Reply Memorandum In Support of New Trial

Reply

Cal. Super. - 2nd Dist.May 14, 2018

Electronically FILED by Supefipr Court of California, County of Los Angeles on 04/14/2020 11:44 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk | GLE< onmimlll 2 GHOZLAND = LAW FIRM Michael F. Ghozland, Esq. (SBN 223032) michael@ghozlandlawfirm.com 4 GHOZLAND LAW FIRM, PC 626 Wilshire Boulevard, Suite 1170 5 |[Los Angeles, California 90017 Phone: (213) 334-4570 6 || Fax: (213) 334-4569 7 q Jonathan S. Dennis, Esq. (SBN 249554) JDennis@DennisLawGroup.com 9 DENNIS LAW GROUP, PC 19200 Von Karman Avenue, Suite 400 10 Irvine, California 92612 Phone: (949) 408-3000 11 || Fax: (949) 408-3001 BISNAR CHASE LLP ONE NEWPORT PLACE 1301 Dove St., Suite 120 Newport Beach, CA 92660 14 Phone: (949) 752-2999 Facsimile: (949) 752-2777 15 BRIAN D. CHASE, State Bar No.164109 Attorneys for Plaintiffs, 16 ||[JEREMIAH STROUD, MAIA HARRISON, STEVEN HARRISON, DANIELLE HARRISON, 17 ||JASON DANIELS, LAWRENCE BOYD 12 13 D E N N I S L A W G R O U P , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , C A L I F O R N I A 92 61 2 18 SUPERIOR COURT OF THE STATE OF CALIFORNIA LOS ANGELES COUNTY - CENTRAL 19 20 || JEREMIAH STROUD, a minor by and) Case No. BC705872 through his Guardian Ad Litem; MAIA) 21 || HARRISON, an individual; STEVEN) ASSIGNED FOR TRIAL TO: HARRISON, an individual; DANIELLE) Judge Frederick C. Shaller 22 || HARRISON, an individual; JASON) Dept. SS-5 DANIELS, an individual, LAWRENCE) 23 BOYD, an individual, ) PLAINTIFFS’ REPLY MEMORANDUM ) OF POINTS AND AUTHORITIES 24 Plaintiffs, ) MOTION FOR NEW TRIAL vs. ) 25 ) KIA MOTORS AMERICA, INC., a) Complaint Filed: May 14, 2018 26 California corporation; KIA MOTORS) Trial Date: January 13, 2020 MANUFACTURING GEORGIA, INC., a) Notice of Entry of Judgment: March 4, 2020 27 Delaware corporation; KIA MOTORS) ’8 CORPORATION, a South Korean entity;) PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ HYUNDAI MOTOR AMERICA, a) California corporation; HYUNDAI MOTOR) COMPANY, a South Korean entity;) HYUNDAI MOTOR GROUP, a South) Korean entity; AVIS BUDGET GROUP,) INC., a Delaware corporation; AVIS) BUDGET CAR RENTAL, LLC, a Delaware) corporation; AVIS RENT A CAR SYSTEMS) LLC, a Delaware corporation; AVIS) BUDGET HOLDINGS, LLC, a Delaware) corporation; PV HOLDING CORP, a) Delaware corporation; AVIS BUDGET) RENT-A-CAR, an unknown entity; AVIS) BUDGET RENT-A-CAR HAWTHORNE) (H8C), an unknown entity; and DOES 1) through 100, inclusive, Defendants. N r ’ N r ’ N r ’ N r ’ 2 COURT LOSES JURISDICTION TO RULE ON MOTION: MAY 18, 2020 Motion Hearing: DATE: April 23,2020 TIME: 8:30 am DEPT: SS-5 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: Plaintiffs submit this Reply to refute the argument made by the Kia Defendants in Opposition to the Motion for New Trial. Plaintiffs also ask the Court to set an evidentiary hearing regarding issues related to the process of jury deliberations and jury misconduct as a part of the decision process for this motion. Argument 1. PLAINTIFFS SHOULD BE GIVEN A NEW TRIAL BECAUSE IT WAS ERROR TO ALLOW THE TESTIMONY OF ELIZABETH RAPHAEL, M.D. REGARDING THE IDENTITY AND EFFECTS/PURPOSE OF THE MEDICATIONS WHICH ALLEGEDLY HAD BEEN PRESCRIBED FOR DRIVER PATRICIA DANIELS SOME TIME IN THE PAST. Elizabeth Raphael, M.D. was allowed to testify regarding the most important information needed by the defense: that the medications allegedly prescribed for Patricia Daniels at some time in the past before the subject accident were “a narcotic” or “prescribed for sleep” or “a muscle relaxant”. This testimony was essential for the defense. The defense argument directly tied this testimony to a “No” answer to the first question in the Special Verdict. The jury returned a 9-3 “No” vote on that question after nearly instantaneous deliberation. In support of this Motion, Plaintiffs submitted this medication testimony was improper because: e it violated the Supreme Court’s rule from Bonds v. Roy (1999) 20 Cal.4™ 140 expressly excluding expert opinion testimony at trial in subject matter areas not adequately disclosed within the “narrative statement of the general substance of the testimony that the expert is expected to give” portion of the expert witness declaration required by former section 2034(£)(2)(B). (See, Bonds, supra, 20 Cal.4th at 148-149.); e it violated the rules stated in Kennemur v. State of California (1982) 133 CalApp3d. 907 and Jones v. Moore (2000) 80 Cal.App.4th 557, because this opinion testimony was not included in the range of opinions revealed during Dr. Raphael’s deposition and Dr. Raphael 3 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ expressly stated that she did not have opinions outside of those listed in Exhibit “A” to her deposition transcript; and e it violated the Supreme Court’s ruling in People v. Sanchez (2016) 63 Cal.4th 665, because it was an attempt to introduce case-specific hearsay evidence to the jury through the testimony of a trial expert. In its opposition, the defense did not argue these cases did not apply to make Dr. Raphael’s medication testimony inadmissible. Instead, the defense claims: ¢ the testimony was not opinion, but was “fact”; ¢ Plaintiffs “opened the door” to the medication testimony so “anything goes” meaning the defense could expand the scope of Dr. Raphael’s designation and opinion testimony at its whim; e The testimony was not hearsay; and e There was no prejudice because Ms. Daniels’ son testified on cross-examination about some of these medications. Plaintiffs will refute each red herring. The admission of this evidence was error. The admission of this evidence prevented Plaintiffs from having a fair trial and should be the basis for an order granting them a new trial. a. The Defense has Argued a False Dichotomy between “Fact” and “Opinion” Testimony. The Proper Categories of Evidence are “Percipient” and “Opinion”, and Dr. Raphael’s “Medication Testimony” was Improper Opinion Testimony. The defense argued that Dr. Raphael was testifying to “fact”, not expressing opinion. This attempt to create an opposition of “fact” and “opinion” is misleading. The true groupings of two kinds of evidence are “percipience” and “opinion”: they are both introduced at trial through competent evidence for the judge or jury to decide what is “fact”. Evidence is “testimony, writing, material objects, or other things presented to the senses that 4 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ are offered to prove the existence or nonexistence of a fact.” (Evidence Code § 140.) The determination by a jury of what the Federal Rules of Evidence calls an “adjudicatory fact” (Federal Rules of Evidence Rule 201) requires “proof”, defined as “[t]he establishment of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evidence Code § 190.) Normally, evidence is a presentation of the perception of a witness. Such evidence can be referred to as “percipient testimony” - about what the witness has seen, heard, done, or experienced. Special witnesses, those with education, training, or experience which has led to an understanding of “a subject that is sufficiently beyond common experience” of jurors (Evidence Code § 801), can give opinion evidence. Whereas most testimony is inadmissible unless the witness “has personal knowledge of the matter” (Evidence Code §702), expert opinion is unique in that it can be based either on matter “... perceived by or personally known to the witness or made known to him at or before the hearing ....” (Id. Emphasis added.) This combination of learning and training, combined with the matters considered, lead to the expert witness’ expression of an opinion which is an educated or experienced implication of “fact” from the matters which the jury can adopt or reject. The challenged medication testimony was not based on anything that Dr. Raphael did or said or heard. It was not “percipient”. What she did was read from a list of items she said were medications and then told the jury the purpose for these medications. Dr. Raphael sat in the witness box and read a list of entries from a medical record not introduced into evidence. She then testified based on her education, training, and experience that those items were medications, that the existence of the list was the result of some person calling another person to review records to determine what medications were “active” for Ms. Daniels at some time before the accident, and (most importantly for the defense’s game plan) the usual purpose a doctor would have to prescribe these medications. Just because this information is arguably accepted within the field of medicine as “given” or “established” does not make it within the common experience of jurors. It is special knowledge which requires the implication or knowledge of an expert. It was not percipient testimony by Dr. 5 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ Raphael, but her opinion. b. The Role of a Biomechanics Expert is not to Testify Regarding the Driver’s Possible Medical Condition at the Time of the Accident The defense argued that just because the designation included a reference to “medical condition” and “medical records”, and “medical records” were included in the matters which were in Dr. Raphael’s files, the testimony did not violate Bonds or Kennemur. As Plaintiffs submitted in support of their Motion, the expert designation presented by Kia identified Dr. Raphael’s scope of testimony as being “biomechanics” : as the designation lists it she was designated “to offer testimony regarding the nature, extent, and cause of the injuries sustained by the occupants of the subject 2016 Kia Optima during the subject crash.” She was not designated to discuss or express opinions about Ms. Daniels’ medical condition before the crash, or how that medical condition might have contributed to the causation of the accident. But this is exactly how the defense decided to, and did, use her medication testimony: to plant the seed for argument that Ms. Daniels was medicated, sleepy, and/or experiencing “micro- sleep” although it was relatively early in a day after Ms. Daniels had what the testimony characterized as a good night’s sleep. This medication testimony was intended to support the defense argument about causation not about what effects the accident had on Ms. Daniels. It had nothing to do with how the forces of the accident did, or didn’t, kill Ms. Daniels. This testimony was clearly outside of the scope of the Kia designation of Dr. Raphael. c. Plaintiffs did not “Open the Door” to Improper Opinion Testimony, Allowing the Defense to “Re-designate” or Expand the Scope of Dr. Raphael’s Opinion. The defense argues that because Plaintiffs presented evidence regarding what they submitted was Ms. Daniels’ wakefulness, it had the right to have Dr. Raphael to present opinion testimony to contradict that evidence. This is erroneous. California law does not permit re-designation or expanded designation of an expert’s opinion testimony without leave of court. (Code of Civil Procedure section 2034.610.) 6 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ This testimony was not permissible “non-designated expert testimony” which is offered to impeach the testimony of one of the other experts. (Code of Civil Procedure section 2034.310, subdivision (b).) There is no such thing as “opening the door to improper expert testimony” in civil litigation in California. This red herring must also be disregarded. d. Dr. Raphael’s Reading of a List of Medications was “Hearsay” Plaintiffs doubt that the defense would argue with a straight face that the Court should allow a “lay witness” to sit in the witness box and read a list of entries from a medical record that had not been introduced into evidence. It is true that the parties had stipulated to the foundation of the medical records for Ms. Daniels’ treatment after the accident as being the hospital’s business records. However, the list of medications was not contemporaneous report of the medical services provided by the staff at Community Regional Medical Center in Fresno, where Ms. Daniels was transported after the accident. Someone at Community Regional called some other hospital or medical provider and received a list of medications. Clearly this is (at least) double-hearsay: Dr. Raphael’s reading of the content of the list is an attempt to compel the jury to accept the truth of the content of the list, a list whose content is not established by the staff at Community Regional but from some other unidentified source, probably taken from a compilation of information from yet some other unidentified source(s). It is clear the content of the list was produced by an unidentified source, and it was being offered through Dr. Raphael “for the truth of the matter”. It is hearsay and cannot be brought to the jury through Dr. Raphael under the Supreme Court’s guidance in Sanchez. e. There was no Evidence regarding Ms. Daniels’ Possible Ingestion of a “Narcotic” or “Muscle Relaxant” or “Sleep Assisting” Medication Before Driving Other than Dr. Raphael’s Testimony. It was Prejudicial to Plaintiffs’ Right to a Fair Trial In an amazing demonstration of chutzpah, the defense argues that the Plaintiffs cannot claim 7 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ Dr. Raphael’s testimony prejudiced their trial since Ms. Daniels’ son, Jason Daniels, testified “that after he arrived at the hospital to see Ms. Daniels, he became her patient advocate, and on cross- examination the same medical records were used to question him about each of the medications read by Dr. Raphael. (Feb. 3, Trial Tr. 81:27-84:24.) Although Mr. Daniels was not aware of some of the prescriptions, he explained the reasons for others. (/bid. [explaining the active prescription for Atarax by stating that “[s]Jometimes [Ms. Daniels] had trouble sleeping’].) (Defendants Opposition to Plaintiffs’ Motion for New Trial, page 8, lines 17-21.) 9 Cc Even if you were to characterize what follows as Mr. Daniels’ “testimony”, he certainly is not the expert that Dr. Raphael is; his testimony - even if it was as clear as the defense tries to sell it - is nowhere as convincing as Dr. Raphael’s expert testimony could be. The defense farcically oversells the content of Jason Daniels’ testimony. Defense counsel was cross-examining Mr. Daniels. He asked Mr. Daniels about medical history which someone allegedly provided the doctors at Community Regional Medical Center in Fresno. Here is the line of leading cross examination which lacks any acknowledgment by Mr. Daniels of any specialized knowledge of Ms. Daniels’ medications but is full of defense counsel’s testimony about the medications and their purpose: And I just want to ask you a few questions about some of the medical history that - that was given to the hospital about - about your Mom. You mentioned that her health - Can you tell us anything at all about why she was taking Paxil at the time of the accident? A- I don’t know what Paxil is. Q- It’s an antidepressant. A- I don’t know why. Q- Can - Can you tell us anything at all about why she was taking Lopressor? A- What’s Lopressor? Q:- It’s given for high blood pressure and congestive heart failure. A Thave no idea. Q: Can you give us any information on why she had an active prescription for Ultram, which is a pain medication? MR. DENNIS: Lacks foundation, Your Honor. THE COURT: Well, if you have personal knowledge. If not, it is fine. THE WITNESS: She would have headaches sometimes. Just - you know, just getting older. Just when you get older you have different things that affect you. BY MR. FEENEY: Q- Did - Did she take medication for back pain? A- Not that I know of. 8 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ Q So what about Flexeril? Flexeril is a muscle relaxant. Typical given for back or other kind of pain. Can you tell us why she had an active prescript for that? MR. DENNIS: Lacks foundation. THE COURT: It’s just Yes or No. THE WITNESS: No. THE COURT: Thank you. BY MR. FEENEY: Q- What about Neurontin? Neurontin - can you tell us why she had an active prescription for Neurontin? That’s often given for chronic back pain. It’s also given at night. Can you give us any information about that? MR. DENNIS: Same objections. THE COURT: All right. Just Yes or No, if you - THE WITNESS: No. BY MR. FEENEY: Q - Atarax. Can you give us any information about why she had an active prescription for Atarax at the time of the - she was admitted to the hospital? A- What’s that? What is Atarax? Q- Again, it’s a sleep medication. A- Sometimes she had trouble sleeping. Q- And what about Xanax? Can you tell us why she had an active medication for Xanax at the time of the - her admission to the hospital? A- What’s that for, Xanax? Q- Anxiety. A- Tdon’t know. MR. FEENEY: I don’t have any other questions. Thank you very much. (Defendants’ Exhibit “F”, Pages 61-63 of the “Declarations and Exhibits”, Transcript of Jason Daniels’ Trial Testimony on February 3, 2020: 82:23-84:27) Mr. Daniels identified not even one of these medications. He did not know what any of them were. He did not know why they were prescribed. Mr. Feeney identified each one, identified what HE testified was the purpose of each one, and why each one was allegedly prescribed for Ms. Daniels and that the prescription was “active”. The claimed “affirmation” comes only after Mr. Feeney’s prompting when Mr. Daniels acknowledged that Ms. Daniels was old and had the pains of advanced age, and had some trouble sleeping sometime - but that was a far cry from being testimony he knew Ms. Daniels had been prescribed a medication because she had intractable pain or couldn’t sleep. The only “testimony” here was defense counsel’s - Mr. Feeney’s - and the jury was advised that the questions or other statements of counsel are not testimony. The misleading and false argument by the defense on this issue is easily discarded. But it is strong marker of the efforts the defense has gone to present this evidence to the jury with the intent to sell its story that Ms. Daniels was so medicated that she was asleep when the car drove into the 9 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ overpass. The only “evidence” presented about these medications was Dr. Raphael’s. That evidence was improper. That improper evidence was prominently displayed and argued in the defense close. As demonstrated in the Plaintiffs’ Memorandum and Declarations, four jurors all stated this testimony was very influential with the 9-3 decision on Question 1. This improper testimony was clearly influential: since it was persuasive its admission was prejudicial. These expressions of what the jurors drew from Dr. Raphael’s erroneously admitted evidence demonstrate just how prejudicial the discussion of medication was to Plaintiffs, who were not given proper warning about that testimony and were denied an opportunity to challenge or refute it. Plaintiffs have been denied a fair trial and should be granted a new trial. It was error to allow this testimony by Dr. Raphael. This testimony, clear violation of the rules established in Bonds, Kennemur, and Sanchez, surprised Plaintiffs’ counsel. It was misconduct for defense counsel to place this improper argument as the linchpin of his argument to the jury. It is misconduct for counsel to refer to his own questions as testimony. Plaintiffs should be granted a new trial because this improper surprising testimony and misconduct prevented them from having a fair trial. 2. JUROR NUMBER ONE’S EXPRESSION OF HIS OWN CLAIMED EXPERTISE INTO A DISCUSSION OF CONTESTED EXPERT TESIMONY DURING THE JURY’S DELIBERATIONS WAS JUROR MISCONDUCT AND IS PRESUMED TO BE PREJUDICIAL. IT IS GROUNDS FOR A NEW TRIAL. The defense - once they move beyond arguing the inadmissibility of the juror information and evidence presented by Plaintiffs - argue that Juror Number One’s insertion of his own claimed expertise was nothing more than sharing of his “life experience”. Citing their own juror declarations which are full statements of the same nature they pillory the Plaintiffs’ declarations, they argue that the information communicated by each of the jurors had no effect on the trial. They have failed in their attempt to carry their burden that the improper matter introduced by Juror Number One was not prejudicial to the jury process and was not jury misconduct. 10 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ a. What Really Happened During Deliberations? The two sets of juror declaration should lead the Court to the decision to hold an evidentiary hearing regarding the information presented by Juror Number One. The Juror Declarations presented by the defense are amazingly inconsistent with the content of the Plaintiffs’ juror declarations in many aspects. A proper inquiry into these inconsistencies should involve taking live testimony from the jurors in order “to resolve material disputed matters of fact.” (People v. Hedgecock (1990) 51 Cal.3d 395, 415.) Especially here, where the defense claims that the Plaintiffs’ juror declarations are improper and should not be used by the Court, but then they submit their own declarations of the very nature and type of content as the plaintiffs’ declarations. The effort to characterize the juror declarations as improper is unconvincing. Juror affidavits may be used to impeach a verdict if they refer to objectively ascertainable statements, conduct, conditions or events, but not subjective reasoning processes of jurors, which are likely to have influenced the verdict improperly. (Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 953, Evid. Code, § 1150.) Plaintiffs’ declarations all report “objectively ascertainable statements”. The Court should consider the information contained in them. b. Juror Number One’s “Electrician’s Opinion Testimony” was not an Expression of “Life Experience” but was an Attempt to Persuade the Jury to Disregard the Testing and Opinions of Plaintiffs’ Experts. The defense argues that Juror Number One just brought his “life experience” to the deliberations. This is laughable. The Supreme Court provided this guidance from In re Malone (1996) 12 Cal.4™ 935, 963: It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors' views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct. The information Juror One supplied to the jury exemplifies a specialized knowledge that 11 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ tainted the deliberations requiring a new trial. His statements and argument are like the dentist juror in Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1, 17, the concrete professional juror in Smoketree Lake Murray, Ltd. V. Mills Concrete Construction Company (1991) 234 Cal.App.3d 1724, 1749, and the professional transportation consultant juror in McDonald v. So. Pac. Transp. Co. (1999) 71 Cal.App.4th 256, 263-264, It is proper for the Court to consider the jurors’ declarations about the content of statements made by Juror Number One to other members of the jury, just as the courts often have relied upon such declarations: Jones v. Sieve (1988) 203 Cal. App.3d 359, 365-366; Lankster v. Alpha Beta Company (1993) 15 Cal.App.4th 678, 681-682; McDonald, supra, 71 Cal.App.4th at 262, and Whitlock v. Foster Wheeler, LLC (2008) 160 Cal. App.4th 149, 154-156. This evidence has been presented to the Court by way of the juror declarations. Prejudice has been demonstrated and existed. The Court should grant Plaintiffs a new trial. 3. THE EXTREMELY LIMITED DELIBERATION -- BASICALLY NONE - BY THE JURY IS JURY MISCONDUCT. Refusal to deliberate constitutes jury misconduct. (People v. Engelman (2002) 28 Cal.4th 436,442, People v. Lomax (2010) 49 Cal.4th 530, 588-589; Andrews, supra, 130 Cal.App3d at 959.) Short deliberations can be, but aren’t necessarily, a failure to deliberate: the trial judge is charged with the discretion to determine if the actions of the jury are sufficient in evaluating the evidence and making a decision. (Vomaska v. City of San Diego (1997) 55 Cal. App.4th 905, 909.) Given the complicated issues presented in the trial, the intense loss of life by the adults in the front seat and paralysis suffered by the child in the back seat of the Kia, a litigant would expect that a jury’s deliberation about the evidence presented in a three weeks trial would last more than the few minutes this one did. The juror declarations set out the statements about people’s motivation to end the process quickly. The juror declarations set out the limited discussion that the jurors engaged in during their time. The jurors unanimously report that right after the foreman was chosen the majority of jurors wanted to vote. They did not want to discuss the evidence presented during 12 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 IQ the three-week trial. Their “discussion” consisted of an explanation of their reasons for deciding their vote, devoid of the give and take expected of a jury. This occurred over a one-hour period just before lunch. Plaintiffs submit this was inadequate deliberation, and jury misconduct which denied Plaintiffs a fair trial. Conclusion The defense did not overcome Plaintiffs’ submission that they were denied a fair trial because of the improper testimony of Elizabeth Raphael, M.D. about medication allegedly prescribed for Patricia Daniels some time in the past before the accident. This improper evidence had its intended effect on the jurors, who were ready to go home after this three-week trial. Furthermore, there was improper materials and matter brought to the jury through the statements of Juror Number One, and the jury failed to deliberate. The Court should correct this injustice and grant Plaintiffs a new trial. GHOZLAND LAW FIRM, P.C. DENNIS LAW GROUP, PC BISNAR| CHASE LLP Dated: April 14, 2020 by: /s/ Brian ©. Chase Brian Chase, Esq. Michael F. Ghozland, Esq. Jonathan S. Dennis, Esq. ATTORNEYS FOR PLAINTIFFS 13 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G R O U P , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IR PROOF OF SERVICE STATE OF CALIFORNIA ) ) COUNTY OF LOS ANGELES ) SS I am employed in the County of Orange County, State of California. I am over the age of 18 and not a party to the within action; my business address is: 1301 Dove Street, Suite 120, Newport Beach, CA 92660. On April 14, 2020, I served the foregoing and additional documents described as: PLAINTIFFS’ REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL the interested parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST [] By Overnight Mail. [] By Mail - [1 Courtesy copy sent by first class mail to attorneys in the action at the addresses on the Service List from Rancho Mission Viejo, California, with proper postage attached. [1 BY FEDERAL EXPRESS. I enclosed the documents in an envelope or package Provided by an overnight delivery carrier and addressed to the person at the addresses listed above. I placed the envelope or package for collection and overnight delivery at an office or regularly utilized drop box of the overnight delivery carrier. [X] By Electronic Mail. I caused the document(s) to be sent to the person(s) at the e-mail address(es) listed on the Service List, with courtesy copy to Judge Shaller’s chambers at FCShaller@lacourt.org and raquino@]lacourt.org. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission was unsuccessful. [X] STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 14, 2020. /s/ Edward Spilsbury Edward Spilsbury 14 PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL D E N N I S L a w G R O U P , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IR JEREMAIH STROUD, et al. v. KIA MOTOR AMERICA, INC,, et al. Los Angeles Superior Court Case No. BC705872 Dommond E. Lonnie, Esq. dlonnie@dykema.com Thomas Hutchinson, Esq. thutchinson@dykema.com DYKEMA GOSSETT, LLP 333 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 Attorneys for Defendants KIA MOTORS AMERICA, INC., HYUNDAI MOTOR AMERICA, KIA MOTORS CORPORATION, and HYUNDAI MOTOR COMPANY Tel: (213) 457-1800 Fax: (213) 457-1850 Michael R. Carey, Esq. mcarey@dykema.com James P. Feeney, Esq. thutchinson@dykema.com DYKEMA GOSSETT LLP 90 South Seventh Street Minneapolis, Minnesota 55402 15 Attorneys for Defendants KIA MOTORS AMERICA, INC., HYUNDAI MOTOR AMERICA, KIA MOTORS CORPORATION, and HYUNDAI MOTOR COMPANY PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF NEW TRIAL