailes “At the end of this, I will ask you if we’ve got all of your opinions and the bases for them”, there is no excerpt from the end of the deposition where she asks this question. Moreover, Dr. Wailes stated: “Unless there’s some that I have not formulated yet from things I haven’t seen or known about, then I have no reason to withhold them”. In a general sense, as long as the defense has properly confirmed that Dr. Wailes has no further opinions than those in his deposition, Plaintiff does not object to a “Kennemur” motion. However, whether or not testimony at trial should be admissible should be addressed on a question by question analysis depending on the entire context of the trial at 1 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 OO 0 9 O N Wn BA W N NN N N N N N N N N N H m E e e m a e a c o I O N Wn» kA W I N D = O OO O N I N N R E = O that point in time. “Actual testimony sometimes defies pretrial predictions of what a witness will say on the stand. Events in the trial may change the context in which the evidence is offered...” See Kelly v. New West Federal Savings (1996) 49 Cal. App.4™ 659, 670. “[U]ntil the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility.” See People v. Jennings (1988) 46 Cal.3d 963, 974, fn. 3. The defense unreasonably or improperly seeks to preclude Dr. Wailes’s opinions in the following specific areas: 1. “Any opinions related to research or literature articles.” This is not the question asked and the excerpt from Exhibit “B” does not support his specific order. 2 “Any use of photographs, demonstrative exhibits or other type of references to explain his opinions. his is not the question asked and the excerpt from Exhibit “C” does not support his specific order. > “Any opinions related to the surgery center nurses’ deposition transcripts.” his is not the question asked and the excerpt from Exhibit “D” does not support his specific order. 4. “Any opinions the ESI on July 24, 2013, caused an infection.” This is not the question asked and the excerpt from Exhibit “E” does not support his specific order. 5. “Any opinions that puncturing the dura, in and of itself, during an ESI, is below the standard of care.” This is not the question asked and the excerpt from Exhibit “F” does not support his specific order. 6. “Any opinions that Dr. Betts' choice not to use contrast during any ofPlaintiff' s procedures.” This is not the question asked and the excerpt from Exhibit “G” does not support his specific order. 7. “Any opinions that the lack of accuracy on the consent form for the July 24, 2013 ESI.” This is not the question asked and the excerpt from Exhibit “H” does not support his specific order. 2 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 OO 0 9 O N Wn BA W N NN N N N N N N N N N H m E e e m a e a c o I O N Wn» kA W I N D = O OO O N I N N R E = O 8. “Any opinions that the lack of documentation of any discussion Dr. Betts had with Plaintiff.” This is not the question asked and the excerpt from Exhibit “I” does not support his specific order. 0. “Any opinions inadequate documentation of the indications and justifications for the ESI.” This is not the question asked and the excerpt from Exhibit “J” does not support his specific order. 10. “Any opinions the lack of an adequate history caused or contributed to any injuries Plaintiff suffered.” This is not the question asked and the excerpt from Exhibit “K” does not support his specific order. 11. “Any opinions the lack of a CURES report caused or contributed to any injuries Plaintiff suffered.” This is not the question asked and the excerpt from Exhibit “L” does not support his specific order. 12. “Any opinions the lack of inadequate documentation ofradiographic evidence caused or contributed to the injuries Plaintiff claims in this case.” This is not the question asked and the excerpt from Exhibit “M” does not support his specific order. 13. “Any opinions that the hole Dr. Baron saw was caused by the July 24, 2013 ESL.” This is not the question asked and the excerpt from Exhibit “N” does not support his specific order. 14. “Any opinions Plaintiff would not have required the procedures Dr. Baron performed regardless of any dural puncture.” This is not the question asked and the excerpt from Exhibit “OQ” does not support his specific order.” 15. “Any opinions the use of Depomedrol caused or contributed to any injuries or damages in this case.” This is not the question asked and the excerpt from Exhibit “P” does not support his specific order. 16. “Any opinions regarding damages.” This is not the question asked and the excerpt from Exhibit “Q” does not support his specific order. In any event, even if an expert contradicts earlier testimony about lack of knowledge, this would only go the weight of his opinion and not admissibility. See Keen v Prisinzano (1972) 23 Cal. App. 3d 275, 282. 3 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 OO 0 9 O N Wn BA W N NN N N N N N N N N N H m E e e m a e a c o I O N Wn» kA W I N D = O OO O N I N N R E = O Finally, in Meyer v. Cooper (1965) 233 Cal.App.2d 750, 754, cited in Kennemur, the court states: “The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for.” Here, the court should exercise its discretion to deny the defense motion at this time without prejudice to specific questions that arise at trial based on the context of the trial at that time. DATED: April 1, 2016 LAW OFFICES OF STEVEN R. YOUNG /s/ By William F. Zulch Steven R. Young, Attorneys for Plaintiff Richard Bassman 4 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2