Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

GIRL, MOTHER STRUCK IN INTERSECTION: FAILURE TO STOP AT RED LIGHT: FTCA LIABILITY: QUADRIPLEGIA: BRAIN INJURY:

Gutierrez v. USA, U.S. Dist. Ct., C.D. Cal., No. 8:04-cv-01045, September 27, 2007.

Gutierrez, 4, was with her mother in their SUV. Gutierrez was properly restrained in a child booster seat in the back seat on the driver’s side. As they entered an intersection on a green light, another vehicle going about 30 m.p.h. ran a red light and broadsided their car on the passenger side, causing Gutierrez’s mother to lose control of the car. It struck a utility pole on the passenger side and flipped over onto the driver’s side. Gutierrez sustained a disk injury at C2, causing ventilator-dependent quadriplegia. She also suffered other injuries, including a brain injury with a subarachnoid hemorrhage, traumatic instability at C6-7, a collapsed left lung, abdominal trauma, and a laceration of her spleen. Gutierrez required a total of 25 surgeries and other procedures and was hospitalized for about 250 days.

Her past medical expenses were about $3.55 million and her future life-care costs, based on a 40-year life expectancy, are estimated to be approximately $22.6 million. Gutierrez will never be able to work and claimed about $1.37 million in lost earing capacity.

After a bench trial, the court entered judgment for plaintiffs in the amount of $55.18 million, including $54.14 million to Gutierrez and the remaining amount to her mother. Defendant has appealed the portion of the judgment awarding Gutierrez $31 million in noneconomic damages.

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Many contracts that are entered into by consumers contain mandatory arbitration clauses. They can be found in health insurance plans, franchise agreements and many other types of contracts. Several states including Maryland, the District of Columbia, Alabama and Connecticut have introduced or passed legislation that would limit mandatory arbitration clauses or provide protections for consumers including people who are injured as a result of the conduct of corporate entities.

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In the Supreme Court decision of Riegel v. Medtronic, Inc. the U. S. Supreme Court granted manufacturers of certain FDA approved medical devices immunity for product related deaths and injuries, finding that State law claims are preempted under the Medical Device Amendments of 1976. Dozens of members of the U. S. House of Representatives have now signed on to co-sponsor an amendment to that statute which would allow injured consumers and patients to hold medical device manufacturers accountable for defective devices resulting in personal injury.

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In the criminal field, there are two different types of warrants that may be issued—arrest warrants and search warrants. An arrest warrant is an order issued by a judge or magistrate authorizing the arrest of a particular person for a particular crime. A search warrant is an order issued by a judge or magistrate authorizing the police to conduct a search of a specific premises looking for specific objects. Although the police do not always need to have a search warrant before conducting a search of a premises, it is generally preferred that they do, especially if time permits. In some circumstances, however, time does not permit the police to go to the local courthouse, find a judge who has time to review the situation, and obtain a search warrant. In those types of emergency circumstances—when evidence is about to be destroyed or when the crime is in progress—the police may enter the premises and conduct a search without a warrant.

If a search warrant has been issued, then the warrant may actually indicate when the search is to be conducted. Typically, when the search warrant is to be served and executed is a matter of discretion for the police. Once the police have arrived at the premises, they are expected to announce their entry. However, if they have some reasonable cause to fear that evidence is being destroyed or that the police themselves may be in danger as a result of announcing their presence, then the police may enter without notice. Once the police have entered the premises, anyone in the premises is detained pending the completion of that search. If illegal materials or the items that are sought are found in the premises, and if there is probable cause to believe that the persons on the premises have something to do with the crime at issue, then they may be arrested and charged with a criminal violation.

Sometimes the police may request a citizen to consent to a search either of their person or of their premises. Nobody has to give such consent. If a person does consent to the search of his or her physical person or his or her home, it is considered to be a consensual search and the police do not need a warrant.

Police sometimes are called upon to utilize various types of surveillance techniques, consisting of wire tapping and electronic eavesdropping. That type of surveillance is controlled by specific state or federal statutes and as a general rule a warrant is necessary before the police can engage in that type of activity.

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The general criteria for making an arrest is what is referred to as probable cause. Probable cause arises when there is sufficient evidence to cause a reasonable person to believe that the accused probably committed the crime in question. The key word is probable. That is, the accused is more likely than not to have committed the crime in question.

The police may rely upon a variety of different sources of information to arrive at probable cause. For instance, a police investigator who relies upon an informant that has been used in the past regarding drug activities may determine that there is probable cause that narcotics are being sold at a particular location. That may justify not only the issuance of a search warrant for those premises, but also justify the arrest of the persons inside the premises if narcotics are found. Probable cause may also be founded upon police surveillance, wherein the police have actually seen suspicious activities going on at a particular location. Many things may justify the issuance of a warrant and a search of the premises.

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Once a person has been arrested, the arresting officer is allowed to search that person and to search the area within arm’s reach of that person. Anything that is found as a result of that type of search may be used against the defendant. Likewise, if there is some illegal substance or item that is within plain view of the officer while he or she is lawfully in the premises, then that substance or item may be seized and used against the defendant.

Vehicle searches are frequently the subject of controversy. When a motor vehicle operator is arrested and taken to the police station, his or her vehicle is typically impounded. The police are then authorized to conduct an inventory search of the vehicle. Since the vehicle has come into their possession, it is in the interest of the police to determine whether there are any items of value in that vehicle, so that they are not later charged with a misappropriation of those items. They typically will conduct an inventory search of the vehicle and if there is some illegal substance or material found in the vehicle, it could be the basis of a criminal prosecution.
 

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A rule that has evolved over the years (and that is the subject of a good deal of controversy) is the so-called exclusionary rule. The exclusionary rule states that the courts will exclude evidence that was obtained as the result of an unreasonable search or seizure. The exclusionary rule is a rather general one, and over the years, the courts have applied several exceptions to the exclusionary rule.

The intent of the exclusionary rule is to control police behavior.

The intent of the exclusionary rule is to control police behavior. It is felt that if the police realize that evidence they obtain in violation of someone’s constitutional rights cannot be used in a criminal prosecution, they will control their behavior from that point forward, assuring that the constitutional rights of defendants are observed. The battle over the exclusionary rule has raged for nearly forty years, with some people arguing that it makes no sense to allow the criminal to go free simply because the police have bungled. People on the other side of the issue argue that the only way that the police can be controlled is by excluding evidence that they obtain illegally.

In order for a defendant to rely on the exclusionary rule, he or she must assert and prove that he or she has standing to challenge the alleged constitutional violation. This requirement of standing, or having an appropriate interest in the outcome of the case, is a general requirement for asserting any constitutional right. An example of where a defendant would not have standing arises when an illegal seizure of narcotics in the home of Defendant A leads to the subsequent arrest of Defendant B at another location. The narcotics in that case could not be used in evidence against A, because A has standing to object to the illegal arrest. The narcotics could be introduced against B, as B has no standing to object because it was not his home that was illegally searched and he was not the one who was illegally arrested. In that case, B would not have standing to raise a constitutional objection in order to exclude the evidence.
 

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The criminal process can be initiated by both state and federal prosecutors. The Bill of Rights (the first ten amendments to the Constitution) initially only restricted the power of the federal government and was not considered to have any application to criminal prosecutions in state court. But over the last fifty years, there has been a process of selective incorporation, wherein the rights guaranteed to defendants in federal criminal prosecutions have been selectively incorporated into state prosecutions.

Today, virtually all the rights set forth in the Bill of Rights apply not only to federal criminal prosecutions, but also to state criminal prosecutions. As such, a defendant’s right to remain silent, the right to competent counsel, the right to confront his or her accusers, the right to be free from cruel and unusual punishment, and most of the other rights set forth in the Fourth, Fifth, Sixth, and Eighth Amendments have been made applicable to defendants charged with crimes in the state court system.

Many of the rights associated with a criminal prosecution are rights that come into play before an arrest is ever made. The Fourth Amendment says that you have a right to be free of unreasonable police searches and seizures. The police cannot stop you while you are walking down the street unless they have some reasonable justification for believing that you either have committed a criminal offense or are about to commit a criminal offense. If a police officer sees you walking down the street engaging in some unusual behavior, stops you to question you about this, and sees a conspicuous bulge under your coat that looks like it may be a pistol, then he or she may detain you and pat you down to determine if it is in fact a pistol. If it is a pistol and you are not allowed to be carrying such a concealed weapon, then you may be arrested.

Suppose a police officer receives a report that a bank has just been robbed and hears a description of the perpetrators broadcast over the police radio. If that police officer feels that you fit the description, then he or she may stop you and ask where you have been, where you are going, and request your identity. If the police officer is not satisfied at that point that you are not the suspect, he or she may even take you back to the scene of the crime to see if you can be identified by any of the witnesses. If you are then identified by one of the witnesses, you will be arrested.

A police officer, however, may not stop you and detain you while you walk down the street simply because you look suspicious or unsavory. Instead, he or she must have some reason that can be articulated that would cause a reasonable person to conclude that you have committed some criminal offense or are about to commit a criminal offense.

You have probably heard the saying a man’s home is his castle. Indeed, that is true insofar as police searches are concerned. The police cannot randomly come into your home and conduct a search. Generally, the police need to have a search warrant to conduct a search of the premises. In certain emergency circumstances, they may be allowed to come into the premises and conduct a search. This is only allowed if it is necessary in order to accomplish an arrest of a person whom they believe has committed a crime or if it is necessary to prevent the destruction of evidence. If time permits, however, the police are required to obtain a warrant issued by a judge or magistrate authorizing the search and entry into a home.

Generally, the police need to have a search warrant to conduct a search of your home.
 

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There are several players in the criminal justice system—the police, the prosecutors, the judges, the parole and probation officers, and the accused, who is also called the defendant. Criminal prosecutions are typically initiated by the police by making an arrest. That arrest may be made as a result of a crime witnessed by a police officer or as a result of an investigation by the police. Once the police have made an arrest, the person arrested will begin to wind his or her way through the criminal justice system.

To describe the journey through the state criminal justice system (and for the most part, the federal system as well), the best place to begin is at the beginning. As with every aspect of the legal system, the beginning is the Constitution. The most frequent encounter with constitutional law is found in the criminal context. Criminal law and procedure, to a great extent, is constitutional law.

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A federal court may have subject matter jurisdiction, but no personal jurisdiction over the defendant.

Lawyers frequently argue over the respective merits of bringing a civil claim in state court versus federal court. Some lawyers maintain that it is always to the advantage of the plaintiff to litigate a claim in federal court for the following reasons.

* The Federal Rules of Evidence typically are a bit more lenient, and therefore more favorable to a plaintiff than are the state rules of evidence.

* The federal courtrooms are much grander and larger than the typical state courtrooms, and therefore juries are likely to be more impressed with a case brought in federal court and more likely to return a verdict favorable to the plaintiff.

* Federal judges are sometimes considered higher caliber than state court judges.

Those reasons are very subjective and there are probably as many lawyers across the nation who feel that it is better for a plaintiff to file suit in state court than it is in federal court. In any event, since the plaintiff initiates the lawsuit, the plaintiff has the opportunity, to some extent, to choose the forum. Even though a suit may be initiated in state court, if the federal subject matter jurisdiction requirements have been met, then the defendant may remove that case from state court to federal court.

Once a case has been initiated in federal court, the process that is followed is much the same as what has been described previously in the state court system. The particular procedural rules that are followed in federal court may differ from what are followed in state court, but the basic procedure is much the same once the lawsuit has been initiated.

When hearing a diversity case, a federal court is, in essence, sitting as if it were a state court. The federal judge who is called upon to make rulings of law has to apply the pertinent state law that governs that transaction. If a citizen of Connecticut sues a citizen from Massachusetts in a federal court in Massachusetts for an automobile accident that occurred in the state of Connecticut, then the federal judge in Massachusetts is going to apply Connecticut law to that claim. Massachusetts law on the particular issues in questions may be markedly different than Connecticut law.

A federal judge, however, who hears a federal question case typically is going to apply federal law, since the claim itself arose under federal law.

Even though a federal judge may be called upon to apply state law in a diversity claim, he or she is still bound by the Federal Rules of Procedure, which govern the civil procedure in that court system. He or she is also bound by the Federal Rules of Evidence, which are the rules that govern the admissibility of evidence in the federal court system. As such, a federal judge, when sitting in a diversity claim, is called upon to apply a number of different types of law—both state law and federal law—to different aspects of the case.

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In order to file suit against a person in the state of Massachusetts, for example, either in state or federal court, you have to assert and be able to prove that the court (state or federal) has personal jurisdiction over that defendant. Personal jurisdiction can be obtained in a number of different ways.

* If the defendant committed the alleged wrong in the state of Massachusetts, then that would give the courts (state or federal) within that state personal jurisdiction over him or her.

* If the defendant lives in the state of Massachusetts, then the courts (state or federal) in that state would have personal jurisdiction over him or her.

* If the defendant has engaged in a course of conduct wherein he or she has substantial contacts with the state of Massachusetts and the claim in question “arose out of those contacts,” then that may likewise give the courts (state and federal) personal jurisdiction over him or her in the state of Massachusetts.

The concept of personal jurisdiction is entirely separate and distinct from the concept of subject matter jurisdiction. Subject matter jurisdiction of the federal courts (in terms of civil claims) must be founded upon diversity or a federal question. That relates exclusively to what is called subject matter jurisdiction. Personal jurisdiction deals with the issue of whether the court has authority over that defendant to litigate that claim.

The concept of personal jurisdiction is founded on the idea that it would be unfair for a citizen of California to have to litigate a claim in Massachusetts unless that citizen of California had done something that would constitute some substantial contact with the state of Massachusetts that gave rise to the claim in question. The mere fact that a federal court may have subject matter jurisdiction to litigate your claim does not necessarily mean that it has personal jurisdiction over the defendant to litigate that claim.

Personal jurisdiction deals with the issue of whether the court has authority over a particular defendant.
 

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The second way of bringing a civil claim into federal court is by suing under a federal statute or a federal constitutional provision. For instance, if you file a civil rights claim against your employer, even though you may be a citizen of Ohio and you employer may be a citizen of Ohio, you can still bring that claim in federal court because the claim is brought under federal law. Likewise, if you pursue a claim against a defendant under a theory involving a violation of your constitutional rights, then that type of claim may be brought in federal court because it is founded upon a federal constitutional issue.

Unlike diversity claims, federal question cases do not have any monetary jurisdictional limits. That is, the discrimination claim that you bring against your employer may only be worth one hundred dollars, but you can still bring that claim in federal court.

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A diversity claim is one wherein the parties are of diverse citizenship. A citizen of the state of Connecticut may sue a citizen of the state of Massachusetts in the federal court in Massachusetts. That difference or diversity of citizenship establishes one of the elements of a diversity claim. The diversity claim, however, must also involve a monetary controversy in which the amount at stake is in excess of $75,000 (not including any interest or any attorneys fees that may be claimed).

The civil jurisdiction of the federal courts is legislated by Congress. Congress has chosen to limit the overall civil jurisdiction of the federal courts. The logic is that civil litigants can always go into state court to resolve their disputes, and as such the federal courts should be reserved only for certain types of disputes. Disputes between citizens of different states may be subject to some local or regional prejudice if brought in state court, and therefore Congress has decided that these types of civil claims, provided they meet the monetary amount set forth above, can be brought in federal court in order to avoid the potential prejudice or bias.

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The federal court system is quite different from the state court system. You will recall from what was said previously that the federal courts are courts of limited jurisdiction. On the other hand, the state courts are courts of general jurisdiction, or, to put it another way, virtually of unlimited jurisdiction. The term jurisdiction in this sense refers to subject matter jurisdiction—the types of claims that the court has the authority to hear.

There are some claims arising under federal law that can be asserted only in federal court, but the general rule is that virtually any type of civil claim (under state or federal law) can be brought in the state court system. That is not true of the federal court system. In order to bring a civil claim in the federal court, there are certain requirements that have to be met. There are two ways to bring a civil claim into federal court. You can bring a diversity claim or you can bring a claim involving a federal question.

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An expert witness is simply a witness who has expertise in a particular area, whose testimony the court has determined may assist the jury in understanding the issues of the case and therefore fairly deciding the issues. Expert testimony has been abused over the years in that it is sometimes presented on issues that do not require expert testimony. The rule of thumb for the admissibility of expert testimony is that it must relate to a subject matter that the jury might have difficulty understanding without expert testimony. The expert must assist the jury in understanding the issue. In a medical malpractice case in which there is an issue as to whether the surgery should have been conducted one way or another, the jury needs to hear expert testimony from medical doctors as to how the surgery should have been conducted. The jury does not have the expertise to decide that issue on its own, and therefore must hear from medical experts who will educate the jurors as to what the medical issues are and how the surgery either should have or should not have been conducted. It is then up to the jury to decide which of those experts they believe and to render a verdict.

Certain types of expert testimony have been ruled inadmissible by some courts. For instance, in some jurisdictions, expert testimony of how a particular automobile accident may have occurred is considered to be inadmissible because that is normally considered to be something that a jury can understand and determine on its own, without the aid of expert testimony.

There is a tendency within the legal profession to offer expert testimony on as many issues as possible in order to bolster the claim or defense being asserted. Recently, many courts have taken a somewhat dim view of that tendency and have endeavored to restrict the admissibility of expert testimony. The reasoning is that in many of these types of cases, the jury has sufficient expertise or common sense to understand and resolve the issues.

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A more common objection, however, is hearsay. The hearsay objection may arise not only in regard to documentary evidence, but also in regard to testimonial evidence (the testimony of witnesses). Generally defined, hearsay is an out-of-court statement that is offered for its truth value.

Example: The plaintiff makes a statement at the scene of an accident saying “I am at fault.” If it were to be offered as truth in court, would it be considered hearsay? Looking at the definition of hearsay as being an out-of-court statement that is offered for its truth value, the statement would be hearsay. The statement was made out of court (it was made at the accident scene) and it is being offered for its truth value (to prove that the plaintiff was at fault at the time of the accident because he said so).

The general purpose of the hearsay rule is to exclude evidence that may not be reliable. Another reason for the exclusion of hearsay evidence is that its presentation denies the other party the right to cross examine the person who is making the statement. If, at the scene of an accident, a police officer makes a statement to the effect that the plaintiff was at fault for the accident, that statement is hearsay if offered as evidence in court because it was stated out of court and is offered for its truth value. If the police officer does not testify at trial, then obviously he or she cannot be cross examined about that statement. It would be unfair to allow either party to repeat that statement in court because the witness making the statement is not present to be cross examined about it. If, however, the police officer does testify at trial, then it is possible that, under certain circumstances, he or she may be confronted with that prior statement and asked to explain it.

As indicated above, hearsay evidence is not generally admissible, but there are a number of exceptions to the hearsay rule. For example, when the plaintiff stated that he was at fault, the statement was hearsay. However, the court may still admit it on the grounds of it being an exception to the hearsay rule because it is an admission of a party to this particular action. The exceptions to the hearsay rule are very extensive—so extensive that some people might say that the rule itself now has no meaning.
 

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Documents and physical objects are frequently offered as exhibits or as evidence at trial. The first inquiry in regard to any document or other physical object is whether it is authentic. A document or object is authentic if it has been proven to be what it appears to be. If a will is presented to the court as an exhibit and is offered as the will of John Jones, then before that document can be entered into as evidence (shown to the jury), a witness will need to confirm that it is the will of John Jones and that the document bears his signature. That type of testimony establishes the authenticity of the document—simply that it is what it appears to be.

From a common sense point of view, lay people looking at that may say that it has the name at the top indicating that it is the Last Will and Testament of John Jones, it bears the signature of John Jones, and the signature appears to be authentic. Based upon all of that, common sense would suggest that the document is what it appears to be—the Last Will and Testament of John Jones. The court, however, normally requires more than simply the appearance of validity. Typically, a witness will need to testify that the document is in fact the Last Will and Testament of John Jones and the witness may have to testify as to how he or she knows that is so.

Once the authenticity of a document has been established, there may be other objections that could be made regarding that document. Any objections as to relevance and privilege will have to be dealt with.

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Evidence, in general terms, can fall into two broad categories. There is direct evidence and circumstantial evidence. Direct evidence consists of witnesses testifying to things within their personal knowledge or may consist of documents, pictures, or other things that directly prove a particular thing. For instance, a person testifying that “I saw the wolf attack the chicken coop” would be direct evidence.

Circumstantial evidence may be thought of as indirect evidence, or evidence that leads to a particular conclusion although there is no direct testimony, document, or thing that proves that event. Going back to the example of the wolf attacking the chicken coop—if no one actually saw the attack happen, but you see the wolf’s footprints around the chicken coop and the dead chickens, then you may conclude that the wolf is the one who killed the chickens, even though no one actually saw it happen.
 

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The principle criteria of admissibility is that the evidence must be relevant. Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case. If the issue in the case is whether you ran a red light, evidence that shows that the traffic light was not properly functioning at the time of the accident is relevant and typically would be admissible. Likewise, evidence of the cycle of nearby traffic lights and your speed as you traveled from a nearby intersection to the intersection in question may all be relevant to whether or not the light was red when you entered the intersection. All of those facts tend to prove or disprove whether you ran that red light and therefore are relevant.

Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case.

Some evidence may be relevant but it is so highly prejudicial that the court determines that it should not be admitted. In tort claims, most courts have determined that evidence of insurance is not admissible because it is too prejudicial. If a jury knew that a defendant was insured, then jury verdicts may be higher simply because of that. Accordingly, most courts have determined that evidence of a defendant being insured is not admissible even though it may be relevant.
 

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Within the law of evidence, there are certain presumptions that may arise on occasion. A presumption is a recognition that if one particular fact is proven, then a second fact is inferred or assumed from the first.

Example: If I prove that a child is under the age of seven, then a presumption arises that the child is incapable of negligence. That is, having proved first that the child was under seven, the court then recognizes a presumption that the child cannot be guilty of negligence.

A presumption is a recognition that if one particular fact is proven, then a second fact is assumed.

This presumption may be unrebuttable. A different presumption may exist as to a child between the ages of 7 and 14. This presumption is considered to be a rebuttable presumption. If it can be shown that the child is of sufficient sophistication, intelligence, and experience that he or she can understand the nature of his or her acts and is capable of committing a negligent act, then the presumption may be rebutted.

There are a number of other presumptions that exist in the law. A person accused of a crime is presumed to be innocent. That presumption must be overcome by the government by presenting evidence of criminal behavior. If a person holds the power of attorney for another individual and profits from that relationship, then there is a presumption that his or her profiting from that relationship is fraudulent. The basis for that presumption is that, as the attorney in fact or holder of a power of attorney for an individual, a person has a great deal of power over that individual and can manipulate the assets or activities of that individual.

A presumption of death from an absence of seven years may also arise. If a person disappears and is not seen or heard from for a period of seven years, then he or she is presumed dead.

Another presumption that is frequently referred to is the presumption of knowledge of the law. As a citizen of this country, you are presumed to know the law. Obviously, no one can know all of the laws. However, common sense should tell you that if you are about to engage in behavior that is questionable, then you may need to check to see whether that behavior is illegal. If you then engage in that behavior, you cannot raise a defense that you did not know the law, because you are presumed to know the law.

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As previously stated, the plaintiff has the burden of proof in a civil case. There are different burdens that apply in different types of cases. Generally, in a civil case, the burden of proof is what is referred to as the preponderance of the evidence—the greater weight of the evidence. Recall the example of tipping the scales by a featherweight. If the plaintiff tips those scales by so much as a featherweight, then his or her burden of proof based upon a preponderance of the evidence has been met.

In some civil claims, however, the burden of proof may be somewhat higher. In particular, regarding fraud claims, the burden of proof is generally considered to be what is called clear and convincing evidence. That burden of proof or standard of proof is higher than simply a preponderance of the evidence. If you were to think of a preponderance of the evidence as being something more than fifty percent, then clear and convincing evidence would be a level of proof in the range of seventy-five to perhaps as high as ninety percent.

Another term that is used in criminal cases is that of proof beyond a reasonable doubt. That is a level of proof that even goes beyond clear and convincing evidence, and probably is more in the range of ninety percent.

It is probably misleading to try to ascribe numerical figures to any of these standards of proof, since they really are not susceptible to numerical classification. These numerical classifications are merely designed to provide some illustration of the different levels of burden of proof.

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