Date: 02-03-2013

Case Style: Sylvia Chambers v. Brenda Vincent

Case Number: CJ-2009-5523

Judge: Barbara G. Swinton

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: George Kanelopoulos and Steve H. Mortimer

Defendant's Attorney: Michael H. Githens

Description: Sylvia Chambers sued Brenda Vincent on an auto negligence theory claiming:

1. On or about the 11th day of August 2007, Plaintiff was lawfully operating her vehicle in a southbound direction on North Shartel approaching Northwest 36th Street in the City of Oklahoma City, County of Oklahoma, State of Oklahoma, when Defendant did negligently drive her vehicle into the Plaintifi’s vehicle which directly caused the Plaintiff serious and permanent personal and bodily injuries.

2. This Court has jurisdiction over the parties in the subject matter.

3. That the Plaintiff in no way caused or contributed to the cause of the subject collision and is otherwise fault-free and entitled to recover the full extent of her damages from the named Defendant.

4. The Defendant, Brenda Vincent, was negligent in failing to devote full time and attention to her driving, failing to yield the right of way, failing to stop at a traffic control device, failing to properly utilize her brakes and/or steering mechanism to avoid impacting another vehicle, and failing to exercise ordinary care while operating a motor vehicle all in violation of Oklahoma Common Law, Statutes and/or Oklahoma City Ordinances.

5. That as a direct result of the negligence of the named Defendant, the Plaintiff has suffered property damage and the loss of use of her vehicle, sustained bodily injuries which are pennanent in nature, sustained lost wages, has incurred medical bills for the treatment of said bodily injuries, and pain and suffering which will continue into the future, thereby entitling her to judgment against this Defendant in an amount in excess of $10,000.00.

WHEREFORE, Plaintiff, Sylvia Chambers, prays that this court enter Judgment on her behalf and against the Defendant, Brenda Vincent, in an amount in excess of $10,000.00, together with attorney fees, interest, costs, and any fhrther relief to which she may be entitled.

Defendant Brenda Vincent appeared and answered as follows:

1. Defendant generally and specifically denies each and every material allegation contained in the Petition filed on behalf of the Plaintiff except for those which may be specifically admitted hereinafter.

2. Defendant admits that there was a collision of automobiles at the approximate time and location alleged in Plaintiff’s Petition.

3. Defendant is without sufficient information, knowledge, or belief to either admit or deny the allegations of injuries and damages alleged in Plaintiffs Petition, and therefore denies the same, and demands strict proof thereof.

AFFIRMATIVE DEFENSES

4. The negligence of the plaintiff was more than fifty percent (50%) the cause of this accident, thereby preventing Plaintiff’s recovery herein against this defendant. Alternatively, Defendant alleges that the negligence of Plaintiff was a cause of this accident, thereby reducing Plaintiff’s recovery herein against this defendant.

5. The Defendant denies the nature and extent of Plaintiff’s injures and damages, if any.

6. The injuries complained of in Plaintiff’s Petition are the result of pre-existing
health pmblems that were neither caused nor aggravated by this accident and for which Defendant is not liable.

7. The injuries complained of in Plaintiffs petition are the result of health care problems which developed subsequent to the date of the alleged accident, which were neither caused nor aggravated by this defendant and for which this defendant is not liable.

8. Reasonableness and necessity of medical treatment.

9. Discovery in this case is just commencing, and reserves the right to amend Ms/her answer to assert additional
affirmative defenses as they may be ascertained.

WHEREFORE, premises considered, defendant prays that Plaintiff’s Petition be dismissed and Plaintiff take nothing thereby; further Defendant prays for the costs of this action and for such relief as may be fair and equitable.

Pre-Trial Order Excerpts:

2.) GENERAL STATEMENT OF FACTS:
What: Automobile accident;
Where: NW 36 Street and Shartel, City of Oklahoma City, County of Oklahoma State of Oklahoma;
When: August 11, 2007;
Who: Plaintiff, Sylvia Chambers, Defendant, Brenda Vincent
3.) PLAINTIFF’S CONTENTIONS
1.
That on or about the 11th day of August, 2007, Plaintiff was lawfully operating her motor vehicle on NW 36th Street at Shartel, in Oklahoma County, Oklahoma, when the Defendant did negligently drive her vehicle into the Plaintiff’s vehicle which resulted in a collision and directly caused the Plaintiff personal and bodily injuries which are permanent in nature.
Common law
2.
Defendant was negligent in failing to devote full time and attention to her driving, failing to yield to the right of way of the Plaintiff when Plaintiff had control of the intersection, failing to use the means at hand such as brakes and/or steering mechanism to avoid colliding with the Plaintiff’s vehicle, disregarding a traffic signal and failing to exercise reasonable care while operating a motor vehicle.
Common law;
47 O.S. § 11-401
47 O.S. § 11402
47 0.5. § 11-403
3.
Plaintiff has suffered property damage and the loss of use of her vehicle, sustained bodily injuries which are permanent in nature, sustained lost wages, has incurred medical bills for the treatment of said bodily injuries, and pain and suffering which will continue into the future, thereby entitling her to judgment against this Defendant.
Common law;
THE DEFENDANT OBJECTS TO THE PLAINTIFFS CLAIM FOR PROPERTY
DAMAGE. LOSS OF USE AND DIMUNITION OF VALUE. (#3’) THE
PLAINTIFFS PD CLAIM AND LOSS OF USE WAS PAID FOR BY HER
INSURER. ALLSTATE INSURANCE COMPANY. ALLSTATE THEN SOUGHT
RECOVERY FROM DEFENDANTS INSURER GEICO. IN INTER COMPAMY
ARBITRATION. THEREFORE. THE PLAINTIFF LACKS STANDING TO
BRING THESE CLAIMS WHICH HAVE ALREADY BEEN DECIDED. TIlE
PLAINTIFF IS NOT ENTITLED TO DIMINISHED VALUE BECAUSE HER
CAR WAS TOTALLED. NOT REPAIRED.
4.) DEFENDANT’S CONTENTIONS/DEFENSES
No.
Grounds for Defense
Applicable Statute. Ordinance,
Common Law Rule
1.
The negligence of the plaintiff
was more than fifty percent (50%)
the cause of this accident, thereby
preventing Plaintiff’s recovery
herein against this defendant.
Alternatively, Defendant alleges
Common Law
that the negligence of Plaintiff was the sole cause of this accident, thereby reducing Plaintiffs recovery herein against this Defendant.
2.
Defendant denies the nature and extent of Plaintiff’s injuries and damages, if any.
Common Law
3.
Plaintiff’s claimed injuries are the result of pre-existing injuries, ailments or conditions that were neither caused nor aggravated by the involved accident.
Common Law
4.
Plaintiff’s claimed injuries are the result of health care problems which developed subsequent to the date of the alleged accident, which were neither caused nor aggravated by the Defendant.
Common Law
5.
Reasonableness and necessity of medical treatment
Common Law
5.) PLAINTIFFS CLAIM FOR RELIEF:
1.
Personal injuries
In excess of $10,000.00
2.
Pain and suffering (past and future)
In excess of $10,000.00
3.
Medical and hospital expense
$19,000
5.
Loss of earnings and impairment of earning capacity
In excess of $10,000
6.
Property Damage, diminution in value and Loss of use of vehicle
In excess of $10,000.00
THE DEFENDANT OBJECTS TO THE PLAINTIFFS CLAIM FOR PROPERTY
DAMAGE. LOSS OF USE AND DIMUNITION OF VALUE. (#6k THE
PLAINTIFFS PD CLAIM AND LOSS OF USE WAS PAID FOR BY HER
INSURER. ALLSTATE INSURANCE COMPANY. ALLSTATE THEN SOUGHT
RECOVERY FROM DEFENDANTS INSURER. GEICO. IN INTER COMPAMY
ARBITRATION. THEREFORE. THE PLAINTIFF LACKS STANDING TO
BRING THESE CLAIMS WHICH HAVE ALREADY BEEN DECIDED. THE
PLAINTIFF IS NOT ENTITLED TO DIMINISHED VALUE BECAUSE HER
CAR WAS TOTALLED. NOT REPAIRED.
6.) DEFENDANTS’ CLAIM FOR RELIEF: None
7.) MISCELLANEOUS
a. Jury Waived: No.
b. Is additional discovery requested? Yes. Plaintiff is awaiting discovery responses from Defendant. Additionally, Defendant has not provided Plaintiff with it’s expert’s opinions, compensation, and prior deposition and trial testimony. Defense counsel has agreed to produce the same and produce said expert for discovery deposition prior to trial.
c. A trial brief is not required by Court.
d. Other matters:
a. Motions in Limine as directed by Court:
Plaintiff: Plaintiff will file its Motions in Limine according to
the deadlines set by the Court
Defendant: Defendant will file its Motions in Limine according to the deadlines set by the Court
8.) PLAINTIFF’S EXHIBITS
TITLE
OBJECTION
AUTHORITY RELIED UPON
1.
Plaintiffs relevant medical bills with cover sheet.
2,
Plaintiffs relevant medical records with cover sheet.
Hearsay
12 O.S. 2801 et al
3.
Plaintiffs relevant diagnostic films and reports(x-rays, MM, etc.)
4.
Photos of accident scene.
Reserve until produced
5.
Diagram of accident scene.
Reserve until produced
6.
Accident report of subject accident.
7.
Photos of Plaintiffs vehicle.
8.
Photos of Defendant’s vehicle.
9.
Damage estimate for Plaintiff’s
Relevancy
12 O.S. 2401 et al
vehicle.
10.
Damage estimate for Defendant’s
Relevancy
12 O.S. 2401 et al
vehicle.
11.
Itemization of Plaintiff’s current
medical bills.
12.
Lost wage verification for Plaintiff.
Hearsay
12 O.S. 2801 et al
13.
Recorded statement of Carl
Hearsay
12 O.S. 2801 et al
Whetsel.
14.
Affidavit of Carl Whetsel
Hearsay
12 O.S. 2801 et al
15.
Timeline of medical treatment for
Reserve until
Plaintiff,
produced
16.
Medical exhibits illustrating
Reserve until
Plaintiffs injuries,
produced
17.
Driving record of Defendant.
Hearsay and
12 O.S. 2801 et al
Relevancy
and 12 O.S. 2401
et
18.
Cellular phone records of
Hearsay and
12 O.S. 2801 et al
Defendant.
Relevancy
and 12 O.S. 2401
et
al
19.
Light sequence report from the city
of Oklahoma
20.
Research/literature/periodicals/stud
Reserve until
ies relating to connection between
produced
impact and Plaintiffs injuries.
21.
Ml tangible things relied upon by
Reserve until
experts in formulating opinions not
produced
otherwise objected to by Plaintiff.
22.
All exhibits attached to depositions,
Reserve until
not objected to by Plaintiff,
produced
23.
Excerpts from depositions.
Reserve until
produced
24.
Ml demonstrative exhibits.
Reserve until
produced
25.
All exhibits listed by the Defendant
not objected to by Plaintiff.
26.
All exhibits produced during
Reserve until
discovery not objected to by
identified and
Plaintiff,
produced
9.) DEFENDANT’S EXHIBITS
No.
Description
Objection and
Authority
1.
Police Report Diagram
Reserve until
identified and
produced
2.
3.
Plaintiff’s deposition diagram, if any
Defendant’s deposition diagram, if any
Reserve until identified and produced
Reserve until identified and produced
4.
Any exhibit listed by Plaintiff and not objected to by the Defendant
Reserve until identified and produced
10.) PLAINTIFF’S WITNESSES
NAME/ADDRESS
TESTIMONY
1.
Sylvia Chambers
do Kanelopoulos Law Firm
Will testify to the facts and circumstances surrounding the subject collision, her injuries and treatment and how it effected her life.
2.
Brenda Vincent
do Law Office of Michael H. Githens
Will testify to the facts and circumstances surrounding the subject collision.
3.
Carl Whetsel
800 NW Eubanks
Oklahoma City, OK
Will testify to the facts and circumstances surrounding the subject collision.
4.
Officer D. Wyatt
Badge No.: 1217
Oklahoma City Police Department
Will testify to the investigations surrounding the subject collision.
5.
J. Arden Blough M.D.
1801 N Broadway Ave
OKC, OK 73103
Will testify to the treatment and injuries of Plaintiff
6.
Glenn Smith DO
2149 SW 59th Ste 101
OKC, OK 73 119
Will testify to the treatment and injuries of Plaintiff
7.
John Morgan
P.O. Box 890838
Oklahoma City, Oklahoma 73189
Will testify to the loss of earnings for Plaintiff.
8.
Sylvia Jones
Will testify to Plaintiff’s injuries and treatment and how it effected her life.
9.
Representative of City of Oklahoma City
Will testi& about and authenticate light sequence
10.
All witnesses identified by Defendant not objected to by Plaintiff
Plaintiff reserves the right to supplement this Answer as discovery is ongoing.
JJj DEFENDANT S WITNESSES
Name/Address
Proposed Testimony
1 .Brenda Vincent
do Michael H. Githens
Law Offices of Michael H. Githens
2601 N.W. Expressway, Suite 908W
Oklahoma City, OK 73112
Facts of the accident
2. Officer D. Wyatt
Oklahoma City Police Department Will
Rogers Division
Oklahoma City, OK 73112
Investigation of the accident.
3. Michael Winzenread
16400 N. May Avenue
Edmond,OK 73013
Medical opinion on Plaintiffs injuries; causation and reasonableness and necessity of treatment and bills.
4. Charles Phillips
5700 NW 117th Street
Oklahoma City, OK 73162
Reconstruction of accident and opinion on liability of accident
5. Any witness listed by the Plaintiff and not objected to by the Defendant.
Plaintiff specifically objects to Defendant’s witness, Charles Phillips, and requests his testimony not be allowed and any evidence presented by or through this witness be stricken. Defendant has only identified witness Charles Phillips but has failed to comply with discovery requests and multiple requests for supplementation, and Defendant has failed to provide Plaintiff or this Court with a Final Witness and Exhibit list prejudicing Plaintiff. Plaintiff requested supplementation of Defendant’s responses to Interrogatories and Requests for Production in April and March 2010, but due to events impacting defense counsel, Plaintiff granted defense counsel generous time to respond. On July 6, 2010, defense counsel finally responded to Plaintiffs March and April requests for supplementation but still failed to provide responsive answers and failed to produce the requested documents. On July 9, 2010, Plaintiff re-requested supplementation and Defendant’s Final Witness and Exhibit List. On, July 19, 2010, when defense counsel did not provide any response, plaintiffs counsel sent a follow up response via facsimile and USPS First Class Mail Return Receipt. On July 30, 2010, when defense still had not provided supplementation, plaintiff’s counsel, George Kanelopoulos spoke with defense counsel and sent follow up correspondence. As of August 5,2010, defense counsel still has not provided discovery responses relating to witness Charles Phillips and still has not provided plaintiff a copy of her Final Witness and Exhibit list as requested. Plaintiff will be prejudiced if the Court allows this witness to offer any evidence. Furthermore, Paragraph 3 of this Court’s scheduling Order indicates that failure to exchange Final Witness and Exhibit lists thirty days prior to Pretrial Conference shall be grounds to strike that party’s witnesses and exhibits.

Outcome: JUDGE SWINTON: CASE COMES ON FOR JURY TRIAL-PLAINTIFF APPEARS AND WITH COUNSEL STEVEN MORTIMER. MICHAEL GITHENS APPEARS AND DEFENDANT PRESENT. BOTH SIDES ANNOUNCE READY. 25 POTENTIAL JURORS ARE SWORN TO ANSWER QUESTIONS. 19 JURORS ARE CALLED TO THE BOX FOR VOIR DIRE. JUDGE CALLED TO THE BOX. PLAINTIFF AND DEFENDANT COUNSEL CALLS TO THE BOX. CHALLENGES MADE BY PLAINTIFF AND DEFENDANT COUNSEL-13 JURORS SWORN TO TRY CASE NOW ON TRIAL. OPENING ARGUMENTS BY PLAINTIFF AND DEFENDANT-PLAINTIFF CALLS FIRST WITNESS. SWORN TESTIMONY HEARD, EXHIBITS OFFERED. PLAINTIFF REST. JURORS ARE IN RECESS UNTIL 1/14/13 @ 9:00 AM. CYNTHIA ADAMS COURT REPORTER.

JUDGE SWINTON: JURY TRIAL DAY 2: JURY TRIAL CONTINUES AFTER NIGHTS RECESS-PLAINTIFF APPEARS AND WITH COUNSEL STEVEN MORTIMER. MICHAEL GITHENS APPEARS AND DEFENDANT PRESENT. BOTH SIDES ANNOUNCE READY. DEFENDANT CALLS WITNESSES, CROSS EXAMINATION. DEFENDANT RESTS. COURT'S INSTRUCTIONS TO JURY -CLOSING ARGUMENTS BY PLAINTIFF AND DEFENDANT. ALTERNATE JUROR IS DISCHARGED-JURY RETIRES TO DELIBERATE CASE- RETURNS WITH A VERDICT AND FINDS PLAINTIFF AND DEFENDANT BOTH 50% NEGLIGENT, AND FIND DAMAGES IN THE AMOUNT OF $18,299.00 REDUCE BY PERCENTAGE OF NEGLIGENCE-JURY IS DISCHARGED, CLERK DIRECTED TO FILE AND RECORD VERDICT ACCORDINGLY. CYNTHIA ADAMS COURT REPORTER.

Plaintiff's Experts:

Defendant's Experts:

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