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Sample Motion for Punitive Damages 01

Sample Motion for Punitive Damages 01

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Published by Bernie Kimmerle

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Published by: Bernie Kimmerle on Feb 29, 2012
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04/30/2013

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 _____________________________________________________________________________________________ MOTION TO AMEND TO ADD PUNITIVE DAMAGES [
C.C.P.
§ 425.13]
- 1 -
12345678910111213141516171819202122232425262728Kevin G. Liebeck, SBN 224317HODES MILMAN, LLP9210 Irvine Center DriveIrvine, CA 92618-4661Tel: (949) 640-8222Fax: (949) 640-8294Attorneys for Plaintiffs,DEBORAH SHELLER; KENNETH SHELLER 
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,COUNTY OF ORANGE, CENTRAL JUSTICE CENTER 
DEBORAH SHELLER; KENNETHSHELLER,Plaintiffs,vs.ACIC PHYSICAL THERAPY, a businessentity, form unknown; ANDREW STEELE,DPT, an individual; and DOES 1 through 30,inclusive,Defendants.))))))))))))))))))))CASE NO.: 30-2008-00113708
 Assigned for all purposes to:
Judge: Hon. Franz E. Miller Dept: C14
NOTICE OF MOTION AND MOTION TOAMEND COMPLAINT TO ADDPUNITIVE DAMAGES[
C.C.P.
§ 425.13]
[Filed concurrently with: Declaration of KevinG. Liebeck and Supporting Exhibits;Declaration of Deborah Sheller; Declarationof Joyce Campbell, Ph.D., P.T.; ProposedOrder; Proposed First Amended Complaint]DATE: August 4, 2009TIME: 1:30 P.M.DEPT: C14Action Filed: October 23, 2008Trial Date: March 15, 2010TO THE COURT AND TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYSOF RECORD:PLEASE TAKE NOTICE that on August 4, 2009 at 1:30 P.M. in Department C14 of theabove-entitled court located at 700 Civic Center Drive West, Santa Ana, California,/ / /
 
 _____________________________________________________________________________________________ MOTION TO AMEND TO ADD PUNITIVE DAMAGES [
C.C.P.
§ 425.13]
- 2 -
12345678910111213141516171819202122232425262728 plaintiffs, DEBORAH SHELLER and KENNETH SHELLER, will and hereby do move for anOrder granting plaintiffs leave to amend their Complaint to include a prayer for punitivedamages against defendants ACIC PHYSICAL THERAPY and ANDREW STEELE, DPT pursuant to
C.C.P.
§ 425.13.This motion will be based on this Notice, the attached Memorandum of Points andAuthorities, the Declaration of Deborah Sheller, the Court’s file herein, and on any oralargument or discussion which may occur at time of hearing.DATED: June 14, 2009
HODES MILMAN, LLP
By____________________________________ KEVIN G. LIEBECK, ESQ.Attorneys for Plaintiffs,DEBORAH SHELLER; KENNETH SHELLER 
 
 _____________________________________________________________________________________________ MOTION TO AMEND TO ADD PUNITIVE DAMAGES [
C.C.P.
§ 425.13]
- 3 -
12345678910111213141516171819202122232425262728
MEMORANDUM OF POINTS AND AUTHORITIESI.INTRODUCTION
This is a medical malpractice action wherein plaintiff DEBORAH SHELLER sufferedsevere and permanent injury from the misuse of a powerful ultrasound therapy device. Insummary, plaintiff was attending physical therapy with defendants following a surgery on her low back. [Sheller Dec. ¶ 2, 3] During that therapy, defendants, without plaintiff’s knowledgeor consent, directed an untrained and unlicensed high-school student to operate, withoutsupervision of any kind, complicated medical equipment which, in the hands of an untraineduser, is extremely dangerous. [Sheller Dec. ¶ 8, 9, 11, 13, 14; Campbell Dec. ¶ 5] This untrainedand unlicensed high-school student then misapplied ultrasound to Ms. Sheller’s surgical site,causing heating of the metal hardware on her spine, and literally burning the nerve roots exitingher lumbar spine and, possibly, the spinal cord itself. [Liebeck Dec., Ex 1, 2, 3] As a result of the burning of her nerves, Ms. Sheller is severely injured. She has severe neuropathic pain thatcannot be addressed surgically or medically, and her condition continues to degrade. [Liebeck Dec., Ex 1, 2, 3] As a result of instability due to her nerve damage, Ms. Sheller recently fell,fracturing her wrist and causing further damage to her spine, for which Ms. Sheller will requirespinal surgery. [Liebeck Dec., Ex 1, 2, 3] She is further beginning to lose control of her bowelsand bladder. [Sheller Dec. ¶ 12] All of this arises from the injury suffered at ACIC, and is thedirect result of defendant’s decision to substitute, without the knowledge or consent of Ms.Sheller, a high-school student for a trained medical professional.At the outset of her treatment, defendants were warned that Ms. Sheller had justundergone a multi-level laminectomy and fusion of her lumbar spine, and that her condition wassuch that extreme care and caution needed to be used in performing therapy on her. Defendantsclearly recognized this: defendant Steele informed Ms. Sheller at her first appointment that hewould perform no therapy on her until he had the opportunity to speak to her surgeon regardingher condition and postponed Ms. Sheller’s first therapy session. Mr. Steele further informedMs. Sheller that she would only be seen by him due to the seriousness of her condition. Ms.

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