• CCP 129  (Regarding obtaining copies of coroner photos for use in a civil action.)
• CCP 2025.280  (Regarding subpoenas for electronically stored information.)
• CCP  2034.415  (Regarding an expert’s deadline to produce documents requested in a depo notice.)

Section 129 of the Code of Civil Procedure is amended to read:

(a) Notwithstanding any other law, a copy, reproduction, or facsimile of any kind of a photograph, negative, or print, including instant photographs and video recordings, of the body, or any portion of the body, of a deceased person, taken by or for the coroner at the scene of death or in the course of a post mortem examination or autopsy, shall not be made or disseminated except as follows:

(1) For use in a criminal action or proceeding in this state that relates to the death of that person.

(2) As a court of this state permits, by order after good cause has been shown and after written notification of the request for the court order has been served, at least five days before the order is made, upon the district attorney of the county in which the post mortem examination or autopsy has been made or caused to be made.

(3) For use or potential use in a civil action or proceeding in this state that relates to the death of that person, if either of the following applies:

(A) The coroner receives written authorization from a legal heir or representative of that person before the action is filed or while the action is pending. To verify the identity of the legal heir or representative, all of the following shall be provided to the coroner:

(i) A declaration under penalty of perjury that the individual is a legal heir or representative of the deceased person.

(ii) A valid form of identification.

(iii) A certified death certificate.

(B) A subpoena is issued by a party who is a legal heir or representative of the deceased person in a pending civil action.

(b) This section shall not apply to the making or dissemination of a copy, reproduction, or facsimile for use in the field of forensic pathology, in medical or scientific education or research, or by a coroner or any law enforcement agency in the United States for investigative purposes, including identification and identification confirmation.

(c) This section shall apply to a copy, reproduction, or facsimile, and to a photograph, negative, or print, regardless of when it was made.

(d) A coroner is not personally liable for monetary damages in a civil action for any act or omission in compliance with this section.

Section 2025.280 of the Code of Civil Procedure is amended to read:

(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.

(b) The attendance and testimony of any other deponent, as well as the production by the deponent of any document, electronically stored information, or tangible thing for inspection and copying, requires the service on the deponent of a deposition subpoena under Chapter 6 (commencing with Section 2020.010).

(c) A deponent required by notice or subpoena to produce electronically stored information shall provide a means of gaining direct access to, or a translation into a reasonably usable form of, any electronically stored information that is password protected or otherwise inaccessible.

Section 2034.415 is added to the Code of Civil Procedure, to read:

 An expert described in subdivision (b) of Section 2034.210 whose deposition is noticed pursuant to Section 2025.220 shall, no later than three business days before his or her deposition, produce any materials or category of materials, including any electronically stored information, called for by the deposition notice.

Here is a website where you can find additional information on these changes.

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Be on the look out for these tricks and logical fallacies the next time that you have to deal with an unscrupulous insurance company.

1.  Trick Number One:  Gap in Medical Treatment = Full Recovery.

Many people who are injured seek medical care for a while, then they take some time to let their bodies heal before returning to the doctor.  This can be big trouble when dealing with an insurance company.

People have gaps in the medical history for a multitude of good reasons.  Sometimes you don’t have the money or insurance you need.  Sometimes your doctor says there’s nothing he can do you for, so you just have to wait for your body to heal.

But when insurance companies see a gap in medical treatment they draw only one conclusion – you must be 100% healed.  The insurance companies embrace the logical fallacy that any treatment past the gap must be unrelated to your accident.

What Can You Do To Avoid This?  While you should not go to the doctor any more than is necessary, if you are suffering from a long-lasting injury, it is a good idea to check in with your doctor once every month or two to keep your doctors appraised of your condition.

2.  Trick Number Two:  Typo in Medical Record = Smoking Gun.

Insurance companies also like to seize on any typo or inconsistency in the medical records as “proof” that you are lying.  So your records are plastered with a “left” shoulder injury?  If the insurance company can find one record where the Physician’s Assistant accidentally wrote down “right” shoulder, the insurance company will argue that you must be making your complaints up, since real injuries don’t jump from one shoulder to another.

Of course they won’t consider that perhaps the “right” is a typo.  After all, doctors never make mistakes right?

What Can You Do To Avoid This?  Regularly ask your doctors for copies of your medical records, and review them.  If you see any errors, immediately contact your doctor’s office and request they update the records.

3.  Trick Number Three:  Feeling “Better” = 100% Healed.

Oh how insurance companies love to misconstrue medical records!  If at any point you report to your doctor that you are feeling “better” the defense attorney will show that medical record at trial and claim that you were 100% cured as of that date.  Any pain you may have had after that date must have been from a different cause, according to their faulty logic.

What Can You Do To Avoid This?  Be as accurate as possible when talking to your doctor.  Doctors can be overworked, and sometimes they jot down quick notes.  Be clear when describing how you are feeling.  After all, there is a big difference between feeling 10% better and feeling 100% better.

4.  Trick Number Four:  Digging Up Old Injuries You Don’t Remember.

If you ever tell a doctor that you had “no previous injuries” and it turns out that you fell off your bike when you were ten, or had a sore back after shoveling snow, the defense attorney will claim that you were hiding injuries from your doctor, and that your doctor’s shouldn’t be trusted because they “didn’t have all the facts.”

You must be a liar and a cheater trying to scam the system for money, according the the defense industry’s logic.  After all, who doesn’t keep a record of every ache or pain they have ever had in their life?

What Can You Do To Avoid This?  If you ever get involved in a personal injury lawsuit, take some time to think back and recall any past injuries you may have had.  Car accidents, sports accidents, and trip-and-falls are common sources of prior injuries.  It is better to be as forthcoming as possible.

5.  Trick Number Five:  Only Criminals Need Attorneys.

If you retain an attorney shortly after you are injured, the defense will imply that you are out to make money on your lawsuit.

“But wait” you want to say, “I only got an attorney because I was getting harassing calls from the defendant’s insurance company, and I needed my car fixed!”

Unfortunately, you are not allowed to say that at trial, because you are not allowed to mention that fact that defendant’s have insurance in California courts.  That hardly seems fair does it?

What Can You Do To Avoid This?  If a defense attorney wants to mislead the jury in this way, there’s not too much you can do about it.  The best thing to do is just make sure you those around you are well informed.  That way, next time you are sitting on a jury, you won’t be fooled.

6.  Trick Number Six:  Previous Injuries Make You into Superman.

Car accidents are dangerous for anyone, even healthy people.  Of course, they are much more dangerous if you already have a bad back or a preexisting injury.  When the defense insurance companies find out that you have a preexisting injury, get ready for them to blame all your pain and problems on the preexisting condition.

Somehow, in the Bizarro world of insurance company logic, having a preexisting injury makes you impervious to any future harm.

What Can You Do To Avoid This? Don’t work for an insurance company!  It seems like insurance companies are the only ones that subscribe to the “superman fallacy.”  As long as you keep your feet planted on the ground out here in the real world, you can recognize these tricks and logical fallacies for the nonsense they really are.

The post Top 6 Tricks Insurance Companies Use on Injured People first appeared on Noah F Schwinghamer, Esq..

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO

WWW.SACCOURT.CA.GOV

PUBLIC NOTICE

Changes to the Arbitrator Selection Process

Effective July 03, 2013

(Amended June 19, 2013)

Effective July 03, 2013, the process of selecting an Arbitrator must be completed via the Internet by using an online form. The telephone call-in selection process will no longer be available. The online form is available on the Court’s website at http://www.saccourt.ca.gov/civil/arbitration­selection.aspx.

The form is available now therefore, litigants currently ordered to select arbitrators via the telephone process may immediately begin using the online form. Names must be submitted on or before the Tuesday you are required to call in! The call-in telephone line will be disconnected at 5:00 P.M., Tuesday July 02, 2013.

It is the responsibility of all counsel (including parties appearing in pro per) in the action to confer and agree upon the names of at least three arbitrators prior to submitting the names. Litigants shall utilize the online submission form available on the website to submit the agreed upon names. Names MUST be submitted in order of preference. Only one party shall complete the submission form. If parties fail to select and submit the names, an Arbitrator will be appointed by the Court. Once the Court appoints the Arbitrator, the Court will mail a Notice of Appointment of Arbitrator to all parties.

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Much like the doctors hired by the tobacco industry that routinely find that smoking is harmless, these “defense doctors” are routinely hired by the same defense firms and insurance companies, and routinely find that the plaintiff was not injured.  In the cases where the doctors cannot deny that the plaintiff was injured (for example a large disc herniation can be clearly seen on an MRI film), these defense doctors always find a way to blame the injury on any event other than the event for which the lawsuit was filed.

Personal injury attorney Howard Kapp wrote an interesting article on how to prevent these doctors from using the pretext of a medical exam to subject the plaintiff to second deposition in which the doctor goes fishing for ways to bolster the defense’s case.

Link to the article.

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This article discusses the concepts of Absolute Risk and Relative Risk and how they relate to lawsuits.  The purpose of this article is to show one way the insurance industry uses faulty logic to deny claims of injured people.

A.  Absolute Risk

Absolute risk is a risk stated without any context.  If you are a non-smoker, you have a 1%  chance off getting cancer.

Non-smoker risk of getting cancer:  1:100

If you are a smoker, you have about a 20% chance of getting cancer.

Smoker risk of getting cancer:  20:100

This means that if you took a random sample of non-smokers, about 1 in every 100 would get cancer at some point.

If you took a random sample of smokers, about 20 in every 100 would get cancer.

Let’s look at a hypothetical.  Scarlet, a non-smoker, is considering taking up smoking.  She wants to know how much more likely she will be to get cancer if she takes up this new habit.  In order to answer her question, we need to turn to relative risk.

B.  Relative Risk

Unlike absolute risk, “relative risk” is a comparison between different risk levels.  Relative risk compares the risk levels between two groups or between two choices.

Using our example above, let’s return to Scarlet.  We already know that 1% of non-smokers get cancer and 20% of smokers get cancer.

If you were unfamiliar with relative risk, you might try to figure out this question with the equation below:

20% – 1% = 19% – WRONG

So does Scarlet increase her chances of getting cancer by 19% by becoming a smoker?   NO!

If Scarlet becomes a smoker, her chance of getting cancer doesn’t go up 19%, it goes up 19 TIMES!

To illustrate the difference between 19% and 19 times, it helps to think about it in pies.  Assume you have one pie.  On top is what you get if you increase your pies by 19%.  On the bottom is what you get if you increase your pies by 19 times.

1 pie + 19% of a pie

1 pie + 19 more pies.

In order to answer our question, we have to use relative risk.  Relative Risk is a ratio of one risk to another.  This is why Relative Risk is also sometimes called Risk Ratio.  It our example we are comparing the risk of getting cancer for a non-smoker to the risk of getting cancer for a smoker.

The formula for Relative Risk (RR) is:

In our example it calculates as follows:

(20/100) / (1/100) = 20

So Scarlet will be 20 times or 2,000% more likely to get cancer is she takes up smoking.  Yikes!

II.  Relative Risk In Lawsuits

A.  Introduction

One question that almost always comes up in personal injury lawsuits is: Did this accident cause this injury?

Consider the case of an auto wreck where the plaintiff has a history of a degenerative back.  After the accident, her back hurts worse than usual.  After going to her doctor and getting an MRI, the doctor finds that she has blown out a a disc in her back.

The plaintiff blames her worsened condition on the wreck – “after the wreck, my back hurt more, it was doing fine before!”  The defense blames it on the preexisting condition – “you had a degenerative back, it was going to hurt more anyway!”  Who is right?  Relative risk can help.

B.  The Typical Defense Strategy: Absolute Risk

In a case like this, the typical defense strategy is to hire an expert, either a doctor or a biomechanist who will testify that the likelihood of this type of accident causing this type of injury is statistically low.

For the sake of argument, let’s give it some numbers:  Let’s say it was a 10 mph crash.  Assume the defense expert will testify as follows:  The plaintiff blew out a disc in her back, and 10 mph crashes only do this one in a hundred times.

Defense Argument:  10 mph car accident =  1/100 chance of disc injury.  There is a 1% chance this type of accident could cause this type of injury.

We now know that the defense argument only looks at absolute risk which is a poor way to find out if this wreck caused this injury in this plaintiff.

C.  The Truth: Relative Risk

As we learned above, absolute risk does not give the whole picture.  In order to find out whether this accident caused this injury, we need to look at relative risk.

In order to determine whether this accident caused this injury, we need to compare defendant’s absolute risk to the chance that the plaintiff’s previously asymptomatic disc would happen to become symptomatic on the same day as the auto wreck.

To do this, plaintiff will need expert epidemiological data.  Let’s say plaintiff hires an expert who can look at medical databases for people of the same age and gender as the plaintiff.  Based on this data, plaintiff’s expert can testify that that there is a 1:1,000 chance that a disc would spontaneously herniate for someone of plaintiff’s age and gender.

Chance for 40 year old woman with history of disc degeneration to have a spontaneous herniation:  1:1,000

Next we need to look at what are the chances that it would herniate on the particular day of the year when the car wreck happened.

1,000 x 365 days in a year = 365,000

So our chances of the disc spontaneously herniating on this particular day are 1:365,000.  Now let’s compare that to defense’s absolute risk of 1:1,000.

RR = (1/365,000) / (1/1,000) = 365 to 1 chance that this accident caused this injury.

That is a greater than 99% likelihood that this accident caused this injury.  So while there may only be a 1% chance that a 10 mph collision will herniate anyone’s disc, there is a 99% chance that plaintiff’s collision herniated plaintiff’s disc.

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By Auto Accident Lawyer Noah Schwinghamer

According to this press release from CAOC, Governor Jerry Brown has signed AB 1875 – A bill designed to limit depositions in most cases to seven hours.

This bill was backed by consumer’s rights groups such as CAOC and opposed by the defense industry and the Chamber of Commerce.

The bill was designed to end abuses, usually on the part of unscrupulous defense counsel, who use extremely long depositions to physically and mentally wear down injured or fragile witnesses.

The law should take effect January 01, 2013.  The law will not affect all cases – expert witness deposition, “person most knowledgeable” depositions, and complex cases remain unaffected.

Having sat through many depositions which have lasted longer than seven hours, I applaud the governor and CAOC for passing this bill.

More information on AB 1875 can be found here.

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By Sacramento Personal Injury Lawyer Noah Schwinghamer

The following is a great video on understanding the physics of car crashes that I wanted to share.

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