response to ruling on summary judgement

[splendidsplinte]

What is the name of your state (only U.S. law)? California

Reader's digest version - I had a lawyer, she hired metal expert who had not done electron microscope or any destructive testing only eyeball that said not good odds, but he told me something could be found with deeper look - $1000. My lawyer bailed out refusing to wait for second look or second opinion.

I wanted to finish the test so I went ahead pro per - struggling to get destructive testing done with new expert. He has areas of interest, but defense refused to give factory spec data to compare with his lab results or to compare other variations of failed femur plate. The variations open angles of design defect and failure to warn (also requested data on reported failure on all 5 variations over last 10 years & total sold - for ratio purpose. There is a reasonable case here - it might not win trial/mediation. But summary judgement surprised me after ex parte last week with request to stay until motion to compel and request for accommodations could be reviewed. Judge scheduled a hearing for motion to compel on April 10. Then 29 hours later she posts preliminary ruling for summary judgement which became final the next morning.

I did not show at summary judgement the next day because judge has rejected all prior motions on technicalities and ignored the content, which included strong case law. I'm slow, especially with language skills & focus (5-plus years of opiates side effect) so no chance on acceptable response that quick. Plate failure has left femur unable to heal after several bone grafts and other significant operations (roughly 2 a year) including nerve damage near hip likely from marrow retrieval for graft.

What are my possible next moves?
Is there any reason to file the motion to compel she said would be reviewed April 10?

Is it too late to file a 107(?) to try to have the judge removed?
Can I file some sort of protest about the judge to the local head judge?
Do I still need to worry about offending the judge because she has the power to come up with a $ figure of what I owe the defendant (who managed to turn me into a defendant)?

Is the case closed in this court house?
Can I file some sort of reply to contest her ruling?
If so, what is it called and what is the basic setup same content as motion to compel with some of the stuff from 2007 judges guidelines for self litigants that I think were overlooked or ignored?
- OR -
Do I need to file a whole new item focused more on his evidence and the holes in it along with the theories for my case)?

I know you'd all like me to hire a lawyer but I can't find anyone to help. All the medical manufacturer lawyers I've called or contacted through the bar work on the contingency basis. I've also tried family friends and alumni for copy edit and form style aid, but they won't help because of some kind of oath. I tried paying the service that my work comp lawyer uses to produce forms (I'd write the text with case law and they just format it, but no pro per allowed). I even tried paying my work comp lawyers secretary, but her boss said no. I can't afford $500 an hour but I'm not sure I could even find the right person to take that offer if I could afford it.

I feel like I've been in a nasty game of kick the can only it is my balls that get kicked every couple of months. Please help.

 

[FlyingRon]

There appears to be no judicial misconduct here. You failed to answer a summary judgement which was sufficiently compelling to enter a decision.

If you have a prayer of getting this resolved you'll need to get a lawyer rather than taking random potshots at the legal process. The answer is almost certainly not to take shots at judicial qualifications.

 

[tranquility]

Let me get this straight, you're suing over the tensile strength of an implanted item? You need an attorney. Even if any of the questions you asked were relevant, you will never force those issues over a represented adversary. If you lose the summary judgment, move on.

 

[davidmcbeth3]

If you lose the summary judgment, move on.

Already lost SJ. The OP's case is dead. And an electron microscopic examination? Would require the test specimen to be outside the body ... these tests are done in a vacuum -- seems like part is still in OP, making this test unavailable.

Did the judge dismiss the case with or without prejudice?

 

[splendidsplinte]

As far as misconduct goes (answers to technical test questions at bottom):

At the last appearance, while begging the court for help and telling the judge I need her to make some allowances for me to present my (any) case and without her aid I will never get documents from the defense, which they have made clear in formal responses to requests for documents and emails discussing the items we want and asking to meet and confer. She made a comment about someone of my "background" being able to meet the standards of the court. When i asked what she meant about my "background" she side-stepped and said that I had always appeared lucid in her court (sure I can feel ok for a couple hours a day, but I only have a few hours of energy each day and my ability to focus during those hours is still half of normal).

I see the comment about my background as evidence of prejudice - not just that I'm a middle-class native English speaker, but that she has expectations of me that she would not have of someone else.

Worst of all the "background" comment makes me feel more certain that she knows who my mother is and has a strong opinion of her. My mom was the campaign manager of this judges' opponent in her last election. My mom also served on the local college board with her significant other and my mom said she and the significant other have never gotten along.

Is there a case to be made with the local court that this judge should have recused herself and I can get her decision nullified without having to go to a court of appeals?

Is the issue of her not recusing herself - and the appearance of possible bias worthy of an appeal?

Prior to this last week I tried to believe that the judge could be unbiased and just afraid to seen as being biased by helping me win my case, opposed to helping making sure the pro per litigant can present their case (as the California judicial guidelines tell her to do). However, the "background" comment coupled with disingenuous or deceptive posting a date to review my motion to compel and 29 hours later posting ruling for summary judgement, make me believe there is bias.

What about my ADA request for accommodations (first asked for in August, but again with no guidance from judge, it was not filed properly until last week)?

Can anyone out there give me some advice?
Would anyone like to pick up my case?

On the testing: The failed plate is outside my body. The first metallurgist could not use electron microscope because plate was too large so destructive testing agreement was needed. The other side stalled as long as possible and after the avalanche of paperwork started to make sure I'd have trouble finishing test and making case before trial. The second metallurgist did destructive testing and got numbers from electron microscope and other tests and found some areas to review, but defense stonewalled the standard spec documents to compare lab results with product design and to compare product the other variations and to its real world failure rates.

I don't know if it was dismissed with or without prejudice. What should I look for and what does the difference mean?

 

[davidmcbeth3]

SEM only takes pictures .... but may show metal failure.

You can file a motion to reconsider ... you must give a reason for it .. lack of responding due to ???? and then present your pleadings against the motion.

You likely only have 20-30 days to file a motion to reconsider after the court ruled.

 

[tranquility]

Without an attorney, move on. You are far beyond your level of ability on this one.

 

[ecmst12]

Your background likely referred to the fact that you have no legal training and very minimal knowledge, plus you seem to lack the cognitive skills to be able to perform in a courtroom. Whatever posessed you to think that you could make it through this trial without a lawyer?

In regular court (not small claims) a pro se litigant is expected to meet the same standards of courtroom procedures and knowledge as an actual lawyer. They don't have to make any allowances for you being a layperson.

 

[splendidsplinte]

I know the rule of thumb is to have a lawyer. I had one. She abnegated her responsibility to me, when she not only refused to assist me finishing the testing process before she leaves, but worse the bar code of ethics seems to read the the lawyer must defend the client until she leaves (I see no effort made to prepare for an upcoming deposition) and should make an effort to find suitable replacement, which she most certainly did not.

The guy I found through the bar that showed up at the deposition as some sort of temporary and unofficial adviser, stayed on to help me find a metal expert, but grew increasingly less interested because "a motion to compel is a lot of work." He wanted me to take care of the snowball of problems that stemmed from the response to their motion to compel, which he helped write (because it was in regard to evidence they demanded at the deposition he appeared at with maybe 2 hours of preparation - because I found him a week or 2 before it happened). I made the mistake of mailing the response in to the courts. It was stamped in the file 5 days before the judge's ruling was posted, but she chose not to consider its contents. Although mailing is not proper form, it could be considered an accommodation for someone who is on crutches and qualifies for handicapped parking and lives 20 miles away.

I know those of you who have passed the bar don't think us regular folks should do anything in a courtroom, but many of us do have a decent brain and can do research and write coherent arguments. We just don't speak legalize and know all the secret handshake formalities. We are not lawyers and should not try to be one when a lawyer can be found, but like teacher/coach performing first-aid on an injured student, it is better to have some common sense assistance until better help can be found. They might stabilize a broken bone and put it in splint even pop a dislocation back into place, but they are not going to perform surgery. Likewise, I was trying to administer first aid, by getting a test report completed to show a lawyer to see if the case was trial-worthy. I would not have appeared at trial as my lawyer unless somehow forced to do so in the most desperate of circumstances. However, to any of you who think the judge acted properly, I encourage you to read the 2007 California Guide for Judges involved in self-represented litigants, which time and time again encourages the judge to act in an effort to judge the motions on their merits not technical form. The item most closely related to my case is:

A. What Judges Can Do
California courts generally construe filings in the manner most favorable to self-represented litigants and overlook technical mistakes they may make in pleading.
In Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [111 Cal.Rptr.2d 439, 445], the Court of Appeal reversed the trial court’s refusal to vacate its dismissal of the complaint, finding that the court abused its discretion in not providing the self-represented litigant—who lived in South Dakota, who was permanently disabled from an accident that shattered a disk in her neck, and whose attorney had withdrawn from the case—a further opportunity to prosecute her case despite her procedural defaults, which appeared to arise from her misunderstanding of court correspondence and court procedures.

 

[tranquility]

While you were giving "first aid" to your case, you killed the patient. You are not going to win anything without an attorney. Even your questions show you have no idea of the legalities of the situation, let alone the complexities of litigation regarding implanted items.

Get an attorney or move on. Even with an attorney and tens of thousands of dollars, your chances EVEN IF YOU WERE 100% RIGHT, seem vanishingly small.

 

[splendidsplinte]

I know, I know, get a lawyer. One thing I've found is even if you have a turd sandwich for a case, it helps if you can find some silver lining to help convince a lawyer to take the case.

I also found my first lawyer to be lazy (she told me to resist my natural temptation to play reporter, which I did until she cut and ran, leaving me nothing other than 3 boxes of papers and no details about the contents or what she had done or I might want to do).

The instruction manual for the failed femur plate (that she requested or pulled off line) was for the wrong part. She also seems to have done ZERO when it comes to asking the metal expert for documents or information he could use or providing anything other than ordering the 501k - not noticing that the hardness line was left blank on the 501k, a critical area my metal expert found of interest. Please let me know if any of the first lawyer's actions merit some sort of ethics complaint with the bar or something like that.

She also spent no time (or didn't admit to any) looking at other cases involving this company - how many other femur plates by this company had failed. Or that this company was up for federal indictment for putting parts in humans before they were approved. Throw in the latest FDA whistleblowers coming out about pressure to both fast-track the approval bosses and not sweat questionable issues with the products coming from their bosses who you have to imagine were applying that pressure either because of their relations with certain manufacturers or the relations that some companies had with the elected officials who nominate or vote for the for the FDA leadership or as we learn from Jack Abromoff the lobbiest do favors for the people with promises of future employment. I've also seen the way many of the regional salesmen both for the company and its competitors feel above their heavy-handed practices.

For those who know or can give advice or asked questions. The case is in California. The universities I wish to look into (even if there is no legal grounds to protest) are UC Berkeley, UCSF and U Mississippi. If anyone has a good source (a step deeper than google) where one can look into University donors in both money and equipment to universities or to certain departments or professors research labs, please share. Thanks.