Preview
Electronically Filed
Jose A. Montalvo, Esq. (SBN 184484) by Superior Court of CA,
LAW OFFICES OF JOHN A. BIARD County of Santa Clara,
P.O. Box 64093 on 9/20/2019 1:20 PM
St. Paul, MN 55164-0093 Reviewed By: M Vu
Telephone: 925.945.4491 Case #17CV309914
Facsimile: 855.668.5559 Envelope: 3420022
Timothy Lucas, Esq. (SBN 82374)
THOMAS|LUCAS
9191 Towne Centre Drive, Suite 190
San Diego, CA 92122,
Telephone 855.535.0700
Attorneys for Defendants
BRADDON FREDERICK McKEE;
10 and VINCULUMS SERVICES, LLC
11 SUPERIOR COURT OF CALIFORNIA
12 COUNTY OF SANTA CLARA
13 CHARLETTE AVERY, Case No.: 17CV309914
14 Plaintiff, Assigned to Judge Paul Bernal in Dept. 22 for
15 vs. purposes of Trial
16 BRADDON FREDERICK McKEE; MOTION FOR PARTIAL DIRECTED VERDICT
VINCULUMS, INC.; VINCULUMS
17 SERVICES, LLC, and DOES | to 20, Trial date: 9/4/2019
18 Judge: Honorable Paul Bernal
Defendants. Dept.: 22
19
20
21 COME NOW Defendants BRADDON FREDERICK McKEE and VINCULUMS SERVICES,
22 LLC and hereby move for a partial directed verdict as follows:
23 When the evidence is viewed in a light most favorable to Plaintiff, it is insufficient as a matter
24 of law for Plaintiff to recover for the medical and medical related expenses, materials and equipment
25 charged by the following:
26 1 Justin Paquette, M.D.
27 2. Spine & Sports Surgery
28 3. Premier Scan
1
MOTION FOR PARTIAL DIRECTED VERDICT
Sunnyvale Imaging
Quinn Orthopedic
Stevenson Surgery Center
Medical Distributors (Cold Fusion)
8 Pain & Spine Institute (Dr. Petros)
9 Kaiser Permanente
On 9-18-19, the Court ordered stricken the opinion testimony of Dr. Fogler and related billing
exhibits of the following:
1 Justin Paquette, M.D. (Exhibit 118)
10 2. Spine & Sports Surgery / Exhibit 119
11 3 Premier Scan / Exhibit 123
12 Sunnyvale Imaging / 124
13 Quinn Orthopedic / Exhibit 125
14 Steven Surgery Center/ Exhibit 134
7
15 Medical Distributors (Cold Fusion) / Exhibit 136
16 8 Pain & Spine Institute / Exhibit 138
17 With regard to the foregoing health care / equipment providers, Plaintiff offered no competent,
18 qualified or any expert opinion testimony that said unpaid billing amounts were reasonable, necessary
19 or causally related to the subject accident.
20 With regard to the so-called Kaiser billing, Plaintiff offered no medical expert testimony with
21 regard to any or all of its purported billing in either Exhibit 97 or Exhibit 139, that they were reasonable,
22 necessary or causally related to the subject accident or that they have even seen the purported ‘bills’ or
23 teviewed any corresponding medical records. Further, Brandon Burnette (Kaiser’ Managing Director of
24 Patient Financial Operations) testified (out of the presence of the jury) on 9-16-19, that as of that moment,
25 Plaintiff did not owe Kaiser anything for any health care services and that he had no personal knowledge
26 of any specific treatment provided by Kaiser. Much of his testimony was out of the presence of the jury
27 and to the extent that he testified about anything related to the Kaiser “bill” in front of the jury, it should
28 be stricken, and Defendants so move, on the basis that Defendants were deprived of their basic due
2
MOTION FOR PARTIAL DIRECTED VERDICT
process rights by not being allowed to fully cross-examine him in front of the jury. After Defendants’
brief 402 examination of Mr. Burnette, the jury was excused and all further testimony by Mr. Burnette
was out of the presence of the jury. Plaintiff rested her case without recalling Mr. Burnette to complete
his direct examination or allow any cross-examination in front of the jury. Further, Plaintiff has offered
two different versions of the purported Kaiser “bill” that reflect different totals and different line items
that have not been explained to the jury or to the Court by any witness. They are inherently confusing
and prejudicial and nothing more than an invitation to the jury to speculate as to which amounts, if any,
were reasonable in amount for the particular services; whether the particular services were reasonably
necessary; and whether the particular services were caused by the subject accident. No competent expert
10 has testified to any of those issues with regard to this bill. Even Dr. Gogia, whose deposition was played
11 for the jury, did not opine that the surgeries he performed were related to the subject accident and there
12 is nothing in the record suggesting that Dr. Gogia ever saw either version of the purported Kaiser bills,
13 let alone that he testified that any particular line item was reasonable in amount, was reasonably
14 necessary, and causally related to the subject accident. The Kaiser ‘bills’ reflect on their face that
15 services were provided by a variety of doctors whose names have never even been mentioned during the
16 trial.
17 Special damages must be proven with reasonable certainty and where damages evidence contains
18 both relevant as well as irrelevant entries, it is incumbent on the party proffering such evidence to
19 segregate the relevant from the irrelevant. It is proper not to admit such unsegregated evidence and any
20 award based thereon is arbitrary and reversible. Calhoun v. Hildebrandt (1964) 230 Cal. App. 2d 70,
21 73; Horowitz v. Fitch (1963) 216 Cal. App. 2d 303, 314; Gimble v. Laramie (1960) 181 Cal. App. 2d 77,
22 81-82; Cirinconi v. Green (1959) 175 Cal. App. 2d 812, 816.
23 Respectfully submitted,
24 Dated: September 19, 2019 THOMAS|LUCAS
25
Timothy
D. Lucay
26 Timothy D. Lucas, Esq.
Attorneys for Defendants BRADDON FREDERICK
27
McKEE; and VINCULUMS SERVICES, LLC
28
3
MOTION FOR PARTIAL DIRECTED VERDICT
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA COURT USE ONLY
ATTORNEY OR PARTY WITHOUT ATTORNEY TELEPHONE NO.:
Timothy D. Lucas, Esq. (SBN 82374) (858) 535-0700
THOMAS| LUCAS
9191 Towne Centre Drive, Suite 190 FACSIMILE NO.
San Diego, California 92122 (858) 535-0701
SHORT CASE TITLE: AVERY v, McKEE JUDGE: Hon. Paul Bernal
DEPT: 22
ATTORNEYS FOR: Defendants Braddon Frederick McKee and Vinculums Services, LLC CASE NUMBER: 47CV/309914
DECLARATION OF SERVICE
[Code of Civil Procedure §§ 1013A and 2015.5]
|, the undersigned, declare that | am, and was at the time of service of the papers herein referred to, over the age of
eighteen years, and not a party to this action; and | am employed in the County of San Diego, California, within which county the
subject service occurred. My business address is 9191 Towne Centre Drive, Suite 190, San Diego, California 92122.
On September 19, 2019, | served the following document(s):
. MOTION FOR PARTIAL DIRECTED VERDICT
on the interested parties as listed below:
Jeff Atterbury, Esq. Steven J. Brewer, Esq.
Habbas, Nasseri & Associates Jayme L. Walker, Esq.
675 North First Street, Suite 1000 Gwilliam, !vary, Chiosso, Cavalli & Brewer
San Jose, CA 95112 1999 Harrison Street, Suite 1600
E: jatterbury@habbaslaw.com Oakland, CA 94612
E: litigation@habbaslaw.com E: sbrewer@gicb.com
Counsel for FOR PLAINTIFF CHARLETTE AVERY E: jwalker@giccb.com
Counsel for PLAINTIFF CHARLETTE AVERY
Jose A. Montalvo, Esq.
LAW OFFICES OF JOHN A. BIARD
P.O. Box 64093
St. Paul, MN 55164-0093
(Tel): (925) 945-4491
(Fax): (855) 668-5559
JAMONTAL@travelers.com
Julie: jmricha2@travelers.com
Counsel for Defendants
Via:
[Xl] VIA ELECTRONIC MAIL: | declare that | served the above document(s) by E-MAILING a true copy of the document(s) via
an electronic mail account maintained by the law firm of Thomas Lucas, to the Email address(es) attached. The
transmission(s) was reported as complete and without error.
{] (FACSIMILE) Via facsimile to the parties number(s) as listed on attached service list.
(STATE) | declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed on September 19, 2019, at San Diego, California.
AN. they
indy Lavery (
DECLARATION OF SERVICE
Preview
Electronically Filed Jose A. Montalvo, Esq. (SBN 184484) by Superior Court of CA, LAW OFFICES OF JOHN A. BIARD County of Santa Clara, P.O. Box 64093 on 9/20/2019 1:20 PM St. Paul, MN 55164-0093 Reviewed By: M Vu Telephone: 925.945.4491 Case #17CV309914 Facsimile: 855.668.5559 Envelope: 3420022 Timothy Lucas, Esq. (SBN 82374) THOMAS|LUCAS 9191 Towne Centre Drive, Suite 190 San Diego, CA 92122, Telephone 855.535.0700 Attorneys for Defendants BRADDON FREDERICK McKEE; 10 and VINCULUMS SERVICES, LLC 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SANTA CLARA 13 CHARLETTE AVERY, Case No.: 17CV309914 14 Plaintiff, Assigned to Judge Paul Bernal in Dept. 22 for 15 vs. purposes of Trial 16 BRADDON FREDERICK McKEE; MOTION FOR PARTIAL DIRECTED VERDICT VINCULUMS, INC.; VINCULUMS 17 SERVICES, LLC, and DOES | to 20, Trial date: 9/4/2019 18 Judge: Honorable Paul Bernal Defendants. Dept.: 22 19 20 21 COME NOW Defendants BRADDON FREDERICK McKEE and VINCULUMS SERVICES, 22 LLC and hereby move for a partial directed verdict as follows: 23 When the evidence is viewed in a light most favorable to Plaintiff, it is insufficient as a matter 24 of law for Plaintiff to recover for the medical and medical related expenses, materials and equipment 25 charged by the following: 26 1 Justin Paquette, M.D. 27 2. Spine & Sports Surgery 28 3. Premier Scan 1 MOTION FOR PARTIAL DIRECTED VERDICT Sunnyvale Imaging Quinn Orthopedic Stevenson Surgery Center Medical Distributors (Cold Fusion) 8 Pain & Spine Institute (Dr. Petros) 9 Kaiser Permanente On 9-18-19, the Court ordered stricken the opinion testimony of Dr. Fogler and related billing exhibits of the following: 1 Justin Paquette, M.D. (Exhibit 118) 10 2. Spine & Sports Surgery / Exhibit 119 11 3 Premier Scan / Exhibit 123 12 Sunnyvale Imaging / 124 13 Quinn Orthopedic / Exhibit 125 14 Steven Surgery Center/ Exhibit 134 7 15 Medical Distributors (Cold Fusion) / Exhibit 136 16 8 Pain & Spine Institute / Exhibit 138 17 With regard to the foregoing health care / equipment providers, Plaintiff offered no competent, 18 qualified or any expert opinion testimony that said unpaid billing amounts were reasonable, necessary 19 or causally related to the subject accident. 20 With regard to the so-called Kaiser billing, Plaintiff offered no medical expert testimony with 21 regard to any or all of its purported billing in either Exhibit 97 or Exhibit 139, that they were reasonable, 22 necessary or causally related to the subject accident or that they have even seen the purported ‘bills’ or 23 teviewed any corresponding medical records. Further, Brandon Burnette (Kaiser’ Managing Director of 24 Patient Financial Operations) testified (out of the presence of the jury) on 9-16-19, that as of that moment, 25 Plaintiff did not owe Kaiser anything for any health care services and that he had no personal knowledge 26 of any specific treatment provided by Kaiser. Much of his testimony was out of the presence of the jury 27 and to the extent that he testified about anything related to the Kaiser “bill” in front of the jury, it should 28 be stricken, and Defendants so move, on the basis that Defendants were deprived of their basic due 2 MOTION FOR PARTIAL DIRECTED VERDICT process rights by not being allowed to fully cross-examine him in front of the jury. After Defendants’ brief 402 examination of Mr. Burnette, the jury was excused and all further testimony by Mr. Burnette was out of the presence of the jury. Plaintiff rested her case without recalling Mr. Burnette to complete his direct examination or allow any cross-examination in front of the jury. Further, Plaintiff has offered two different versions of the purported Kaiser “bill” that reflect different totals and different line items that have not been explained to the jury or to the Court by any witness. They are inherently confusing and prejudicial and nothing more than an invitation to the jury to speculate as to which amounts, if any, were reasonable in amount for the particular services; whether the particular services were reasonably necessary; and whether the particular services were caused by the subject accident. No competent expert 10 has testified to any of those issues with regard to this bill. Even Dr. Gogia, whose deposition was played 11 for the jury, did not opine that the surgeries he performed were related to the subject accident and there 12 is nothing in the record suggesting that Dr. Gogia ever saw either version of the purported Kaiser bills, 13 let alone that he testified that any particular line item was reasonable in amount, was reasonably 14 necessary, and causally related to the subject accident. The Kaiser ‘bills’ reflect on their face that 15 services were provided by a variety of doctors whose names have never even been mentioned during the 16 trial. 17 Special damages must be proven with reasonable certainty and where damages evidence contains 18 both relevant as well as irrelevant entries, it is incumbent on the party proffering such evidence to 19 segregate the relevant from the irrelevant. It is proper not to admit such unsegregated evidence and any 20 award based thereon is arbitrary and reversible. Calhoun v. Hildebrandt (1964) 230 Cal. App. 2d 70, 21 73; Horowitz v. Fitch (1963) 216 Cal. App. 2d 303, 314; Gimble v. Laramie (1960) 181 Cal. App. 2d 77, 22 81-82; Cirinconi v. Green (1959) 175 Cal. App. 2d 812, 816. 23 Respectfully submitted, 24 Dated: September 19, 2019 THOMAS|LUCAS 25 Timothy D. Lucay 26 Timothy D. Lucas, Esq. Attorneys for Defendants BRADDON FREDERICK 27 McKEE; and VINCULUMS SERVICES, LLC 28 3 MOTION FOR PARTIAL DIRECTED VERDICT SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA COURT USE ONLY ATTORNEY OR PARTY WITHOUT ATTORNEY TELEPHONE NO.: Timothy D. Lucas, Esq. (SBN 82374) (858) 535-0700 THOMAS| LUCAS 9191 Towne Centre Drive, Suite 190 FACSIMILE NO. San Diego, California 92122 (858) 535-0701 SHORT CASE TITLE: AVERY v, McKEE JUDGE: Hon. Paul Bernal DEPT: 22 ATTORNEYS FOR: Defendants Braddon Frederick McKee and Vinculums Services, LLC CASE NUMBER: 47CV/309914 DECLARATION OF SERVICE [Code of Civil Procedure §§ 1013A and 2015.5] |, the undersigned, declare that | am, and was at the time of service of the papers herein referred to, over the age of eighteen years, and not a party to this action; and | am employed in the County of San Diego, California, within which county the subject service occurred. My business address is 9191 Towne Centre Drive, Suite 190, San Diego, California 92122. On September 19, 2019, | served the following document(s): . MOTION FOR PARTIAL DIRECTED VERDICT on the interested parties as listed below: Jeff Atterbury, Esq. Steven J. Brewer, Esq. Habbas, Nasseri & Associates Jayme L. Walker, Esq. 675 North First Street, Suite 1000 Gwilliam, !vary, Chiosso, Cavalli & Brewer San Jose, CA 95112 1999 Harrison Street, Suite 1600 E: jatterbury@habbaslaw.com Oakland, CA 94612 E: litigation@habbaslaw.com E: sbrewer@gicb.com Counsel for FOR PLAINTIFF CHARLETTE AVERY E: jwalker@giccb.com Counsel for PLAINTIFF CHARLETTE AVERY Jose A. Montalvo, Esq. LAW OFFICES OF JOHN A. BIARD P.O. Box 64093 St. Paul, MN 55164-0093 (Tel): (925) 945-4491 (Fax): (855) 668-5559 JAMONTAL@travelers.com Julie: jmricha2@travelers.com Counsel for Defendants Via: [Xl] VIA ELECTRONIC MAIL: | declare that | served the above document(s) by E-MAILING a true copy of the document(s) via an electronic mail account maintained by the law firm of Thomas Lucas, to the Email address(es) attached. The transmission(s) was reported as complete and without error. {] (FACSIMILE) Via facsimile to the parties number(s) as listed on attached service list. (STATE) | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 19, 2019, at San Diego, California. AN. they indy Lavery ( DECLARATION OF SERVICE