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TexLaw
TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I am a physician, a physchic patient aledge sexual harrassement

Customer Question

I am a physician, a physchic patient aledge sexual harrassement and rape on her in a hotel room 2 years ago...she claims I saw her records and got her information...I went to electrnic record only to check her demographics and insurance and refer her to another doctor....no hotel records for me and no any evidence at all as she is lying...she refused to present records..or interrogatories and got 2 times monetary sanctions warning and escaped them....third time she got monetary sanction and paid it...as she refused to go to psych exam as court ordered a complete psych exam...second time she went and refused to finish it....we applied for termination sanctions...her lawyer finally contacted press and media to broadcast the hearings to pressure me......I have few questions:

1) Can Judge issue termination sanctions as she not complied with court order for psych exam and paid monetary sanctions late?

2) Can Judge rule issue sanctions on her emotional stress as claim for injury since she is not complying with psych exam?

3) Can I stop media from being in court room or better to keep them so people would know she is lying? Can I sue her lawyer later for malacious prosecution if I win?

4) Court ordered first and second expert exchange 2 months ago as deadline...trial next month...these expert exchanges never occured from either sides?
Can I still continue trial by a motion as still not finished with depositions of all her doctors...or there is a deadline and trial can't be continued?

5) If judge does not terminate case...can I appeal? he denied summary judgement once?

Thanks
Submitted: 1 year ago.
Category: Legal
Expert:  TexLaw replied 1 year ago.
Hi,

Thank you for your question. I will answer them one at a time.

1) Can Judge issue termination sanctions as she not complied with court order for psych exam and paid monetary sanctions late?

Yes. A party to civil litigation who disobeys an order to disclose evidence may be subject to a variety of other sanctions besides contempt, including the entry of judgment against him. Neither Cal. Evid. Code § 1070 nor Cal. Const. art. I, § 2(b), protects a party against such sanctions.

New York Times Co. v. Superior Court, 51 Cal. 3d 453, 462 (Cal. 1990)

2) Can Judge rule issue sanctions on her emotional stress as claim for injury since she is not complying with psych exam?

Yes, under the same authority as above.

3) Can I stop media from being in court room or better to keep them so people would know she is lying?

You can ask the judge, but in the end it is entirely within the court's discretion whether or not to allow media in the courtroom.

4) Can I sue her lawyer later for malicious prosecution if I win?

To establish a cause of action for malicious prosecution, a plaintiff must demonstrate that the prior action (1) was initiated by or at the direction of the defendant and legally terminated in the plaintiff's favor, (2) was brought without probable cause, and (3) was initiated with malice. Because the lawyer is not who initiated the litigation (it was his client), he is not liable for malicious prosecution. Further, the lawyer has immunity for his statements made while representing a client.

5) Court ordered first and second expert exchange 2 months ago as deadline...trial next month...these expert exchanges never occured from either sides?
Can I still continue trial by a motion as still not finished with depositions of all her doctors...or there is a deadline and trial can't be continued?

Yes, you may request a continuance. However, it is within the judge's discretion to grant it or not since he has already ordered the expert exchanges and those orders have been disobeyed.

5) If judge does not terminate case...can I appeal? he denied summary judgement once?

Not yet. You may not appeal until after the trial.

Overall based on what you are saying, I think you should move to exclude her experts and move to strike her pleadings based on the discovery violations. I think because she has not submitted to discovery, you can exclude her proffered evidence at trial and move for a directed verdict and win if the judge does not dismiss the case before the trial.

As you are the Defendant, you can exclude her expert testimony because she has not exchanged anything with you. I don't think you should move for a continuance at this point, as it seems you have grounds to exclude most of her evidence.

Please let me know if you have further questions. Please also remember to rate my answer positively so that I am compensated for my time on your question by the website.

-ZDN
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 9 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you, XXXXX XXXXX you excellent responses...I have few more questions:


 


1) Judge ruling against my summary judgement was totally against me...does that mean he is biased and will be against me in trial?


 


2) Based on she is claiming only negligent infliction of emotional distress, medical negligence, sexual battery, infliction emotional distress...if she could not prove damages in trial...or her deposition...can she still win money from me or punitive damages?


 


3) Is trial with jury better or trial by Judge only for physicians..as some jurors not very smart?


 


4) What do you suggest if he denies termination sanctions or issue sanctions and order evidenciary hearing only...do you suggest I continue trial...as she did not finish her psych exam and also we did not finish deposition of her docctors?


 


5) Her lawyer submitted expert testimony written declaration after date in january elapsed...but he stated I was under standard of care...she alleges I saw her records adn gave her one script for doctor I was covering and referred her to...there was no damage whatsoever...absolutely except for emotional distress she claims?


 


Plz help me and I will tip you next time...I am still anxious about trial here ...given Judge's so scared to terminate any case...I think Judge always affraid of appeal to him later if he terminates...please help


 


Thanks

Expert:  TexLaw replied 1 year ago.
1) Judge ruling against my summary judgement was totally against me...does that mean he is biased and will be against me in trial?

Not at all, summary judgments are actually rare in non-commercial cases.

2) Based on she is claiming only negligent infliction of emotional distress, medical negligence, sexual battery, infliction emotional distress...if she could not prove damages in trial...or her deposition...can she still win money from me or punitive damages?

She may still win nominal and punitive damages without proof of actual loss on the sexual battery and intentional infliction of emotional distress charges.

3) Is trial with jury better or trial by Judge only for physicians..as some jurors not very smart?

Trial by a judge would be better here, as the judge knows that how to properly value the evidence. But I'm sure this won't be an issue as the Plaintiff has the right to demand a jury and I would not imagine that they would want to try it in front of a judge only.

4) What do you suggest if he denies termination sanctions or issue sanctions and order evidenciary hearing only...do you suggest I continue trial...as she did not finish her psych exam and also we did not finish deposition of her docctors?

Are the doctors you are referring to her experts or are they going to come and testify in court for her? If so, then you want to continue so you can depose them. If he does not grant the continuance, then you should simply move to exclude the experts based on her failure to disclose their opinions under the rules.

5) Her lawyer submitted expert testimony written declaration after date in january elapsed...but he stated I was under standard of care...she alleges I saw her records adn gave her one script for doctor I was covering and referred her to...there was no damage whatsoever...absolutely except for emotional distress she claims?

I'm not sure what your question is here, but if there is only an opinion on the standard of care but no evidence of actual damages, then the claim will fail at trial under a motion for directed verdict.

Are you represented by an attorney or are you handling this yourself?

TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 9 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


Thank you, XXXXX XXXXX few more last questions, then I will rate you excellent again and tip you....


 


1) Her lawyer sent an opposition on termination sanctions...I think he would say she was not happy with psychiatrist that was offered by us but approved by court on a previous court order.....could Judge give her more chance to go back to him or another psychiatrist...given cut date for discovery process is end of this week?


 


2) We have not had chance to depose her psychiatrists that treated her before in different places...not expert witnesses....so we are going to depose her first...but cut point soon...so do you think that it is important to continue trial and depose all of them to prove she is indeed crazy?


 


3) What is nominal or punitive damages without actual loss? and how she proves any false allegations with no admissable evidence?


 


4) If court continued, can I keep sending more interrogatories to her? Is deposition only 7 hours maximum?


 


5) How does court weighs damages as emotional distress and depression and loss of self esteem...and marital problems...when they had divorce before I even met this lady and her husband already dismissed the case...as she had mental illness, drug addiction and a boyfriend during her marriage...so can court comes back asking me to pay her money just based on her allegations of emotional distress?


 


I will rate you excellent and tips after this time ...thanks a lot

Customer: replied 1 year ago.

I replied by questions..I rate you excellent and paid twice...please answer in am if possible..Thanks

Expert:  TexLaw replied 1 year ago.
Sorry, I was not alerted to this by the system. I'll answer these immediately. Give me a few minutes.
Expert:  TexLaw replied 1 year ago.

1) Her lawyer sent an opposition on termination sanctions...I think he would say she was not happy with psychiatrist that was offered by us but approved by court on a previous court order.....could Judge give her more chance to go back to him or another psychiatrist...given cut date for discovery process is end of this week?

A: Judges have been known to be very very lenient in cases like this, so it's impossible for me to say what the judge will do. The judge feels the pressure from the press too, and judges are elected officials. So, he may allow it. However, from a strictly legal standpoint, the judge would be completely within his discretion to terminate here because his order was directly violated. He may also decide that instead of termination sanctions, a lesser sanction will be applied.

2) We have not had chance to depose her psychiatrists that treated her before in different places...not expert witnesses....so we are going to depose her first...but cut point soon...so do you think that it is important to continue trial and depose all of them to prove she is indeed crazy?

A: I think if you were able to establish a history of delusional mental illness that it would definitely strengthen your defense. The most prudent thing to do (as well as more expensive) would be to ask for a continuance to get these depositions. Is there a reason that they have not been taken by now?


3) What is nominal or punitive damages without actual loss? and how she proves any false allegations with no admissable evidence?

A: If she actually establishes that you are liable for an intentional tort, such as battery or intentional infliction of emotional distress, the jury may award damages to punish you and to award her for the violation of her rights without there being any proof that she actually lost any money or incurred any medical bills as a result of the torts.

4) If court continued, can I keep sending more interrogatories to her? Is deposition only 7 hours maximum?

You have to specifically request permission in your motion for continuance to take the interrogatories and whatever depositions you want. The rule requires that you be specific in what discovery needs to be done.

The rule is 7 hours maximum per deposition. To get more, you must specifically motion to the court for further hours and show good cause.

5) How does court weighs damages as emotional distress and depression and loss of self esteem...and marital problems...when they had divorce before I even met this lady and her husband already dismissed the case...as she had mental illness, drug addiction and a boyfriend during her marriage...so can court comes back asking me to pay her money just based on her allegations of emotional distress?

A: These are called "intangible" damages, specifically because there is no mathematical valuation procedure to derive a number. The number that is arrived at is in the full discretion and province of the finder of fact (either the judge or the jury is you have one). The amount must not be substantially disconnected from the actual harm perceived and if it is too high, it can be overturned on appeal.
Customer: replied 1 year ago.

thank you...couple more questions if you please..


1) We took her depo...she stated most of questions..I don't know or I don't remember...she could not remember exactly how battery occurred..but stated tht there was sex and even no hotel room whatsoever...? can she change her words in court? or casue we had videotaped her...she cant


 


2) My depo was cancelled cause her lawyer did not show up...he sent another one that was not associate with him on the records...we opposed and refused...he may file an associate later...could we ask for monetary sanctions for that? he cancelle with no notice to us


 


3) If she shows up for psych exam...and her exam proves she is mentally ill and lying...could this be encouraging for judge to dismiss?


 


4) Court coming soon...I was not deposed yet...can we show up to court without my depo and without depo from psychiatry or better to continue and depose all her treating doctors?


 


Thanks a lot...Plz answer when you can

Expert:  TexLaw replied 1 year ago.
1) We took her depo...she stated most of questions..I don't know or I don't remember...she could not remember exactly how battery occurred..but stated tht there was sex and even no hotel room whatsoever...? can she change her words in court? or casue we had videotaped her...she cant

A: When she answers that she does not remember in her deposition, but then miraculously does remember when you are in trial, then you attack her credibility by impeaching her with her prior inconsistent statements from the deposition. You say things like "you remember your deposition, when you were put under oath and you swore to tell the truth? You remember that I asked you this exact same question? And do you remember you said then? Now you want to tell this jury that you miraculously remember? And you expect them to believe you now? Isn't that convenient."

If she does it again, you do the same thing to her and the jury will understand that she is a liar.

2) My depo was cancelled cause her lawyer did not show up...he sent another one that was not associate with him on the records...we opposed and refused...he may file an associate later...could we ask for monetary sanctions for that? he cancelle with no notice to us

A: Yes. California rules allows sanctions for such an action. He sounds like a very unscrupulous attorney.

3) If she shows up for psych exam...and her exam proves she is mentally ill and lying...could this be encouraging for judge to dismiss?

A: If she is found to be incompetent to offer testimony, then the judge will dismiss her case. If she is found to simply have mental illness, then the judge will likely allow her to continue with the case and allow you to introduce that evidence at trial in your defense to discredit her.

4) Court coming soon...I was not deposed yet...can we show up to court without my depo and without depo from psychiatry or better to continue and depose all her treating doctors?

A: Again, the most prudent thing to do would be to ask for a continuance and depose the doctors. You as the Defendant have the advantage when waiting for trial. You do not have the burden of proof and the longer a case goes untried, the more pressure it places on the Plaintiff monetarily and mentally.

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TexLaw
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Lead trial/International commercial attorney licensed 11 yrs