TrialBarNews
Editor Emeritus Kerry Hoxie
Column Editors
Civil Procedure & Policy
Criminal Defense
Elder Law
Employment Law
Ethics
Thomas M. Diachenko
Dana Grimes
Natalie Holm
Andrew Hillier
Joel Selik
Evidence Law J. Domenic Martin
Insurance Law
Medical Malpractice
Patrick Calhoon
Elizabeth Teixeira
Torts Jessica Tora Wetzel
Production Staff
Production Director Bonnie R. Benitez
Design Production Cathy Paddock ink2@aol.com
Trial Bar News is published six times per year. Proposed articles may be sent to CASD at casd@casd.org, or to the respective column editor. For more information and rates for advertising call CASD Offices (619) 696-1166.
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Consumer Attorneys of San Diego (entire contents of publication)
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CASD Officers and Staff
President, Sarah A. Havens
President-Elect, Natalie B. Holm
Treasurer, Matthew D. Clendenin
Secretary, Carree K. Nahama
Immediate Past President, Paula R. Brown
Executive Director & CEO Bonnie R. Benitez
Board of Directors
David Arreguin
Nathan G. Batterman
David S. Casey III
James M. Davis
Jordon R. Harlan
John J. O’Brien
Sean Manee J. Domenic Martini
Past Presidents
Paula R. Brown
Brian K. Findley
Benjamin J. Coughlan
Christopher C. Walton
Amy Rose Martel
Maria F. Kelly
Dana M. Grimes
James S. Iagmin
Brett J. Schreiber
Timothy G. Blood
Raul Cadena
Rebecca D. Lack
John H. Gomez
Joel R. Bryant
Scott Levine
Wayne Alan Hughes
Kenneth Sigelman
Gayle M. Blatt
Richard A. Huver
Robert J. Francavilla
R. Christian Hulburt
L Tracee Lorens
Benjamin C. Bunn
William Turley
Hon. Robert J. Trentacosta
William H. Naumann
Dennis A. Schoville
Thomas J. Warwick, Jr.
Deborah A. Wolfe
Steven M. Boudreau
Frederick Schenk
Cynthia Chihak
Anna Romanskaya
Benjamin I. Siminou
Kacie B. Vinel
Aran J. Wong
Harris I. Steinberg
Vincent J. Bartolotta, Jr.
Robert L. Grimes
Hon. Louisa S. Porter
Hon. Anthony J. Battaglia
Hon. Steven R. Denton (ret.)
Daniel R. Krinsky
David S. Casey, Jr.
Harvey R. Levine
Sheldon Deutsch
George P. Andreos
Maynard Kartvedt
Maurice V. Boudreau
Alan J. Ludecke
Hon. Sheridan E. Reed
C. James Jarboe
Gordon S. Churchill
Wesley H. Harris
Gaylord Henry
Ernest Fraley
Hon. Michael I. Greer (ret.)
John T. Popko
Irwin Gostin
Timothy Evatt
Louis S. Katz
Wallace E. Wolfe
Tom Golden
F. James Bear
Thomas E. Sharkey
George R. McClenahan
David S. Casey, Sr.
Benjamin J. Coughlan
Dana M. Grimes Benjamin I. Siminou
the Power of Self-Belief: thriving through Failure and Finding Your Strength
“I’ve missed more than 9,000 shots in my career. I’ve lost almost 300 games. Twenty-six times, I’ve been trusted to take the game-winning shot and missed. I’ve failed over and over and over again in my life. And that is why I succeed.”
– Michael Jordan
There was a time along this journey when every night, I would recite the beloved children’s book Oh the Places You’ll Go! by Dr. Seuss to my toddler son. It was his favorite book, and it became mine.
The book is about the journey to success. It teaches that failure – and overcoming failure - is a necessary part of growth and success. It acknowledges that “bang-ups” and “hang-ups” are inevitable, leaving you in a “lurch.” It also teaches us that being in a rut can be difficult to pull yourself out of.
I remember nights when I would recite the passages and hold back tears. Sometimes I knew why, and other times I did not. I have had countless moments in my journey when I have felt alone in my battles – even though I was surrounded by love and family.
For me, looking back on those nights reciting the book to my toddler, I now appreciate why those emotions filled me. I, too, was on a journey that often seemed too difficult. It often seemed fraught with hurdles that I could not clear. But I knew, for my son, for my family, and for myself I could not give up.
A few weeks ago, those same emotions resurfaced as I listened to Pamela Vallero—an inspiring woman who made history as the first Latina to receive the CASD Trial Lawyer of the Year Award—deliver her acceptance speech at the annual Awards and Installation Dinner. Her words resonated deeply, reminding me of the power of perseverance.
Pamela so beautifully stated:
“I wish I could see all the versions of myself that I once was lined up against the wall. I would walk over to every single one of them and thank them for not giving up when I knew they wanted to. To the teenage girl who did not speak English - do not give up.
To the high school student whose first English paper after testing out of ESL was heavily marked in red ink and discussed by the
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Sarah Havens
CASD President
Sarah Allison Havens is Founder and Lead Trial Lawyer of Havens Injury Law, Inc., which represents wrongfully injured individuals against insurance companies, corporations and governmental entities. Sarah is a University of San Diego Law School Grad, a Trial Lawyers College Graduate, and National Institute of Trial Advocacy faculty instructor. She can be reached at sarah@havensinjurylaw.com.
teacher in front of her entire class - do not give up.
To the college student whose accent was mocked when she was asked to read aloud in her honors world lit class- do not give up.
To the bio grad who hated her job as a lab tech - do not give up.
To the twenty-something-year-old Spanish teacher in South Korea studying at night to take the LSAT- do not give up.
To the law student who got rejection letters - do not give up.
To the attorney who pumped for and breastfed two babies while trying cases - do not give up.
The stubbornness, the ambition, the will to become who you aspire to be drove those younger versions of me and have gotten me to who I am today - as a woman, as a wife, as a mother, and as a lawyer. And for that, I thank them all for not giving up.”
The road to success is never straight. Just like the message I once whispered to my son in the darkness of his room, Pamela’s speech reaffirmed a truth I hold dear—that overcoming failure is the tapestry of our strength.
To everyone navigating their own journey, facing difficult challenges, and feeling uncertain—know this: you got this!! And you will be stronger for it. “You’re off to Great Places! Today is your day! Your mountain is waiting! So… get on your way!” tBn
San Diego's Leading Elder Litigation Attorneys
Former CASD President and Director, Joel R. Bryant, and his team at Green Bryant & French, LLP, litigate elder abuse claims in both civil and probate court. They focus on three main areas of practice: will and trust litigation, including inheritance disputes; financial elder abuse; and nursing home neglect and wrongful death cases. Their breadth and depth of litigation experience - combined with specialized subject-matter knowledge in elder law - gives the team a competitive edge and a unique perspective that translates into excellent results for their clients.
Potential Pitfalls of Authenticating AI-generated evidence
Seeing is believing—unless it’s artificial intelligence. While authenticating digital evidence is not an entirely new frontier, the capabilities of AI in terms of generating and creating content will continue to push the boundaries of the Evidence Code. California legislators are pushing forward with new bills attempting to define, regulate, and encapsulate AI and how it fits within our current judicial system.
Fitting AI Into an Existing Evidence Code
AI can create things in various forms: photo, audio, and video, to name a few. Evidence Code section 1400 details how to authenticate a writing, stating: “Authentication of a writing means … the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400.) Evidence Code section 403 states the procedure for determining the evidence’s authenticity. (Id., § 403.) The test is whether the proponent has presented sufficient evidence to support a rational jury finding that the document is genuine or accurate. (1 California Evidentiary Foundations § 4.C (2024).)
But what if something is AI generated and so close—but yet so far—from being a genuine version? One example is a social media post.
Social media posts are frequently used in litigation, as they are an extension of one’s self, thoughts, and actions. Yet social media sites are notoriously overrun with AI-generated posts and users. Evidence Code section 403 governs these types of evidence: the proponent is required to offer sufficient evidence to allow a rational trier of fact to make a finding that the item of evidence is what the proponent claims it to be. To achieve this, the evidentiary foundation usually means proving the exhibit is an accurate copy of the post, and the post can be linked to a certain person.
This is where AI-generated content can fit awkwardly within our traditional evidentiary framework. To establish the relevance of the posting under Evidence Code section 210, ordinarily the proponent must claim that the posting is attributable to a certain person, group of persons, or entity. (1 California Evidentiary Foundations § 4.E (2024).)
But authorship of AI-generated content can be difficult to pinpoint. In some instances, there is an “author” (i.e., a person who types a request into an AI system to create a piece of work), but some AI systems suffer from a “black box” model that makes it impossible to trace what source material or combinations of material were utilized to create the final product. Will courts find this form of authorship persuasive enough to tie a defendant to the AI-generated conduct?
Continued on page 35
Haley Heinzelman Contributor
Haley is a 3L at USD School of Law, a CASD Student Member, and a Law Clerk at Singleton Schreiber, LLP.
Domenic Martini Column Editor
Domenic Martini is a trial attorney at Singleton Schreiber, where he focuses on catastrophic injury and flood cases. Dom is a member of the CASD Board of Directors. He can be reached at dmartini@ singletonschreiber.com.
Cervical Facet Cases –non-Surgical but Far from Low Value
Neck injuries are a common result of trauma. In fact, neck pain is the most commonly reported complaint after a motor vehicle collision and is typically the result of a “whiplash” type event. Initially, physicians may treat a whiplash type or sprain/strain injury with conservative treatment initiated. But the pain may persist months or even years later. The source is sometimes obvious—a fracture or disc herniation. But what happens when the pain persists and there is no obvious cause?
This is not an unusual scenario: Some studies suggest up to 50% of whiplash patients will continue to experience pain beyond three months. (Ritchie & Sterling, Recovery Pathways and Prognosis After Whiplash Injury (Sept. 30, 2016), 46 Journal of Orthopedic & Sports Physical Therapy 851 < https://www.jospt.org/doi/ epdf/10.2519/jospt.2016.6918> [as of Mar. 1, 2025].) Sometimes the pain may be a bit more nuanced than musculoskeletal pain/strain and is unlikely to improve absent additional diagnosis and treatment.
As advocates, it is our duty to seek compensation for all harm caused by the negligent acts of third parties. To do so, we must understand these harms ourselves. Sometimes that requires ensuring our clients are advocating for themselves and seeking second opinions when their injuries are not resolved. Sometimes this may require hiring experts to obtain answers. Locating and treating the source of the ongoing pain provides tremendous value to your client’s quality of life, and valuable information to you in understanding the extent of your client’s injuries. This article gives a brief overview of one potential source of ongoing neck pain which sometimes goes unrecognized and discusses some tips for litigating these interesting injury cases.
One Potential Overlooked Injury - Facet Mediated Pain
“There are few subjects in interventional pain and spine medicine as controversial as the diagnosis, etiology, and treatment of neck pain.” (Hurley & Adams, Consensus practice guidelines on interventions for cervical spine (facet) joint pain from a multispecialty international working group (Jan. 2022) 47 Regional Anesthesia & Pain Medicine 3 < https://rapm.bmj.com/content/rapm/47/1/3.full.pdf> [as of Mar. 1, 2025].) Chronic neck pain is often multifactorial and complex, and requires qualified and skilled medical experts. In a lawsuit, the source of the plaintiff’s ongoing neck pain often becomes a point of disagreement between the parties. Where experts have determined the plaintiff’s pain is resulting from the facet joints, it is important for plaintiff’s attorneys to have a thorough understanding of this complex injury and the issues that may arise in litigation and trial.
The cervical facet joints (also known as zygapophysial or zygapophyseal
Continued on page 36
has devoted her entire career to representing those harmed by the wrongful conduct of others, specializing in the litigation and trial of complex medical issues. She can be reached at jessica@vhwlaw.com.
Jessica Tora Wetzel is a Founding Partner at Van Herk Wetzel, LLP. She
Jessica Tora Wetzel Column Editor
Justice Must Prevail
Only three states still allow pain and suffering damages to be extinguished upon a victim’s death. California should not be among them. Justice should not expire simply because a victim does. Families deserve the right to hold wrongdoers accountable for the suffering they have caused. We urge lawmakers to support SB 29 (Laird) and ensure that California continues to stand on the side of justice and victims’ rights.
Typically, at CAOC events, we educate each other. But at Justice Day in Sacramento, we educate the people who make the laws we live by: members of the California Legislature. It’s an important way for us to stand up for the civil justice system. For us to make a difference for the people we represent, we need to meet the people who were
elected to represent all of us. That’s what we do at Justice Day, to defend the rights of California consumers.
The event starts Monday, April 7, with a Legislative Reception at the California Museum, followed by a nightcap at Cafeteria 15L hosted by the Orange County Trial Lawyers Association and the Capitol City Trial Lawyers Association. Then on Tuesday, April 8, we will meet with legislators and key staff members in their offices at the Capitol to discuss the issues and legislation that affect California consumers. Before we head to the Capitol, you’ll learn about enacting meaningful social change from our advocacy team – and earn MCLE credit – at our opening breakfast.
Participation in Justice Day is FREE for CAOC members. If you’re not a member, you can attend for $99,
and if you’ve never been a member, that fee includes your membership for all of 2025. Register at www.caoc. org/25JusticeDay. But register soon, as space is limited, and you must register by March 31 to be guaranteed legislative meetings.
Justice Day is our chance to communicate the crucial role we play in representing people who cannot afford a lawyer to help them at a pivotal time in their lives. The civil justice system will be stronger with your support.
Our legislative advocates have prepared an Issues Brief to help lawmakers understand the issues that are vital to your practice and your clients. It’s online at www.caoc.org/?pg=IssuesOverview. Feel free to share this document and spread the word about the important rights we defend as consumer attorneys. tBn
ethical obligations do not end at death: Succession Planning
“In the long run we are all dead.”
John Maynard Keynes
Imagine it is Monday morning. You look at your calendar for the week. You see that tomorrow you have to file an opposition to a motion for summary judgment you have almost finished. On Wednesday, you must file a complaint in a big case before the statute of limitations will run. The rest of the week you are scheduled to finish preparing for next week’s depositions and calling clients. But tomorrow never comes. You have a heart attack at your desk. Or you get hit by a bus while crossing the street. Or you have a stroke, leaving you incapacitated.
A solo practitioner in that scenario with no staff and no covering attorney in place will harm his clients. So too, a managing partner in a law firm with no succession plan will harm her clients by leaving her partners and staff scrambling to do what needs to be done in time.
The likely results are an unopposed summary judgment that is granted, the never-filed case is now time-barred, and clients are stranded. It is a hackneyed phrase, but no less true: Failure to plan is planning to fail. And, in this instance, a failure to plan is a violation of the California Rules of Professional Conduct, and may expose attorneys (or their estates) to malpractice claims.
While this article is titled “Ethical Obligations Do Not End at Death,” that is not quite accurate. An attorney cannot be disciplined after death. But complications arising out of your death (or incapacitation) impose an ethical obligation on you to plan now, while you are alive and able. Additionally, failing to plan subjects your estate and malpractice insurer to malpractice claims.
Succession Planning is Ethically required
Formal Opinion No. 2024-209 by the State Bar of California Standing Committee on Professional Responsibility and Conduct (“COPRAC”) states that an attorney’s failure to assess the need for succession plan is an ethical violation. Ethical requirements aside, the opinion is a good reminder to plan now for death and incapacity to protect your clients.
The opinion emphasizes “[t]here is a great risk or prejudice” to our clients if we should suddenly die or become incapacitated. (State Bar of Cal. Standing Com. on Prof. Responsibility & Conduct, Formal Op. No. 2024-209, p. 1 <https://www. calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL_2024-209_ Succession_Planning.pdf> [as of Mar. 1, 2025].)
Selik is a Nevada & California Legal Malpractice Certified Specialist with practices in both states concentrating on Judgment Collection and Legal Malpractice. Selik is the Vice Chair of the Nevada Standing Committee on Ethics & Professional Responsibility (SCEPR) and a California & Nevada Fee Dispute Mediator and Arbitrator. He can be reached at joel@seliklaw.com.
Joel G. Selik Column Editor
Amendment rights. AAJ has fought back at every turn —including helping pass the Ending Forced Arbitration for Sexual Assault and Harassment Act in 2022. (https://www.justice.org/ resources/press-center/aaj-praisespresident-biden-for-signing-the-ending-forced)
The fight is far from over. We’re committed to restoring access to justice and holding corporations accountable.
The Expanding Front
AAJ’s advocacy work has expanded profoundly over the past 30 years. Where we once handled bills pertaining to only two areas—products liability and medical malpractice—now, between our state and federal teams, we are handling more than 200 issues. Corporations are feeling emboldened, and we will not cave. Uber has invested millions in a campaign to cap
attorney fees at 20% in Nevada. Uber Sexual Assault Survivors for Legal Accountability and the Nevada Justice Association mounted an aggressive legal challenge to this effort and on January 27, the Nevada Supreme Court sided with the plaintiffs, ruling that Uber’s ballot initiative to cap plaintiffs’ attorneys’ fees in all civil actions was “misleading and confusing.” AAJ is proud to partner with TLAs to prepare for their advocacy battles and protect the Seventh Amendment. This initiative will not appear on a ballot in Nevada this year, and Uber will face a steeper hill to climb if it attempts similar efforts in other states.
Legal Affairs
Amicus Curiae Update
AAJ’s amicus brief program addresses issues of access to justice and
the right to a jury trial that are important to our lawyers’ clients and their practices. We often file amicus curiae briefs jointly with state TLAs and other national pro-consumer groups.
We had a recent victory in Maryland where the state supreme court upheld the constitutionality of the Child Victims Act of 2023, which eliminated a previously existing statute of limitation (SOL) on child sexual abuse lawsuits. Maryland’s law represents one of the best laws in the country for protecting child sex abuse survivors.
This is the third state supreme court opinion on child sexual assault SOL laws published within the same week. Maine struck down its law and North Carolina upheld its law. AAJ filed amicus briefs in the Maryland case with Public Justice, the Maryland Association for Justice, Child USA,
Continued on page 19
and Change the Conversation, and in the Maine case with the Maine Trial Lawyers Association.
In the first six weeks of 2025, AAJ filed five briefs in state and federal courts on clickwrap arbitration agreements, constitutionality of qui tam claims, the right to trial by jury in Camp Lejeune claims, caps on damages, and personal jurisdiction.
You can access AAJ’s amicus briefs on our website (https://www.justice.org/advocacy/legal-affairs/amicuscuriae-program). For more information or to request AAJ amicus support, please email our legal affairs team at legalaffairs@justice.org.
Federal Rules Update
Over the past decade, the number of proposed rules considered by the rules committees of the Judicial Conference has increased dramatically. This work has expanded our advocacy for lawyers and their clients, enabling us to fight bad proposed rules on discovery, depositions, class actions, expert witnesses, and MDLs. There are also now proposed amendments that would enhance plaintiff law practices.
Most recently, at the end of January, AAJ filed testimony and comment on FRAP 29—Brief of an Amicus Curiae. The public hearing occurred on February 14.
Unlike some rules debates where defense and plaintiff interests are diametrically opposed, most organizations oppose one or more aspects of the FRAP 29 proposal. AAJ’s comment, among other things, states that while we never agree with the U.S. Chamber’s Center for Litigation on the
merits, we agree with them that this proposed rule is problematic. Our two primary concerns are:
• Elimination of party consent, which will require leave of court (permission from the court) to file a brief. This will lead to motion practice, be more expensive for amici, and be time-consuming for the courts.
• The addition to the rule of a “Purpose” section would have the federal appellate courts policing briefs for redundancy, among other things. Amici may not know whether their proposed brief is redundant with another amici until they request permission to file, at which point, they have already expended resources to write the brief, and the court may be perceived as “playing favorites” by deciding whose brief it will accept.
AAJ believes it would be better policy to adopt the rule of the U.S. Supreme Court and accept all briefs. Alternatively, if the Appellate Committee does not wish to accept all briefs, it should retain the existing rule providing for party consent, which should allow for amici to obtain consent from the parties in a vast majority of cases.
The public hearing docket, including the witness list and the submitted testimony, is available. The comment docket (https://www.regulations.gov/document/USCRULES-AP-2024-0001-0001) closed on February 17.
AAJ is proud to collaborate with state and local trial lawyer associations nationwide to share and build upon our successes so that the right to a jury trial is protected and all plaintiff trial lawyers can obtain justice for their clients. tBn
same time, State Farm sought approval from the California Department of Insurance for a substantial rate increase. The company requested hikes of 30% for homeowners’ policies, 36% for condo insurance, and 52% for renters’ insurance policies.
State Farm is not the only insurer pulling back from California. Allstate and Farmers have also followed suit, dropping policies and halting underwriting in high-risk areas. These moves are leaving homeowners in vulnerable regions with limited options, as private insurance costs soar or become unavailable altogether.
Based on the extremely limited availability of mainline insurance policies, many homeowners have turned to the California Fair Access to Insurance Requirements Plan (FAIR Plan), a state-backed safety net that offers basic coverage but comes with high premiums. Unfortunately, for some, this option is not affordable, and they are facing home ownership without insurance altogether.
Data from the FAIR Plan highlights the growing reliance on this minimal coverage. In Pacific Palisades, roughly 1,400 homes out of the com-
munity’s 9,000 were covered by the FAIR Plan in 2024—an increase of more than fourfold compared to just a few years prior in 2020. The rising reliance on the FAIR Plan and the increasing number of homeowners without insurance paints a troubling picture for the future of California’s insurance market, leaving residents in high-risk areas with few affordable options.
Effect on Homeowners: Financial Strain and Legal Battles
For the homeowners affected by the recent wildfires, the financial strain is immediate and overwhelming. In addition to losing their homes, they now face the often-tedious process of filing insurance claims, navigating policy disputes, and dealing with the long-term challenges of rebuilding. Many homeowners will have to face delays in receiving payouts, as insurers assess the widespread damage and determine the appropriate compensation for the loss of property and belongings.
Moreover, as home values in fireprone areas fluctuate dramatically, some homeowners may find themselves in a position where their insur-
ance payouts do not fully cover the cost of rebuilding their homes. The problem of underinsurance, already prevalent in some regions, has been exacerbated by the increasing cost of construction materials, labor, and the skyrocketing cost of living in California. Homeowners who previously had a certain level of coverage may find that their policies do not provide enough to cover the true cost of rebuilding.
Another problem arises when the house is still standing after a fire, but damaged by smoke and soot. A very recent California appellate decision underscores the problems California policy holders are facing. In the Second District California Court of Appeal case of Gharibian v. Wawanesa General Insurance Company , No. B325859, 2025 WL 426092, at *1 (Cal. Ct. App. Feb. 7, 2025) plaintiffs Hovik Gharibian and Caroline Minasian filed a lawsuit against their property insurer, Wawanesa, following a wildfire near their home. The trial court granted summary judgment in favor of Wawanesa, concluding that the plaintiffs’ insurance policy did not cover
Continued on page 25
M a r j o r i e ( “ M a r g i e ” ) S m i t h , C F P ®
F i r m / C o m p a n y , p o s i t i o n : M a r j o r i e S m i t h S e t t l e m e n t P l a n n i n g
C A S D M e m b e r s i n c e : 2 0 1 2
T e l l u s a b o u t t h e s e r v i c e s y o u a n d y o u r f i r m / c o m p a n y p r o v i d e f o r C A S D m e m b e r s .
tell us about the services you and your firm/company provide for CAsD members. I provide structured settlements through Sage Settlement Consulting and financial advising through Pacific Wealth Management.
c l a i m a n t s a s a w e a l t h a d v i s o r w i t h P a c i f i c W e a l t h M a n a g e m e n t
W h a t d o y o u l o v e a b o u t w h a t y o u d o ?
I p r o v i d e s t r u c t u r e d s e t t l e m e n t s t h r o u g h S a g e S e t t l e m e n t C o n s u l t i n g a n d f i n a n c i a l a d v i s i n g f o r
Please share a highlight from 2024: Personally, I made a point of visiting several childhood, high school, and college friends I have not seen in far too long.
T h e c h a n c e t o w o r k w i t h e n e r g e t i c , e n t r e p r e n e u r i a l , a n d p r i n c i p l e d p l a i n t i f f ’ s a t t o r n e y s
P l e a s e s h a r e a r e c e n t p r o f e s s i o n a l h i g h l i g h t .
S e e i n g m y a t t o r n e y c l i e n t s S O b u s y a f t e r t h e s l o w e r t i m e t h a t w a s C O V I D .
Looking back at your career so far, what accomplishment are you most proud of? Becoming a Certified Financial PlannerTM in 2020. It’s a difficult credential to obtain but crucial, in my opinion, for working with people who are vulnerable (minors, for example) or who are inexperienced financially.
W h a t o n e t h i n g s h o u l d C A S D m e m b e r s k n o w a b o u t y o u ?
A s a C e r t i f i e d F i n a n c i a l P l a n n e r T M I h a v e a f i d u c i a r y d u t y t o m y c l i e n t s . U n l e s s s o m e o n e i s
c r e d e n t i a l e d a c c o r d i n g l y , t h a t f i d u c i a r y d u t y i s n o t i n c u m b e n t o n t h e p e r s o n . I b e l i e v e i t i s c r u c i a l t o
What is your favorite CAsD event and why? The Business of Law Symposium. The content is always practical and as a businessperson, I learn a lot. The vibe is collaborative and candid. The setting is on the water and while I don’t go to legal industry events for the food, I’ve noticed how great the food always is!
e x e r c i s e a f i d u c i a r y d u t y w h e n w o r k i n g w i t h i n j u r e d a n d o f t e n v u l n e r a b l e p e o p l e , s u c h a s m i n o r s .
H o w d o y o u s p e n d t h e h o u r s w h e n y o u ’ r e n o t w o r k i n g ?
What are your favorite tV shows, either now or ever? Comfort shows like “The Office” and “Friends”
I r u n o n t h e b e a c h e v e r y d a y .
W h a t b o o k s a r e o n y o u r n i g h t s t a n d ?
I l i k e t o r e a d b i o g r a p h i e s o f p e o p l e I a d m i r e .
W h a t p i e c e o f a d v i c e o r t i p w o u l d y o u l i k e t o s h a r e w i t h o u r m e m b e r s ?
S u g g e s t t o y o u r c l i e n t s t h a t t h e y r e c e i v e a f i n a n c i a l c o n s u l t a t i o n b e f o r e t h e y r e c e i v e t h e i r
What are your thoughts on how AI will change things in the future? I think it will streamline and simplify many tasks. I don’t worry that it will replace jobs or people. For a moment, I was a bit freaked out about AI’s potential to upend everything, but now I think it could be helpful and function as an enhancement. Maybe I’m naïve.
What’s your go-to karaoke song? The last and only time I did karaoke was in New Orleans in 2012 and a structured settlement friend and I did “Loveshack.” It was a good one!
A f f i n i t y P a r t n e r S p o t l i g h t M a r j o r i e F . S m i
s e t t l e m e n t f u n d s . W e p r o v i d e i n f o r m a t i o n f r e e l y . 3
staff Info: Macey Cothern, case manager
California Case summaries™
By Monty A. McIntyre, Esq.
Monty publishes California Case Summaries™, with one-paragraph summaries, organized by legal topic, of every new civil case published each month, quarter, and year in California, giving subscribers a competitive advantage and excellent results. Monty has been a California civil trial lawyer since 1980, a member of ABOTA since 1995, and currently works as a full-time mediator, arbitrator and referee with ADR Services, Inc. Monty handles matters in the areas of business, employment, insurance (bad faith, coverage, UIM), probate (trusts and estates), real property and torts (elder abuse, medical malpractice, personal injury, product liability and wrongful death).
CALIFORNIA COURTS OF APPEAL
Medical Malpractice
Ng v. Super. Ct. (2025) _ Cal.App.5th _, 2025 WL 323098:
The Court of Appeal granted a writ petition that directed the trial court to vacate its earlier order granting defendant Los Alamitos Medical Center, Inc.’s (defendant) motion to strike portions of plaintiff’s complaint seeking two MICRA caps in an action for wrongful death and a survival action. The dispute was whether recent amendments to the cap on noneconomic damages (Civ. Code, § 3333.2) under the Medical Injury Compensation Reform Act of 1975 (MICRA) and to the availability of noneconomic damages in survival actions (Code Civ. Proc., § 377.34) permitted plaintiff to recover noneconomic damages under one or two MICRA
caps. The Court of Appeal concluded that the recent amendment to Code of Civil Procedure section 377.34, which authorized a decedent’s personal representative or successor in interest to recover noneconomic damages, means a plaintiff can seek two MICRA cap awards (one for himself or herself and one for the decedent) under Civil Code section 3333.2. Because a wrongful death claim and a survival claim—even when premised on the same alleged medical malpractice—are separate and distinct claims, a plaintiff suing for both claims can seek to recover two MICRA caps. (C.A. 4th, January 29, 2025.)
And while the COPRAC opinion recognizes that “no single California rule explicitly requires that a lawyer adopt a succession plan,” it notes that attorneys’ existing ethical obligations—including Rules of Professional Conduct, rule 1.1 (“Competence”), rule 1.3 (“Diligence”), and rule 1.4 (“Communication with Clients”)—require them to protect their clients from foreseeable events. (Formal Op. No. 2024209, supra, at pp. 1–2.) And it is foreseeable that death or incapacity could come at any time, without warning or preamble, as the unexpected deaths of beloved CASD members like Raul Cadena, Douglas Swope, and Kerry Hoxie demonstrate. Thus, as the COPRAC opinion explains:
The duties of competence, diligence, and communication impose on lawyers a duty to take reasonable steps to protect the clients’ interests during the course of the representation. This would include taking affirmative steps to assess the need for a succession plan in the event of an interruption or cessation of practice, voluntary or otherwise, particularly for those practicing as sole practitioners or in a small firm setting. (Ibid.)
This makes it clear that attorneys have a duty to do succession planning now, “during the course of the representa-
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tion.” (Ibid.) And unlike some jurisdictions, where succession planning is strongly encouraged but not required, this new COPRAC opinion likely puts California into the mandatory category: “[L]awyers must engage in an assessment of whether their professional responsibility obligations, require a succession plan.” (Id. at p. 1, italics added.) And the COPRAC opinion also clarifies what attorneys must do— take reasonable steps to protect clients’ interests.
The Steps of Succession Planning
According to the COPRAC opinion, the first step is “to assess the need for a succession plan.” For a law firm where there are other attorneys in the same practice area, that may simply mean making sure other attorneys of the firm are aware of the cases and deadlines, and have the ability to do any immediate work on the case. For a solo practitioner, the planning needs to be more detailed.
While a law firm with many attorneys may be able much more readily to respond to the sudden loss of an attorney, the same succession planning steps are relevant.
The Assessment
The COPRAC opinion lists certain items that must be considered to assess the need and extent of succession planning:
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Factors to be considered in such an assessment include, but are not limited to:
• the lawyer’s firm size
• their practice area
• the number of other lawyers in their firm in that practice area
• the nature of their practice
• age, proximity to retirement, and overall health.
Firm Size, Nature of the Practice and Other Lawyers in Practice Area. Where there is a law firm with attorneys in the same general practice area, it may be easy for other lawyers to step into the deceased or incapacitated attorney’s cases. But even if all attorneys are, for example, litigators, there may be specialty litigation areas. For example, trade secret litigation, legal malpractice, and family law may require the attorneys with knowledge of the specialty areas to step into the case.
Age, Proximity to Retirement, & Health. While anyone can suddenly die or become incapacitated, considering these factors may help determine, on assessment, what must be done.
Although the COPRAC opinion lists these facts, every attorney should have their practice be ready to be taken care of in case of the unexpected.
The Succession Planning
After the assessment to determine to what extent succession planning is needed, the next step is to make a plan. A checklist is a good place to start. Consult the “Checklists For Succession Planning” below.
For any plan, there must be an attorney who can step in for any emergency. This is referred to as the “Assisting Attorney.”
The Assisting Attorney
The attorney who will take care of the incapacitated or deceased attorney’s immediate client needs and assist in the transition of a practice, is referred to in the COPRAC Opinion as the “Assisting Attorney.” The State Bar has given particular instructions on a page on the Bar website entitled “Successor Lawyer Duties When a Lawyer Dies.” This webpage advises contacting the State Bar, dealing with the deceased attorney’s estate planning, and has links to resources and forms.
The Assisting Attorney should be an attorney who has enough knowledge of the deceased/incapacitated attorney’s practice areas to step in to take care of immediate issues.
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the personal contents lost in a disaster. To simplify this process, insurers cannot require a company-specific inventory form if the homeowner provides a substantially similar form. Additionally, insurers must accept inventory groupings for items that are impractical to list individually. This flexibility is designed to make the claims process more efficient and less burdensome for homeowners.
Payment of Contents Without Inventory
In an effort to expedite claims for personal property, insurers are required to offer a payment of no less than 30% of the Coverage A (dwelling coverage) policy limit for contents without requiring an itemized claim. This allows homeowners to receive compensation for their lost contents quickly, without having to go through the often-lengthy process of compiling a detailed inventory of every item.
Furthermore, on February 6, 2025, the California Insurance Commissioner formally requested that all insurers handling total loss claims offer 75% or 100% of the contents limits (Coverage C) without requiring an inventory. Insurers have until February 28, 2025, to notify the California Department of Insurance whether they will comply with this request. This initiative aims to streamline the claims process and reduce delays for homeowners in need of compensation for their lost property.
Time Limit to Collect Full replacement Cost
In addition to advance payments, the law establishes a time limit to collect full replacement cost. Homeowners have no less than 36 months from the first payment toward the actual cash value of their home to collect the full
replacement cost of the loss. This extended period provides ample time for homeowners to rebuild or replace their property after a disaster. Furthermore, if there is a good cause for delay, homeowners may request extensions of up to six months to finalize their claims and replacement costs.
Policies Cannot Limit rebuilding at new Locations
In some cases, homeowners may choose to rebuild their homes at a new location. Under the new laws, insurance policies cannot limit the payment of building code upgrade costs or the replacement cost if the homeowner decides to rebuild elsewhere. However, the indemnity (the amount insurers must pay) cannot exceed the replacement cost at the original location. This ensures that homeowners have the flexibility to rebuild, even if they choose a different site, without being penalized by policy limitations.
Land Value Deduction
Another important provision is the land value deduction. When homeowners decide to rebuild at a new location, insurers are prohibited from deducting the value of the land from the total measure of damages. This ensures that homeowners receive a fair settlement for the full costs of rebuilding, regardless of the land’s value at the new location.
Building Code Upgrade Coverage
In the aftermath of a disaster, many homes must be rebuilt to meet updated building codes. Under the new regulations, insurance policies must provide additional building code upgrade coverage of no less than 10% of the dwelling coverage policy limits. This ensures
that homeowners have sufficient funds to bring their homes up to code during the rebuilding process.
Ability to Combine Coverages
Homeowners also have the ability to combine the limits for both Coverage A (dwelling coverage) and Coverage B (other structures) to cover necessary expenses to rebuild or replace the dwelling. This provision gives homeowners more flexibility in how they use their insurance payouts to rebuild their homes and recover from the disaster.
Conclusion
The aftermath of the 2025 Los Angeles wildfires has exposed significant gaps in California’s insurance market, with homeowners facing soaring premiums, limited coverage, and complex claims processes. As insurers retreat from high-risk areas, many are forced into the state-backed FAIR Plan, which provides minimal coverage at high costs and may be approaching its financial breaking point. Recent legal decisions, such as Gharibian v. Wawanesa, supra, No. B325859, 2025 WL 426092, at *1, highlight how insurers may exploit technicalities, like the absence of “direct physical loss,” to deny smoke or soot and ash claims, complicating recovery efforts.
While California’s emergencyrelated insurance laws provide some protections, the long-term impact of rising costs and shrinking coverage options will require ongoing legal oversight. For attorneys, these challenges present an opportunity to guide clients through the increasingly complex legal and insurance landscape, both during this crisis and in the years to come. tBn
Mere possibility alone is insufficient to establish a prima facie case.” (Ibid.) However, the Fourth District Court of Appeal “conclude[d] that the court did not err.” (Ibid.)
Indeed, the Court of Appeal unequivocally held that “[t]he court’s use of CACI No. 430 to instruct the jury regarding the substantial factor standard for causation was appropriate and accurately stated the applicable legal principle.” (Id. at p. 744.) The Court of Appeal explained that “[t]he court’s use of standard jury instructions for the essential elements of negligence, including causation, was appropriate because medical negligence is fundamentally negligence.” (Ibid.; see also CACI 500.) The Court of Appeal explained that “the ‘substantial factor’ test generally subsumes the ‘but for’ test.” (Ibid.)
The Fourth District Court of Appeal went on to explain that there
was “not . . . a heightened standard for causation in medical malpractice cases as the Regents suggest.” (Id. at p. 746.) Indeed, “[i]n any negligence case, the plaintiff must present evidence from which a reasonable fact finder may conclude that defendant’s conduct probably was a substantial factor in bringing about the harm.” (Ibid. [emphasis in original.].) Accordingly, as CACI No. 430 makes no mention of “possibility” and is entirely consistent with existing case law, Uriel held that CACI No. 430 is appropriate for use in medical malpractice cases without any need for a special instruction. (Ibid.)
Since Uriell v. regents, the CACI Instructions Themselves State that no Special Instruction is needed
As stated under “Directions for Use” for CACI No. 500 (titled Medical
Negligence – Essential Factual Elements), the Judicial Council of California instructed: “It is not necessary to instruct that causation be proven within a reasonable medical probability based upon competent expert testimony. The reference to ‘medical probability’ in medical malpractice cases is no more than a recognition that the case involves the use of medical evidence.” (See also 2 Cal. Judges Benchbook Civ. Proc. Trial Chapter 13, § 13.25 [“A judge’s use of standard jury instructions for the essential elements of negligence, including causation, in a medical malpractice action is appropriate because medical negligence is fundamentally negligence.”]; 3 Cal. Med. Malprac. L. & Prac. § 18:64 (2016 ed.) at fn. 2 [“The use of CACI No. 400, the standard jury instruction on the essential elements of negli-
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gence, is appropriate in a medical malpractice case because medical negligence is fundamentally negligence.”].)
When faced with a defense proposed causation instruction, you should point out that the defendant cannot provide a single authority holding that CACI No. 430 is inappropriately given in a medical negligence action. Even prior to Uriel, case law was clear that CACI No. 430 was appropriate for use in wrongful death cases resulting from medical malpractice. For example, Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1095-1096 expressly held that CACI 430 is the appropriate causation instruction for a medical negligence case. The Court in Mayes, supra, rejected that CACI 430 must be modified and/or that some further causation formulation need be given to the jury.
You should also point out that any
proposed special instruction places undue emphasis on the issue of causation and are argumentative in that they inappropriately emphasize causation. Any such proposed instructions suggest to the jury that special consideration should be given to the issue of causation. (See Estate of Martin (1915) 170 Cal. 657, 672.) Any proposed instructions are argumentative in that they put the Court in the position of arguing for a stricter causation standard on behalf of Defendant.
(Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal. App.2d 675, 718.)
Even Though no Special Instruction is required, Experts are Still required to Prove Medical Causation
CACI 501 and 502, involving the standard of care in medical malprac-
tice cases, instructs the jury: “You must determine the level of skill, knowledge, and care that other reasonably careful physicians would use in the same or similar circumstances, based only on the testimony of the expert witnesses who have testified in this case.” (emphasis added)
CACI 430 contains no such instruction to the jury that they are only to consider expert opinions. However, even though CACI 430 accurately and adequately states the law on medical causation, a plaintiff must introduce expert testimony to establish a prima facie case.
As explained in Bromme v. Pavitt (1992) 5 Cal. App.4th 1487, 1492, a plaintiff who files a cause of action for “medical negligence must prove by reasonable medical probability based on competent expert testimony that a
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defendant’s acts or omissions were a substantial factor in bringing about the [plaintiff’s injuries.]” (See also Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603 [“Causation must be proven within a reasonable medical probability based upon competent expert testimony.”])
Specifically, “causation in actions arising from medical negligence must be proven within a reasonable medical probability based on competent expert testimony, i.e., something more than a 50-50 possibility.” (Bromme, supra, 5 Cal.App.4th at p. 1504; see also Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701, holding that “A less than 50-50 possibility that defendant’s omission caused the harm does not meet the requisite rea-
sonable medical probability test of proximate cause.”)
When the plaintiff’s causation expert testifies, it is extremely important to use the correct language when addressing causation. Do not use words such as “could” or “may” or “possibility.” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770 [summary judgment properly granted because the patient did not offer an expert opinion that “more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.”].)
Likewise, newly enacted Evidence Code section 801.1, titled “Expert Opinion Regarding Medical Causation” also requires that a defendant’s expert only testify if the proffered alternate cause or causes exists
to a reasonable medical probability. Both sides are not allowed to testify regarding possibilities. This is particularly important in medical malpractice cases. Defense attorneys are specifically trained to make medical issues as complicated as possible. By throwing as much crap against the wall as possible regarding medical possibilities, they will often succeed in confusing jurors to the point where jurors do not feel qualified to make a finding as to standard of care. Evidence Code section 801.1 should be used to prevent this tactic and force the defendants to only introduce causation testimony that meets the more likely than not standard. tBn
The Largest Medical Network On Liens In California
Additionally, AI-generated content can be skewed by “hallucinations,” which occur when the AI model produces incorrect or inaccurate information through no fault of the inquiring user. These nuances in the functionality of AI can create trustworthiness problems that can halt authentication efforts under traditional methods.
The possibilities for AI becoming an issue in our cases are endless. It’s something we all must watch for going forward. What if the defense generates a “deep fake” AI video of your spineinjured client doing backflips? That may sound far-fetched and unethical, but AI is capable of doing it.
Audio records are one aspect of AI-generated content for which evidence law is well-equipped. Traditionally, the courts have taken a strict attitude towards audio recordings since courts realize that tapes can be tampered with. Thus, courts usually insist on a complete foundation to authenticate records: the operator’s qualifications, the equipment’s working condition, custody of the tape, an identification of the speakers on the tape, and finally testimony of someone who heard the conversation that the tape is an accurate reproduction of the conversation. (See People v. Polk (1996) 47 Cal.App.4th 944, 945 [“the court should satisfy itself that [the tapes] are substantially complete and substantially correct as to matters that are material and important”].) This
rigorous threshold to meet are wellsuited for the demands of AI-generated audio recordings that could sound incredibly convincing but prove to be nothing more than fakes.
Not everything is a cautionary tale, though. As AI-generated imaging continues to get exponentially better, demonstratives will become less expensive. Spine fusions, brain tumors, and other medical demonstratives will soon be a click away. So long as an expert can say they “fairly and accurately” represent the condition, you will be able to use AI-generated images in lieu of more expensive alternatives.
Current Legislative reform
A critical issue legislatures are trying to tackle is just how to define AI, which was a previously elusive task due to its all-encompassing nature. Governor Gavin Newsom signed into California law AB 2885 to establish a formal definition of AI, which defines AI as “an engineered or machinebased system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.”
With a definition squared away, California legislators shifted their focus to ways to ensure transparency, reliability, and accountability for AI-generated content. These efforts
serve two purposes: to protect the public from misleading information and to ensure validity when authentication is needed in litigation.
SB 942, commonly referred to as the “California AI Transparency Act,” requires widely used generative AI systems to watermark and disclose any AI-generated content, thus appropriately flagging its existence to the public and thus resolve some of the authenticity issues. The beauty of AI is that it can create and seemingly do anything; but this also creates dire concerns about fraudulent or fabricated documents. This reform would help authenticate AI-generated content by clearly flagging it as such, preventing highly convincing, but falsely created or manipulated content from being improperly admitted as evidence.
Future reflections
As society continues to interact with, experience, and implement AI, traditional evidentiary authentication methods will likely need to evolve as well. At the time of this publication, it is undeniable that new AI reform bills and caselaw interpreting AI-generated evidence will continue to appear on the legal scene. In the meantime, we can rejoice that AI, while a uniquely complex creation, also has the potential to enhance our legal community and the public at large. tBn
joints) are the small synovial joints located between the vertebrae of the spine on the back side of the neck. They play a crucial role in maintaining spinal stability and allowing movement. Trauma to the spine can cause injury to the facet joint and subsequent pain. Specifically, with flexion extension forces, the ligaments surrounding the facets can stretch, the capsule between the facet joints can tear, and the surrounding nerves can become painful and irritated. Cervical facet joints are considered to be the primary source of pain in 26–70% of patients with chronic neck pain, and 54–60% of neck pain following whiplash injury. (Hurley & Adams, supra, at p. 3.) The C2-3 and C5-6 joints are the most frequently affected.
Symptoms of a facet-related issue in the neck include neck pain that is often worse with certain movements (e.g., bending, lifting, twisting), stiffness, muscle spasms, headaches, and tenderness to the touch over the affected joints. The pain often originates from irritation or inflammation of the medial branch nerve, a sensory nerve that supplies the facet joints.
Unfortunately, facet joint pain (also called facet mediated pain, facet syndrome, etc.) is often a delayed diagnosis if not missed altogether. Two key facts about facet mediated pain seem to contribute to the difficulties in diagnosis.
1. No specific history or finding on examination can rule out facet mediated pain. On examination, a physician often will find pain and tenderness over the facet joints and pain with extension and rotation. However, while presence of these findings can indicate a facet issue, these findings alone cannot
definitively diagnose facets as the source of the pain. Additionally, the absence of one or more of these findings cannot rule it out.
Research has been conducted to map out the common pain referral patterns for the cervical facet joints. (See Hurley & Adams, supra, at p. 9.) But these pain referral patterns are not perfect indicators. Additionally, they are not always intuitive. For example, while the facets are located in the back of the neck, the lower cervical facets can refer pain down to the shoulder.
2. Facet mediated pain cannot be diagnosed based on imaging alone.
Pain originating from the facet joint is commonly caused by a tear in the capsule, stretching of the ligaments, irritation and inflammation of the surrounding nerves, or from arthritic change. Imaging can sometimes reveal advanced arthritic change, but often even advanced arthritic changes are asymptomatic. Additionally, the capsule is not well visualized on imaging and inflammatory and ligamental changes are often not visible. Thus, “normal” imaging alone cannot rule out a facet issue. (See Hurley & Adams, supra, at p. 12.) Accordingly, practice guidelines recognize that imaging alone cannot be used to diagnose facet related pain.
Rather, the diagnosis of facet mediated pain is complex and requires the care and attention of a physician skilled in recognizing the issue. A physician will often look to facet syndrome only when other causes of pain are ruled out and the history and physical examination raise a suspicion of facet issues. Once a physician suspects the facet as the source of the pain, the gold standard for diagnosis is performance
of a medial branch block (MBB). This procedure involves injecting an anesthetic into the affected facet joint to see if the patient experiences relief. What is considered “relief” varies based on the practice, but the published guidelines define it as a greater than or equal to 50% reduction in pain. Hurley, supra, at p. 32. This pain relief is for a short duration, typically only a few hours. The MBB is often then repeated a second time (mostly for insurance purposes) a few weeks later to confirm the diagnosis.
Once the diagnosis is confirmed, the client is typically recommended to begin treatment. Treatment of facet mediated pain is handled non-surgically and is intended to desensitize the affected medial branch nerve. Typically, a course of treatment will begin with the use of medications and physical therapy, assuming those have not already been tried. Where those conservative measures do not provide relief, the gold standard treatment is radiofrequency ablations (also known as rhizotomies). A radiofrequency ablation (RFA) is typically performed by a pain management physician and involves guiding a needle to the affected medial branch nerves and heating them. The heat destroys the sensory nerve, preventing it from sending pain signals to the brain. The procedure is typically done under local anesthesia and with fluoroscopic guidance. A successful ablation results in a significant reduction in pain for a duration of greater than three months.
Unfortunately, the medial branch nerve grows back. This means that the treatment is typically not permanent and will likely need to be repeated when the pain returns. The typical
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course is approximately 6-14 months. (Hurley & Adams, supra, at p. 45.)
Other Potential Sources
If facet mediated pain is ruled out by the MBB, clients should be encouraged to continue to try locate the source of their pain. There are alternate causes of neck pain that should likewise be explored, including chronic whiplash associated disorders, dystonia, myofascial pain, or nerve pain or injury. Finally, neck pain can often be multifactorial, so even where a client has a facet related pain, they should be carefully monitored after treatment to see if pain persists or resolves entirely.
Implications for Injury Cases in Litigation and Trial
The litigation and trial of a cervical facet case is similar to most spinal cases, but with some caveats on causation and damages.
Causation
Unlike fractures or acute disc trauma, facet injury—which, again, often result from a whiplash or extension/ flexion injury to the neck—require a fairly small biomechanical load to sustain. Thus, unlike a fracture or acute disc trauma case, biomechanics may play a lesser role in a facet-injury case.
Ruling Out Alternate Medical or Physical Causes
As attorneys, one way we can help our experts is by ruling out alternate causes of our client’s pain. The differential diagnosis for facet syndrome includes cervical disc herniation, cervical radiculopathy, cervical spine sprain/strain, myofascial pain syndrome, occipital neuralgia, degenera-
tive disc disease, and other inflammatory spinal conditions like ankylosing spondylitis or rheumatoid arthritis. While these are medical findings, we can assist our experts differentiating those diagnoses by gathering all available evidence of our client’s pre-incident condition and other incidents or accidents so they can make this assessment. Prior records, imaging, and evidence of our client’s prior level of function can all be valuable evidence to your experts here.
Gathering Evidence -- Trust but Verify
As with all injury cases, a thorough review of your client’s history is required. Most adults have had some presence of pain in their spine at some time in their life, but any previous complaints of spinal pain should never be a secret to you. With regard to facet pain, one factor that decreases the likelihood of it being the correct diagnosis is prominent disc pathology or symptomatic spinal stenosis. (Hurley & Adams, supra, at p. 8.) The ability to rule this out will help your expert identify facet pain as the proper diagnosis.
A thorough interview of your client is the first step. Ask directly about prior collisions, prior falls, and any treatment. Do not wait until you must respond to Form Interrogatory No. 10.1 to ask your client this question. Any subsequent accidents or incidents should also be discussed and investigated. Ideally, if you are entering into litigation with a client, you have at least 10 years of their prior records related to family care and certainly any related specialist care. This allows you to probe the client as to any potential history—no matter how big or small. Sometimes issues are so minor
to clients they don’t even register in their memory, but you still don’t want to be caught off guard in a depo and certainly not at trial. A great source of information is also pharmacy and insurance records as they sometimes reveal records from old providers or treatment clients forgot about. Getting these records yourself can also give you a “first look” to know if there are any red flags the defense may uncover with subpoenas later in litigation.
If your client does have a preexisting history of spine pain or treatment, you will need to understand whether it is or isn’t relevant here. Was it the same part of the spine? Was it situational (e.g., pregnancy or a kidney infection)? Was it isolated or remote in time? Was there prior imaging? A client with a pre-existing history should always be clear about that history with all treating physicians, experts, on all documents, and in deposition. Nothing ruins a plaintiff’s credibility more than inconsistency. Where your client does have some relevant history, it may even be helpful. For example, did their prior history make them unusually susceptible? Additionally, if the history was remote and isolated, sometimes this can help. Picture a demonstrative exhibit showing their one visit for neck pain in the ten years prior to the incident and 30 visits in the two years since.
Witness Testimony
Evidence of your client’s prior level of function may also provide key information regarding your client’s injury. If your client was previously active and is now restricted, friends, family, and co-workers may have key observations that could support your
case. Interview them early. If they have relevant information, turn their names over to the defense or get declarations yourself. Damage witnesses are not responsive to Form Interrogatory 12.1. (Mitchell v. Superior Court (2015) 243 Cal.App.4th 269.) However, voluntarily giving the names over early prevents prejudice claims by the defense.
Post-incident Records as Evidence
Post-incident records can also obviously provide key evidence on causation. There are published pain referral patterns for cervical facet syndrome. Look to your client’s initial post-incident medical records to see if there is documentation of their pain distribution. Where these pain diagrams are consistent, they can be compelling evidence—particularly where they were completed before litigation. Giving this information to your poten-
tial expert may assist them in making an accurate assessment (and may become valuable evidence in the trial).
Moral of the Story
In cases where the diagnosis is a bit tricky, think creatively about the information you can get to your experts to conduct a proper evaluation. Give them everything that is relevant, good and bad. Do not hold anything back. The last thing you want is for them to be cross-examined on a record or other evidence you never gave them. Additionally, wellgathered evidence can bolster your expert’s opinions and will be key to aiding the jury in understanding your case at trial.
Damages
Demonstrative Evidence
Just as demonstratives can assist
in a surgical spinal case, so too demonstratives are key in facet injury cases. Medical illustrations can be prepared to demonstrate both the medial branch block and radiofrequency ablation procedures. Instruments from the procedures themselves can be brought into trial and used by experts in discussing the procedure. This demonstrative evidence can be quite compelling in allowing the jury to understand what your client has gone through and will need to go through in the future.
Economic Harms
Dependent upon the ultimate conclusions of the medical experts after a thorough workup is conducted, the economic losses from a cervical facet syndrome case can exceed that of a surgical case. With surgery as an
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