Jury Trial Preparation

The typical motions in limine from the employer defense attorney perspective will be case dependent. However, in a larger catastrophic case, it is likely that a so-called Hanif or Nishiyama argument will be made, whether through a motion in limine, remittitur, etc.

Nishihama v. Superior Court (2001) 93 Cal.App.4th 298 [112 Cal.Rptr.2d 861] and Hanif v Superior Court (1988) 200 Cal.App.3d 635 [246 CahRptr. 192], civil litigation attorneys have cited for the theory that in a personal injury action, the personal injury damages for medical costs will be limited if it can be established that a smaller amount was paid for medical services – whether by the plaintiff or from an insurance carrier. The theory, according to personal injury attorneys, being that the past medical expenses which can be obtained may be dramatically cut based upon the actual payment.

The class action defense attorneys will argue that the plaintiff bar’s consistent reliance on the decision of Greer v. Buzgheia (2006) 141 Cal. App. 4th 1150 [46 Cal.Rptr.3d 780] is misplaced. Rather than dispelling both Hanif and Nishihama, it will be argued that Greer serves more as a side note to those major holdings. In Greer, the Court held that a plaintiff’s full market rate medical costs are admissible into evidence at the time of trial and that the actual verdicts should distinguish medical expenses from other economic damages for post-verdict Hanif/Nishihama motions to be successful. Thus, the trial court did not abuse its discretion in allowing evidence of the reasonable cost of plaintiff’s care while reserving the propriety of a Hanif/ Nishihama reduction until after the verdict.

Although this area of law is still unsettled, there have been more recent cases which have also provided some analysis as to what evidence must be presented. An interesting case potentially from the plaintiff’s perspective was recently handed down on June 23, 2008, namely Olsen u Reid (2008) 164 Cal.App.4th 200 [79 Cal.Rptr.3d 255]. In that case, the jury awarded plaintiff $62,475 for medical care, based on evidence that she was billed that amount. The trial court granted a partial judgment notwithstanding the verdict for defendant and reduced the award by $57,394, finding that plaintiff providers had written off that amount. The reviewing court found that the trial court erred in reducing the amount of the jury7 verdict because the evidence was far from clear as to what was paid, what, if any-thing, was written off, and to what extent plaintiff remained liable for any further charges. The Court held the cryptic billing notations the trial court relied upon may have reflected payments, or write-downs or write-offs; the reviewing court could not know, and if any evidence revealed the actual facts, it was not present in the record. The court found no error in permitting the jury to hear evidence of the full measure of medical damages.

As a result, challenges to past medical damages and the extent thereof will likely be pursued.

Trial procedure

Finally, a word on trial procedure. Recently, a young boy (approximately 12 years of age) testified regarding his father’s accident. He was an eyewitness who looked extraordinarily pained and nervous on the witness stand. His rendition of the accident was troubling to the defense, but the boy had clearly made mistakes in his direct examination. The defense attorney was then faced with the prospect of potentially scoring points by showing the mistakes. Rather, defense counsel elected not to ask any questions, clearly to ease the burden on the young witness. Upon a defense verdict, jurors remarked as to the conscientiousness offered by defense counsel during an extremely awkward moment in the trial.

In a typical catastrophic-injury case, the plaintiff’s advocate can much more regularly take the position of outrage and disgust. While the defense can do this with certain witnesses – especially experts – when it comes to those suffering as family member or friend, restraint must be shown.

The defense attorney must make two commitments prior to addressing the jury in a catastrophic-injury case. The jury must not only identify the defendants with the attorney but the attorney must be genuine. Whether it is changing tact on some witnesses or simply attempting to position him or herself as trustworthy, it is critical that the jury not be offended by the conduct of the defense attorney.

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