Sanctions sought for comments about plaintiff during voir dire

Attorneys for the Santa Cruz Metropolitan Transit District are the subject of a motion for sanctions accusing them of making extremely prejudicial and untrue statements about the plaintiff during voir dire in a disability lawsuit and causing a mistrial as the jurors needed to be released.

Plaintiff’s counsel, Catherine M. Cabalo of Peiffer Wolf Carr Kane Conway & Wise and Carla Aikens of Carla D. Aikens PLC, had sued the public entity under the Americans with Disabilities Act. They asked a federal judge in Northern California on Thursday to sanctions for costs and attorney fees. They said the case’s second trial — it already had an earlier mistrial — was set to commence on Nov. 29 but is now postponed due to the need to repanel a new jury.

The plaintiff’s counsel said the defense attorney made an incorrect statement to the prospective jurors regarding the plaintiff’s medical diagnosis and then concluded that diagnosis was why the plaintiff now uses a wheelchair, rather than an injury on a bus.

“This statement is not only demonstrably false, as it is not found in any of the thousands of pages of medical records that defendant’s counsel sought and obtained, but not one of any of the witnesses in this case — for either party — would be able to competently testify to such a statement, even if there were such evidence in the record,” Cabalo and Aikens wrote.

As a result, the plaintiff’s attorneys claimed, they and their clients have been unfairly harmed because they incurred costs to book hotels, prepare experts and exhibits and devote time away from important life events in anticipation of a two-week trial that will no longer take place this year. “The trial date also prevented matters in other cases being handled by undersigned counsel, that would ordinarily take place in early December due to the holidays, to have to be rescheduled to January and February 2024 and beyond,” Cabalo and Aikens added.

The transit district is represented by Robert G. Howie Jr. and Audrey A. Smith of Howie Smith LLP. They did not respond to requests for comment.

The case is about to enter its ninth year of litigation, having already taken a trip to the 9th U.S. Circuit Court of Appeals and suffered a mistrial in March because that jury was unable to render a verdict. Jones v. National Railroad Passenger Corporation et al., 15-cv-02726, (N.D. Cal., filed June 17, 2015).

The litigation stems from injuries the plaintiff said she sustained when trying to travel via an Amtrak bus while using a scooter because of her disability. Her attorneys claimed the driver was not able to properly secure their client’s scooter because of lack of training, and ignored their client’s suggestions on how to do it right.

As a result, the complaint states, the plaintiff was hurt when her scooter tipped over when the bus made a turn.

In filings, the transit system’s attorneys contended that the plaintiff was “careless and negligent and/or at fault about the matters alleged in the complaint,” partially causing or contributing to her injuries. Any fault outside of that, they continued, was wholly or partly caused by the bus driver, not the Transit District.

The entity has two weeks to respond to the sanctions motion and a hearing for the matter is set for Dec. 28.