Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 1
Journal of Consumer Attorneys Associations for Southern California
Keeping the lights on
Putting business practices into a contingency-fee practice How to look at profitability and productivity
Proving a trucking case How to acquire the crucial evidence
The vanilla tire: Hidden defects that kill
Don’t let truckers run you over Identifying all potential defendants
The importance of going to the accident scene
You don’t say? Hearsay?
Challenging evidence: 402 hearings and beyond
Ensure that your evidentiary house won’t fall apart at trial
What you must know about medical imaging and other diagnostic testing Don’t let defendants Sargon your experts
The relation of defendant’s net worth to punitive damages July 2013
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 2
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 1
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 2
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 3
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 4
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 5
The Advocate Magazine â€” 5
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:33 PM Page 6
Contents Volume 40, Number 7, JULY 2013
Editor-in-Chief Jeffrey Ehrlich Associate Editors Joseph Barrett, Mary Bennett, Joan Kessler, James Kristy, Beverly Pine, Norman Pine, Rahul Ravipudi, Linda Rice, Ibiere Seck, Geraldine Weiss Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Publisher Managing Editor Richard Neubauer Cindy Cantu firstname.lastname@example.org email@example.com Copy Editor Art Director Eileen Goss David Knopf Consumer Attorneys Association of Los Angeles President Treasurer Lisa Maki Ricardo Echeverria President-Elect Secretary Geoffrey Wells Michael Arias First Vice President Immediate Past President Joseph Barrett Michael Alder Second Vice President Executive Director David Ring Stuart Zanville
Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, Jeffrey Ehrlich, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Steve Goldberg, Jeff Greenman, Christa HaggaiRamey, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Anthony Luti, Shawn McCann, Minh Nguyen, Linda Fermoyle Rice, David Rosen, Jeffrey Rudman, Ibiere Seck, Douglas Silverstein, Armen Tashjian, Kathryn Trepinski, Geraldine Weiss, Jeff Westerman, Ronnivashti Whitehead, Andrew Wright, Dan Zohar Orange County Trial Lawyers Association Secretary President Geraldine Ly Scott Cooper Treasurer President-Elect Casey Johnson
B. James Pantone
Second Vice President Vincent Howard Third Vice President
First Vice President Ted Wacker
H. Shaina Colover
Parliamentarian Jonathan Dwork Immediate Past President Executive Director Janet Thornton
Board of Directors Melinda S. Bell, Gregory G. Brown, Anthony W. Burton, Brent W. Caldwell, Cynthia A. Craig, Jerry N. Gans, Robert B. Gibson, Paul E. Lee, Kevin G. Liebeck, Christopher E. Purcell, Solange E. Ritchie, Sarah C. Serpa, Adina T. Stern, Douglas B. Vanderpool, Janice M. Vinci, Atticus N. Wegman Periodicals postage paid at Los Angeles, California. Copyright © 2013 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited.
ADVOCATE (ISSN 0199-1876) is published monthly at the subscription rate of $50 for 12 issues per year by the Consumer Attorneys Association of Los Angeles, 800 West Sixth Street, #700, Los Angeles, CA 90017 (213) 487-1212 Fax (213) 487-1224 www.caala.org
Send address changes to ADVOCATE
c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine
8 Proving the trucking negligence case
Here are the basics of laying a strong foundation in a trucking case, including how to acquire crucial evidence and how to wield it as an effective weapon. Ryan Casey and Spencer Lucas
24 The vanilla tire: Hidden defects that kill
Why do tires sometimes come apart with disasterous results? The devil is in the details of how the tire is manufactured. Raymond Paul Johnson
32 Biomechanics 101
Use biomechanical analyses when disputes exist over the severity of an auto-accident injury. John Brault
36 Defendant’s net worth – negative or not
Although net worth is the most common measure of the defendant’s financial condition, it is not the only financial measure for determining whether punitive damages are excessive. Solange E. Ritchie
business practices into a contingency fee 44 Putting practice Learn how to read your firm’s balance sheet and income statement, and how to use them to plan for profitability. Michael Blum
every trial lawyer should know about medical 48 What imaging, electric and diagnostic testing A primer on common medical tests and the evidence of injury and disease they can offer. Arlan A. Cohen
68 You don’t say? Hearsay?
One of the most common objections, and one of the trickiest. The key word to remember is “trust-worthiness.” Thomas M. Dempsey
78 Challenging evidence: 402 hearings and beyond
Know where the bodies are buried and what you need to do to protect your client’s evidence. Christa Ramey
Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294 e-mail: firstname.lastname@example.org Rate card available online at www.theadvocatemagazine.com
Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: email@example.com. Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu: firstname.lastname@example.org
1 1 1
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:33 PM Page 7
Ensure that your evidentiary house won’t fall at trial Build your evidence foundations early to keep your case intact. Ibiere N. Seck
Finding liability, and insurance, in trucking cases
Don’t let truckers run you over; there are a lot more potential defendants than you think. Anoush Lancaster
Don’t let defendants Sargon your experts
Defense attorneys can be expected to argue that the Sargon case imposes new legal requirements for the admissibility of expert testimony. Don’t let them get away with it! Eustace de Saint Phalle and Andy Clay
Going to the accident scene: the map is not the territory
Give mediators or jurors the picture they need to see the case as you do. Miles B. Cooper
Appellate reports and cases in brief Recent cases of interest to members of the plaintiffs’ bar.
Jeffrey Isaac Ehrlich
Orange County Trial Lawyers Association
D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS CAALA R ESOURCE C ENTER Quick tip resources @ the “Library of Advocate Articles” New CAALA attorney members and new affiliate vendors: See what CAALA can do for you.
Looking back...and forward Reviewing the past to move to the future
G OVERNMENT R EL ATIONS B ULLETIN Updates from Sacramento and Washington.
CAALA C ONNECTION C ENTER TEAM CAALA connects with the community.
E XECUTIVE D IRECTOR
Consumer Attorneys Association of Los Angeles
CAALA VEGAS: UNIQUE The CAALA VEGAS convention truly is unique in the legal world. Here's why.
CAALA members work on fundraising and local service projects.
On the cover: Main Image: Traffic Jam in Los Angeles | iStockphoto | www.thinkstockphotos.com Inset Image: Man and Woman Sift through Shredded Document | iStockphoto | www.thinkstockphotos.com Top Image: Arm of Lady Justice with Scales | jgroup | www.iStockphoto.com
The Advocate Magazine — 7
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 8
Proving the trucking negligence case How to lay a strong foundation in a trucking case, including acquisition of crucial evidence and wielding it as a weapon In today’s trucking industry, even the mom and pop trucking companies have the benefit of savvy insurers (and their lawyers) who are experts in keeping key evidence under wraps unless forced to disclose. There are standard evidentiary targets that plaintiffs’ lawyers must pursue immediately to gain even footing with the industry defendants. The purpose of this article is to highlight the nature of this critical evidence, discuss effective methods of obtaining the evidence, and how to maximize the utility of this information in your case in chief.
A broad spectrum of electronic information
Contrary to the image that trucking is an unsophisticated profession, today’s trucking companies and fleets are often large, high-tech, and sophisticated companies that compile and store a wealth of electronic information and data. Even the smaller operations are utilizing cuttingedge trucking technology which can be critical to the plaintiff lawyer trying to prove-up his or her case. This universe of electronic data is vast and can include any of the following: • Electronic Control Modules (ECM) from engines, braking systems, and airbag systems. Such systems are essentially small computers integrated in the vehicle component and can record information such as speed and braking. • Event Data Recorders (EDRs, otherwise known as the BlackBox). In heavy trucks, the EDRs are usually a component of the ECM. In a triggered event, data may be recovered regarding belt use, steering, braking, occupant position, speed, throttle percentage, brake application, ABS activation, tire pressure, cruise control, crash pulse, change in velocity, and airbag activation data. • Video footage recorded by DriveCam, Smart Drive, DashCam and other video companies. • Satellite positioning systems including GPS, electronic crash reports and e-mail
8 — The Advocate Magazine
systems and other forms of tracking systems. Other electronic information can include fuel receipts, driver logs, Qualcomm satellite communication systems and cellular phone/radio records. All of this evidence is vital to proving your client’s case and it must be requested and obtained at the onset to ensure that it is not “lost” “destroyed” or “otherwise misplaced” as defendants all too often like to claim. Many commercial trucking companies utilize dash-mounted cameras which record the driver and traffic in front of the truck. Depending on the service that the trucking company subscribes to, this video may be uploaded to a cloud-based server maintained by the DriveCam company. In certain situations, this video may be available by third-party subpoena when the trucking company claims no video exists. For example, Los Angeles County MTA uses “Smart Drive” camera systems on all newer buses, which data can be obtained from Smart Drive directly. Many camera systems also record audio files which frequently are not produced. In a recent case, the trucker was caught screaming “Ay Dios Mio!” (Oh my God!) as he suddenly realized his inattentiveness was about to cause the death of a pedestrian proved helpful in reaching a favorable settlement. With respect to navigation devices, truckers utilize a number of different GPS systems which store key information regarding the global positioning and route
M of the vehicle. This information can be critical to determining area of impact, position of rest, and trip information for liability purposes. Once you have confirmed the existence of an ECM, EDR, and GPS, it is important that you retain a qualified engineer to properly download the data. It is recommended that a stipulation be reached with the defendants regarding the protocol of the download. Also, do not forget the value of the critical evidence obtained in your own client’s ECM in their passenger vehicle which often illuminates critical evidence about speed and braking especially.
The early bird gets the worm
This process of evidence gathering begins with a detailed preservation letter. *(Please contact the authors for a sample). The preservation letter should list out all the items to be preserved, including but not limited to those discussed above. While such a letter is not required under California law (See Williams v. Russ, (2008) 167 Cal.App.4th 1215 and Advocate August 2012 issue, Destruction or withholding of
Trucker Negligence continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 9
Maximizing Results. HIGH SEVEN FIGURES
HIGH EIGHT FIGURES
NEAR 10 FIGURES
2011 referral and joint-venture fees
2011 client awards
results for clients in the last decade
Rewarding relationships. McNicholas & McNicholas has worked with lawyers throughout Los Angeles, California, and the country on a wide variety of cases including: massive personal injury, wrongful death, employment, civil rights, train and trucking accidents, aviation accidents, and sexual abuse. The ﬁrm’s partners have been listed in Super Lawyers for eight consecutive years, recognized by the Daily Journal as Top 100 Lawyers in California, The American Board of Trial Advocates, The American College of Trial Lawyers, and the International Academy of Trial Lawyers. The ﬁrm realizes the importance of referrals and the beneﬁt clients receive when successful lawyers work together to reach a common goal—winning.
Three generations of lawyers, one law firm, a united purpose. Yours.
LOS ANGELES, CA | www.mcnicholaslaw.com | 866-664-3055
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 10
10 â€” The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 11
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 12
Trucker Negligence — continued
evidence by the defense may leave the defendant defenseless, by Rahul Ravipudi and Ryan A. Casey), an early preservation letter conspicuously puts defendants on notice, and will prove highly advantageous should a subsequent motion for issue or terminating sanctions be necessary due to a defendant’s spoliation of evidence. However, no matter how diligently you have timely pursued the evidencegathering stage of your case, there is no question the defendant already has a headstart on you. It is not unusual for commercial carriers to receive notice of a motor vehicle accident by one of their insureds and immediately send out an investigation team. Likewise, many trucking companies have a risk management team who immediately report to the scene of the collision to document physical evi-
dence and interview potential witnesses. This evidence is critical to obtain and recent case law has strengthened your right to seek it. (See Coito v. Superior Court (2012) 54 Cal.4th 480, which held that witness statements were only entitled to qualified work product protection and rejected the dicta in Nacht & Lewis, (1996) 47 Cal.App.4th that, “recorded statements taken by defendants’ counsel would be protected by the absolute work product privilege because they would reveal counsel’s impressions, conclusions, opinions, or legal research or theories.”) Consequently, in addition to sending out a detailed preservation letter, at the earliest possible date you should be propounding discovery to obtain this evidence. Your discovery plan should be comprehensive and it is recommended to pro-
L E M O N L AW We represent consumers of defective vehicles under the California Lemon Law. We have successfully completed over a thousand cases against Ford, GM, Chrysler and others. Most cases handled on a contingency.
Trial lawyers need a mediator who was one.
Multiple Repairs Odometer Rollbacks Salvaged Title Dealership Fraud Prior Daily Rentals Automobiles, Trucks, Motorcycles, Boats, Motor Homes, RVs
Jack Daniels Past President of LA ABOTA Past President of Cal ABOTA ADR Super Lawyer Federal Mediation Panel Available exclusively through
Judicate West Referral Fees Paid Pursuant to State Bar Rules
661.222.9929 818.904.6800 12 — The Advocate Magazine
pound request for production of documents at the earliest possible stage, in order to further ensure that you are preserving critical evidence. These requests should seek all the pertinent electronic forms of data discussed above, as well as all the documents created during that initial investigation including witness statements, reports, and photographs they have of the scene and of the two vehicles involved. Typically the insurance carrier will have detailed vehicle damage information, including repairs, which become critical for the accident reconstruction. You are entitled to this evidence, including witness statements pursuant to Coito, so don’t be afraid to fight for it. *(For a sample Requests for Production of Documents on these trucking issues please contact the authors.) At the outset, you should ask for the driver’s full “Driver Qualification File” and personnel file including any disciplinary action. If the trucking company has not formally admitted course and scope, you are entitled to this discovery. In a recent trial against J.B. Hunt, we determined through this discovery that prior to the incident the defendant driver had been fired twice by J.B. for being an unfit driver. When J.B. Hunt re-hired him a third time, he was on the job less than three months before he ran a red light and broadsided our client, causing a brain injury, and then fled the scene. The information contained in his personnel file became the basis of a punitive-damage claim at trial. If defense counsel claims privilege, ensure that they provide you with a detailed privilege log explaining the substance of all documents withheld on the basis of privilege including the author, recipient, date created, and number of pages. As discussed above, the law is generally that physical evidence or witness statements are not considered protected attorney work product especially if there is no other means available to obtain this information. (See Coitio, 499-500.) In addition to seeking the above documents, data, and other evidence, you should also serve written discovery directed at obtaining the trucking company’s internal policies and procedures regarding training, hiring, safety, and vehicle operation. As set forth in more detail below, the
Trucker Negligence continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 13
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 14
Trucker Negligence — continued
information contained in these documents, or in many cases the absence of the documents, will provide the framework for establishing the negligent actions of the defendant driver.
These materials vary from case to case, but as a general outline you should request the following: Materials related to driver qualification file, standards for hiring, driver training
WINER & McKENNA, LLP take pleasure in announcing that
Kelli D. Burritt, Esq., of the Woodland Hills Office has been given partnership status in the firm. Effective June 1, 2013 the firm name will be
WINER, McKENNA & BURRITT, LLP The firm will continue to specialize in plaintiff’s civil litigation practice, including workplace harassment and discrimination law, serious personal injury, elder abuse, psychotherapist sexual abuse, and child sexual abuse.
Southern SouthernCalifornia California
1999 Harrison Street, Ste. 600, Oakland, CA 94612
21900 Burbank Blvd., 3rd Fl., Woodland Hills, CA 91367
580 California Street, 16th Fl., San Francisco, CA 94104
1800 Century Park East, Ste. 600, Los Angeles, CA 90067
310.229.5771 500 Birch Street, Ste. 3000, Newport Beach, CA 92660
www.wmlawyers.com 14 — The Advocate Magazine
documents, testing conducted prior to hiring of drivers, continuing driver educational materials including videos, manuals, handouts, recurrent driver testing materials, safety meeting minutes and schedules, log book auditing procedures, drug testing programs and results, identities and descriptions for members of the various departments at the trucking company. *(Please contact the authors for a discovery sample.) Should defendant object or improperly attempt to limit your access to any of the above materials, then don’t be afraid to pursue law and motion to force the defendant’s compliance. In fact, if your case is venued in Los Angeles Superior Court, the new local rules require that you request an informal discovery conference prior to filing motions to compel further responses. Take advantage of this procedure as a way to inform the court of the importance for the documents you are requesting and frame the issues in your favor.
Using the evidence
Now that you have obtained all of this important documentary evidence, it is imperative that you maximize the effectiveness of it, but how do you do this? First and foremost, it is imperative that you take the time required to study all of the documents produced in detail and compare and contrast the various sources of data for inconsistencies. In trucking cases there will often be multiple documentary sources you can look to in order to obtain a certain piece of information. These records can shed light on certain violations including maximum consecutive hours, speeding violations, and even can establish trucker fatigue. The rules you need to follow in order to establish these violations are contained in the Federal Motor Carrier Safety Regulations (FMCSR) §§ 395.3 and 395.5. (See http://www.fmcsa.dot.gov/rules-egulations/ administration/fmcsr/fmcsrguidedetails.aspx? menukey=395 for the complete text of these rules.) One of the violations you can prove by applying these rules to the information you obtain in discovery, is to show that a defendant driver is in violation of the maximum consecutive hours rule. For property carrying vehicles, this rule is set forth in FMCSR
Trucker Negligence continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 15
The Advocate Magazine â€” 15
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 16
Trucker Negligence — continued
§ 395.3(b)(1) and (2), and in §395.5(b)(1) and (2) for passenger carrying vehicles. These regulations state that a driver shall not be permitted to operate a vehicle if he has been on duty a total of 60 hours in any
16 — The Advocate Magazine
period of seven consecutive days if the employer does not operate commercial motor vehicles every day of the week; or having been on duty 70 hours in any period of eight consecutive days if the employer
does operate commercial motor vehicles every day of the week. To prove these violations, you need to obtain a driver’s logs, his time sheets, fuel records, bills of lading, and other documents discussed above and then compare and contrast the hours he is working to ensure compliance, or a lack thereof, with these regulations. It is important to note that this rule pertains to a driver’s total number of hours on duty, regardless if that time is being spent driving, filling up with gas on duty, or on duty waiting on a load to be delivered. Keep this in mind as in many situations a driver may not be driving for the maximum number of hours permitted but his total on-duty time exceeds the maximum. In conjunction with maximum hour rules is the issue of driver fatigue. There are multiple articles and studies that demonstrate that fatigued driving is as dangerous as drunk driving and yet it is an issue which regularly arises in trucking collision cases. Violation of the maximum hour rule is one way to establish driver fatigue, but additional sections contained in FMCSR 395.3 and 395.5 can also be used to establish driver fatigue. First, FMCSR §395.3(a) and §395.5(a), govern driving time and rest breaks that a driver must take. §395.3 (a)(1) and §395.5 (a)(1) prohibit a driver from starting a driving shift without first taking 10 consecutive hours off duty. Secondly, §395.3 (a)(2) and §395.5 (a)(3), state a driver may drive only for a period of 14 hours after coming on duty following 10 consecutive hours off, and after the end of this 14 hour period he must not drive again until he has taken 10 consecutive hours off duty. Lastly, §395.3 (a)(3) and §395.5 (a)(3), state that the driver may only drive 11 hours during the 14 hour period of being on duty, and may not drive more than eight hours without at least an off duty or sleeper berth period of 30 minutes. Commercial drivers must comply with these rules, and recent modifications to them are set to take effect on June 30, 2013. You should consult them religiously when analyzing the evidence you obtain in discovery such as Driver Daily Logs, Bills of Lading, GPS data and other electronic
Trucker Negligence continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 17
The Advocate Magazine â€” 17
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:34 PM Page 18
Trucker Negligence — continued
data. The evidence can routinely be used in connection with the regulation to establish that a driver is in violation of these basic safety rules in place to prevent driver fatigue. Often the evidence on its face will show that a driver is violating the regulations, however, in cases where companies are doctoring their driver’s service hours, which unfortunately for the motoring public occurs far too often, then comparing and contrasting the data in these various documents can help prove these inconsistencies and catch the defendant redhanded. For example, assume a driver’s logs show that the driver is properly complying with all driving regulations. If you have only this data the story stops there. However, in this case you also have fuel receipts, bills of lading, and meal reimbursement receipts showing that while the driver was reporting in his logs that he was “sleeping” in Fontana, he was actually filling up in Fresno after dropping off a load and was therefore violating this important hour of operation rule in place to ensure the safety of the motoring public. This example should also make it clear how GPS data that can plot the realtime locations of trucks during operation can also be vital to obtain. In a recent case, a truck driver crossed over the center line, striking our clients head-on. The defense was a sudden tire failure. The log records were used to establish that the driver made several unexpected stops throughout his route on the date of the subject incident. Turns out these were naps the driver was taking because of his fatigue. This testimony combined with the expert testimony of a sleep expert established that the defendant driver was fatigued at the wheel. A third way you can use this evidence to establish violations of safety rules is to calculate the driver’s speed while operating his vehicle and to establish whether or not he was running on time or late. The benefit of obtaining bills of lading and driver logs is that these documents give you a time of departure from the point where a driver’s trip began before the injury-causing incident. Taking this time and the total distance traveled before the collision, you can calculate an average speed of the driver on the trip. Often this
18 — The Advocate Magazine
will show that the driver during the trip was averaging above the maximum 55 mph speed limit for tractor trailers as set forth in California Vehicle Code section 22406(a). With testimonial evidence from the driver, you should obtain the time the driver left his last stop prior to the incident, and also the time he was required to arrive at his intended destination. When you have this information, along with the area of impact and time of impact, you can use driver logs and bills of lading to determine if he had to have been speeding. A simple time/distance calculation can show that the driver was running late and had to travel in excess of the speed limit to reach his destination. Lastly, in situations where you have electronic data from the ECM module or black box, this can also be used to show the average speed of the truck, and provide additional information such as the speed just before impact, the maximum speed the driver was traveling on the trip and whether he ever applied the brakes. As can be seen from above, it is clear that this evidence can be used in a number of ways to prove important safety violations including the speed limit, and the basic speed law, maximum hours and evidence of driver fatigue. However, the utility of this evidence goes even further.
Deposing the PMKs
The law is well established that the violation of internal safety rules is evidence of negligence. (See Dillenbeck v. City of Los Angeles, (1968) 69 Cal.2d 472, 481.) “[T]he jury is entitled to conclude that the mere fact of violation of a safety rule promulgated by the employer is evidence that the employee conducted himself carelessly.” (Ibid.) Therefore, the next step is to pore over the trucking company documents regarding internal policies and procedures for training, hiring, safety, and vehicle operation so that you can use these documents to force the defendant’s own employees into becoming your most powerful witnesses. This is accomplished by noticing up a string of person most knowledgeable (PMK) depositions on the subjects and issues most important in your particular case. Consequently, what you are trying to prove will govern who your need to depose.
Are you trying to prove that the company negligently hired and retained the driver? Then you are going to want to notice up a deposition of the PMK deposition on the subjects of: • The driver qualification file, the company standards for hiring employees, background checks, drug testing, moving violations, certification, training, qualifying drivers, etc. Are you trying to prove that the driver was simply negligent in the operation of his vehicle? Then you are going to want to notice up a deposition of the PMK deposition on the subjects of: • The Federal Motor Carrier Safety Regulations, company safety rules, safe operation of the vehicle, safety standards for truck driving. Is this a case of a negligently maintained vehicle that contributed to a collision? Then you are going to want to notice up a deposition of the PMK deposition on the subjects of: • Vehicle maintenance procedures, scheduling of vehicle maintenance, pre-trip inspections, post trip inspections, mandatory inspections and repair, etc. Regardless of the specific issue in your case, prior to deposing these witnesses you need to make certain of a few things, 1) that you have been provided with the person who is in fact the most knowledgeable on the subject matter you are seeking and there is not another person with more knowledge; and 2) that you know what it is that you want to achieve. What concessions do you need from him/her and what do you need to establish in your particular case? Obviously this will vary from case to case, but for the purposes of this article, I will briefly outline a strategy for deposing a PMK on safety. When taking this deposition you are being provided with access to the person charged by the defendant with ensuring that company drivers operate their vehicles safely, in accordance with the law, and in accordance with the company’s established policies and procedures. He or she should be able to correctly identify the rules and regulations his drivers must follow, including the FMCSR. If this individual cannot identify the mandatory Federal Regulations, then it is no wonder that the defendant driver didn’t follow them.
Trucker Negligence continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 19
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:35 PM Page 20
Trucker Negligence — continued
If the witness knows the rules, then it is your job to get him to confirm the existence of, and the reasoning behind, the rules you know the defendant driver violated. Get the witness to confirm that the purpose of these rules is safety, and obtain
concessions that the drivers must follow them. Try and then get the witness to admit that the defendant driver violated the rules in your case. If the PMK won’t go that far, get them to admit the type of conduct that would constitute a violation of
Help your client get the medical care they need. Diagnostic Radiology on Lien Spinal Injections on Lien
Full service, multimodality diagnostic imaging center, combining advanced imaging technology, such as CT and MRI, with sub-specialized Radiologists in neuroradiology, musculoskeletal, body imaging and oncoradiology.
We specialize in image-guided, minimally invasive interventional procedures for the treatment and management of both acute and chronic pain.
Translation assistance is available in Spanish, Farsi, French and Korean.
www.landmarkimaging.com (310) 914-7336
11620 Wilshire Blvd., Suite 100, Los Angeles, CA 90025
20 — The Advocate Magazine
the safety rule. Try to empower this witness and get a concession that no job is more important than safety, and that safety is everyone’s responsibility. All of these concessions are incredibly effective at helping you establish the importance of the regulations and policies you will be arguing constitute the standard of care that the defendant breached.
The trucking insurance industry spends millions each year in collision response and early investigation. As plaintiffs’ lawyers, we must act aggressively to even the playing field and obtain the critical evidence trucking companies routinely “lose” or simply refuse to disclose. Handling a trucking case properly is not checkers; it’s chess. It requires anticipating the correct issues at the beginning of the case, setting out a discovery plan to obtain the necessary pieces for your particular case and then deploying them strategically and methodically to obtain an advantage over your opponent. Following the steps discussed above will help to establish a solid foundation for your case.
Ryan Casey is an associate at Panish Shea & Boyle, LLP in Los Angeles. He specializes in complex catastrophic personal injury, product liability, and wrongful death cases and in 2013 he was selected to the Super Lawyers Southern California Rising Stars List. He earned his undergraduate degree from UCLA and his law degree from Loyola Law School Los Angeles, where he participated in National Trial Competitions and was awarded the Karl Seuthe Trial Advocacy Award. He remains an active participant in the Loyola Trial Advocacy Program. Spencer Lucas is a trial lawyer at Panish Shea & Boyle and specializes in litigating catastrophic personal injury, products liability and wrongful death cases. In 2013, Spencer was listed by the Recorder as one of the top 50 lawyers in California under age 40 “On the Fast Track.” In 2011, he was nominated by CAOC as a finalist for Consumer Attorney of the Year. www.psblaw.com.
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 21
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 22
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 23
Our Verdicts & Settlements Mid Seven Figures (arm amputation)
Low Seven Figures (back surger y)
Mid Seven Figures (traumatic brain injur y)
Low Seven Figures (traumatic brain injur y)
Mid Seven Figures (traumatic brain injur y)
Low Seven Figures (neck surger y)
Low Seven Figures (neck surger y)
Low Seven Figures (arm fracture)
Low Seven Figures (neck surger y)
Low Seven Figures (arm fracture)
Low Seven Figures (neck & back surger y)
Low Seven Figures (neck & back surger y)
Low Seven Figures (leg fracture & punctured lung)
Low Seven Figures (neck fracture)
Low Seven Figures (leg fracture)
Over Seven Figures paid in Association Fees in 2012 Personal Injur y
M a s s To r t s
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 24
WIN S EMBEDDED IN TEXT BOX WITH W **** ID: <head> The vanilla tire: Hidden d cts that kill <deck> The devil is in the details By Raymond Paul Johnson
Raymond Paul Johnson
PPED TEXT*** x white space*******
0S 0 1 p o T
You can hear the de nse now: “It’s a plain vanilla tire. Why blame it or causing this tragic accident?” Then, the will point to the usual suspects: “Look at what the other driver did!” Or: “Look at how plaint ove.” Most times you’ll also hear: “Look at how the tire was misused (or abused).” And lly: “We exceeded eve one o he government standards.” >What is a tire? ire is not a black glob o ber. And – all tires are not created equal. It’s more complicated than that. Yet, of course, as American consumers we all e them, we all use them, and we all know what to expec om them. But – you intend to prosecute a tire de ct case, you need to know more. That “plain vanilla tire” at the center o our case is made up of components, and the devil is in the details. The hidden de cts within a tire emanate om what particular components were used, how they were made, and how they were put together. When we look at a steel-belted radial tire we see the tread, and the tread design, and o ourse the sidewalls. See Figure 1. The sidewalls end in beads which are the portions o tire that contact the metal wheel.
The vanilla tire: Hidden defects that kill The devil is in the details You can hear the defense now: “It’s a plain vanilla tire. Why blame it for causing this tragic accident?” Then, they will point to the usual suspects: “Look at what the other driver did!” Or: “Look at how plaintiff drove.” Most times you’ll also hear: “Look at how the tire was misused (or abused).” And finally: “We exceeded every one of the government standards.”
What is a tire?
A tire is not a black glob of rubber. And – all tires are not created equal. It’s more complicated than that. Yet, of course, as American consumers we all have them, we all use them, and we all know what to expect from them. But – if you intend to prosecute a tire defect case, you need to know more. That “plain vanilla tire” at the center of your case is made up of components, and the devil is in the details. The hidden defects within a tire emanate from what particular components were used, how they were made, and how they were put together. When we look at a steel-belted radial tire we see the tread, and the tread design, and of course the sidewalls. See Figure 1. The sidewalls end in beads which are the portions of the tire that contact the metal wheel. 24 — The Advocate Magazine
Now let’s look deeper. Beneath Figure 1 the tread (with that nice fancy tread Now let’s look design) beats the CLIE deeper. Beneath heart of the tire: the tread (with the steel belts. that nice ncy There are usually tread design) two (an inner and beats the heart o outer) running the tire: the steel below the tread belts. There are and above the radiusually o (an al body plies, as inne r and outer) shown in Figure 1. running below Under the body the tread and plies lurks the lung above the radial of the tire: the bo plies, as inner liner, comshown in Figure monly thought of 1. Under the as the “inside” of bo plies lurks Figure 1 the tire. It funcnlyy thought of as the “inside” of the tire. It ffunc unctions like a lung because the lung o he tire: the inner liner, commonl tions like a lung the rnature of tires, eping into the est of the tire. holds in ation air and prevents that pressurized air omToseunderstand because air though, need Back toit tholds he heainflation rt – the ste el and belts.preEach o hose bristeel c, in and turn composed of ne steel belts isyou mad e o to realize el wire that from seeping likecaoil and Steel cavents bles that rmedpressurized by v neair stee l wires isted togethrubber dedhas in rvirtuber material (called er. Theare steel bles arewater. em ed theckrest ally no tendency to adhere to rubber sur“skinto im sto ”) toof the rm ttire. he belts. the it must ToBack undeto rstthe and heart the na–tur e osteel iresbelts. , though, youfaces and rub ber abond re like oil and water. Steel need(i.e. to rthe ealizskim e thastock) t steelwhich Each of those belts is made of steel wire to while the tire is being made. Fortunately, has virtually no tendency to adhere to r ber sur ces (i.e. the skim stock) which it must bond to while the tire is in .turn composed steel befabric, ing made Fortu nate , thisofdilfine emm a is so ed if tthis brasteel ss, anisafirst lloy o opper and zinc. If he sdilemma teel is sis t csolved oated iifn the steel brass, docables ne proformed perly, thby e bvery rass-cfine oated steewires l adheres to thecoated rubbein r ski m stoan ck.alloy of copper and zinc. twisted together. The steel cables are If done properly, the brass-coated steel embedded in rubber material (called adheres to the rubber skim stock. “skim stock”) to form the belts. Vanilla Tire continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 25
013 2 A C er —
erLa p u S 0
We fight to uphold our legal profession
We litigate legal malpractice. Makarem & Associates C L I E N T - AT T O R N E Y F E E D I S P U T E S
EXPERT WITNESS SERVICES
AT T O R N E Y F I D U C I A R Y D U T I E S
TOP LEGAL MALPRACTICE LITIGATORS California State Bar Certified - Legal Malpractice Specialist Daily Journal “Top 20 Under 40” Attorney in CA (2007) SuperLawyer (2010, 2011, 2012) We cooperate with referral fees and co-counsel relationships under Rule 2-200 of the CA Rule of Professional Conduct.
310.312.0299 www.makaremlaw.com 11601 Wilshire Blvd., Suite 2440 Los Angeles, CA 90025-1760
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 26
Vanilla Tire — continued
An inherent problem, however, is that when the steel belt fabric is cut to form the individual steel belts, the cut ends of the cable (which become the edges of the belts) will not be coated with brass. In addition, the belt edges are the areas where stiff (i.e. steel) meets flexible (i.e. rubber). This creates a stress concentration that requires proper countermeasures (such as wedges; see infra). For these reasons and others, tires that come apart (or separate) tend to do so at the belt edges on the shoulders of the tires. As shown in Figure 1, well-made tires therefore have other components: Belt wedges and/or a nylon safety cap. The belt wedges (aka “insulation strips” or “gum strips”) are small pieces of rubber placed between the outer and inner steel
26 — The Advocate Magazine
belts at the belt edges to cushion the steel belts from working against each other, reduce heat and dissipate stress on the belt edges, in order to preclude separation. Wedges were first developed by Michelin in the 1950s and are almost universally used today. Most defective conditions involve the size and placement of the wedges. The nylon cap, patented by Uniroyal of France in 1971, is an extra ply or two of nylon placed on top of the outer steel belt, and acts as a tourniquet to reduce any movement of the belts at the shoulder edges and dissipate stress in order to prevent belt-edge separation. Your tire finally becomes a unit when all of its components or layers are bonded together (mechanically and chemical-
ly) through exposure to high temperatures and pressure that cures or “vulcanizes” the tire.
Why do tires come apart?
A guiding principle of passenger tire design, established by a pioneer in the development of radial tires, Pirelli Tire Company, is that the outer tread design should wear down (i.e. below 2/32nds of an inch) before any of the tire’s internal components come apart or separate. Almost all tire manufacturers agree with this general principle. Why then does the opposite happen? Why do tires with adequate tread depth catastrophically fail? Therein lies the battleground.
Vanilla Tire continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:06 PM Page 27
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 28
Vanilla Tire — continued
Factory errors Let’s start with an earth-shattering premise: Things separate due to a lack of adhesion. With that – let’s turn to the heart of the matter, those two steel belts.
Remember the brass coating needed for adhesion of steel to rubber? Well, brass easily becomes surface oxidized when exposed to moist air. So if the temperature and humidity control of the factory
The Experts & Research Tools You Need to Succeed — All in One Place Precise Expert referrals in virtually all fields, with ongoing personal assistance
24-hour turnaround for most referrals
Research reports on Experts, revealing challenged testimony and disciplinary sanctions Free Expert-led Webinars on case-relevant topics
More than 5 decades of unparalleled experience
NO CHARGE unless you designate or engage an expert
Make TASA part of your case strategy today. Technical Advisory Service for Attorneys
800-523-2319 email@example.com TASAnet.com
is not adequate, especially in the creel (wire supply) room, or in the calendaring room (where steel cord is embedded in the steel belts’ skim stock) moisture and resulting corrosion will lead to separations that get worse and worse as the tire is used, until failure occurs (i.e. the tire comes apart). This can be evidenced by brassy wire internal to the failed tire which would have been darkened during vulcanization but for the moisture/corrosion. The adhesion of rubber to brassed steel wire is also dependent on the characteristics of the brass plating (e.g. less adhesion can result if the plating is too copper-rich), composition of the rubber compound, curing procedures and fabrication conditions. (See e.g, Wagner M.P.: Compounding for Wire Adhesion, Society of Automotive Engineers Paper 730498, May 1973.) For example, contaminants that destroy adhesion can include factory lubricants, polyethlene pieces (used to separate rubber components during shipping), and other foreign material in the skim stock. Some of these contaminants may be revealed during microscopic analysis of a failed tire. Let’s return a moment to the lung or inner liner of the tire. That too can fall victim to factory errors that lead to internal tire failures. For example, failed tires have been found with open inner liner splices. These open splices can result in intracarcass pressurization and separations within the tire, and are caused by contamination or misassembly at the factory, in particular either bad molding or bad compounding. Other factory errors can result in internal tread separations. The two ends of each of the steel belts must be brought together to form two continuous hooplike structures around the tire carcass. If done properly, the two ends of each belt must abut; they cannot overlap, have a significant gap or be offset axially. In this way, the belts are safely “spliced” together If the belt end splices are overlapped, misaligned or gapped, the stresses in the tread/belt structure can dangerously increase and lead to tire failure.
Vanilla Tire continues 28 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 29
BAILEY & PARTNERS
Trust your referral to the team with proven results Celestial Airways Ltd v. Associated Air Center LP Business aviation case involving a failed interior completion of a Boeing 757. 8-figure arbitration award.
Recent Verdicts and Settlements
Randall Otto v. North American Airlines Whistleblower/ Wrongful termination of an airline captain. 8-figure jury verdict.
Orient Global Aviation v. Gore Design Completions Business aviation case involving the failed completion of and damage to a Boeing 737. 7-figure negligence verdict.
Bathtub Scald Injury Victim received severe burns from scalding water in a bathtub. 8-figure award.
Carbon Monoxide Personal Injury
Defendant Landlord denied liability, then paid 7-figure confidential settlement just prior to trial.
From accidents involving small, single passenger airplanes to those involving large commercial jets, the law firm of BAILEY & PARTNERS is uniquely equipped to address all aviation cases. Also thirty years of experience in non-aviation, catastrophic- and traumatic-brain-injury cases. We know how to get the results your client needs.
OFFICES LOCATED NEXT TO THE TARMAC IN SANTA MONICA
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 30
Vanilla Tire — continued
Another known problem is “serpentine” (i.e. snaked) belts which have a variable edge relationship within the tire and lead to increased stressors and failure. Design defects Factory errors lead to manufacturing defects in the tire. Design defects, however, can also result in the catastrophic failure of a tire. Let’s return to the inner liner (Figure 1). The idea of this component is to keep the pressurized inflation air (i.e. the air we use to fill tires) between the wheel and the tire, and not allow it to diffuse into the tire body where the oxygen and moisture will degrade the tire and lead to internal separations. Some rules of thumb apply. First, when it comes to inner liners, generally thicker is better. The inner liner
30 — The Advocate Magazine
must be adequately thick to do its job. Secondly, halobutyle rubbers and antioxidant compounds are known to effectively reduce the diffusion of oxygen and moisture. So for adequacy, the use of halobutyle inner liners of proper thickness and the adequate use of antioxidants are a must. If specifications call for less, the tire design is likely defective and can lead to internal failures. Halobutyle rubbers and antioxidant chemicals are relatively expensive. Some tire manufacturers have been known to put profit before safety, and limit or dilute one or the other in the manufacture of their tires. Returning to the steel belts, the proper use of antioxidants is also critical in making the skim stock for the steel belts in order to prevent premature aging
and breakdowns in those components. In addition, we already mentioned the need for adequate wedges along the edges of the steel belts to prevent failure. If a tire specification calls for inadequate wedging, the tire is defective by design. Likewise, the absence of a nylon cap can be a design defect, especially if your particular family of tires does not have adequate wedging (for example, wedges that are too small or too thin) and good adhesion, were not built in clean factories through good manufacturing processes, or exhibit high failure rates.
What do manufacturers generally say about all this?
The manufacturer of course may disagree about what constitutes a defect.
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:36 PM Page 31
But, in general, most will agree to one extent or another with the principles discussed above. In litigation, the tire manufacturer’s main defense usually rests on the following argument: “My tire was well-made in accordance with a good, reasonable design. It came apart for other reasons.” First, on the hit list of those reasons is generally abuse and/or misuse of the tire. Running underinflated, for example, is a favorite defense, especially where the manufacturer can trace it back to a puncture that has been improperly repaired. According to manufacturers, this can occur when an external plug without an internal patch is used to make a repair (allowing pressurized inflation air to seep into the tire). The manufacturer will almost always argue that using the tire with low inflation levels and/or during overload conditions or after impact damage has occurred caused the separations. According to these defenses, such conditions can build up enough internal heat in the tire to cause separations in a properly made tire. Negating these defenses can be essential in a given case depending on the evidence. At a minimum, these defenses give rise to proverbial expert battles at depositions and trial. Those battles usually include: (1) Whether “pressure grooves” around the bead area are reliable evidence of extensive underinflated or overloaded use (defense: yes; plaintiff : no); (2) Whether “product lines” (aka “flow lines” or “knit lines”) evidence bad adhesion within the tire (defense: no; plaintiff: yes); and (3) Whether “pattern marks” (e.g. forensic diamond-shaped markings inside the tire) evidence improper adhesion between layers of rubber (plaintiff: yes; defense: no). A detailed discussion of these issues however is beyond the scope of this paper. Suffice it to say: It was because of issues like these that God invented “experts.”
Is extensive discovery needed?
Yes – because your experts need documentary evidence about your particular tire. Rule One: If you are prosecuting a
tire defect case, don’t stop requesting and compelling discovery until you have all the tire “adjustment claims” data for your tire and similar tires (i.e. the family of your tire). Better yet, don’t stop until you have all the “trend analyses” related to the adjustment data. Adjustment data (i.e. similar to warranty claims data) provide the failure history for your tire. Trend analyses are studies done in-house by the manufacturer based on “adjustments” made because of various tire failure modes (e.g. belt separations, sidewall failure, etc.). Manufacturers study this information and develop trend analyses in order to compare a particular tire to others within its family, and also to compare a family of tires to other families of tires (both their own and those of competitors). You want this information. It will tell you how and how often tires similar to yours have failed in the field, and why. Bottom line: Be sure to get the adjustment claims forms (that are usually submitted to the manufacturer by retailers), the adjustment summary data, and any and all adjustment trend reports. In addition, you should always request and compel (if necessary) the design and manufacturing specifications for the tire, and identification of the skim stock, wire specifications, and factory processes, including information on the specific tire building machines used, the temperature and humidity records for the creel and calendaring rooms, the training provided to the tire builders and the specific quality control procedures and documentation related to your type of tire. Also secure the meeting minutes and reports of any technical investigation committee meeting related to your tire type, all technical bulletins and service bulletins (related to your family of tires) distributed by the manufacturer to retailers, and the design history of your tire, including design alternatives considered prior to its manufacture, and any design changes adopted following the making of your particular tire. Also get any and all federal government investigations or inquires (and the manufacturer’s
responses to such inquiries) related to your tire type, and any and all customer and retailer complaints. With that, you and your experts should be ready for battle.
Tread separation can be catastrophic, and cause vehicles to go out-of-control without warning. The author has prosecuted cases where all occupants of a single vehicle were killed or permanently injured as a result of a tire failure. In fact, the “plain vanilla tire” in one case caused the worst single sports-utilityvehicle crash in California history in which six individuals lost their lives in one rollover. The tire no doubt is a critical component in any vehicle. Hidden defects can snuff out human life or maim people forever. With a knowledge of what a tire is, how it is made, and why it fails, and a lot of perseverance, tire defect cases can be successfully prosecuted – securing justice for those who need it most. Raymond Paul Johnson is a Los Angeles trial attorney, and product safety lawyer who holds a masters degree in engineering. He is a former Air Force fighter pilot who received the Distinguished Flying Cross and Five Air Medals in combat. As a lawyer, he has been prosecuting product liability, aviation and entertainment-industry cases throughout California and the nation since the 1980s. He has authored over 40 published legal articles and has served as a legal consultant to the L.A. Times, USA Today, and other newspapers, and has had televised interviews by CNN, NBC Nightly News and other news programs. He is a long-time member of Consumer Attorneys of California, and a Governor-Emeritus of the Consumer Attorneys Association of Los Angeles. He has also been National Chairman of the Product Liability and Aviation Sections of the American Association for Justice, and is a current member of the Board of Directors of the Attorneys Information Exchange Group and the Western Trial Lawyers Association.
The Advocate Magazine — 31
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:36 PM Page 32
Biomechanics 101 Use biomechanical analyses when disputes exist over the severity of an auto-accident injury Injury biomechanics integrates anatomy with physics to investigate the physical and physiological response of biological tissue to trauma. Biomechanical analyses are helpful in motor-vehicle accident cases when disputes exist over the severity of an injury, whether an injury is related to the accident, whether an occupant was wearing a seat belt, and if/how a product defect contributed to an injury. Typically, an accident-reconstruction expert quantifies the impact severity (delta-V or speed change) and dynamics of the vehicles, medical doctors diagnose the injuries, and a biomechanics expert relies on those two disciplines to assess the relationship between the impact forces and the diagnosed injuries.
Gather your evidence early
All experts need evidence on which to base their opinions. With the passage of time, evidence disappears and memories fade. To preserve evidence, digitally photograph the vehicle damage and the plaintiff and other occupants inside the vehicle in their seated posture at impact. Photograph a tape measure showing the distance from the knees to the dash (for a knee injury case), as well as the head to the head restraint for a neck injury case. If the client was bracing for the impact, take a photo. Shoot photos from many angles and distances.
Evaluate your case
What struck the vehicle and where? • A sideswipe impact by a tractor-trailer or bus that resulted in $5,000 worth of vehicle property damage may have less injury potential than a lateral collision causing $500 of property damage from a small compact car. Sideswipes often cause lots of property damage, but have a low injury potential.
32 — The Advocate Magazine
• A near-side lateral impact (same side as the injured party) usually has a higher injury potential than a far-side lateral impact because there may be intrusion into the passenger occupant space. Occupants typically move toward the point of the impact. What was the distance and direction the vehicle was pushed due to the impact? • A sideswipe impact that didn’t cause the vehicle to leave its lane of travel probably has a low injury potential, as opposed to a rear-end collision that pushes a car through the entire intersection. How many impacts occurred to the vehicle? • A sideswipe could cause the struck vehicle to leave the road and sustain a second high-speed impact with a stationary object or another vehicle. It may be important to determine which impact caused the injuries. Were there other occupants in the car, and where were they seated? • Generally speaking, occupants move toward the point of impact. • A high-speed frontal could cause an unbelted occupant in the rear to impact the seatback in front of them, which would apply additional force to the front seat occupant. • A lateral impact could cause two occupants sitting next to each other to impact one another. Did the airbags deploy? Which ones? • Airbag deployment may mitigate, increase, or make no difference to the injury potential in a collision depending on the impact type, impact severity, vehicle year, age and posture of the plaintiff, airbag type, and number of impacts. What was plaintiff ’s pre-impact posture? • An occupant leaning to his right at the time of a rear-end impact may have a higher risk of neck injury because the head may miss the head restraint,
compared to an occupant in a normally seated posture. Was client bracing for the impact and how did she brace? • A driver who braces for the impact by gripping the steering wheel and straightening the arm(s) may have higher forces applied to the shoulder tissues (rotator cuff) in an impact compared to not bracing. Was the seat belt worn properly, and what type of seat belt was available? • The movement of the occupant and the subsequent injuries can differ depending on whether a lap-only belt or lap/shoulder belt was worn. • The pelvis of a small occupant may submarine under the lap belt resulting in greater occupant movement and/or abdominal injuries. • Because obese occupants have more tissue to compress before the seat belt will restrain them in an impact, they will move further at impact than a thin occupant and possibly impact the vehicle interior. What was the head restraint position relative to the top of the head? • A tall occupant and/or short headrestraint height may provide little protection and allow the head to rotate over the top of the head restraint in a rearend collision. Did any body part strike anything inside the car? • Testimony from the plaintiff regarding impact of their body inside the vehicle may or may not be consistent with the reconstruction of the accident. • Impact of the face with the windshield often indicates that the seat belt was not worn. • Intrusion into the occupant space is often injury-producing.
Biomechanics 101 continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 33
Jack Trimarco Polygraph,
When you need to impress someone with the truth.
Jack Trimarco & Associates 310.247.2637 www.jacktrimarco.com â€˘ firstname.lastname@example.org CA P.I. #20970 9454 Wilshire Blvd., 6th Floor, Beverly Hills, CA 90212
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:36 PM Page 34
Biomechanics 101 — continued
Did the seat back fail or recline rearward due to the impact? • A high speed rear-end collision with a large occupant in the front seat could cause their seat back to fail rearward, which could injure a passenger in the back seat. • Seat-back failure significantly reduces the effectiveness of the lap/shoulder belt, so an occupant whose seat back fails may end up in the rear seat, or rebound forward toward the dash and windshield. After the impact were there visible signs of injury to the plaintiff? Were photos taken? • Hard evidence of injury is invaluable in establishing the injury mechanism. What was the preexisting injury and surgical history to the involved areas of the body? • Prior surgery and/or injury to a tissue may lower its injury potential.
• A prior cervical fusion reduces the ability of the cervical spine to manage the impact energy of a collision, which may put adjacent spinal segments at risk. • Prior concussions lower the threshold for the next concussion. Too much damages’ evidence is lost or ignored due to either procrastination or being unfamiliar with where to look. You don’t have to always immediately hire an expert to acquire this data, particularly with smaller cases. The proof may be just a few clicks away using your smartphone camera to photograph the vehicle, scene and client. Investing this time early in the case will help you avoid both the heartache of lost opportunities and the headache of realizing you’re stuck with bad facts down the road.
• Surveillance • Background Checks • Skip Tracing
• Asset Investigations • Witness Statements • Process Serving
Former police detective with over 20 years of experience in investigations
1-800-573-6921 www.HudsonInvestigations.com Private Investigator Lic# 28209
34 — The Advocate Magazine
John Brault is president of Semper Scientific, which provides forensic biomechanics consulting. His area of expertise is human motion and injury biomechanics. Over the past 18 years, he has provided expert testimony for both plaintiffs and defendants in more than 250 trials. He has a professional license in Kinesiological Electromyography, and his research has been published widely in engineering, safety, and biomechanics journals such as Journal of Forensic Science, Accident Analysis & Prevention, Spine, Traffic Injury Prevention, and the Journal of Biomechanical Engineering. He currently serves as Chairman of the ASTM F13 committee on Pedestrian/Walkway Safety, as well as being an Adjunct Assistant Professor in the Division of Biokinesiology & Physical Therapy at the University of Southern California.
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 35
Membership Includes FREE Online MCLE
The Advocate Magazine â€” 35
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:37 PM Page 36
Solange E. Ritchie
CAALA Board of Governors member
Defendant’s net worth – negative or not Net worth is not the only financial measure for determining if punitive damages are excessive Punitive damage awards are under attack. Defendants use all kinds of strategies to escape responsibility for their conduct. A tool often used to overturn a jury’s award of substantial punitive damages is a defendant’s cry that the size of the award can financially destroy them. Following a jury’s finding and award under Civil Code section 3294 of oppression, malice, or fraud, defendants produce evidence that they have a negative net worth during the punitive-damage phrase of trial. In the alternative, they argue that a punitive-damage award in the amount requested by plaintiff ’s counsel would put them out of business. Although elements of this argument overlap with a federal due-process challenge to a punitive-damage award, much of it is grounded on a claim that the award is “excessive” under state-law principles. This was exactly the defense argument in Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 78-84. The case was a mesothelioma asbestos personal injury case where a jury found Defendant ArvinMeritor, Inc. (ArvinMeritor) liable to plaintiffs Gordon and Emily Bankhead for compensatory and punitive damages. On appeal, ArvinMeritor did not challenge the jury’s verdict as to liability or the amount of compensatory damages, contending only that the trial court erred in declining to reduce the punitive damages awarded by the jury. (The ratio of compensatory to punitive damages awarded by the jury was 2.4 to one). The Court of Appeal for the First Appellate District, Division 4, Ruvolo, P.J., held that: (1) net worth is not the only measure of wealth that may be used to determine excessiveness of punitive damages; (2) $4.5 million punitive damages award was not excessive in comparison to manufacturer’s wealth; and 36 — The Advocate Magazine
(3) $4.5 million punitive damages award was not excessive in violation of federal due process clause. This case is a wonderful primer on punitive damages. It details the analysis that an economic expert should be prepared to discuss regarding a company’s net worth and ability to withstand a large verdict to overcome common usual defense arguments on net worth. The cases cited point to many factors other than net worth that a trial court can consider in determining if a defendant can pay the punitive damage award and if the award may stand. These include a review of loan documents, net worth statements, a review of cash on hand, checking account balances, amounts of credit lines carried by a company, corporate resolutions and corporate salaries and other compensation provided to executives. The case also confirms that a simple percentage argument by defendant, i.e., that the punitive damage award should not stand, as a matter of law, because it exceeds a specified percentage of compensatory damages, is an outdated argument.
Punitive phase trial in Bankhead
A separate trial was held to determine the amount of punitive damages to be assessed against each defendant. By the time of that trial, all defendants except ArvinMeritor and Abex had settled. At the punitive-damages trial, respondents presented an expert witness, Robert Johnson, to testify about ArvinMeritor’s financial condition. In evaluating ArvinMeritor’s economic status, he reviewed publicly available documents filed with the Securities and Exchange Commission, including ArvinMeritor’s 2008, 2009, and 2010 annual 10-K reports; its adjusted 2009 10-K reports; a 2010 proxy statement sent to shareholders; and data regarding its market capitalization. These are “generally accepted financial documents used
and relied upon by economists or experts in finance to evaluate a company.” (Id., 205 Cal.App.4th at p.74.) Johnson testified that between 2006 and 2010, ArvinMeritor attained over $3 billion in sales revenue each year, and an average annual cash-flow profit of $111 million. ArvinMeritor’s lowest performing year during that period was 2009, but even in that year, it had $95 million in cash available to it. In 2010, ArvinMeritor’s annual sales revenues reached $3.59 billion; its annual report indicated it had earned $211 million in cash-flow profit; and it reported to its shareholders that it had earned a $12 million net profit – a conservative figure, as Johnson explained, because companies seek to reduce their reported net income, using legally available deductions such as depreciation, in order to minimize their tax liability. At the end of 2010, ArvinMeritor had on hand some $343 million in cash and cash equivalents, and its outstanding stock had a total market value of almost $2 billion. Johnson explained that cash flow profit is derived by subtracting from revenue those expense items that actually have to be paid, such as cost of goods sold and salaries, but not subtracting any deductions that do not actually require an expenditure of cash, such as depreciation. (Id., 205 Cal.App.4th at p. 75, n. 6.) ArvinMeritor’s chief executive officer, who also served as its board chair and corporate president, earned over $7.6 million in 2010, and stood to receive between $19.9 million and $26.9 million upon leaving the company. Johnson explained that a company’s willingness and ability to pay sums of this magnitude to its chief executive is an indicator of financial strength. Johnson acknowledged that ArvinMeritor reported that as of 2010, it had a negative net worth of $1.023
Net Worth continues
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:37 PM Page 37
The Advocate Magazine â€” 37
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 38
Net Worth — continued
billion. He opined, however, that this number, taken on its own, did not “reflect the full context of ArvinMeritor’s financial condition and ability to pay.” He explained that net worth is only one of “a number of different tools that we use to assess a company’s financial health, wealth and condition,” and opined that “net worth is probably one of the least reliable financial metrics or statistics you can use,” because there are “a number of financial or accounting transactions” in which a company can engage to lower its net worth, while remaining profitable. (Id., 205 Cal.App.4th at p. 75.) Johnson testified that net worth “is not a measure of a company’s financial condition totally or their ability to pay,” because “even within the guidelines of the generally accepted accounting principles ... net worth is something that can be pretty easily manipulated.” As an example, Johnson noted that a company can reduce its net worth simply by repurchasing shares of its stock. (Ibid.) Johnson explained that because net worth can be unreliable, banks look instead to a company’s cash flow and profits, which are the most reliable indicators of its ability to repay debt, in determining whether to lend money to it. For this reason, companies with a negative net worth are still able to borrow money. Indeed, ArvinMeritor itself borrowed a total of $245 million in 2010, and still had $539 million available on its line of credit as of September 30 of that year. (Id., 205 Cal.App.4th at pp. 75-76.) Johnson also acknowledged that over the past couple of years, ArvinMeritor had been “weathering ... the financial travails of the economy”; its sales had not gone up, and it had lost some money. He believed, however, that ArvinMeritor was “still a financially sound company” that was “able to meet all of its obligations,” was “not anywhere near on the verge of bankruptcy,” and had “generally turned the corner.” ArvinMeritor’s trial counsel crossexamined Johnson, but ArvinMeritor did not offer any expert witness or other evidence to cast doubt on Johnson’s methodology or his conclusions. 38 — The Advocate Magazine
Importance of defendant’s wealth The Bankhead court explained that, “Under California law, “[w]ealth is an important consideration in determining the excessiveness of a punitive damage award. Because the purposes of punitive damages are to punish the wrongdoer and to make an example of him, the wealthier the wrongdoer, the larger the award of punitive damages.” (Id., 205 Cal.App.4th at p. 78, citations omitted.) The court noted that the function of deterrence will not be served if the wealth of the defendant allows him to absorb the award with little or no discomfort. (Ibid.) And it noted that both California law and federal law agree that profits earned from tortious activity that supports an award of punitive damages are appropriately considered in the amount awarded. (Id., citing Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1697) The Bankhead court further explained that a defendant’s wealth cannot justify a punitive damages award that would otherwise be unconstitutional. Deterrence is one of the primary purposes of punitive damages. Therefore nothing in the due-process cases precludes California courts from relying in part on a defendant’s wealth in assessing the appropriate amount of punitive damages. (Id., 205 Cal.App.4th at p. 78, n. 8.) The court canvassed earlier California decisions that assessed whether a punitive damages award is excessive relative to the defendant’s wealth, noting that “the key question” is whether the amount of damages exceeds the level necessary to properly punish and deter. In Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 390, the court explained that the calculation of punitive damages “involves ... a fluid process of adding or subtracting depending on the nature of the acts and the effect on the parties and the worth of the defendants.” These factors are not evaluated under a rigid formula. “Whether punitive damages should be awarded and the amount of such an award are issues for the jury and for the trial court on a new trial motion. All presumptions favor the
correctness of the verdict and judgment. (Devlin, 155 Cal.App.3d at pp. 387-388.) Juries have a wide discretion in determining what is proper. (Ibid.) Nonetheless, “[b]ecause the important question is whether the punitive damages will have the deterrent effect without being excessive, an award that is reasonable in light of the ... reprehensibility of the defendant’s conduct and injury to the victims, may nevertheless ‘be so disproportionate to the defendant’s ability to pay that the award is excessive’ for that reason alone. The purpose of punitive damages is not served by financially destroying a defendant. The purpose is to deter, not to destroy.’ (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 620 (citations omitted.)
Net worth is not the only measure of wealth
Although net worth is the most common measure of the defendant’s financial condition, it is not the only measure for determining whether punitive damages are excessive in relation to that condition. (Rufo v. Simpson, 86 Cal.App.4th at p. 624). For example, in Rufo, the court upheld a punitive damages award that “technically exceed[ed]” the wealthy individual defendant’s net worth, because the evidence showed that the defendant would not be financially “destroyed by the award.” (Id., at p. 62.) “Indeed, it is likely that blind adherence to any one standard [of determining wealth] could sometimes result in awards which neither deter nor punish or which deter or punish too much.” (Lara v. Cadag (1993) 13 Cal.App.4th 1061, 10641065 & fn. 3.) Moreover, Lara notes that “[n]et worth’ is subject to easy manipulation and ... should not be the only permissible standard.” (Lara, 13 Cal.App.4th at p. 1065, fn. 3.) For example, in Michelson v. Hamada (1994) 29 Cal.App.4th 1566, the evidence of the defendant’s financial condition included net-worth statements for two successive years. The first statement, which was prepared for submission to a bank as part of a loan application, showed a far higher net-worth figure than the second, which was prepared for
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 39
litigation. The trial judge called the lower figure “ ‘patently crooked,’ ” and the Court of Appeal, although holding the punitive award excessive, agreed that the higher figure was the appropriate one to use for the purpose of determining that question. (Id. at pp. 1595–1596.) In Zaxis Wireless Communications, Inc. v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, the court affirmed an award of punitive damages of $300,000, even though the defendant had a negative net worth of $6.3 million, because the evidence showed that the defendant had the ability to pay the award. The court noted that “the [California] Supreme Court has expressly declined to adopt net worth as the standard for determining a defendant’s ability to pay in any given situation.” (Id. at p. 582.) It agreed that “[n]et worth is too easily subject to manipulation to be the sole standard for measuring a defendant’s ability to pay.” (Id. at pp. 582–583.) Noting the ease with which net worth is subject to adjustment for amortization and depreciation, the court pointed out that in the case before it, “the net worth calculation included accumulated depreciation...and a note to the sole shareholder,” which “represent[ed] a loss for accounting purposes,” but “did not impact” the defendant’s ability to pay in the same way that salary and wage expenses would. (Zaxis, 89 Cal.App.4th at p. 583.) The Zaxis court also noted that the defendant’s financial statement showed it had “cash on hand and a checking account balance of over $19 million,” as well as a credit line of $50 million, of which $5.3 million remained available to the defendant. The extension of the line of credit “indicate[d] the lender made a determination [the defendant] had the ability to pay amounts well in excess of the...punitive damage award.” (Zaxis, 89 Cal.App.4th at p. 583.) Accordingly, the court held that the award was not “excessive as a matter of law or so disproportionate to the ability to pay as to indicate passion or prejudice on the part of the jury.” (Ibid.) Similarly, in Devlin the court affirmed a punitive damages verdict against a corporation that represented 17.5 percent of
its annualized net worth, or almost four months’ net profit. In rejecting the defendant’s argument that the award was excessive, the court relied in part on an unexplained accounting adjustment in the company’s financial records that operated to reduce its net worth. The court also took note of a resolution authorizing the corporation to borrow money, opining that a resolution to borrow “serves as an indicator of the continuing health and viability of a business.” The Devlin court compiled a list of cases in an attempt to discover a formula for determining whether a given percentage of net worth is excessive ultimately concluded there is no formula, and that each case must be decided on its own facts, considering various indicators of wealth.” (Rufo, 86 Cal.App.4th at p. 625.) Thus, the court held that in arriving at the amount of punitive damages, the trial court properly took into account the defendant’s “net worth plus a variety of other figures relating to [the defendant’s] wealth,” and noted that “[o]ther courts have considered various asset and income figures relevant to the issue of punitive damages.” (Devlin, at p. 391.)
Bankhead rejects the simple percentage argument
ArvinMeritor’s challenge to the punitive damages award relied primarily on a plethora of older California cases to the effect that punitive damages amounting to more than 10 percent of the defendant’s net worth are excessive: • Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1162–1163, (punitive damage award of between two and three percent of defendant’s net worth was “far less than the 10 percent cap generally recognized by our courts.”) • Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1137-1138, (court affirmed punitive damage award to five percent of the defendant’s net worth, noting “[i]t has been recognized that punitive damages awards generally are not permitted to exceed 10 percent of the defendant’s net worth.”] • Michelson v. Hamada, supra, 29 Cal.App.4th at pp1595–1596, (punitive
damages equal to 28 percent of the defendant’s net worth found excessive because “awards generally are not allowed to exceed 10 percent of the net worth of the defendant.”) • Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 514–516, (award that was 33 percent of the defendant’s net worth held excessive since “punitive damage awards are generally not allowed to exceed 10 percent of the defendant’s net worth.”) • Seeley v. Seymour (1987) 190 Cal.App.3d 844, (while expressly declining to compare the punitive damages to the defendant’s net worth, the court remarked in dictum that “awards totalling more than 10 percent of a defendant’s net worth have been disfavored by our courts....”) • Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, (reduced award was still excessive because it amounted to 35 percent of the defendant’s $2.6 million net worth) • Goshgarian v. George (1984) 161 Cal.App.3d 1214, 1229-1230, 208 (“punitive damage awards exceeding 10 percent of a defendant’s net worth have generally been disfavored by the appellate courts” but award amounting to approximately 10.7 percent of the defendant’s net worth was not unduly disproportionate to his wealth.) • Little v. Stuyvesant Life Ins. Co. (1977) 67 Cal.App.3d 451, 469–470, (punitive damages award of $2.5 million, which was more than 15 percent of the defendant’s net worth, and 14 times the compensatory damages, was excessive as a matter of law.) • Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 18, (court reversed punitive damage award on a number of grounds, including that the amount of the award was almost onethird of the defendant’s net worth but made no mention of any fixed limitation on punitive damages as a percentage of the defendant’s net worth.) ArvinMeritor argued these cases establish, as a matter of law, that punitive damages may not exceed 10 percent of the defendant’s net worth, which represents a “cap” on allowable punitive damage JULY 2013
The Advocate Magazine — 39
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 40
Net Worth — continued
awards. But as shown by the court’s summaries in the preceding paragraphs, none of the cited cases actually held that punitive damages exceeding 10 percent of the
defendant’s net worth are per se impermissible. Moreover, these cases cannot be read as requiring punitive damages to be measured only against the defendant’s net
worth despite undisputed expert testimony that the defendant’s net worth is not an accurate measure of its wealth. (ArvinMeritor, 205 Cal.App.4th at p. 82.) The court held that the jury was entitled to credit the expert’s uncontroverted testimony that ArvinMeritor was far wealthier than its stated net worth would indicate, and that net worth alone is an untrustworthy standard, because it is so easily manipulated. Johnson’s caveat about the perils of relying solely on a net worth valuation standard echoed the same concerns expressed by the courts in the relatively more recent Zaxis, Rufo, Lara, and Devlin cases (citations omitted). Thus, the court rejected the argument that 10 percent of net worth constitutes a ceiling above which juries may not go in setting the amount of punitive damages. (Id. at pp. 82-83.) The court stated that its task simply is to determine whether, “considering all the factors, the punitive damages award, in light of the defendant’s wealth and the gravity of the particular act, exceeds the level necessary to properly punish and deter.” (Id., citing Rufo, 86 Cal.App.4th at p. 625, internal quotations marks and other punctuation omitted.) The court found that the size of the jury’s punitive damage verdict, and the trial judge’s denial of ArvinMeritor’s motions for judgment notwithstanding the verdict and for new trial, imply that both the jury and the trial judge accepted Johnson’s assessment as to ArvinMeritor’s ability to pay the $4.5 million punitive damages award. This implied factual finding is fully supported by the evidence. The jury’s punitive damages award of $4.5 million amounted to 37.5 percent of ArvinMeritor’s net profit for 2010. While this was hardly a slap on the wrist, $4.5 million is only a small percentage – about 1.3 percent – of ArvinMeritor’s immediately available funds as of the end of 2010. It is significantly less than what ArvinMeritor paid its CEO that year, and less than one-fourth of the amount ArvinMeritor had promised to pay its CEO if he were fired without cause ($24.5 million) or replaced if the company were sold ($26.9 million). Johnson’s
Net Worth continues 40 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:43 PM Page 41
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:45 PM Page 42
Net Worth — continued
Steven G. Mehta is one of California’s premier, awardwinning attorney mediators, specializing in intensely-difficult and emotionally-charged cases. Steve’s book, 112 Ways to Succeed in Any Negotiation or Mediation, will turbo-charge your negotiation skills regardless of your experience. To schedule your mediation or order a copy of Steve’s new book, call
661.284.1818 or check with your local bookseller, preferred online retailer, or online at:
www.112ways.com or www.stevemehta.com Locations in Los Angeles & Valencia Mediations throughout California
42 — The Advocate Magazine
testimony that the company was financially sound was uncontroverted, and ArvinMeritor chose not to introduce evidence tending to show that it would be financially destroyed by an award of $4.5 million in punitive damages. ArvinMeritor’s counsel warned that affirming the punitive damages award in this case could lead to plant closures, layoffs, and other dire consequences. The court found that nothing in the record supported those speculative contentions. ArvinMeritor also argued that it should not be faulted for its failure to controvert Johnson’s testimony about its financial condition, because the burden of proof fell on the plaintiff to establish its financial wherewithal, citing Adams v. Murakami (1991) 54 Cal.3d 105, 109-110. In that case, the Supreme Court cautioned that it is inherently prejudicial to require a defendant to introduce evidence of personal finances, and that defendants face a risk, if they present mitigating evidence, that the jury would regard it as a tacit admission that punitive damages are appropriate. (Id., at pp. 120, 121.) But Adams did not hold that a defendant facing a punitive damages claim cannot or should not present evidence to controvert the plaintiff ’s factual showing regarding the defendant’s financial condition. It held only that plaintiffs who seek punitive damages have the burden of presenting evidence, as well as the burden of proof, regarding the defendant’s finances.
Conclusion: Focus on the ability to pay The Bankhead court concluded that it could not “say that the jury’s punitive damages award, though large, is so disproportionate to ArvinMeritor’s ability to pay as to lead ineluctably to the conclusion that the award resulted from passion or prejudice.” Rather, it stated “the jury was justified by the evidence in concluding that an award of that magnitude was necessary and appropriate in order to punish ArvinMeritor for its contribution to causing the disease that took Bankhead’s life, and to deter ArvinMeritor and other manufacturers from failing to take every available precaution to mitigate workers’ exposure to life-threatening toxic substances.” (Id., 205 Cal.App.4th at p. 84.) The lesson? Line up your forensic expert to focus on the defendant’s ability to pay which is unconstrained by easily manipulated net worth. Only then can defendants effectively be punished and deterred from behavior destructive to society. Solange Ritchie practices law with Steve Young, and has experience in complex fraud and contract related matters. She has published extensively on the issues of punitive damages, SLAPP and anti-SLAPP motions, civil procedure, and related topics in OCTLA’s the Gavel, the Advocate and Plaintiff magazines. She can be reached at email@example.com or through www.solangeritchie.com. Solange is proud to be a board member of OCTLA.
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 43
Boster, Kobayashi & Associates Consulting Engineers and Scientists
Accident Reconstruction Specialists
An engineering firm specializing in the technical aspects of accident reconstruction, traffic engineering, highway design, and injury causation. We also handle matters dealing with safety issues in construction and industry, as well as machine design.
Areas of Expertise Accident Reconstruction Product Evaluation & Testing Electrical Engineering Traffic Engineering
Contact: Michael Kreutzelman 925.447.6495
Human Factors Biomechanics Slip and Falls Motorcycles
Seat Belts Lighting Airbags Safety
Boster, Kobayashi & Associates Consulting Engineers and Scientists www.bosterkobayashi.com
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 44
Law Office Management Michael G. Blum
Putting business practices into a contingency fee practice Office Management Learn how Law to read your firm’s balance sheet and income statement, and how toMichael useG.them Blum to plan for profitability If you have a balance sheet and income statement for your law firm, then you have valuable information which may provide you with insight into firm profitability and productivity. The information is accessible from QuickBooks or any basic accounting program or from your bookkeeper or accountant. The data can be easily accumulated and entered into a spreadsheet so that the data can be studied and trends easily followed. Profitability metrics can be viewed in many ways – trends by year, current month versus same month in prior years and actual versus plan. But do not be fooled by the heady illusion of profitability if you are just signing up cases. If new cases are not consistent with your strategy, are not profitable (as opposed to only providing you with revenue), or are not sustainable, then you have a serious and growing problem. Just because you are signing up cases that result in settlements or verdicts does not mean that the cases are profitable. A second critical metric to follow is productivity. Irrespective of the business model a particular law firm uses, if its fee earners (attorneys) are not productive (generating an adequate level of revenues per capita), then the firm will not be profitable. In order to measure productivity, prepare the revenue comparisons on a full-time-equivalent attorney basis. It is sometimes useful to measure “revenue per attorney for the same attorney from one period to prior period.” In retail it is known as same-store sales. This metric is simply measuring the revenue metrics only for those attorneys who are employed for both of the periods being compared. It is little used in the legal profession, but it provides significant insight into how much revenue you, your partners and your associates are producing. 44 — The Advocate Magazine
If the metric for an attorney’s performance is positive, perhaps a bonus or partnership interest is appropriate. If negative, it does not mean firing, but perhaps more partner involvement is appropriate, more training is needed or a better recruiting and development policy for your office is appropriate. With a contingency fee law firm in mind, let’s examine some building blocks needed to develop the financial metrics for profitability and productivity.
1. What are your assets?
Yes, we all know that assets are the things that a business owns like equipment, furniture and real estate. But don’t forget the potential fees embedded in your portfolio of contingency fee cases. These should make up the great majority of your assets. To get a true idea of the value of your cases and your assets, you must honestly estimate the value of your cases and the fees you will potentially generate on a regular basis. More than one firm (large and small) has found that they have estimated the value of a case, class action or mass tort only to be “shocked” when the case settled or a verdict was much less than they anticipated. (See Blum, Michael “6 Financial Hazards Every Contingency Fee Firm Should Know” February 2013, The Advocate Magazine (CAALA), p 94 & Plaintiff Magazine, p 35; Appeal Funding Partners.com.)
2. What are your liabilities?
It is easy enough to create a list of monthly costs broken down into several categories: Compensation (salaries, draws, payroll taxes); GA (rent, office supplies, etc); loans (principal and interest); equipment lease payments;
marketing expenses; and litigation costs. This information can be found in your income statement and in your cash flow projections.
3. Gross profit
Gross Profit is a firm’s residual profit after collecting its revenue and deducting litigation expenses. In the case of a contingency fee law firm, it would be the litigation expenses, which exclude expenses that are directly involved in the day-today operation of the firm (operational expenses). • Gross Profit = Revenue – Litigation Expenses Assume revenue is $2 million and litigation expenses are $500,000. The Gross profit is $1.5 million. When analyzing a company, gross profit is very important because it indicates how efficiently management uses the costs for litigating cases.
4. What’s your gross profit margin?
Gross margin is a good indication of how profitable a firm is at the most fundamental level. It reflects how efficiently a company uses its resources. Your gross profit margin is calculated by dividing your gross profit by your total revenue. • Gross Margin = Gross Profit / Revenue. If the Gross Profit is $1.5 million and Revenue is $2 million, the Gross Margin is $1.5 /$2 million or .75 x 100 = 75 percent The higher the percentage, the more the firm retains on each dollar of revenue to service its other costs and obligations. Being able to track a declining gross profit margin can give you a heads-up that you must increase your revenue or reduce your costs. If your
Contingency Fee continues
W c fi a p s t e It fr F A t
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 45
When my clients need financial assistance prior to settlement to cover their expenses, I trust my friends at Fund Capital America to help.
Gary A. Dordick, Esq. Trial Attorney Law Offices of Gary A. Dordick
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 46
Contingency Fee — continued
gross profit margin is staying consistent or trending upward, you are probably on track in terms of your ability to pay for the services you provide. In the worst cases, of course, your gross profit and your profit margin disappear altogether. At that point, you’ll be like the fellow who lost money on every sale, but figured he could make it up in volume.
5. Net profit
Often referred to as the bottom line, net profit is calculated by subtracting a company’s total expenses from total revenue, thus showing what the company has earned (or lost) in a given period of time (usually one year). • Net Profit = Revenue – (Litigation Expenses + Operational Expense [including taxes, interest and depreciation])
Assume Revenue is $2 million and litigation expenses are $500,000 and Operational Expenses are $500,000. The Net Profit is $2 million – $1 million = $1 million.
6. What is your net profit margin?
The net profit margin (aka return on revenue) is a ratio of profitability calculated by dividing revenue into net income. This ratio shows the amount of each dollar of revenue that is left over after all expenses have been paid. • Net Profit Margin = net profit/revenue If a decrease is observed in this ratio, the firm should know that the expenses are not being managed as efficiently as in the past or revenue is declining. It should find out why and take steps to reduce expenses. An increase in this ratio may be an indication that the
expenses are being facilitated efficiently and revenue is increasing. This ratio indicates the financial performance of the firm and does not reflect anything about the financial position of the firm because it does not take into account the assets and liabilities.
7. What is your debt ratio?
The debt ratio indicates the proportion of a firm’s debt to its total assets. It shows how much the firm relies on debt to finance assets. The debt ratio gives a firm a quick measure of the amount of debt that it has on its balance sheet compared to its assets. The higher the ratio, the greater the risk associated with the firm’s operation. It is an indication that the firm is being financed by creditors rather than from its own financial sources, and may indicate a dangerous
Orthopedic Expert Witness Dr. Steven R. Graboﬀ, M.D. Dr. Graboﬀ is a board-certified orthopedic surgeon and forensic-medicine specialist oﬀering: • Orthopedic medical-legal consultation • Medical exam of client • Review of medical records and radiologic studies • Expert testimony at mediation, arbitration and trial • Flexible schedule for medical exams, meetings, depositions and telephone conferences
Unparalleled experience: Supporting the Medical Legal Community for Over 20 Years
(714) 843-0019 DrGraboﬀ@gmail.com • www.DrGraboﬀ.com • Huntington Beach, CA 46 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 1:50 PM Page 47
trend. Lenders usually prefer low ratios because the interests are better protected in the event of a business decline. A low debt ratio indicates conservative financing and the potential to attract lending capital. • Debt Ratio = Total Liabilities/Assets Assume debt is $300,000 and assets are $3.5 million. The Debt Ratio is $300,000/$3.5 million = .086 x 100 = 8.6 percent. Having this ratio climb can be a bad sign – it might reflect a major expansion and the conscious assumption of debt, but it can also indicate that you’re getting in or have gotten in over your head.
8. What’s happening with your inventory of cases?
Being able to track how long it takes for your cases to be resolved may tell you whether business is increasing or slowing down. It also tells you how long money is tied up in a case which might be used for other cases or investments. This calculation should be applied to individual cases as well as types of matters (product liability, med mal, etc) and your portfolio as a whole. • Days to Resolution = total number of days to resolve X number of cases / X number cases.
9. Return on investment (ROI)
ROI is a powerful tool, and measuring ROI for cases, as well as annually for the firm is well worth the effort. It is a performance measure used to evaluate the efficiency and consequences of an investment in a case and in your portfolio of cases. ROI will help you determine the positive or negative contributions of cases, or types of matters to the revenue cycle and, ultimately to the bottom line. Armed with this information, you can discover the profitability of your firm as well as help your firm identify types of matters that are more profitable than others. If an investment has a positive ROI and there are no other opportunities with a higher ROI, then one should consider making the investment. A higher ROI means that investment gains compare favorably to investment costs.
• ROI = the returns of an investment (case, matters, firm) divided by the costs associated with the investment(s). Typically omitted from these costs is the cost of labor (attorney time) which may turn out to be a critical factor in calculating the ROI. Although not often done by contingency fee law firms, and there are many excuses used not to track time, there are numerous reasons why plaintiffs’ attorneys should track time. By using billing programs, you will know exactly how many hours were put into a specific case and you can calculate the hourly rate to include in the cost of litigation and in your analysis of the profit and profitability. Furthermore, the information can be used as a very important element of any motion for attorney fees in a claim for quantum meruit, and certainly is compelling evidence as part of certain malpractice defenses or if the court must approve a fee for an infant’s compromise or wrongful death case. • ROI = (gains from the investment – costs of the investment)/Costs of the investment. In addition to past performance, ROI can also be used to forecast returns on future activities, which might help to determine whether to take a case or not. One drawback of ROI is that by itself, it does not say anything about the risks associated with an investment (case). ROI just shows how a return compares to costs. Therefore a good case analysis should also consider both the ROI magnitude and the risks that are associated with the case. What is an acceptable ROI – 10, 20, 50 percent? The main purpose of the measurement is to interpret the result relative to the ROI of other cases or even investment opportunities outside the firm. For example, if you determined that the ROI from med-mal cases is 35 percent and that the ROI from slip-and-fall cases is two percent, you might want to consider focusing your future time and resources on med-mal cases. Benchmarking is another use of ROI. If the med-mal cases yielded 35 percent in year one, your minimum
expectation in year two should be 35 percent or higher. If you have no basis for comparison, you are left to judge each set of results on its own merits.
There are numerous metrics that can be generated from financial statements. Some indicate financial performance, others indicate financial position. Metrics used correctly are very useful tools in managing your firm, but they must be subject to good judgment and the flexibility to make good legal and business decisions. The metrics discussed are meant to stimulate thinking about the business of law and to motivate business of law discussions with your partners, accountants and advisors in light of your unique practice and situation. The information in this article is provided for informational purposes only and with the understanding that the author is not engaged in rendering legal, accounting, tax or other professional advice or services. The discussion is not intended to be relied on for any purpose and no warranties of any kind, either express or implied, are made. For help with a particular situation, seek the services of a qualified professional. Michael Blum is a trial attorney and CEO of Appeal Funding Partners, LLC with over 20 years experience easing the financial hardship and stress of attorneys and plaintiffs with money judgments on appeal by providing appeal finance risk mitigation services and non-recourse appeal funding to attorneys and plaintiffs. He has served on the Board of Directors of the Consumer Attorneys of California and of the Marin Trial Lawyers Association and regularly speaks to trial-lawyer groups and has written for TLA magazines on the financial management of a contingency-fee law firm. He may be contacted at 415-729-4214 or firstname.lastname@example.org. [Practice SmartTM articles are a service of Michael Blum and Appeal Funding Partners, LLC. The Features are thoughts from a variety of sources on our practices, on being trial lawyers and things of importance to trial lawyers and their clients.] JULY 2013
The Advocate Magazine — 47
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:02 PM Page 48
Arlan A. Cohen
What every trial lawyer should know about medical imaging, electric and diagnostic testing A primer on common medical tests and the evidence of injury and disease [Editor’s Note: This article is part 2 of 2 parts, which Dr. Cohen originally wrote as a syllabus for the 2012 CAALA convention. Part 1 appeared in the Advocate, March, 2013. In this installment, he discusses the most common medical tests, and the specific medical problems for which these tests are most appropriate.] No practicing lawyer will remember extensive, detailed information about all the testing modalities that appear in the title of this article. Please do not expect coverage of the field; however, understanding the broad ambit of what can be tested may motivate you to look this material up in specific cases, and become as expert as the expert on the narrow issues of your case when your client’s medical problem falls into one of the listed categories. The better you understand the medical/physical/physiological facts of your case, the less of an advantage an expert has. I’ve included at the end of this writing a bibliography of relatively straightforward Internet sites that give a deeper description of how these modalities work and what their major strengths and weaknesses are. (For complete article, including bibliography, visit caala.org)
The history of development of imaging modalities is a fascinating one, in which individual techniques have been pushed to their apparent physical and physiological limits, only to be advanced further by seemingly unrelated developments, like the advent of computers, the advanced use of contrast materials, the use of modalities unrelated to X-irradiation, like ultrasound and the properties’ intra-atomic particles as they are moved in and out of orbit by magnets, by combining tests that show anatomy with tests 48 — The Advocate Magazine
that show function, and the use of scans to light up portions of the brain by virtue of their metabolic activity and use of glucose. • Plain films Plain films, the only radiographic testing widely available from the start of the 20th century through the ‘60s or so, carried substantial interpretive defects. With a single film, it was not easy to tell what was in front and what was in back, and any single view was of superimposed structures. Also, the structures closest to the X-ray beam were magnified slightly compared with structures further away, making exact interpretation a bit more difficult. PA and lateral films, giving frontal and side views, helped separate what was in front from what was in back, but still gave views, in each direction, of superimposed structures, making fine distinctions and analysis of borders difficult. • Tomography At some point in the ‘60s, radiologists discovered that by moving two plates in opposite directions as an X-ray was taken, the resulting film was very fuzzy except in one narrow plane. This one plane, less than an inch in depth, came out in sharp focus, without the “superimposition” artifacts of plain films and permitted clearer delineation of anatomy within that thin plane. The use of moving plates made everything but the one plane so visually fuzzy it could be ignored. This sharp slice was called a “tomogram.” Radiologists, at some trouble and considerable expense, began setting up their instruments to do a series of such tomograms, giving approximate slices coming into focus through an organ: “serial tomograms” as these were called.
• Computerized tomography, and later MRI With the advent of computers, radiologists became able to obtain virtually an infinite number of “tomograms” taken not just on front to back and side to side views, but at multiple angles around the patient, and to synthesize pictures from multiple, narrow planes of the body, permitting very precise anatomic definitions of organs or abnormal structures. Recently, much faster CT machines, which look at the body extremely rapidly and from multiple directions, called “helical” CT because of the wave-like direction the viewing aperture took, have been developed. Some of these are so rapid that they may take multiple images from different directions so quickly that you can see the full three-dimensional anatomy of the heart virtually stopped in mid-beat. CT remains a procedure of choice for specific illnesses, like pulmonary emboli, bony abnormalities, and acute appendicitis, and remains a less expensive, less unwieldy apparatus than MRIs, and is routinely used as a “guiding” modality for biopsies and drainages of internal organs. • Non X-ray modalities of visualizing structure Other means of visualizing anatomy were developed, partly because some tissues that health-care providers wanted to discriminate and view as separate were very similar in radiographic density, hence were hard to separate with X-rays alone, even CTs and because there was concern about the amount of radiation delivered when multiple X-rays were needed for computer synthesis of an image.
Medical Testing continues
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 6:08 PM Page 49
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:02 PM Page 50
Medical Testing — continued
Ultrasound essentially applied the principles of radar to the human body, with different organs reflecting sound waves differently, permitting a new form of imaging, which was far less expensive
than CT imaging, and could be obtained with portable, even bedside instruments. Organs or structures that might be radiographically of similar density might have altogether different properties of
Increase the multiplier on your soft tissue cases. When many attorneys turn down cases with low meds, the Vartazarian Law Firm continues to get record results. OUTCOME
PI - Auto
Low Five Figures
Seven x Meds High Five Figures
Low Four Figures
Twenty-One x Meds High Five Figures
PI - Auto
Low Five Figures
Seven x Meds High Six Figures
PI - Motorcycle
Low Four Figures
Seven x Meds Five Figures
Low Five Figures
Six x Meds High Five Figures
Low Five Figures
Seventeen x Meds Mid Six Figures
Twenty-Two x Meds Six Figures
Verdicts & Settlements
Eighteen x Meds Six Figures
15250 Ventura Blvd., Suite 505, Sherman Oaks, CA 91403
reflection of sound, making the ultrasound an alternative method of visualization. Ultrasound remains a procedure of choice for bedside diagnosis of phlebitis or peripheral circulatory abnormalities, the diagnosis of gallstones, and the differential diagnosis of lesions in breast, kidney, intra-abdominal masses and abnormalities in other organs where it is important to discriminate between solid and cystic structures. • Disturbing the atom: Magnetic Resonancy Imaging (MRI) Beginning in the late ‘70s and early ‘80s, it became clear that pictures could be obtained on plates if magnetic fields were applied to organs. These magnetic fields moved electrons in the atoms of these organs slightly out of orbit. The electrons returned to their normal orbit when the magnetic field was altered, releasing a form of energy that created an image on suitable plates. Adjacent organs or portions of organs that may have the same radiographic density, hence be only vaguely separable using Xrays, including CT scans, may be very different in their reaction to a magnetic beam. MRIs, with multiple views also synthesized by computers into constructs that look very much like slices from an anatomy text, have become the “gold standard” for many tissue analyses. MRI is generally regarded as superior to CT scan for soft tissue problems, as CT is superior to MRI for bone problems. Most current technologies give the viewer not a single picture, but a computerized synthesis of what many pictures show, from which the viewer “deduces” what is true: • Use of radioactive materials to show structure and function In addition, techniques have evolved using the injection of radioactive materials that, because of their specific molecular structure and the physiology of target organs, concentrate in particular organs, making it possible to obtain pictures of these organs on the basis of their uptake of specific isotopes. So bone scans became one screening procedure, using
Medical Testing continues 50 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 6:09 PM Page 51
Shouldn’t your insurance coverage be tailored as well?
Serving greater Los Angeles from the San Gabriel Valley
Our long-established relationships with underwriters in the malpractice marketplace insure that you’ll get the coverage you need at the
best prices available. Because of our extensive
experience in the professional liability market, we know which carriers currently have programs that fit your firm. To avoid wasting your time in applying for coverage, you’ll
work with a dedicated liability expert who has a strong working knowledge of law firm practices and risks.
We offer you a complete range of insurance services: • GROUP MEDICAL AND LIFE • WORKERS’ COMPENSATION • OFFICE PACKAGE • GENERAL LIABILITY • EXCESS LIABILITY • AUTO • HIRED AND NON-OWNED AUTO • EMPLOYMENT PRACTICES LIABILITY
California Insurance Broker License #0555823
Contact: Wesley Hampton
A knowledgeable Narver Insurance agent is ready to assist you!
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:03 PM Page 52
Medical Testing — continued
radioactive compounds that contain phosphonate, which deposits in bones; thyroid scans became useful because of the tendency of the thyroid to take up iodinated materials that are used to produce thyroid hormone, and HIDA scans were used to light up the biliary tree. Iodinated contrast that was concentrated in the kidneys became the basis for the IVPs used early on to show the anatomy of the kidney, ureters and bladder and flow as well as structure. More recently, radioactive material that concentrates where glucose is being used gives not only structural pictures of the brain, but metabolic pictures as well, as in SPECT and PET scans, which may show what areas of the brain are being put to metabolic use during various activities. Such scans may show pathology, since many cancers are hypermetabolic and “light up” as glucose users. They may also help basic research about what part of the brain is used for different types of cognitive activities, by showing how certain thoughts or tasks cause specific areas of the brain to become metabolically active, using glucose. • Modalities that show function as well as structure Some of the earlier modalities, like IVPs, arteriograms and venograms, and most scans, which required the target organ to act appropriately metabolically to take up the isotope in fact showed function as well as structure. More
recently, not only anatomic function, but metabolic function at a basic level, the use of sugar to create energy, has become measurable with SPECT and PET scans of the brain, which generally combine CT imagery with radiation measurement that varies with the uptake of radioactive glucose containing isotopes, so that brain activity as well as structure may be evaluated. • Combinations of imaging techniques, showing function as well as structure are becoming common, and existing techniques are becoming more sophisticated The sensitivity of CT and MRI technology has increased to the point where, though 15 years ago, the limits of resolution were one-half to 1 cm, they now may discern 1 to 2 mm alterations in anatomy now. Early on, the injection of contrast material into blood vessels, with serial Xrays, showed not only the anatomy of the blood vessels but the progress of blood flow. Combining such injections with CT scans, or with MRIs (the latter called MRAs: Magnetic Resonance Angiograms) further improved resolution. Combining isotope uptake scans with scans that delineate anatomy may produce unique information: when a patient with possible coronary artery disease is put on a treadmill, the electrocardiogram may show abnormalities with exercise that imply a defect in circulation
• 24 Years of Forensic Experience • Attentive to Subtle Details • Customized Services • Expert Witness Testimony
888-XPRT EYE 8 8 8 - 9 7 7 - 8 3 9 3
www.XprtEye.com The Smart Choice Dr. Karen Magarian 52 — The Advocate Magazine
A little ADVANTAGE can help win your case. JULY 2013
to one portion of the heart. However, treadmills may give false negatives, depending on the location of the circulatory defect, in as many as 40 to 50 percent of cases. When the treadmill testing is combined with one form of scanning, thallium or pyrophosphate being the most frequently used, to see if there are portions of the heart that do not move during the treadmill test, or portions that stop taking up the isotope normally with exercise, these adjunctive signs of circulatory insufficiency give information many times more accurate than the treadmill electrocardiogram alone.
Bottom line regarding imaging studies:
There are some very general rules about which types of procedures are best for which type of analysis. CT is generally considered preferable to MRIs for analysis of bone abnormalities, while MRIs are considered the gold standard at looking at soft tissue. Ultrasounds and HIDA scans, for their cheapness and accessibility are often screening tests for biliary tract disease, and Doppler examinations, which are ultrasounds, are most convenient for screening for peripheral vascular abnormalities, like phlebitis. CT scans are considered the gold standard looking for acute appendicitis; Helical CTs are the current standard for diagnosing pulmonary embolism. But each particular clinical situation needs to be reviewed, and the information that needs to be gleaned, analyzed to see which current technique is most likely to be productive and not needlessly expensive or burdensome to the patient or to the institution.
The basic principles used by presently frequently used “electrical” modalities rely on the physiological fact that electrical impulses and the shifting of charges into and out of nerve cells and skeletal and muscle heart cells are events that occur during normal body function and may be altered when abnormalities need to be diagnosed and treated. Some of
Medical Testing continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 53
D A L E K. G A L I P O CIVIL RIGHTS ATTORNEY
SPEC I A L I Z I N G I N P O L I C E M I S C O N D U C T CASES Recent Civil Rights Accomplishments (Last 24 Months) • 9 Seven-Figure Verdicts/Settlements • 24 Six-Figure Verdicts/Settlements • Prevailed in 17 Jury Trials 2011-2013 • Recipient of the 2012 Erwin Chemerinsky Defender Of The Constitution Award • Three Published Opinions • Selected for the 2013 Southern California Superlawyers List ACCEPTING REFERRALS AND CO-COUNSEL RELATIONSHIPS IN ALL JURISDICTIONS
email@example.com • WOODLAND HILLS • 818-347-3333
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 54
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 55
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:03 PM Page 56
Medical Testing — continued
these techniques are almost a century old, like the earliest attempts at electrocardiography; others, like rapidly developing uses of brain-wave measurement beyond the routine EEG are in their infancy. I review only a few of the most frequently used electrodiagnostic tests. • The electrocardiogram (EKG) is a familiar test to most of us. The normal electrical activity may change, in more or less predictable fashion, when there is damage to the heart, altering the nature of the conduction system that regulates the heartbeat. Abnormal heart rhythms are dispositively diagnosed by electrocardiogram if they are present during the several minutes that the cardiogram is being measured. “Holter monitors” which record the electrocardiogram continuously for 18 to 24 hours, with the
resulting film being interpreted later, may catch arrhythmias that are missed on the smaller-sampling basic electrocardiogram. • The electroencephalogram (EEG) is a measurement by electrodes placed around the head to measure the electrical activity of the brain. An abnormal EEG is the dispositive test for seizure activity, during which abnormal electrical impulses may be seen focally or generally, and during which the nature of the abnormal discharge may define the pathologic entity. Like the cardiogram, prolonged EEG recordings to “catch” intermittent seizure activity that might be missed on a short in-office test are available. EEGs may be used to localize mass lesions by the absence or dampening of normal brain waves but is far less sensi-
tive than other techniques, such as MRI and CT scan, for this function. It may be one of the elements used to judge legal brain death. It has currently been used, ingeniously, in combination with nerve stimulation of the arms and legs, to discern spine injury during surgery, during the performance of SSEPs and MEPs (described below). • The EMG, electromyogram, measures the electrical responses within muscles to nerve impulses applied by the tester. The normal muscle has a typical profile of measurable, electrical activity when the muscle is properly supplied by its normal nerve, i.e., when it is periodically receiving stimulation by that nerve and exposure to the chemicals released at the nerve ending. There are typical,
Medical Testing continues
We portray your case in the most favorable light. Courtroom Presentations’ 3-D graphics showing the full extent of damages to Plaintiff ’s house, and the timeline, damage chart and other demonstrative boards helped to reinforce the story of fraud and deception to the jury. As a direct result of Kelly and his team’s efforts, our client received a verdict of mid-seven figures, plus punitive damages.
Trial Technicians / Digital Trials Trial Equipment Rental PowerPoints Charts & Graphs Timelines Animations Illustrations Document Scanning
Keathley & Keathley
www.CourtRoomPresentationsInc.com 56 — The Advocate Magazine
213-488-9600 835 Wilshire Blvd., Suite 310 Los Angeles, CA 90017
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 57
how can we help you?
Consumer and Employment Litigators and Much More Law Offices of Lisa L. Maki 1111 South Grand Avenue, Suite 101 Los Angeles, CA 90015 lisamaki.net
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:04 PM Page 58
Medical Testing — continued
abnormal electrical profiles in the setting of primary muscle disease, which are different from the profiles that appear when the nerve supply to the muscle has been disturbed, as in the cutting of that nerve
during surgery. Muscles appear to need the chemical stimulation of nerve endings to function normally, and when there is damage to the innervation of muscles, the muscle changes its physio-
logic pattern. These latter changes may take many weeks after nerve injury to develop, so may remain normal for some time after neurologic injury, but may differentiate primary muscle from nerve injury, and may be used to follow recovery from either form of injury. • Nerve Conduction studies measure only the function of the nerve that exists between the two measuring electrodes. An electrical pulse is applied at one end of a measured nerve, and the time it takes for the impulse to arrive downstream (latency) and the degree of “dampening” of that impulse along the way (amplitude) are measured. This technique measures peripheral nerve disease, beginning where the nerves exit the spine, causing abnormal nerve conduction studies. Intracranial disease, like strokes, generally do not. Both EMGs and Nerve conduction studies may be painful procedures as both involve the placement of needles into muscles or nerves. • SSEP/MEP (Somatosensory Evoked Potentials, SSEP; Motor Evoked Potentials, MEP): over the past decade and a half, “intraoperative” techniques for giving early warning of damage to the spine to the orthopedic or neurosurgeon operating on the cord have been developed. Electrodes are placed on the arms and on the legs of the patient; periodic electric stimulation at these sites is applied to sensory nerves (SSEP) or to motor nerves (MEP) and at the same time an Electroencephalogram is done, measuring how long it takes for the electrical impulse to get to the brain and generate a brain wave (latency) and whether or not the impulse is dampened on its way from the limb to the brain (amplitude.) The conceit of this test is that the impulse, to get from the limb to the brain, must pass through the portion of the spinal cord being operated on to reach its destination. If the operating surgeon has impaired the circulation or physiology of the spine at the operative site, the impulse passing through this “disabled” portion of spine will be slowed and dampened. A decrease in amplitude
Medical Testing continues 58 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 59
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:04 PM Page 60
Medical Testing — continued
of 50 percent from baseline or an increase in latency of 10 percent from baseline is considered the threshold for stopping the surgery and figuring out the reason for the change in the measured signal. There are many false positives with SSEP measurement, though it is extremely sensitive; using MEP with SSEP appears to minimize false positives. If the warnings of increased latency or diminished amplitude of SSEP or MEP brain waves is ignored during spinal cord surgery, and the patient wakes up with a significant spinal injury, a presumption of negligent harm arises.
Basic diagnostic testing
This topic alone is too broad for a single article. I’ll comment on three common blood tests, and how they are
most frequently of use in litigation: the CBC, CPK, and the SMA screening panel • The Complete blood Count (CBC): Red blood cell measurements: Hematocrit (Hct) and hemoglobin (Hgb). The hematocrit is the percentage of blood volume that is taken up by red blood cells, rather than by the liquid portion of the blood. The hemoglobin measures the amount of oxygen-carrying material present inside a cc of blood, a slightly more indirect measurement of how many red cells are present in the patient per unit volume of blood. Though there are occasional diseases that increase the Hct and hemoglobin, chronic, as in severe chronic lung disease, or blood disorders like polycythemia, or acutely as in patients with significant dehydration, we are generally concerned
with drops in these blood counts, because significant drops more often than not mean significant bleeding. Significant bleeding may be the only sign of a disease that is treatable now but incurable later, like early colon cancer, or may be itself acutely life-endangering, as precipitous drops in blood count reduce the amount of oxygen that may be delivered to vulnerable organs like the heart, kidney and brain. When a person loses blood acutely, there is no immediate change in the hematocrit or hemoglobin: the blood that is left behind has the same percentage of red cells and the same concentration of hemoglobin that was present before the bleed. It is only as the body attempts to compensate for the blood
Medical Testing continues
Six Convenient LA County Locations GR ANADA HILLS
EAST LOS ANGELES 323.266.7800
HUNTINGTON PARK 323.588.4770
Enter your client’s ZIP code on our Web site to be directed to the nearest location PACOIMA
GRANADA HILLS (818) 363-8450
HUNTINGTON PARK EAST LOS ANGELES MID WILSHIRE (323) 588-4770
PATRICK PAREHJAN, D.C., I.D.E.
ROBERT VARTZAR, D.C., Q.M.E.
ARTIN KHODADADI, D.C.
RODRIK KHOSROVIAN, D.C.
VICTOR CALDERON, D.C.
STEPHEN PORTILLO, D.C.
Same Day Appointment Multilingual Doctors & Staff CAALA Affiliate Vendor
Colossus Related Reports Prompt Reports & Billing
60 — The Advocate Magazine
Proud Members Since 1999
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 61
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:04 PM Page 62
Medical Testing — continued
loss, by replenishing the lost blood volume essentially with water from adjacent tissues, that the concentration of red blood cells and the concentration of hemoglobin drops. This “equilibration” takes hours to a day. Therefore, it is not until several hours pass, sometimes longer, that the drop in hematocrit and hemoglobin fully reflects the amount of blood lost. This “equilibration” i.e., the restoration of initial blood volume by the inflow of water into the vascular tree may be accelerated by intravenous fluids, like saline, plasmanate or D5W (water with 5 percent sugar.) In the end, at the point of “equilibration” i.e., when the volume of blood lost has been replaced by water, the ultimate hematocrit and hemoglobin,
when compared with the starting values, gives a fair approximation of the amount of blood lost, which is often an important consideration in litigation. For example, if the HCT begins at 42, and a person finishes surgery, with IV fluids quickly restoring the initial blood volume, with an HCT of 21, it is likely that approximately half of the patient’s blood volume has been lost. A drop in systolic blood pressure of more than 15 to 20 points with the patient lying down requires a blood-volume loss, in general, of 40 percent or more; a drop in blood pressure of a similar amount with the patient standing or sitting, as compared to lying down is more sensitive, coming with a blood-volume loss of 20 percent or
EXPERT WITNESS LEGAL MALPRACTICE Any underlying case/transaction, fee disputes, ethics, 45 years
Phillip Feldman, BS, MBA, JD, AV Preeminent (PEER Rated) Bd. Cert. Legal Malpractice ABPLA & ABA
Also State Bar Defense (818) 986-9890
www.LegalMalpracticeExperts.com E-mails: firstname.lastname@example.org StateBarDefense@aol.com
LIFE CARE PLANNER BURNS & BACK INJURIES SPINAL CORD INJURIES HEAD TRAUMA HAND INJURIES
AMPUTATIONS CHRONIC PAIN BIRTH INJURIES MAJOR ORGANS
LIFE CARE PLANNING MEDICAL SUMMARIES DAY-IN-THE-LIFE VIDEOS IME OBSERVATIONS
OTR, CHT, CLCP, CCM, CDMS, CAPS
Injury & Disability Expert 62 — The Advocate Magazine
email@example.com JULY 2013
SES CA D E T D EDI PTE EXP ACCE
more. Where the amount of blood lost or the failure to diagnose and treat massive bleeding is a litigation issue, these basic physiological facts are critical. White blood cell measurements: Generally infections, particularly bacterial infections, increase the overall white blood count, and cause a “shift to the left,” meaning an increase in the overall percentage of the type of white blood cells that combat bacterial infections, “granulocytes” or “PMNs” and, to achieve the “shift to the left,” the appearance of relatively immature white blood cells. Overwhelming bacterial infection, however, with sepsis, as well as severe viral infections, may cause leukopenia, or abnormally low white blood counts. Leukemias cause the appearance in the peripheral circulation of an abnormally high percentage of the cell types of the leukemic line, also with the appearance of increasingly immature cells, of a type that normally is restricted to small numbers in the bone marrow. Ignored significant changes in white blood count are important elements in many negligence claims involving failure to diagnose and treat early sepsis. Platelet count measurements: Platelets are cells that help initiate clotting. They may be increased in many instances of systemic stress, in profound dehydration, or in marrow diseases that increase either the platelets or all blood cell components. The more common issue in litigation is the low platelet count, which predisposes to bleeding, since normal clotting function may be impossible with a platelet count that is very low. Low platelet counts may be caused by marrow disease, with decreased platelet production; by immunologic disorders that increase the destruction of platelets; or by any diffuse clotting disorder that causes pathologic increases in clotting, such as “DIC” disseminated intravascular coagulation. In such cases, called “consumptive coagulopathies,” the platelet count in the peripheral blood drops because too many platelets are being consumed as components of abnormal and excessive clot formation.
Medical Testing continues
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 63
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:05 PM Page 64
Medical Testing — continued
Specific testing is needed to discriminate among the various causes of abnormal platelet counts, and these are often required on a stat basis to effect treatment before irreversible harm from bleeding or clotting occurs. • CPK: CreatinePhospho Kinase: This is an enzyme found inside muscle cells, which is released into the blood when there is muscle damage. It may be released from skeletal muscle or cardiac muscle, and initially CPK was not easily fractionated. For a while, techniques were developed to try to distinguish “skeletal muscle” CPK, which might rise from bruising, or the infiltration of an IV line, from cardiac damage. Over the past 10 years or so, a subfraction of this type of enzyme, Troponin, which is generally specific for cardiac damage, has been developed and is the gold standard for
64 — The Advocate Magazine
early diagnosis of cardiac muscle damage. An evaluation of Troponin level in patients with acute symptoms of possible coronary artery disease is mandatory, to help localize the organ responsible for the symptoms and to help determine whether angina pectoris without immediate cardiac damage, or an acute heart attack is in progress. • The screening panel: SMAs: These vary in the extent and number of chemistries measured, but generally include BUN and Creatinine, to measure kidney function, calcium and phosphorus to measure bone metabolism and the diseases characterized by increased calcium; a bevy of tests like Bilirubin, Alkaline Phosphatase, SGOT and SGPT which are indices of liver dysfunction, and may indicate if the liver disease is primarily obstructive, the lesion being in the ducts
that carry bile out of the liver (increased alkaline phosphatase) or primarily destructive, caused by disease of the liver cells themselves (SGOT, SGPT, transaminases). Normally blood sugar, protein levels and cholesterol are included on routine SMA12 screening panels. On more extensive panels, like “Chem20” measurement of electrolytes (sodium, potassium, chloride and bicarbonate) and CPK are usually included. Screening panels are fertile ground for finding hints of significant disease that a clinician may have overlooked through carelessness. However, as noted earlier, the widespread use of these panels has brought to light a great deal of subclinical, often never-to-become-clinically-relevant abnormalities, putting the reasonable physician in a difficult position when deciding whether to take
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 65
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 2:05 PM Page 66
Medical Testing — continued
action or engage in reasonable “watchful waiting.”
The litigation bottom lines as regard testing are these: tests exist and become generally accepted precisely because “background, training and experience” alone have proven inadequate to accurately diagnose and treat patients and to protect their safety; the failure to order appropriate testing, to perform it properly and to interpret it properly may be negligent and lead to actionable harm; the information that you need as an attorney to understand what tests are appropriate and how they could have changed the outcome is readily available at libraries and on the Internet; and when defendants and experts are
confronted by knowledgeable lawyers, cases are moved towards reasonable settlement. Arlan Cohen, M.D. graduated from Columbia College, summa cum laude. He attended Cornell Medical School, and as a board-certified internist and gastroenterologist practiced medicine for more than 12 years, before attending Harvard Law School, from which he graduated magna cum laude in 1990. Since then, he has practiced plaintiffs’ medical malpractice law in California, litigating HMO malpractice, wrongful death, and personal injury lawsuits in which the issues of health impairment, its extent and cause are central to the case.
Bibliography Mayo Clinic Proceedings and WebMD often have simple, clear, interactive Web sites
Quick review of basic imaging modalities, with examples: http://medinfo.ufl.edu/~bms5191/mod/mod.html http://www.medphys.ucl.ac.uk/research/borl/homepages/ florian/thesis/pdf_files/p35_44.pdf CT scanning: http://www.webmd.com/a-to-z-guides/computed-tomographyct-scan-of-the-body http://www.mayoclinic.com/health/ct-scan/MY00309 MRI: http://www.webmd.com/a-to-z-guides/magnetic-resonanceimaging-mri http://www.mayoclinic.com/health/mri/MY00227/ Ultrasound: http://www.radiologyinfo.org/en/info.cfm?pg=genus http://www.mayoclinic.com/health/ultrasound/MY00308/ PET scanning: http://www.webmd.com/a-to-z-guides/positron-emissiontomography http://www.mayoclinic.com/health/pet-scan/MY00238 Spect Scanning: http://www.mayoclinic.com/health/spect-scan/MY00233 Electrophysiologic Studies: SSEP, EMG, Nerve Conduction: http://www.knowyourback.org/Pages/Treatments/Assessment Tools/SpecializedNerveTests.aspx http://emedicine.medscape.com/article/1139906-overview
Don’t let the Defense Medical Exam Ruin your P.I. Case We will send a Doctor to observe your clients’ next DME! • DME Observation Services • DME Audio Recording • Medical Record Review • Expert Testimony • Discounts for CAALA Members
Now offering Nurse Observers at a fraction of the cost SERVING ALL OF SOUTHERN CALIFORNIA 66 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 67
PHONE: 800-522-7965 • 213-977-0211 • FACSIMILE: 213-481-1554 www.girardikeese.com
1126 WILSHIRE BOULEVARD, LOS ANGELES, CA 90017
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:39 PM Page 68
Thomas M. Dempsey
You don’t say? Hearsay? One of the most common objections, and one of the trickiest. The key word to remember is “trust-worthiness” Evidence Code section 1200 states the following: (a) Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the “Hearsay Rule” Simple definition, huh? Not so fast. It is one of the most, if not the most, difficult to understand and apply rule of evidence. If you don’t believe me, ask anyone who regularly tries cases and who has made an objection to a given statement as being hearsay, and has had that objection be both overruled and sustained by different judges. Unfortunately, each judge or arbitrator of a trial or other hearing applies the hearsay rule as “he or she understands it.” This is very akin to calling “balls and strikes” in baseball, and while the strike zone is set out very clearly, the visual interpretation of that strike zone is as varied as there are umpires. Likewise, while the hearsay rule is set out very succinctly, its application is as varied as there are judges who interpret the rule in the context of what is attempted to be offered. Part of the problem is that there are so many exceptions to the hearsay rule. Under Evidence Code section 1200, exceptions to the hearsay rule may be found either in statute or in decisional law. Under existing law, too, the courts have recognized exceptions to the exclusionary rule in addition to those exceptions expressed in the statute (See People v. Spriggs, 60 Cal.2d 868,874). The most difficult part of the understanding and application of the hearsay rule is that in a practical way, the exceptions have almost consumed the rule itself. 68 — The Advocate Magazine
The recognized exceptions 1) Admissions of a Party (Evid. Code, §1220) 2) Adopting Admission (Evid. Code, §1221) 3) Authorizing Admission (Evid. Code, §1222) 4) Admission of Co-Conspirator (Evid. Code, §1223) 5) Statements of Declarant Whose Liability or Breach of Duty Is In Issue (Evid. Code, §1224) 6) Declaration Against Interest (Evid. Code, §1225) 7) Statement of a Minor Child in Parent’s Action for Child’s Injury (Evid. Code, § 1226) 8) Statement of Declarant in Action for His Wrongful Death (Evid. Code, §1227) 9) Omitted 10) Admissibility of Certain Out-ofCourt Statements of Minor’s Under the Age of 12; Establishing Elements of Certain Sexually Oriented Crimes (Evid. Code, § 1228) 11) Signature of Parent or Guardian On Child Welfare Service Case Plan (Evid. Code, §1228.1) 12) Declaration Against Interest (Evid. Code, §1230) 13) Sworn Statements Regarding GangRelated Crimes (Evid. Code, §1231-1231.4) 14) Inconsistent Statement (Evid. Code, §1235) 15) Prior Inconsistent Statement (Evid. Code, § 1236) 16) Past Recollection Recorded (Evid. Code, § 1237) 17) Prior Identification (Evid. Code, § 1238) 18) Spontaneous Statement (Evid. Code, §1240) 19) Contemporaneous Statement (Evid. Code, §1241) 20) Dying Declaration (Evid. Code, § 1242)
21) Statement of Declarant’s Then Existing Mental Or Physical State (Evid. Code, § 1250) 22) Statement of Declarant’s Previously Existing Mental or Physical State (Evid. Code, §1251) 23) Statement Concerning Declarant’s Will or Revocable Trust (Evid. Code, § 1260) 24) Statement of Decedent Offered in Action Against His Estate (Evid. Code, §1261) 25) Admissible Writings (Evid. Code, § 1271) As Defined By “A Business” (Evid. Code, §1270) 26) Absence of Entry in Business Records (Evid. Code, §1272) 27) Record by Public Employee (Evid. Code, § 1280) 28) Record of Vital Statistic (Evid. Code, §1281) 29) Finding of Presumed Death by Authorized Federal Employee (Evid. Code, §1282) 30) Record by Federal Employee That Person Is Missing, Captured, or the Like (Evid. Code, §1283) 31) Statement of Absence of Public Record (Evid. Code, §1284) 32) Former Testimony (Evid. Code, § 1290) 33) Former Testimony Offered Against Party to Former Proceeding (Evid. Code, § 1291) 34) Former Testimony Offered Against Person Not Party to Former Proceeding (Evid. Code, § 1292) 35) Former Testimony by Minor Child Complaining Witness At Preliminary Examination (Evid. Code, § 1293) 36) Unavailable Witness; Prior Inconsistent Statements; Preliminary Hearing or Proceeding (Evid. Code, § 1294)
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 69
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 70
Hearsay — continued
37) Judgment of Conviction of A Crime Punishable As A Felony (Evid. Code, § 1300) 38) Judgment Against Person Entitled to Indemnity (Evid. Code, §1301) 39) Judgment Determining Liability for Third Person (Evid. Code, § 1302) 40) Statement Concerning Declarant’s Own Family History (Evid. Code, §1310) 41) Statement Concerning Family History of Another (Evid. Code, § 1311) 42) Entries in Family Records and the Like (Evid. Code, §1312) 43) Reputation in Family Concerning Family History (Evid. Code, § 1313) 44) Reputation in the Community Concerning Family History (Evid. Code, § 1314) 45) Church Records Concerning Family History (Evid. Code, § 1315)
46) Marriage, Baptism, and Similar Certificates (Evid. Code, §1316) 47) Reputation Concerning Community History (Evid. Code, §1320) 48) Reputation Concerning Public Interest In Property (Evid. Code, § 1321) 49) Reputation Concerning Boundary or Custom Affecting Land (Evid. Code, § 1322) 50) Statement Concerning Boundary (Evid. Code, §1323) 51) Reputation Concerning Character (Evid. Code, § 1324) 52) Recitals in Writings Affecting Property (Evid. Code, § 1330) 53) Recitals in Ancient Writing (Evid. Code, § 1331) 54) Publications Relied Upon As Accurate in The Course of Business (Evid. Code, §1340)
55) Publications Concerning Facts of General Notoriety and Interest (Evid. Code, §1341) 56) Unavailable Declarant (Evid. Code, §1350) 57) Statements Describing an Act or Attempted Act of Child Abuse or Neglect (Evid. Code, §1360) Section 1252 limits the admissibility of hearsay statements that would otherwise be admissible under sections 1250 and 1251. If a statement of mental or physical state was made with a motive to misrepresent or to manufacture evidence, the statement is not sufficiently reliable to warrant its reception in evidence. The limitation expressed in section 1252 has been held to be a condition of admissibility in some of the California cases.
FOOT AND ANKLE SURGERIES ON LIEN
We’ll get your clients back on their feet Victims of car crashes, slip & falls and other accidents often present foot, ankle and lower extremity injuries as a result of their trauma. We specialize in evaluating, diagnosing and treating personal injury patients to return them to their previous way of life. Call us today to see what we can do to help your client.
3 Convenient Southern California Locations GLENDALE
311 N. Verdugo Rd. Glendale, CA 91206
12626 Riverside Dr., Suite #510 North Hollywood, CA 91607
6221 Wilshire Blvd., Suite #607 Los Angeles, CA 90048
70 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 71
JOIN CONNECT LEARN Experience the power
Access renowned trial
Gain practical, critical
of CAALA membership:
lawyers - from solo
and essential tools that
LA’s largest plaintiffs’
practitioners to the most
give you the legal
Take advantage: Become a member at caala.org
800 W. 6th St. Suite #700 L.A. CA 90017 tel: 213 487-1212 firstname.lastname@example.org
The Advocate Magazine — 71
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 72
Hearsay — continued
(See, e.g., People v. Hamilton (1961), 55 Cal.2d 881, 893, 895; People v. Alcalde (1944), 24 Cal.2d 177, 187.) Additionally, subject to section 1252, evidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect. “Child abuse” and “child neglect,” for purpose of this section, have the meanings provided in subdivision (c) of section 1360. Furthermore, section 1201 makes it possible to use admissible hearsay to prove another statement which is also admissible hearsay. Unfortunately, there do not appear to be any California cases where the admissibility of “multiple hearsay” has been analyzed and discussed.
72 — The Advocate Magazine
In attempting to have introduced a statement which is either clearly or could be interpreted as hearsay, a trial lawyer’s imagination, tenacity, and persuasiveness are his or her best assets. Imagination involves couching the statement with readily admissible evidence so the statement simply blends in as a collaborative element rather than stand alone proof. Tenacity is of value because if a statement is really that important, you must continue to rephrase the question in as many ways as possible and not simply allow the sustained objection to eliminate your efforts to have the statement heard. Very often, the repeated asking of a question will pique the jury’s interest in the value of the proof, and despite the repeated sustained objection and the admonition that only the answer is of value and not the question, the jury can easily observe that this evidence which you are seeking to present to them must be advantageous to your case and detrimental to that of your opponent. Frequent and arduous objections will often be a trigger for a jury to be more concerned about knowing the answer and the content of the statement than might ordinarily be given if the answer was simply part of a line of questioning to which
no objection was uttered. Finally, persuasiveness is used to either provide a plausible exception to the hearsay rule or to argue plausibly that a statement is not being offered for the proof of the matter asserted. Convincing a judge to allow the statement may draw a limited instruction as to the weight to be given to the statement, but having presented it to a trier of fact will have the value that you are seeking and can play a role into the ultimate decision. From a defensive standpoint, one must weigh the detrimental effect of a hearsay statement before objecting and highlighting your desire to have the statement excluded. The statement may be of minimal or no importance and even though it is hearsay, awaking a slumbering or disinterested juror by the word “objection” will pique the jurors’ interest unnecessarily. The area where hearsay becomes most combative is in the area of records such as, a police report, medical records, business records, etc., where accuracy, authenticity, and completeness is of value. Often the information you wish to obtain can be accomplished through exceptions to the hearsay rule, such as,
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 73
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 74
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 75
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:40 PM Page 76
Jonnell Agnew & Associates
Hearsay — continued
Proudly Celebrating Over 30 Years of Excellence 2 HD Video Conferencing Systems 60” & 46” LED Televisions Multipoint Video Bridging Video Content & Desktop Sharing
Agnew Mobile for Smart Phones Agnew Web 24/7 Accessible Repository
www.jonnellagnewcourtreporters.com email@example.com 170 South Euclid Avenue, Pasadena, CA 91101 P:(800)524-DEPO F:(626)568-9987 CAALA Affiliate Vendor
Visit us at CAALA Vegas 2013, Booth 306 76 — The Advocate Magazine
“past recollection recorded,” but it takes more work and effort to get there. It is advisable that if the information is truly that important to you, that extra steps be taken in laying a proper foundation for the introduction of the document by way of a witness who has authored or has familiarity with the content of the document, rather than simply trying to unsuccessfully force the document into evidence when it is clearly hearsay and without any exception. Even when a document which contains hearsay does come into evidence, based on the admissible record exception, you must be careful to not simply allow the entire record into evidence on an unscrutinized basis. This means within the business records there may be statements which are hearsay and which are not part of the valid exception as a business record, or things which simply lack sufficient foundation to be admissible as part of an admissible records exception. Another area of hotly contested hearsay is the situation where a patient makes a statement to his physician. Defense medical examiners will often attribute statements to an injured individual whom they are examining in an attempt to get the statements into evidence under the guise of a patient admission. While this statement may be admitted as a declaration against interest, your client is not a patient of the defense medical examiner, so the rationale for having the patient’s statement being admitted as having credibility because he or she is attempting to seek treatment for their own well being simply does not apply in this circumstance. Very often, statements unrelated to the injury for which the examination is being conducted are attempted as a “patient admission” where in reality there is no truth to that proposition. The exceptions to the hearsay rule are premised on the belief that the statements made would be credible and accurate because of the context in which the statement is made. Therefore, when an exception is attempted to be used as a method of introducing hearsay, the context in which the statement is made must
be reviewed by you to determine whether it fits this criteria. If it does not, even the exception to the hearsay should be challenged. This brings up the subject of the out-of-context nature of a hearsay statement. You will want to know the circumstances surrounding the statement and based on those circumstances, a determination can be made as to the accuracy and intended reliance the nature of the statement was considering at the time. An example of this is the movie “My Cousin Vinnie” when the arrestee responded to the police officer’s declaratory statements that “You shot the sheriff.” The arrestee’s response was “I shot the sheriff?” with a questioning intonation, meaning he was making the statement as an incredulous response to that of which he was being accused. This should not be entered as an admission against interest, but rather, in reviewing the circumstances, this incredulous question was simply that, and not an affirmative statement that he had committed a crime. There are numerous other examples where someone may make a statement that is totally out of context with the circumstances in which a conversation is being engaged and a thorough critique of the facts surrounding the statement will be necessary. The other area where hearsay becomes a factor is in the testimony of an expert witness. An expert witness can rely on hearsay in formulating his or her opinions and conclusions as a basis for same. This hearsay can be verbal or written or even in the form of “authoritative literature.” There is a valid hearsay objection, however, to the expert verbalizing the statement itself. For example, the medical expert can rely on an x-ray report in formulating an opinion regarding the cause of an injury or illness, but cannot testify to the content of the x-ray report itself. Furthermore, there is an objection, to the expert stating the content of authoritative literature as far as quoting from same because, in essence, the expert is expressing the knowledge, experience, training and opinions and conclusion of an individual who authored the writing without allowing for a cross
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:40 PM Page 77
examination of that individual as to their opinions and conclusions and the basis of same. In attempting to introduce hearsay on the basis that it is not being offered to prove the truth of the matter asserted, it is an attempt that should be carefully scrutinized. The fact that a trier of fact will hear a statement is usually more important than the limiting instruction or admonition given by the judge that they are not to consider it “for the truth of the matter asserted.” I feel, for the most part, this statement by the judge is meaningless, and will not be given any serious consideration by the jury as far as being of true value in restricting the statement made.
Hearsay can be used for purposes of impeachment (see Evid. Code, §1203), but the same criteria must be used to determine that the utterance was one that can be reliably relied upon as being accurate and complete.
The key word to remember in approaching the whole subject of hearsay is “trust-worthiness.” The court should use this term in evaluating the admissibility of any alleged hearsay statement or document, and so should you.
emphasis on spinal cord and traumatic brain injuries resulting from medical negligence, products liability and premises liability. He is a past president of Consumer Attorneys of Los Angeles. CAALA honored him in 1994 with the Ted Horn Memorial award, and he has twice been its Trial Lawyer of the Year nominee. He is a member of American Board of Trial Advocates, the United States Supreme Court Bar, and the Board of Governors for Consumer Attorneys of California.
Thomas M. Dempsey is a sole practitioner in Brentwood, CA, where he specializes in personal injury and complex litigation, with
R E A L AT TOR NE Y SUCCESS STOR IES
“C California alifornia A Attorney ttorney L Lending ending ggave ave m myy firm fi rm tthe he fi financial nancial rresources esources to to expand expand our mass tort tort litigation litigation iinto nto a n nationwide ationwide p practice ractice aand nd p provided rovided tthe he oopportunity pportunity ttoo ssimultaneously imultaneously b build uild b both oth p personal ersonal aand nd llaw aw fi firm rm n net et w worth.” orth.”
Flexible credit lines up to $5 million Use for any law firm expense Tax-deductible loan interest
R. R. Glenn Glenn Phillips, Phillips, Esq., Esq., Phillips Phillips Law Law Firm Firm Los Los Angeles, Angeles, CA CA | Seattle, Seattle, WA WA
See S ee w what hat a lline ine ccan an doo ffor or your your fi firm. rm.
CaliforniaAttorneyLending.com 1-888-838-3155 1-888-838-3155 | CaliforniaAttorneyLending.com Sign up for Litigation Counsellor, our monthly e-newsletter keeping you informed of verdicts and cases across the country. Visit californiaattorneylending.com/newsletter today. JULY 2013
The Advocate Magazine — 77
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:40 PM Page 78
Christa Ramey Associate Editor
Challenging evidence: 402 hearings and beyond Know where the bodies are buried and what you need to do to protect your client’s evidence The very basic fact of challenging evidence is that all evidence must be admissible to be introduced at trial. (Evid. Code, § 350.) Relevant evidence is evidence that has any tendency to prove or disprove any fact of consequence. (Evid. Code, § 210.) Seems pretty simple. But, of course it is not. The courtroom is not the Wild-Wild West and judges can, and should, exclude evidence that is unreliable for any number of reasons. Evidence may be unreliable because it is hearsay (and, therefore, not trustworthy), is character evidence (when character is not at issue), is untested or not respected in the scientific community, among other reasons. Evidence may also be unreliable when any probative value of the evidence is “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the jury. (Evid. Code, § 352 [emphasis added].) There are a number of ways that the trial lawyer can challenge evidence. If you learn about evidence that is unreliable and should be challenged early in litigation, you may file a motion in limine. Sometimes the motion may alternatively request that the court hold an Evidence Code section 402 hearing before determining whether the evidence should be excluded. You may learn of unreliable evidence after expert discovery or even during trial. You should alert your issues to the judge as soon as you learn of any issues. Sometimes just objecting at the time the question is asked is all that is needed. It is important on a preliminary note to suggest, encourage, and plead with you to look at your evidence early and often during litigations. Know where the bodies are buried and what you need to do to protect your client. I once had a mediator tell me that defense counsel 78 — The Advocate Magazine
criticized me at mediation by stating that I worked a case up like a defense lawyer. I think what he meant to say was he was surprised I knew my case as well as I did – which is certainly no insult. I also know, being married to a defense attorney, that many of us in the Plaintiff ’s bar have a reputation for not knowing our evidence/facts of our cases as well as we should. I begin investigating, studying and learning everything about my case from day one! You should too. Make sure you leave no stone unturned. In this regard, you should make sure you do not skimp on ordering your client’s medical records. There is a lot of potential for the discovery of unreliable and misleading evidence here. When I first sign a client up, I give them a fairly long questionnaire, which is primarily based upon form interrogatories and other questions I think that the defense may ask my client. I get them to list all medical providers for the last five years, and sometimes even further back depending upon the injury and case value. I immediately begin ordering and summarizing medical records. When you do this, you will certainly discover providers your client did not disclose – this is usually where the scary stuff may be found. As you are investigating, studying and learning, make a list of evidence that concerns you. Some of this may become the subject of your later evidentiary challenges. Keep that list handy and update it often. You will find items to add from medical records; interviews with your client and other witnesses; there will be information in discovery responses; and you will find information in depositions. In some cases, your evidentiary challenges may be a short list – others may be more substantial.
Motions in limine
The most common way to address evidentiary issues you have in your case
when you know about the evidence early on is a motion in limine. These motions are made in advance of trial and governed by various rules, including Los Angeles County Court, Local Rules, rule 3.57, which provides: (a) Required Declaration. Motions made for the purpose of precluding the mention or display of inadmissible and prejudicial matter in the presence of the jury must be accompanied by a declaration that includes the following: (1) Specific identification of the matter alleged to be inadmissible and prejudicial; (2) A representation to the court that the subject of the motion has been discussed with opposing counsel, and that opposing counsel has either indicated that such matter will be mentioned or displayed in the presence of the jury before it is admitted in evidence or that counsel has refused to stipulate that such matter will not be mentioned or displayed in the presence of the jury unless and until it is admitted in evidence; (3) A statement of the specific prejudice that will be suffered by the moving party if the motion is not granted; and (4) If the motion seeks to make binding an answer given in response to discovery, the declaration must set forth the question and the answer and state why the use of the answer for impeachment will not adequately protect the moving party against prejudice in the event that evidence inconsistent with the answer is offered. (b) Summary Adjudication Improper. A motion in limine may not be used for the purpose of seeking summary judgment or the summary adjudication of an issue or issues. Those motions may only be made in compliance with Code of Civil Procedure section 437c and applicable court rules.
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:41 PM Page 79
(c) Bifurcation of Issues Improper. A motion in limine may not be used for the purpose of seeking an order to try an issue before the trial of another issue or issues. That motion may only be made in compliance with Code of Civil Procedure section 598. (d) Timing of Ruling. The court may defer ruling upon a motion in limine, and may order that no mention or display of the matter that is the subject of the motion be made in the presence of the jury unless and until the court orders otherwise. If the court so orders, or if the motion is granted, it is the duty of counsel to instruct associates, clients, witnesses, and other persons under their control that no mention or display be made in the presence of the jury of the matter that is the subject of the motion. Motions in limine should be reserved for true evidentiary issues. I have heard judges state at conferences all of the time that motions that basically ask that they follow the law are a waste of the court’s time. Further, you will lose credibility with the court when you file such motions. Therefore, you should not be filing motions along the lines of “To Exclude Evidence Not Produced in Discovery.” This sort of motion is premature and is basically telling the judge they should follow the law if an issue arises. The purpose of motions in limine was most succinctly stated in People v. Morris (1991) 53 Cal.3d 152, 188, disapproved on an unrelated ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, as noted in Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659: Motions in limine are a commonly used tool of trial advocacy and management in both criminal and civil cases. Such motions are generally brought at the beginning of trial, although they may also be brought during trial when evidentiary issues are anticipated by the parties. In either event, they are argued by the parties, either orally or in writing or both, and ruled upon by the trial judge. The usual purpose of motions in limine is to preclude the presentation of evidence
deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. (3 Witkin, Cal.
Evidence, supra, § 2011 at p. 1969.) ‘The advantage of such motions is to avoid the obviously futile attempt to “unring the bell” in the event a motion to strike is granted in the proceedings before the jury.’ (Hyatt v. Sierra Boat Co.
The Advocate Magazine — 79
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:41 PM Page 80
Challenging Evidence — continued
(1978) 79 Cal.App.3d 325, 337.) [¶] Motions in limine serve other purposes as well. They permit more careful consideration of evidentiary issues than would take place in the heat of battle during trial. They minimize side-bar conferences and disruptions during trial, allowing for an uninterrupted flow of evidence. Finally, by resolving potentially critical issues at the outset, they enhance the efficiency of trials and promote settlements. [Citation.] Basically, motions in limine should be reserved for the most prejudicial evidence to avoid alerting the jury to the issue of the particular piece of evidence during trial (i.e., not some potential, yet unknown piece). You will want to make sure you file important evidentiary motions in limine in advance of trial. These often come up with expert witness’s qualifications and testimony beyond their areas of expertise or in the instance of scientific testimony that is new or untested. For instance, is the defense’s expert opining outside his or her area of expertise? (Evid. Code, § 720.) If so, then you should alert the judge to this in a motion in limine in advance of trial.
Some judges are very particular about having motions in limine filed in time to be heard at the final status conference. This can present a number of problems. Most importantly, expert discovery will often not be completed in time to notice a motion in limine on the day of the final status conference. Expert discovery may be occurring until the eve of trial. Often, most of the motion-inlimine issues arise during expert discovery. The area I see them come up most often is an expert opining on issues beyond their area of expertise. This may be a neurologist (non-surgeon) commenting on the need for surgery or the biomechanic opining on the issue of causation of injury. In either respect, these folks are not qualified to testify to these things. For instance, I have had a number of cases where a certain neurologist was designated to testify for the defense on the issue of plaintiff ’s injuries and whether surgery is indicated. The good doctor is a neurologist; not a neurosurgeon. Therefore, he is not qualified to give opinions about the necessity of surgery or the costs related to that surgery. I have kept him from testifying to these opinions at trial.
Evidence Code section 720 states as follows: A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. [S]uch special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. An expert who lacks the proper knowledge or education may not testify as an expert witness as to the ultimate issues at trial. (Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1081.) If the special knowledge or education level of an expert is not shown before trial, he or she may not testify as an expert at trial. (People v. King (1968) 266 Cal.App.2d 437, 444.) In order to be qualified as an expert in a subject, one must have the basic educational background customary for others in the field in which the expert proposes to testify. (Pearce v. Linde (1952) 113 Cal.2d 627, 630-631.) When one does not possess the requisite educational level or knowledge in a subject, then one may not testify as an expert. (People v. Fierro
is not out of reach. Cook Collection Attorneys, PLC (877) 989 4730
www.cookcollectionattorneys.com David J. Cook, Principal Attorney Collecting judgments for California plaintiff attorneys since 1974. firstname.lastname@example.org 80 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:41 PM Page 81
(1991) 1 Cal.4th 173, 223-224.) Therefore, having a doctor in medicine or a board certification in neurology is not enough – he or she is not a surgeon. This will also frequently come up with the biomechanic overreaching in their opinions. “Biomechanics” is defined as the study of “the mechanics of biological and esp. muscular activity.” (Webster’s Ninth Collegiate Dictionary 152 (1989).) It has also been defined as “the understanding or the application of engineering and physics principles to biological systems.” (Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 58 n.3.) Some accident reconstruction experts will actually subject themselves to repeated lowspeed rear-end impacts in an attempt to prove that one cannot be injured in such a collision. This is more frequent than you might think. According to one article, human volunteer tests of this type are “nothing more than anecdotal,” and are confusing and deceptive. The primary flaw is that the test subject anticipates the impact, which renders the results dissimilar to most real life automobile impacts and reduces the likelihood of injury. (See R. Mahoney,
“Challenging Expert Testimony in Low Speed Cases” Trial Excellence (Esquire One, 2001), Vol. 13, No 6, pp. 7-8.) Think about this – the occupants are always facing straight forward, with their hands in the 10/2 position. What is more, they know the accident is coming. Low-speed impact cases provide fertile ground for evidentiary disputes, especially regarding accident reconstruction and biomechanic expert testimony. In these cases, the defense attempts to put forth expert testimony that occupants of vehicles involved in minor impact accidents could not have been injured, based upon supposedly reliable tests and studies. Other disputed evidence in these cases may include comparisons of lowspeed accidents to the forces involved with everyday activities (such as “plopping” in a chair), photographs of the purportedly “undamaged” vehicles, and testimony of uninjured experts or witnesses who participated in low-speed accident tests. Several commentators have stated that much of the expert evidence in these cases is “junk science” and should be excluded under Daubert reliability challenges. (See R. Mahoney, “Challenging Expert Testimony in Low Speed Cases”
Trial Excellence (Esquire One, 2001), Vol. 13, No 6; Chapter 13, “Overcoming Junk Science Defenses,” Plaintiffs’ Lawyers Guide to Minor Impact Cervical and Lumbar Injury (Thomson West).) Experts designated as biomechanical experts, are not qualified to provide expert opinion on the cause of injuries. As stated in Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498, “[t]he law is well settled that in a personal injury action causation must be proved within a reasonable medical probability based upon competent expert testimony.” (See also Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396.) In the case of Salasquevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, the court held that medical causation of injuries can only be determined by expert medical testimony. In Inskeep v. Busby (1962) 207 Cal.App.2d 848, the court held that it was proper for a medical expert to opine to the issue of injury causation – both that the injury existed and that a party accident caused the injury. (Inskeep, supra, 207 Cal.App.2d at 851.) Injury potential or the causation of the injury to any plaintiff can only be stated by a qualified medical expert with
Case value… $2.5 million Policy limit… $300,000 On the table… Policy limits offer Defendant… Age 65, Malibu resident and retired real estate broker Do you accept the offer? Learn the secrets of an IRS 1040 return, the 1099INT and a credit report. Review and critique of financial disclosures. Legal strategies to flush out concealed assets. Assessment whether assets are immune or vulnerable to enforcement. What is an URLA?
David J. Cook, Esq.
Cook Collection Attorneys, PLC
The Advocate Magazine — 81
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:42 PM Page 82
Challenging Evidence — continued
Trust your case to a Certified Appellate Specialist. Over 30 years of experience Excellent success record Prepared 350+ writs & appeals
Donna Bader Certified Specialist in Appellate Law By State Bar Board of Legal Specialization
(949) 494-7455 www.DonnaBader.com Donna@DonnaBader.com Blogging at www.AnAppealtoReason.com 82 — The Advocate Magazine
medical education, training, and a license under the California Business and Professions Code. The term “diagnose” is defined as “to determine the type and cause of a health condition on the basis of signs and symptoms of the patient.” (Mosby’s Medical Dictionary 480 (5th Ed. 1998.) Thus, the question of causation of a human injury is a component part of a diagnosis, which is, in turn, a part of the practice of medicine. A biomechanic does not have this expertise. Therefore, remember when you are taking depositions of defense biomechanics experts, get all studies and articles on which they are relying to form any opinions. Make sure that you ask for these in your document demand attached to their expert witness deposition notice. If you do not get these documents at deposition, follow-up; get them. Then read them. Often these studies rely upon cadavers or are accident reconstructions that are not similar to yours. Remember – only relevant evidence is admissible. If opinions are based upon test and test subjects that are not similar to your client (different ages, genders, pre-existing conditions, etc.) and your accident, it is not reliable and not relevant. File a motion in limine to exclude this junk science. Bottom line here is to anticipate all of the issues. The case of the perfect liability and no warts does not get tried – those will settle.
Some judges may want to conduct a 402 hearing on important evidentiary issues, such as expert testimony or scientific testimony. You may also want to request the 402 hearing. This could give you a preview of the evidence and how it will come in at trial. Evidence Code section 402 provides: (a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:42 PM Page 83
Bankruptcy court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute. This will arise when evidence would not be otherwise relevant without the existence of the preliminary fact being proven. This is most common in the case of scientific evidence or evidence of the use of drugs or alcohol. By way of example, I have now had two cases where evidence of methamphetamines was present on toxicology reports immediately following the accident or injury. The question becomes what does that mean – did the plaintiff take an illegal substance or just cold medication? Can that question be determined on a toxicology report? If so, was the level of methamphetamines sufficient to impair judgment or motor skills? These are arguments and debates that you do not want to occur in the presence of the jury. And an affirmative answer is necessary on these questions in order for the evidence to be relevant evidence for the purposes of trial. That is, where the admissibility of evidence depends upon proving that preliminary fact or facts, this is a question the court needs to determine in advance of allowing the evidence in at trial. (Reed v. Clark (1873) 47 Cal. 194.) Therefore, you will want to request a 402 hearing to be held in advance of trial or during trial on some issues.
Pocket brief during trial
Sometimes you may not want to bring a motion in limine before trial for strategic reasons. For instance, you may not want to alert the other side to unfavorable evidence that they may be unaware exists. In these cases I draft what I call a Pocket Brief – one that I keep in my pocket until, and only if, the need arises to bring it to the court’s attention. I believe that these can be important tools. You, of course, can just object to evidence and request a side bar. However, if you
come armed with a briefing on a particular issue, it has a lot more power. What is more, you are making a better record for any potential appeal.
Bottom line, during trial things will come up that you never anticipated. Study and know your Evidence Code. Pay careful attention to hearsay rules and exceptions. These are the most misunderstood rules of evidence. However, anything big or highly prejudicial you should have already filed your motions on and not saved them to chance. Once a juror hears a question and potentially an answer – an objection and motion to strike cannot unring the bell. Trial requires many hours of preparation but it is never rehearsed or memorized – nor should it be. You must always anticipate changes in the game plan. Like in football, even the most practiced teams make mistakes, fumble the ball, jump off-sides or throw an interception. You need to be prepared to run with the ball after that interception or know how to recover from your own fumble. This means you are planning for any potential. You know your evidence. You are going into that trial prepared. Christa Ramey is a sole practitioner in the West Los Angeles area and has been practicing law since 2000 and has exclusively represented injured plaintiffs during her career. Ms. Ramey litigates personal injury matters including wrongful death, FELA, automobile accidents, among other types of cases. In 2008, Ms. Ramey was selected Rising Star by Super Lawyers. Ms. Ramey serves on the Board of Governors for Consumer Attorneys of Los Angeles. She is also an Associate Editor for CAALA’s trial magazine, The Advocate. In addition, she is on the Steering Committee for the Loyola Law School Civil Justice Program, and her law firm sponsors the American Association of Justice’s Mock Trial in Santa Monica every year. She is also a member of Consumer Attorneys of California, American Association for Justice and the Los Angeles County Bar Association. Ms. Ramey graduated from Southwestern University School of Law, where she is now an Associate Adjunct Professor of Law.
Litigation is not over if one party files bankruptcy, but what you do next could determine if your case can continue.
TIME IS CRITICAL •Nondischargeability Actions •Motion for Relief of the Automatic Stay •Preference Actions •Proof of Claim •Chapter 11 Plan •Lien Avoidance Let’s talk about it! Experienced Bankruptcy Attorney
Peter C. Bronstein, Esq.
310-203-2249 www.labankruptcyadvocate.com Peter@labankruptcyadvocate.com JULY 2013
The Advocate Magazine — 83
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:07 PM Page 84
About this Issue Ibiere Seck
Ensure your evidentiary house won’t fall at trial Build your evidence foundations early to keep your case intact Preparing for a trial is a lot like building a house. Before construction, one must consider all of the elements that go into building the structure. You need the right location on which to build, skilled architects to design the structure’s appearance, experienced engineers to implement the design plan, and the proper construction materials. But any experienced homebuilder will tell you that the most important part of the construction project is laying the proper foundation to support the structure. Without this, all of your planning, hard work and handiwork will be for naught. Much like a home, your trial needs a firm foundation in the form of solid evidence. You want to make sure that you have done the proper legwork pre-litigation. Post-litigation, you want to see to it that you are employing all of the tools in your toolbox to get the evidence you need for trial. You will need to map out your trial and the means by which to get the important documents and testimony you have gathered throughout the litigation into evidence at trial.
Locate and preserve all evidence Your trial preparation begins the moment you sign up a case. Some of the most important evidence needed to prove your case at trial is obtained within days (and sometimes hours) of being retained. • Letters of representation/Preservation letters Letters of representation should be sent out to the defendant or her opposing counsel (in cases where the defendant has retained counsel or has counsel on retainer) as soon as possible. This is done not only for the purpose of obtaining information such as policy limits in auto cases, but also for the purpose of putting the would-be defendant on notice that your client is now represented and 84 — The Advocate Magazine
should, therefore, not be contacted directly. Many firms incorporate into their letters of representation language prohibiting the other party from destroying evidence and instructing them to take steps to preserve all evidence including photographs and video surveillance. This ensures that when it comes time to propound your requests for production of documents, the defendant will have something worthy of producing in response to your request. • Identify witnesses with personal knowledge Obtaining witness statements early on in the case is critical. In your case, you are going to need to prove liability and damages. However, not just any witness will be able to take the stand. The witness must have personal knowledge of the incident and/or injury. Therefore, identify these individuals early on, record their statements, assess their credibility, determine whether they are competent and be prepared to depose them later on. Their testimony could help prove a crucial element of your case.
Map out your case You now have your client and identified your potential causes of action. It is now time to map out your case. Think about what you will need to prove your case to a jury. The CACI Jury Instructions are an excellent place to start. There, you will find a guide on the specific elements of each cause of action in your case. Consider what evidence you will need to obtain (through investigation, written discovery, or deposition testimony) to meet each element and the means by which you plan to obtain the evidence. • Elements chart In mapping out a case, many trial lawyers find it helpful to create an
elements chart outlining each cause of action and the relevant evidence that goes to each element of that cause of action and the means by which the evidence will be presented to the jury (i.e. plaintiff ’s testimony, lay witness testimony, expert testimony, etc.). There is no single way to accomplish this, but essentially you will need to do the following: 1) in one column, list each element of the cause of action as outlined in the CACI Jury Instruction; 2) in the second column, list the evidence/testimony that directly proves that element; and 3) in the third column, indicate how you plan to present that evidence to the jury. Gather your evidence Once you have established what it is you need to prove your case, immediately employ the most efficient and effective means to get that evidence. Written discovery is most often the best way to gather your much needed evidence. • Written discovery Written discovery can be propounded as early as 10 days after service of the complaint and many trial lawyers make it a point to get out that first set of discovery as quickly as possible. Although the vast majority of newer lawyers (and some more seasoned attorneys) detest having to draft written discovery, these discovery tools are critical to building your case and can make your trial run smoothly. There are a number of ways to use the written discovery process to your advantage. Interrogatories can be propounded as early as 10 days after service of the complaint (Code of Civ. Proc., §§ 2030.020 and 2031.020) and are an excellent way to ascertain the policy limits at issue in your case, get basic background information on your defendant, identify documents (memos, reports and photos that can be later requested through your Request for Production of Documents) and leads on potential witnesses.
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:43 PM Page 85
Form Interrogatories (notably, 17.1) are especially useful when served along with Requests For Admissions (RFA). RFA responses can be used in a number of ways including impeachment at trial. So, take the time to craft a set that will get you closer to victory at trial. When drafting the initial set of RFAs, focus on those issues that go to the elements of your causes of action. Later in the case, use the RFAs as a means of getting the defendant to admit the genuineness of certain documents that you intend to use at trial. • Expert testimony This likely goes without saying, but it is imperative that your expert is qualified to offer certain opinions in support of your case. According to Evidence Code section 720(a), “[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates.” So, take special care to vet your experts in advance and be sure to limit their testimony in deposition, declarations and at trial to only those issues there are qualified to opine on. Otherwise, you may find that your “expert” is really of no use to you at trial.
Analyzing your evidence Once you have gathered the evidence needed to prove your case, you must begin the process of determining how to get that evidence in at trial. After all, if your evidence is inadmissible because the proper foundation has not been laid, everything you have worked so hard to build in preparation for your day in court will come crashing down. One way of ensuring your evidence gets in at trial is to create a foundation chart where each piece of evidence is thoroughly analyzed. Simply list every witness you plan to call and every document you plan to introduce. Then, consider how each witness is relevant and qualified to testify on a particular issue. Stipulations Finally, whenever possible, get opposing counsel to stipulate to authenticity of certain writings/documents and the use of your demonstrative evidence. It can save you and the court a great deal of time in the long run.
evidence early in the litigation process. That is the surest way to trial victory. Best of luck! Ibiere N. Seck is a Senior Associate at The Cochran Firm in Los Angeles where her practice focuses primarily on major negligence and product liability litigation and trial. She joined the firm in 2008 and is a graduate of Loyola Law School. She is a member of Consumer Attorneys of Association of Los Angeles and Consumer Attorney of California’s Board of Governors where she serves as the Chair of the New Lawyers Committee (CAALA) and Community Service Co-Chair (CAOC). In addition, she serves on the board of the Langston Bar Association and the Los Angeles County Bar Executive Committee and is an advisory board member of Western Center on Law & Poverty and Mesereau Free Legal Clinic where she regularly volunteers and is an active committee member of the Black Women Lawyers Association of Los Angeles. In 2010, she was selected as one of Southern California Super Lawyers Rising Stars.
Proper preparation and planning is essential for trial success. So, be sure to gather, organize and analyze all of your
Leverage Lawsuit Financial’s Money For Precious Time To...
Unlock The Full Value of Your Client’s Case. Don’t Be Handcuffed By Your Client’s Immediate Need For Cash Now. If your client needs cash now for mortgage or car payments or any necessity...
Call us today! • 24-hour Turnaround • Plaintiff Attorney Owned
877-377-SUIT 7 8 4 8
• 30 Years Experience JULY 2013
The Advocate Magazine — 85
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:43 PM Page 86
Finding liability, and insurance, in cases involving motor carriers Don’t let truckers run you over. There are a lot more potential defendants than you think
Big money is made from the many trucks and truckers using our roadways to transport goods. When that truck slams into your client, the results will be catastrophic. While the trucker may be judgment-proof, do not assume that the trucker is your only potential defendant, or that there is no money available. Generally there is a long chain of people between the trucker and the shipper. You must identify and investigate each link in the chain when looking for potential defendants. Find out how the load was brokered and how many subhaulers are involved. Determine who owns the truck, trailers and tires; if they were leased; and who maintained them. If any of the entities you have discovered are motor carriers, they are required to carry minimum levels of insurance ranging from $750,000 to $5 million. When drafting a complaint, use inclusive language such as: Defendants, and each of them, negligently owned, leased, supplied, entrusted, contracted, directed, operated, controlled, and maintained the big rig, thereby causing the big rig to strike plaintiff ’s vehicle. Further, defendants, and each of them, negligently hired, 86 — The Advocate Magazine
provided, supplied, trained, and instructed big rig drivers in the safe use and operation of the big rig. Consider pursuing claims for negligence that include vicarious liability, negligent entrustment or negligent selection.
Is my defendant a vicariously liable motor carrier?
• “For-Hire” Motor Carriers If any of your defendants are for-hire motor carriers, then non-delegable duties under Restatement (Second) of Torts, Section 428 may attach. The seminal California case on this issue is Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594. In Taylor, a garbage truck struck a high school student. The student sued the truck’s driver, the truck’s owner, and Oakland Scavenger Company, a garbage collector working under a contract with the City of Oakland. On appeal, Oakland Scavenger claimed it was not liable for the driver’s negligence because the truck’s owner was an independent contractor over whom Oakland Scavenger exercised little supervision or control.1 The Supreme Court disagreed: If ... an individual or corporation undertakes to carry on an activity
involving possible danger to the public under a license or franchise granted by public authority subject to certain obligations or liabilities imposed by the public authority, these liabilities may not be evaded by delegating performance to an independent contractor. The original contractor remains subject to liability for harm caused by the negligence of the independent contractor employed to do the work.2 The cases supporting Taylor and expanding on the non-delegable duty rule are legion.3 The public policy behind Restatement 428’s vicarious liability is simple: [w]ere the rule otherwise, a carrier could escape liability for the negligence of its independent contractors, thus reducing the incentive for careful supervision and depriving those who are injured of the financial responsibility of those to whom the privilege was granted. The inherent danger in operating heavy trucks on public highways has been repeatedly recognized by the courts of this state. Because of this recognized inherent risk, intrastate motor carriers
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:43 PM Page 87
are regulated in California by the California Highway Patrol and the Department of Motor Vehicles. On a national level, the Federal Motor Carrier Safety Administration (FMCSA) through the Department of Transportation oversees interstate transactions. • My defendant claims no vicarious liability A defendant may claim: (1) it is not licensed as a motor carrier; (2) its motor carrier status is limited to private transactions; or (3) it was not acting as a motor carrier in your transaction. Do not be fooled. Putting on your detective hat and doing some digging will pay off. California Vehicle Code section 34601 provides that anyone operating any commercial vehicle is classified as a “motor carrier of property.” Motor carriers of property are then divided into two categories: “for-hire motor carriers” and “private carriers.” A for-hire motor carrier is defined as a motor carrier who transports goods for compensation.4 A private carrier is defined as a motor carrier who only transports its own goods.5 The court in Hill Bros Chemical Co. v. Superior Court (2004)
123 Cal.App.4th 1001, noted that “there is a critical difference between those who use the public highways as a business and those who use the highways only to transport their own products incidental to their business, and that the latter constitutes private carriage as a matter of right which is not subject to the same level of regulation as that of for-hire carriage.”6 If your defendant is operating only as a private motor carrier, it cannot be vicariously liable under Restatement (Second) of Torts, Section 428.
Intrastate or interstate is important
• Who’s in charge? The California Highway Patrol has exclusive jurisdiction over intrastate transactions while the FMCSA oversees interstate transactions. The FMCSA is a governmental entity created within the Department of Transportation pursuant to the Motor Carrier Safety Improvement Act of 1999. It is responsible for testing and licensing commercial motor vehicle drivers, and overseeing all aspects of motor carrier safety, from performing inspections to collecting and disseminating data to the
public. To understand if the accident occurred during an intrastate or interstate haul, it is imperative to determine the details of the load being hauled. • Look at the whole shipment, not just your leg An accident that happens in California, while a load is being hauled from point A to point B within the state, may be part of an interstate transaction if the load is ultimately leaving the state. Whether a haul is interstate or intrastate is “determined by essential character of the commerce, manifested by shipper’s fixed and persisting transportation intent at the time of the shipment.” When a product changes form (e.g. grapes to wine, soybeans to meal), the “essential character” of the load changes and a new haul begins. If a load will be “subjected to a manufacturing process that materially change[s] its character, utility, and value” before it leaves the state, it is not an interstate load.
Expertise without expert fees
• FMCSA’s Web site Through the FMCSA’s Web site you can access the same licensing and
We evaluate all issues of industry standards concerning the
RETAIL INDUSTRY Over 50 years of hands-on experience in all retail store procedures
Alex J. Balian, MBA Balian & Associates
SUPERMARKETS GENERAL MERCHANDISE STORES HOME IMPROVEMENT CENTERS RESTAURANTS FAST FOOD OPERATIONS WAREHOUSE STORES SPECIALTY STORES CONVENIENCE STORES SMALL BUSINESS OPERATIONS
Slip/Trip and Fall ADA Compliance Food Handling Procedures Floor Care & Maintenance Procedures
Merchandising Procedures Internal Operation Procedures Store Security Loss Prevention Wrongful Termination
(818) 702-0025 JULY 2013
The Advocate Magazine — 87
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 88
Liability & Insurance — continued
insurance information used by the trucking industry.7 The FMCSA’s Safety and Fitness Electronic Records (SAFER) center, available online, contains information about a motor carrier including: its permit number; whether it is actively performing work as a motor carrier for hire; its mileage for the year; what type of loads it is authorized to carry (e.g. general freight as compared to hazardous goods); and how many drivers, trucks, and trailers the company has on file. The FMCSA’s Web site also includes a wealth of applicable definitions. Most of these definitions have been adopted by California’s regulations. Many definitions may be broader than you would assume. For example: • A “for hire motor carrier” defines any person engaged in transport of people or goods for compensation; • In some instances the term “motor vehicle” may include trailers or semitrailers; and • An “employer” refers to any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle.8
Once you have spent time on the FMCSA’s Web site, you will be armed with tools for written discovery and depositions. • Be your own Internet investigator If it appears your defendant is a forhire motor carrier, look to the Internet for support. Is the defendant listed as a member of a motor-carrier association? Identified as hauling for another company? If the entity has a Web site, review it to determine how it represents itself. In a recent case, a defendant claimed it was just a broker, rather than a for-hire motor carrier.9 However the defendant’s own Web site used statements like “our specialized equipment...allow[s] us to transport 51,000 lbs. over the road...”and “our integrated transportation solution gives customers a total solution from a single source provider.” Statements like these, coupled with an active motor-carrier permit, made the claim of ‘just a broker” just plain unbelievable.
Motor carriers must maintain at least $750,000 in insurance Whether transporting interstate or intrastate, motor carriers are required to
carry minimum levels of insurance based on the types of loads they haul and the corresponding risk. Insurance minimums range from $750,000 for most motor carriers, to $5 million for those transporting hazardous goods.10 If the defendant is operating under the FMCSA’s authority, demand the defendant’s Form MCS-90 for proof of insurance. For a motor carrier licensed through the state, the required insurance forms are identified as a DMV 65 MCP, or DMV 131 MCP if the defendant is self-insured. Frequently this public liability insurance can be found attached to the motor carrier’s insurance policy as a motor carrier endorsement. Based on the language of the insurance policy, other motor carriers in the chain may be additional insureds.
A few negligent entrustment and selection hurdles
Our firm has been successful in establishing negligent selection and negligent entrustment liability for entities such as the owner of the shipment, truck or trailers, or the entity who hired a subcontractor in the chain. However,
PRE-SETTLEMENT CASH FOR YOUR CLIENTS WITHOUT INTEREST
We fund all types of personal injury cases. We comply with all state laws and ethical rules. We only get paid if the case is won.
305-598-6430 Toll Free: 1-866-798-2941
E: email@example.com • www.FastFundsForYou.com 88 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:44 PM Page 89
the more removed a defendant is from the trucker, the more evidence you will need to meet your burden. • Negligent entrustment Negligent entrustment of a motor vehicle under CACI 724 can be used for the owner or leasor of the trailers as well as the owner or leasor of the truck. Your defendant need not know of the driver’s unfitness and/or incompetence as long as you can establish it should have known. Defendants like to cite to Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644 when trying to throw out your claim. In Lindstrom, a crash occurs while the driver is making an illegal U-turn. The court finds no liability for the rental car company because it verified the driver renting had a valid license. Lindstrom is distinguishable from any case involving a motor carrier because the public policy rationale governing commercial, for-hire carriers establishes higher levels of responsibility when entrusting motor vehicles as compared to those of a rental car company. • Negligent selection Negligent selection under Restatement (Second) Section 411 requires the plaintiff establish: (1) failure to exercise reasonable care to employ a competent and careful contractor; and (2) that this failure was a legal cause of the accident. In establishing the first factor, be prepared to distinguish your defendant’s actions and inactions from Henderson Bros. Stores, Inc. v. Smile (1981) 120 Cal.App.3d 903. In Henderson Bros., the court found no negligent selection where the defendant knew the contractor was licensed and had been in business for a number of years, regularly hired the contractor with satisfactory results, and had no information which reflected badly on the contractor’s competence. When establishing factor (2) distinguish your case from Davies, C&W Trucking v. Commercial Metals Co., 46 So. 3d 72 (Fla. Dist. Ct. App. 2010) and Mooney v. Stainless, Inc. (6th Cir. 1964) 338 F.2d 127. In Davies, C&W Trucking, the appellate court upheld summary judgment finding of no proximate cause against defendant that hired the negligent trucking company because
plaintiff could not show defendant’s negligent selection of the trucker caused the accident. The cause of the accident was not equipment failure, just driver negligence. In Mooney, the court found no proximate cause because the court determined that the accident appeared to be caused by lack of attention/diligence in operating the truck and allowing it to move forward and strike the plaintiff, rather than lack of experience or insufficient equipment. Review the FMCSA’s Web site, DMV records, and driver’s personnel file for information that was available at the time, had the defendant checked. Do not let motor-carrier defendants run you over. Spend the time to investigate who is in the chain between trucker
and shipper. You may find liability, and insurance, along the way. Anoush Lancaster is with The Veen Firm P.C. in San Francisco. She litigates complex catastrophic injury cases involving negligence, wrongful death, products liability, industrial accidents and exceptions to the workers’ compensation exclusive remedy doctrine. For more information on this article, sample motions in limine, and other helpful materials, please e-mail firstname.lastname@example.org or visit www.veenfirm.com. The endnotes for this article will be found online at www.theadvocatemagazine.com and in the Advocate library at www.caala.org.
The Advocate Magazine — 89
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 90
Trial Practice & Procedure Eustace de Saint PhalleAssociate Editor
Don’t let defendants Sargon your experts Defense attorneys can be expected to argue that the Sargon case imposes new legal requirements for the admissibility of expert testimony It is likely that you have encountered, or will shortly encounter, defense attorneys citing the Supreme Court’s holdings in the recent Sargon case (SargonEnterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747) in order to attack your experts. In Sargon,the Supreme Court encouraged trial courts to examine the experts’ use of foundational materials to see whether the experts’ conclusions are logically supported by the materials used, and to preclude any expert’s testimony where it is speculative or otherwise improper. (Id. at 770-771) Defense attorneys can be expected to argue that the Sargon case imposes new legal requirements for the admissibility of expert testimony. Such suggestions are incorrect, and should be strongly resisted by plaintiff ’s counsel. Sargon does not change California law on the admissibility of expert testimony. Sargon simply reinforces existing case law that judges should review the expert’s qualifications and foundation, and should act as a gatekeeper to insure improper opinions are not offered – particularly speculative opinions. (Id. at 771-772.) Some attorneys may take the position that this “gatekeeper” role is new or expanded for California, but that is not the case. This is the same role California trial courts have always had, whether or not they called it a “gatekeeper.” It is important to understand the holdings of the Sargon case – and its limitations – in order to rebuff improper attempts to use this case to eliminate your experts’ opinions. These materials should aid you in preparing your experts for defendants’ examinations in deposition, opposing motions in limine, and attacking defendants’ own experts.
The facts in Sargon
Sargon was a breach of contract / lost profits case. Plaintiff Sargon was a small 90 — The Advocate Magazine
dental implant manufacturer who had contracted with USC to conduct research into Sargon’s new dental implant technique. Sargon sued USC for breach of contract. Sargon alleged that, due to USC’s failure to conduct the contracted testing, Sargon was unable to use the technique and lost future profits from the use of the technique. Sargon’s expert on loss of profits opined that Sargon, a small company (0.5 percent market share) would have grown to the size of the largest implant companies (the “Big Six”). Using the “market share” theory, plaintiff ’s expert opined that Sargon would have achieved a 3 to 20 percent market share. The expert based his opinion on Sargon’s “innovation” as the main driver of market share and business success. (Sargon at 755-761.) In the expert’s most optimistic scenario (20 percent eventual market share), Sargon would have increased its profits 157,000 percent over ten years. (Id. at 762.) The trial court conducted an extensive evidentiary hearing and found the expert’s market share opinion to be speculative and lacking in foundation. Among other problems, the trial court found: • Sargon’s expert had assumed that if a company had a significant innovation, no matter how small it was, it would soon join the industry leaders. The trial court found that this assumption had no factual basis and did not look at other factors affecting company success. • There was no reasonable basis for the expert to compare Sargon to the “Big Six” implant companies, which were much larger and had more resources. • The estimate of future profits had no relation to Sargon’s past profits. This was contrary to case law requiring consideration of the company’s past performance. • The expert assumed without foundation that Sargon would have become a
market leader within 10 years, replacing one of the “Bix Six” manufacturers. (Sargon, supra at 774-776.) The trial court concluded Sargon’s expert’s opinions were “not based on any actual historical financial results or comparisons to similar companies and, therefore, is not based on matter of a type [on which] an expert may reasonably rely.” (Id. at 761.) After this exclusion and a stipulated entry of judgment, Sargon appealed. The Court of Appeal reversed, holding the trial court erred in excluding Sargon’s expert. The Supreme Court reversed the Court of Appeal’s opinion and approved the trial court’s exclusion of the expert’s opinions as speculative.
Excluding improper expert testimony
The Supreme Court discussed the admissibility of expert testimony and the judge’s role in precluding improper testimony. The Court noted that under Evidence Code section 801, the foundational matter relied on must provide a reasonable basis for the particular opinion offered, and irrelevant or speculative matters are not a proper basis for an expert’s opinion. (Sargon at 770.) Under Evidence Code section 802 the Court may inquire into the reasons for the expert’s opinion, and may exclude opinions based on matters precluded “by law” – including case decisions. (Id. at 771.) The Sargon Court cited to a line of California cases excluding speculative expert opinions, particularly In Lockheed Litigation Cases (2004) 115 Cal.App.4th 558. In Lockheed, the plaintiffs had argued that trial courts should limit their inquiry to whether an expert’s foundations were properly used in the field, and that it was improper for a trial court to determine that a particular scientific study did not support the expert’s conclusions. The Lockheed court disagreed:
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 91
“‘We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.’” (Sargon, supra at 770, citing, Lockheed, supra at 564.) For its analysis of Evidence Code section 802, the Court adopted the reasoning of a recent treatise, Imwinkelried & Faigman, Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony (2009) 42 Loyola L.A. L.Rev. 427. The authors cite Evidence Code section 802 as authority for a judge’s inquiry into whether the expert’s logic or reasoning is sound – not just whether the foundation’s materials are proper for that field of expertise. Citing this article, the Sargon Court noted: The reasons for the experts’ opinions are part of the matter on which they are based just as is the type of matter. . . . .This means that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning...A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. (Sargon, supra at 771.) The Sargon Court also cited a U.S. Supreme Court case, General Electric Co. v. Joiner (1997) 522 U.S. 136. In General Electric, a toxic exposure/risk of
cancer case, plaintiffs’ expert cited studies linking PCB exposure to increased cancer risk. The trial court had excluded this expert, noting that the cited studies did not in fact show cancer risk for PCBs in particular. The U.S. Supreme Court affirmed, noting that, while it would be improper for a judge to make judgments about expert’s conclusions (invading the trier of fact’s role), a judge could properly exclude opinions where the cited materials simply did not support the conclusion. (General Electric, supra, 522 U.S. at p. 146.) Using this rationale, the Sargon Court approved the trial court’s exclusion of the plaintiff ’s expert’s testimony on lost profits as speculative. The Supreme Court found that the plaintiff ’s expert’s primary assumption – that Sargon’s superior innovation would automatically catapult the company to the top of its field – was simply too speculative, and ignored the company’s past performance. (In fact, existing case law required the consideration of a company’s past performance in calculating future profits. (Id. at 774.) Plaintiff ’s expert had mostly disregarded the company’s past performance.)
Sargon cautioned judges
A Structured Settlement requires careful planning and experience.
Michael J. Pickett, CSSC Certified Structured Settlement Consultant for 25 Years License #0536433 n n n
While the Sargon Court emphasized the trial court’s gatekeeper role, the Court also cautioned judges not to be too zealous about excluding expert opinions. “But courts must also be cautious in excluding expert testimony. The court must not weigh an
Income Tax Deferred Attorney Fee Structures Income Tax Free Claimant Structures Income Tax Deferred Taxable Settlements
DARRYL H. GRAVER, ESQ. EXPERIENCED ARBITRATOR/MEDIATOR “Have Gavel Will Travel”
Over 3,000 successful conclusions To Schedule, call Judicate West 800.488.8805
818.884.8474 fax 818.884.8388
24445 Hawthorne Blvd., #205, Torrance, CA 90505
800.326.1078 Serving the State Bar since 1985 JULY 2013
The Advocate Magazine — 91
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:44 PM Page 92
Sargon — continued
opinion’s probative value or substitute its own opinion for the expert’s opinion.” (Id. at 772.) Further, “The court does not resolve scientific controversies.” (Ibid.) Under Sargon, the trial judge has a limited role: [T]he court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. . . .[The court]conducts a ‘circumscribed inquiry’ to ‘determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid.’ (citation) The goal of trial court gatekeeping is simply to exclude ‘clearly invalid and unreliable’ expert opinion. (citation.) (Id. at 772, emphasis added.) By way of summary, the Sargon Court had the following advice for trial judges:
p. 626.744.3540 f. 626.744.3530 email@example.com www.rule26.com
Employment Litigation Statistical Analysis & Survey Research Personal Injury & Wrongful Death Loss Analysis Asbestos Litigation Class Action Litigation Lost Profits & Commercial Damages Credit & Finance-related Issues Wrongful Termination & Discrimination Data Analysis
Economics / Statistics / Finance Your Expert Solution Consultation / Research / Testimony 92 — The Advocate Magazine
Judges should: Focus solely on the expert’s principles and methodology. Determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. Determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid. Exclude “clearly invalid and unreliable” expert opinion. Judges should not: Focus on expert’s conclusions. Choose between competing expert opinions. Weigh an opinion’s probative value. Substitute its own opinion for the expert’s opinion. Resolve scientific controversies. (Id. at 771-72.)
Old ground in Sargon The Sargon Court reaffirmed existing California case law regarding the exclusion
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 93
of speculative opinions lacking adequate foundational support. (See, Sargon, supra at 770, citing, In Lockheed Litigation Cases, supra, 115 Cal.App.4th 558 at 563-564; Roscoe Moss Co. v. Jenkins (1942) 55 Cal.App.2d 369 [expert may not base opinion upon a comparison if the matters compared are not reasonably comparable]; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108; People v. Richardson (2008) 43 Cal.4th 959, 1008; and People v. Moore (2011) 51 Cal.4th 386, 405). There is a large body of California cases holding it is improper for experts to offer opinions based on conjecture or speculation, or not supported by the cited materials. (See, e.g., People v. Venegas (1998) 18 Cal.4th 47 at 78 [courts have authority under the third prong of the Kelly test to determine “whether the procedures actually utilized [by the expert] in the case were in compliance with that methodology and technique, as generally accepted by the scientific community”]; see also, cases cited in Jefferson, California Evidence Benchbook ch. 29, “Opinion Testimony,” §29.40.) Sargon emphasized the judge’s power to exclude speculation under existing law, and offered Evidence Code section 802 as additional justification for excluding opinions that are not logically supported by the cited materials. (Sargon, supra at 771, citing Imwinkelried & Faigman ,supra, 42 Loyola L.A. L.Rev. 427.) Sargon did not overturn any California decisions other than the one appealed. Under Evidence Code section 801, experts may base opinions on matters reasonably relied upon by other experts in that field. Case law on the admissibility of foundational materials is thus specific to a particular field of the expert. While it is generally true that speculative opinions are inadmissible, the determination of whether a particular expert’s logic is speculative is likely to turn on cases specific to that field. For example, in product liability cases, it is not speculative for an engineering expert to use circumstantial evidence to prove the existence of a product defect.
Specializing in Eye-Related Side Effects of Head and Facial Injuries for Personal-Injury Patients www.northvalleyeye.net Steven Rauchman, M.D. Board Certified Ophthalmic Surgeon
11550 Indian Hills Road Suite 341 Mission Hills, CA 91345
(818) 365-0606 Main Office Line (818) 815-1570 Attorney Concierge Line
WORKPLACE RIGHTS NO RECOVERY = NO FEE
Call for FREE consultation
Generous referral fees paid per State Bar rules
9255 Sunset Blvd., #411, Los Angeles, CA 90069
Unpaid Overtime Wrongful Termination Discrimination Wage & Hour Class Actions Harassment Retaliation Disability Pregnancy Leave
The Advocate Magazine — 93
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 94
Sargon — continued
this is the new one!
94 — The Advocate Magazine
(See, e.g., Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 562, citing, Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430.) There are many other cases holding that particular expert testimony was not speculative. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067 [improper to require 100 percent certainty from an expert].) Again, Sargon did not overturn any of these cases. All experts reach conclusions by making inferences from other facts. Whether an expert’s inferences are logical or proper can be a difficult question. As one treatise notes, “The question of whether an expert’s opinion is conjectural or speculative . . . in a particular case or type of case is not always an easy one to decide.” (Ibid., Jefferson, Cal. Evid. Benchbook.) Because of this gray area, it is common to call the opposing expert’s opinion “speculative.” The Sargon case provides a general directive to avoid speculative or illogical opinions, but since these determinations are area-specific, Sargon is unlikely to clarify whether a particular expert’s opinion is speculative. Further, while the Sargon Court cited a federal case on expert admissibility (General Electric, supra), the Court did not adopt the Federal Daubert standard for expert testimony (Daubert v. Merrell Dow Pharms. 509 U.S. 579, 595, 113.) Sargon expressly denied it was adopting a Daubert standard, or modifying California’s “general acceptance” test for admissibility of expert testimony in “new” areas. (Sargon, supra at 772 fn 6.) Finally, Sargon offers little clarification about the requirements for expert qualifications. While the trial court had criticized the plaintiff ’s expert’s qualifications, the Supreme Court made no specific comments on the requirements for expert qualifications. In general, experts may be qualified by the expert’s “special knowledge, skill, experience, training, or education.” (Evid. Code, § 720; see CACI 219.) “Expertness is relative to the subject and any person who has special knowledge, skill or experience in any occupation, trade or craft may be qualified as an expert in his field.” (People v. King (1968) 266 Cal.App.2d 437, 445.) JULY 2013
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 95
How to prepare for a “Sargon attack” Despite the limitations of the Sargon case, it is likely that you will see defense attorneys citing Sargon in motions in order to attack your experts, even where the facts are not on point. Knowing that such attacks are likely, it is important to review your expert’s opinions to ensure that proper foundational materials are used and that any facts, studies, or other materials cited by the expert logically support the conclusions that your expert will offer. In responding to motions against your expert, the following points may be useful: • Remind the court that Sargon cautions judges to conduct a circumscribed inquiry, not to decide which expert is right, but to determine if the information cited by experts adequately supports their conclusions, and exclude [only] clearly invalid opinions. • Resist any attempt by defense counsel to characterize Sargon as “new law” on expert admissibility. Point out the long line of California cases cited by Sargon regarding exclusion of speculative opinions. • The expert criticized in Sargon had made a long leap of conjecture, opining
that the company’s profits would increase 157,000 percent. Point out that your expert’s inferences are more modest and are well supported by the evidence. • Sargon concerned the admissibility of expert opinion on lost profits. While Sargon’s general proscription against speculation has validity in all cases, Sargon is unlikely to be on point with regard to the specific requirements to admit expert testimony in your case. Cite to case law that is more pertinent to the admission of your expert’s opinions. • In Sargon, case law required the expert to consider a type of evidence (past company performance) which he ignored. Point out that, unlike the Sargon expert, your expert has considered all evidence he is required to consider under the case law. • In Sargon, the Supreme Court did not discuss the proper legal standard for admitting or excluding experts based on their qualifications. Criticize any opponent who cites Sargon as authority regarding proper expert qualifications.
Conclusion A proper reading of Sargon will provide the structure for how you should prepare for trial. This case provides
counsel with a structure on how to work with your own experts to insure that they have opinions with proper foundations and scientific analysis; a structure for defending against Motion In Limines attacking your experts, as well as a structure for attacking the defendants experts. Remember, what is good for the Goose is good for the Gander. Eustace de Saint Phalle is an attorney with the Veen Firm P.C. in San Francisco. He focuses his practice on civil litigation in a variety of areas, including industrial accidents, product liability, exceptions to workers’ compensation, premises liability, professional malpractice, medical malpractice, auto accidents, maritime accidents, as well as business disputes and copyright violations. He will provide additional materials for briefs or motions in limine upon request. Assisting in the preparation of this article was Andrew Clay, a litigation paralegal at The Veen Firm, P.C. since 2003. He has worked on a variety of civil litigation cases including personal injury, product liability, auto accident, employment law, Social Security disability, and landlord-tenant. He works on all aspects of case development, focusing on drafting discovery, motions, and other pleadings.
Your Personal Injury Case Investigator Nationwide OVER A DECADE OF STELLAR SERVICE PROVIDING:
• Full Scale Investigations • Mobile Copy Service • Attorney Service
• Process Service • Former claims adjuster with 22 years experience in evaluating and investigating Personal Injury Claims
“ Kabateck Brown Kellner appreciates the excellent customer service and flawless legal support & investigative services of USA Express! ” — Brian Kabateck We are available 24 hours a day — 365 days a year. WE ARE “AMERICA’S PEOPLE LOCATE CENTER” IF WE DON’T LOCATE YOUR SUBJECT, YOU DON’T PAY!
Toll Free 1.877.872.3977 Founder Harry Kazakian Private Investigator
Your Complete Legal Support Center! TM California Department of Insurance Independent Adjuster License 2G93529 California Bureau of Security and Investigative Services BSIS PI LIC 22511 JULY 2013
The Advocate Magazine — 95
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 96
From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
Appellate About Reports and Cases in Brief this Issueof interest to members of the plaintiffs’ bar Recent cases Jeffrey Isaac Ehrlich Short takes
Unfair competition law (UCL), False Advertising Law (FAL); perpetual “sales”: Hinojos v. Kohl’s Corp. (2013) __ F.3d __ (9th Cir.) Hinojos purchased several items of apparel and luggage at a Kohl’s store that were advertised as having Jeffrey Isaac been Ehrlichsubstantially marked down in price during a “sale” from the items’ “regular” prices. In reality, the items were routinely sold by Kohl’s at the advertised “sale” price. The FAL, Bus. & Prof. Code, § 17501 bars merchants from advertising a former price for an item unless the former price was the “prevailing price” within By Jeffreymarket Isaac Ehrlich Editor-in-Chief three months of the advertisement. Hence, the FAL, which is incorporated into the UCL, expressly bars the type of conduct that Kohl’s was alleged to have engaged in. The district court nevertheless dismissed Hinojos’s UCL claim on the ground that he could not meet the UCL’s standing requirement, of having
About this Issue
lost money or property as a result of the alleged unfair business practice. Reversed. Hinojos alleged that he would not have purchased the items if they had not been advertised as being “on sale.” This was sufficient, under Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, to establish standing. The court rejected Kohl’s argument that Hinojos failed to allege what price he would have paid if the merchandise had not been on sale, because there is no requirement that a plaintiff suing under the UCL include such an allegation. The court also rejected the district court’s attempt to limit the scope of Kwikset to misstatements by the seller about the quality or content of the product at issue. “Misinformation about a product’s ‘normal’ price is, therefore, significant to many consumers in the same way as a false product label would be.” The district court also improperly applied the “benefit of the bargain” test – finding that the product was not defec-
tive and that Hinojos kept it. This test was rejected in Kwikset. Overtime pay; Executive exemption: Heyen v. Safeway, Inc. (2013) __ Cal.App.__ (2d Dist., Div. 4.) Heyen worked as an assistant supermarket manager for Safeway. After Safeway terminated her employment, she sued to recover unpaid overtime pay. She claimed that she should have been classified as “nonexempt” because she regularly spent more than 50 percent of her time doing nonexempt tasks like stocking shelves or bagging groceries. She prevailed, and recovered $26,184. Safeway appealed, arguing that the court should have determined whether she was simultaneously performing exempt and nonexempt work – such as actively managing the store while also bagging groceries. The court rejected this approach as inconsistent with California law. The federal regulations that are incorporated into the California Wage Order, on which
Cut Costs and Save Time with Deposition Summaries by 4 CORNERS ◆Quality service ◆5 business days or fewer turnaround ◆Standard 2 column with Headers and TOC ◆Ability to handle large volume jobs
1.888.460.7444 www.4cornersdepo.com Look for us in CAALA Vegas 2013, Booth 228 96 — The Advocate Magazine
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:45 PM Page 97
Safeway relied, acknowledge that nonexempt work can be considered exempt when performed by a manager to contribute to the smooth functioning of the department for which the manager is responsible. Hence, the proper test is the purpose of the manager’s actions. The regulations do not adopt the “multitasking” approach proposed by Safeway. Dramshop liability; furnishing alcohol to minors; Civil Code section 1714, subd. (c) and (d): Rybicki v. Carlson (2013) __ Cal.App.3d __ (2d Dist., Div. 4.) Rybicki was riding his bicycle at 7:15 a.m. on a Sunday morning, when he was struck by a car being driven by Jacyln Garcia, a minor. Garcia was coming home from a party at the home of Garette Shoemaker, an adult. She was driving the wrong way on the road when she struck Rybicki, and was intoxicated. Rybicki sued Shoemaker, Garcia, and the passengers in Garcia’s car, alleging that they were adults who had supplied her with alcohol, or had conspired to do so. The trial court dismissed the case under Civil Code section 1714, subd. (c) and (d). Affirmed. Civil Code section 1714, subd. (c) eliminates liability to a social host for furnishing alcohol to a person who causes injury to or the death of a third person, except as provided in section 1714, subd. (d). That subsection, in turn, does permit liability against a parent, guardian, or other adult who at his or her residence furnished alcohol to a minor. Rybicki could therefore state a claim against Shoemaker, but not the other passengers in Garcia’s car. Although they were adults who had furnished her with alcohol, they had not done so in their residence, and therefore a claim against them did not satisfy the requirements of section 1714, subd. (d).
The district court denied class certification on the ground that each class member’s claim would require individualized
inquiries into the amount of damages. Reversed. “Damage calculations alone cannot defeat class certification.”
We make establishing Special Needs Trusts easy.
Protect Medi-Cal and SSI No Minimum Funding Clients of Any Age
Will Lindahl, MBA, CLPF Enrollment Director firstname.lastname@example.org 877-695-6444, Ex. 2
Class-action certification; wageand-hour claims; individual damage calculations: Leyva v. Medline Industries, Inc., __ F.3d __ (9th Cir. 2013). Leyva filed a class action against her employer, Medline, seeking to represent 538 current and former employees, alleging violations of California labor laws. JULY 2013
The Advocate Magazine — 97
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:45 PM Page 98
Appellate — continued
Damage calculations are almost always individualized in wage-and-hour cases, and courts routinely certify classes more complex than the ones proposed by Leyva.
P.J. WEST & ASSOC.
Elder abuse: Winn v. Pioneer Medical Group (2013) __ Cal.App.4th __ (2d Dist. Div. 8) Elizabeth Cox began receiving medical treatment from the defendant physicians in 2000. By 2004, they knew she had impaired blood flow in her leg, but deliberately failed to treat her for that condition. In 2007, one of the defendants diagnosed her with peripheral vascular disease, but failed to refer her to a specialist. The last day that defendants saw Mrs. Cox they noted in her chart that she had lost an abnormal amount of
weight, but made no referral for a vascular consult. The next day she was hospitalized with gangrene, and her right foot was black because of tissue death caused by long-term vascular insufficiency. Mrs. Cox required progressively higher amputations of portions of her right leg, and was finally hospitalized for blood poisoning, from which she died. Her daughter sued the defendants for elder abuse. The defendants demurred, arguing that they could not be held liable under the Elder Abuse Act because they did not have custodial obligations toward Mrs. Cox, and that their conduct may have been negligent, but not the type of “reckless neglect” necessary for liability under the Elder Abuse Act. The trial court sustained the demurrer. Reversed. After a lengthy analysis, the court majority concluded
MEDICAL LEGAL CONSULTING Ethics • Excellence • Experience • Quality Our expert organization & analysis are key to your successful medical verdict. We have a successful 25+ year history of extensive national experience collaborating with attorneys. New to using P.J.W.A. services? Mention this ad and receive $180 credit toward your first medical record review! We Specialize in: Defense Medical Exams Life Care Planning and Vocational Rehabilitation Evaluating Medical Bills for Allowable Charges Organizing & Bates Stamping Medical Records Case Screenings for Merit Research & Summarizing Medical Literature Chronologies of Medical Events Expert Witnesses & Jury Consulting Medicare & Billing Fraud
98 — The Advocate Magazine
(818)707-0051 www.pjwa.com JULY 2013
that there is “no support in the statute or the cases for the claim that a health care provider without custodial obligations is exempt from the Elder Abuse Act.” The majority also found that whether the defendants’ conduct constituted “reckless neglect” constituted a factual inquiry for the jury. Bigelow, J., dissented. Debt collection; Fair Debt Collection Practices Act: Heritage Financial LLC. v. Monroy (2013) __ Cal.App.4th __ (1st Dist., Div. 2.) Monroy purchased real property in Richmond, and executed two promissory notes secured by a trust deed. She defaulted, resulting in a foreclosure of the senior trust deed. Heritage Financial acquired the junior trust deed and then sued Monroy for fraud based on alleged misstatements she made in her application to the original lender. The court dismissed the fraud claims on demurrer, finding that the original lender had assigned only its contract rights, not any tort claims. The trial court granted Monroy’s motion for summary judgment on her cross-complaint for violations of the Fair Debt Collections Practices Act (“FDCPA”), awarding her a dollar in nominal damages, and attorney’s fees. Heritage Financial appealed. Reversed. The FDCPA forbids a debt collector from using “any false, deceptive, misleading representation or means in connection with the collection of any debt.” A violation of
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:45 PM Page 99
the Act includes “the threat to take any action that cannot legally be taken.” Heritage Financial’s fraud claim against Monroy violated this provision. It not only had no merit, as the trial court found, but as the junior creditor, Heritage Financial had been foreclosed out by the foreclosure of the senior trust deed before it acquired the junior trust deed and note. It therefore had no valid interest to pursue against Monroy under the California antideficiency statutes. Arbitration agreements; unconscionability: Vargas v. SAI Monrovia B. (2013) __ Cal.App.4th __(2d Dist. Div. 1.) Vargas purchased a Mini automobile from SAI, doing business as Assael BMW/Mini, and financed the transaction through the dealership. The purchase contract and financing agreement, titled “Retail Installment Sale Contract” was printed on both sides of a single document, which was 8.5 inches wide and 26 inches long. Plaintiffs were required to sign and initial the front of the contract in 12 separate places, but no signatures or initials of the contract required on the back. On the back, at the bottom of the page, the last provision was an arbitration clause. That clause included a provision barring class arbitrations. When the auto developed problems which the dealer did not or could not resolve, Vargas filed a class action, alleging nine causes of action, including violations of the Consumer Legal Remedies Act, BeverlySong Consumer Warranty Act, and UCL. SAI moved to compel arbitration and strike the class-action allegations. The court granted the motions and Vargas appealed. Reversed. The court found that the elements of both procedural and substantive unconscionability were met, which rendered the arbitration clause unenforceable. The court noted that Vargas was not given the contract to read and to initial as he did so, but was instead told to “sign here” at the various spots where a signature or initial was required. This established procedural unconscionability. The substantive element was satisfied by the agreement’s asymmetric terms, including one that
allows a party to appeal any award over $100,000 to a three-arbitrator panel; a provision allowing an appeal if an award includes injunctive relief; a provision
forcing the appealing party to bear the costs associated with the appeal; and a provision exempting self-help remedies from arbitration.
“Love the work you guys do — right on the money.” — A California attorney Attorneys use our service because we win for them. With 30 years’ experience writing briefs for state and federal courts — trial and appellate — we know how to get results. Call us to discuss at no charge any matter you’d like off your desk.
Legal writing and research. It’s all we do, and practice makes perfect.
QUO JURE CORPORATION
The First Name in Structured Settlements
A STRUCTURED SETTLEMENT CAN PROVIDE HOPE AND A SECURE FUTURE. Michael Zea 151 Kalmus Drive, Suite C140 Costa Mesa, CA 92626
877-899-1114 (Toll Free) email@example.com
Specializing in Asset Protection, Medicare, Medi-Cal, Trusts and Preservation of Public Benefits. No-Cost Mediation Support Tax-Free Benefits Attorney Fees
CA License No. 0D75747
www.ringlerassociates.com JULY 2013
The Advocate Magazine — 99
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 100
Appellate — continued
INVESTIGATIONS DISCRETION AND CONFIDENTIALITY
Locates Asset Investigations Rush & Difficult Service of Process Surveillance
23 Years of Experience 818.344.2193 tel
818.344.9883 fax PI 14084
800.807.5440 100 — The Advocate Magazine
Attorney’s fees; Civil Code section 1717, Civil Code section 1021: Maynard v. BTI Group, Inc. (2013) __ Cal.App.4th __ (1st Dist., Div. 3.) Maynard hired BTI as the broker to sell her retail business. The business was sold, but the buyer ultimately filed for bankruptcy, and the full purchase price for the business was not paid. Plaintiff sued BTI for the balance, alleging several causes of action. In a bench trial, the court found BTI liable on a negligence theory, awarding Maynard damages of $24,000. But it found against Maynard on all the other causes of action, including breach of contract. The listing agreement included a provision awarding attorney’s fees to the prevailing party in any litigation or arbitration. The trial court found that Maynard was the prevailing party and awarded her fees. Affirmed. The attorney’s fees provision allowed an award of fees to the prevailing party, and did not limit or specify that fees were only recoverable for a claim brought on the contract. Accordingly, Maynard was the prevailing party and entitled to an award of fees. Timing of memorandum of costs; extension of time to file for service by mail; Code of Civil Procedure section 1013; Nevis Homes, LLC v. CW Roofing, Inc. (2013) __ Cal.App.4th __ (2d Dist. Div. 1.) Nevis filed a cross-complaint against CW in a construction-defect lawsuit brought by a homeowner’s association. The case settled and Nevis dismissed its cross-complaint against CW and mailed a notice of dismissal. CW filed its cost bill 19 days later. Nevis moved to strike the cost bill as untimely. The trial court granted Nevis’s motion to tax costs. Affirmed as modified. The court held that CW’s cost bill was timely filed. Rule 3.1700 (a)(1) of the California Rules of Court requires a party seeking costs to file its memorandum of costs within 15 days after service of written notice of entry of judgment or dismissal. But where that notice is served by mail, the
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:46 PM Page 101
provisions of Code of Civil Procedure section 1013 apply, and provide an additional five days for the party served to file the memorandum of costs. Clear and convincing evidence; CACI 201; punitive damages: Nevarrez v. San Marino Skilled Nursing and Wellness Centre (2013) __ Cal.App.4th __ (2d Dist., Div.4.) CACI 201 defines “clear and convincing evidence. It says, “[c]ertain facts must be proved by clear and convincing evidence which is a higher burden of proof. This means that the party must persuade you that it is highly probable that the fact is true.” The defense argued that this definition is too weak, and that the trial court erred in refusing to supplement the instruction that said, “Clear and convincing evidence requires a finding of high probability that the evidence be so clear as to leave no substantial doubt; sufficiently strong as to command the unhesitating assent of every reasonable mind.” The appellate court held that it was not error for the trial court to reject the instruction, noting that the cases do not require augmentation of the “highly probable” standard, and noting that “the proposed additional language is dangerously similar to that describing the burden of proof in criminal cases.” Jeffrey Isaac Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. His practice emphasizes appellate support for the Southern California trial bar and insurance bad-faith litigation. He is the editor-in-chief of Advocate magazine and a contributing author of the Rutter Group’s Insurance Litigation practice guide.
Legal Nurse & Certified Medicare Set-Aside Consultant Decipher, summarize & organize medical records Prepare medical chronologies Medical bill review and audit
Kathy Cross R.N . & Associates
Kathy Cross, R.N., B.S., MSCC
Los Angeles, Orange, Ventura, Santa Barbara, San Luis Obispo, Kern Counties
R.A. CARRINGTON www.CaliforniaNeutrals.org BUSINESS EMPLOYMENT INSURANCE
PROBATE PERSONAL INJURY PROFESSIONAL NEGLIGENCE
“ Mr. Carrington was very knowledgeable. Insurance companies respect his opinion.
Extensive trial experience (ABOTA), Excellent Mediator, fair objective arbitrator. Extraordinarily capable and forthcoming with efforts and involvement. He is very thorough and fair.” Quote from 2006 Consumer Lawyers Evaluations
565 SHEFFIELD, SANTA BARBARA, CALIFORNIA 93108 JULY 2013
The Advocate Magazine — 101
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:46 PM Page 102
Miles B. Cooper
The map is not the territory Why it is so very important that you personally go to the accident scene A little girl rode her bike along a bike path. The path approached a twolane vehicle bridge and ran alongside it, like a sidewalk. Her family rode behind her. Her younger brother, new to his twowheeler, bumped her bike. The bike’s front tire went off the curb. She put her foot down in the road. A passing bus crushed her foot. The bus driver had 9 to 12 seconds to see the kids. Our approach: He had the length of the bridge to see, stop, and avoid the possibility that she might come off the curb. The defense: this was an unavoidable dart-out and the parents were responsible for unstable children. The case came to us late. The photos showed a long bridge with a long time for the bus driver to perceive and react. We went out to the bridge. In reality, it was short and wide.
The map is not the territory
Alfred Korzybski, an early 20th-century semantics scientist and philosopher, stated that the map is not the territory. He believed that individuals don’t have absolute knowledge of reality. Instead, they have a set of beliefs built up over time about reality. People’s beliefs about reality and their awareness (their map) is not reality itself (the terrain). Interesting – but how does that help win cases?
Visit the territory
Visit the scene early in the case. Traffic collision reports, maps, satellite overheads, Google Street View – there are many excuses not to leave our office. But no attempt to capture reality can replace reality itself. Visiting the scene allows you to absorb with all five senses. What does the pavement feel like? Are there sounds, smells, that capture your attention? How did your client feel, lying helpless on the ground? To tell the story, you need to “grok” in fullness, to steal a word from Robert A. Heinlein’s Stranger in a Strange Land. It means to completely 102 — The Advocate Magazine
share the same reality or line of thinking. In a typical case, we’ll visit the scene three times. The first – as soon after the case comes in as we can get there. The ephemeral evidence at the scene can wash away with the next rain. Skid marks, broken glass, fluid dumps. If they are still available, they should be captured by you and your expert. Visiting at the same time can turn up habitual witnesses. I sat on a jury where a pivotal witness was not in the police report. The lawyers found him. He took the same bus every morning and was across the street at a bus stop when they visited the scene at the same early hour of the incident. The second visit is with the injured person, if it is possible. The return to the scene oftentimes evokes strong emotional responses – ones we need to know to tell the story. I say “if possible” because sometimes the potential harms can outweigh the benefits – you need to decide this case by case. The third is with the experts and the animation team, if one is needed.
picture of a pipe with the wording underneath “Ceci n’est pas une pipe” (this is not a pipe). The painting is a representation of a pipe, not a pipe itself. We’ll call this the Magritte corollary to Korzybski’s concept. The Magritte corollary is important when considering how to convey information to jurors. A doctor describing an occipital nerve block is vaguely interesting. Bringing in a long needle, holding it to the back of someone’s head and doing a mock demonstration gets the jury’s attention. The same is true for injury mechanics. We represented an injured plumber. A plug in a concrete hose caused it to whip into his knee. The defense contested causation. Our biomechanical expert brought in a ten-foot exemplar concrete hose, held it vertical near the jury (who leaned back) and in the midst of testimony let it drop one foot down to the floor when he set it down. The bang from the metal coupling startled the jurors, clerk and judge. Causation was no longer an issue.
The jury has not seen the territory
Three scene visits. That’s three times more than the jury. The knowledge is a double-edged sword. Its depth and breadth can skew your view of the case. The jurors do not have that level of detail. When you reflect on the scene, you remember elements absent from the photos. The jurors don’t – they’ve never been there. You need to take that into account. You can bring the jury along. But it requires an understanding that you must spoon-feed the information until they are there with you.
Our bridge case gave us an advantage; there, imagery supported our case better than reality. We were thus able to resolve a difficult case. Most situations are the opposite: you need to help the jury understand your reality. Help them by showing them the territory.
The treachery of images
Back to the esoteric. A variant of Korzybski’s concept about maps and territory was illustrated by René Magritte, a Belgian artist, in 1928. He painted a
Miles B. Cooper is a partner at Rouda Feder Tietjen & McGuinn. He represents people with catastrophic injury and death claims. In addition to preparing his own cases, he associates in as trial counsel and consults on trial matters. He has served as lead counsel, co-counsel, second seat and schlepper over his career and is a member of the American Board of Trial Advocates. Cooper’s focus beyond litigation includes trial presentation technology.
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 103
From the President Scott Cooper
Orange County Trial Lawyers Association
Looking back...and forward Reviewing the past to move to the future Since we’re midway through the year, I thought it was a good time to look back on what OCTLA has been up to for the past six months and make some shameless plugs for our second-half events. It feels like just a few weeks ago (rather than January) that we were celebrating OCTLA’s 50th Anniversary at the Gala and Installation dinner at the Island Hotel in Newport Beach. Over 30 of our past-presidents joined the celebration and were recognized for their leadership and guidance that helped create and sustain the organization that has helped scores of southern California trial lawyers and their clients. We were also honored to welcome over 25 local judges – a sign of the strong relationship between the bench and bar in Orange County.
Our monthly MCLE dinner meetings have been running strong all year. In January, we hosted the traveling attorneys who present the always insightful year-inreview “Tort and Trial” seminar. We followed in February with the extremely wellreceived “Medicine in the Law,” which featured medical experts and attorneys from both sides of the aisle presenting a handson demonstration of medical/causation issues we face in many of our cases. In March, “So You Want to Sue the Government?” provided valuable insights into government claims from a panel that included representatives from local governments who make decisions on these claims every day. In April, we asked “Who is the Orange County Jury?” and the answer came from a sitting trial judge, attorney, and the Jury Coordinator for the Orange County Superior Court, who delivered insightful “behind-the-scenes” information on the basic make-up of the jury venire in Orange County. Finally, to let the trial bar know what to expect from the courts in light of the budget cuts (and to educate those who didn’t have all the information about the problem), the May program, “The State of the Court,” featured the O.C. Superior Court’s Presiding Judge, Assistant
Presiding Judge, Supervising Judge of the Civil Panel, and Chief Executive Officer.
Speaking of the court budget cuts, another major focus of OCTLA this year has been organizing efforts to persuade state legislators to restore some of the $1.1 billion in funds stripped from the courts in recent years. In early May, dozens of Orange County trial lawyers joined others from around the state at CAOC’s Justice Day, where we met with legislators to discuss the issues crucial to us and our clients – and the court budget was at the top of the list. The night before Justice Day, OCTLA hosted over 100 people (including a number of elected officials) at our annual mixer at Vallejo’s in Sacramento. Once back in Orange County, we continued those efforts with an organized letter-writing campaign and group visits to our local legislators’ offices to further emphasize the importance of court funding in the budget process.
As we move into the second half of 2013, we’re just getting started. We will continue our monthly MCLE dinner meetings on the fourth Thursdays of the month (except August and December). Perhaps the most anticipated program on the schedule is “Introduction to the Reptile Approach to Depositions” on September 26. Don Keenan’s and David Ball’s “Reptile”methods have revolutionized the way trial attorneys approach and win their cases, and we are pleased to be able to provide access to this important facet of the program. The second half of the year is when the OCTLA social calendar really kicks into high gear, with at least one big event each month starting in August. On August 8, 2013, OCTLA is teaming up with CAOC to host a day at the Del Mar racetrack. We plan to travel to the track in style in our own dedicated Amtrak car and spend the day in a private suite watching the races, socializing and, hopefully, coming home with a bit more cash than we started with.
The Orange County legal community is looking forward to September 8 – the day of the 7th Annual Bench & Bar Softball Game and family picnic. In this epic clash of lawyers and judges from around the county, the series is tied 3-3, making this the pivotal tiebreaker that will provide one group bragging rights for at least the next year. Next up will be our annual Columbus Day Golf Tournament on October 14, at the El Niguel Country Club in Laguna Niguel. The scramble format allows players of all abilities to enjoy a day on the links, including contest holes, a putting contest, raffle prizes, 19th hole cocktail reception, and dinner. The signature event of our busy fall/winter season will be the Top Gun Dinner and Silent/Live Auction on Saturday night, November 23, at the incomparable Montage resort in Laguna Beach. As usual, we will be honoring some of the best trial lawyers and their results from the past year, and proceeds from the Silent Auction and Live Auction will raise money for a local charitable cause. This year, we are excited to be donating the auction proceeds to Operation Veterans Re-Entry, a program of the Orange County Public Law Center dedicated to providing Orange County veterans and their families with free legal assistance to facilitate their re-entry into civilian life. We are currently accepting Top Gun nominations through July 31, so if you know of any deserving colleagues, please send the nomination to Janet Thornton (firstname.lastname@example.org). You can find the nomination form on the Social Events page of the OCTLA Web site (www.octla.org). That same page has forms for sponsorships and donations of auction items. We will wrap up our year with the Holiday Lunch on December 6, a casual event where lawyers and judges can just break bread and hang out in a relaxed setting. After the busy fall season, we’ll all need a little time to relax. You can get more information on any of these events at www.octla.org, or by contacting our tireless Executive Director, Janet Thornton, at email@example.com or 949-916-9577. JULY 2013
The Advocate Magazine — 103
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:47 PM Page 104
Sacramento Update By Lea-Ann Tratten, CAOC political director and Nancy Drabble, CAOC CEO and Chief Lobbyist MICRA and court money There is big movement on two fronts of much importance to your clients and your practice of law. This month our campaign with a patients’ coalition to fix California’s unjust $250,000 cap on non-economic medical negligence damages has shifted into a high gear with the launch of our “Voices of MICRA” effort. And although there has been some good news on the court funding front, much remains to be done, and we will need your help. First, let’s discuss “Voices of MICRA.” That’s the name we’ve given the focused push by the “38 Is Too Late” coalition, which is composed of medical negligence patients and powerful advocacy groups like CAOC and Consumer Watchdog, to educate the public about MICRA and push lawmakers and our foes in the health-care and insurance industries to come to the table and boost the damages cap, which has been frozen since the law was signed in 1975. The thrust of the “Voices” effort is two-fold: First, to have patients meet with lawmakers in their districts and in the Capitol to put a face on the tens of thousands of medical negligence victims in California while educating them on the unjust nature of the law; second, to educate the public and put pressure on the Legislature and medical industrial complex to come to the table and negotiate a fix on MICRA. We will keep you posted on this effort in the weeks ahead. It also includes a billboard that has gone up on Interstate 80 in West Sacramento featuring MICRA victim Mia Chavez, who died at just six weeks of age after her doctors failed to diagnose her whooping cough in the middle of a whooping cough epidemic. It also includes a TV commercial that began airing a few weeks ago that will put a very poignant focus on another victim of egregious medical malpractice. We encourage everyone to visit the campaign’s Web page at www.38IsTooLate.org as well as “like” its Facebook page. On court funding, the good news was last month’s decision by legislative budget negotiators to support a $100 million boost to court funding. It’s unclear if Gov. Jerry Brown will go along with that boost when the budget is finalized this month, given his
104 — The Advocate Magazine
talk of draconian budget restraint. Besides, $100 million simply isn’t enough, and CAOC, CAALA and other groups are urging everyone to keep the pressure on lawmakers to dig deeper to help reverse the tsunami of red ink that threatens our courts. We are hoping budget writers can boost funding by more than $300 million, an amount that could help hold the line on what has been a bad situation. Lawmakers and the governor need to understand our resolve on this. The math is simple: In the past five budget cycles, General Fund revenue for the courts has been slashed by $1.1 billion and the courts have shrunk from roughly two percent of the overall state budget to barely one percent. In addition, one-time fixes like fee increases and raids on construction funds have been exhausted. The future is grim unless the tide turns and the state makes the courts a budget priority instead of a poor stepchild.
Washington Update By Linda Lipsen CEO, American Association for Justice AAJ fights back against forced arbitration Both the U.S. House and Senate have introduced the Arbitration Fairness Act of 2013 (S.878 / H.R.1844) to amend the Federal Arbitration Act and close the loopholes that are undoing consumer and civil rights. Recent decisions from the U.S. Supreme Court have essentially provided a roadmap for businesses that want to evade our nation’s court system through the inclusion of forced arbitration in their contracts. AAJ Public Affairs is aggressively working to educate lawmakers and the public about the insidious nature of forced arbitration clauses. AAJ has issued a national press release and alerted our online activists to contact Congress to support the legislation. We are working hard with the sponsors and cosponsors of this legislation, and we will push for Congressional hearings, expanding our coalition in this issue area, generating media coverage, and supporting action at the Consumer Financial Protection Bureau and Securities and Exchange Commission. At AAJ, we are proud to work for you and with you to ensure that injured individuals retain access to justice, and are not forced – in the fine print – to give up their rights.
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 105
CAALA Connection Center
TEAM CAALA connects with the community CAALA members – TEAM CAALA – volunteered to give back
CAALA Connection Center to the community during the month of May. TEAM CAALA partici-
pated in CAALA Cares Service Projects including the EIF Revlon Run/Walk for Women on May 11, Heal the Bay Nothin’ But Sand Beach Cleanup on May 18, and Los Angeles Regional Food Bank Sort-A-Thon Project on May 30. We wholeheartedly thank them for giving up their time to represent TEAM CAALA! More CAALA Cares Service Projects will be available in November with new volunteer opportunities. Share your recommendations for organizations and causes with Liz Hagan at (213) 487-1212 or firstname.lastname@example.org.
EIF Revlon Run/Walk for Women May 11, 2013 Participants & Contributors: Ernesto Alcazar, Luz Alcazar, Marina Alcazar, Mela Alcazar, Gregory Ante, Catherine Baklayan, Christen Berman, CAOC Women’s Caucus, Deborah Chodos, Linda Echegaray, Mayra Fornos, Var Fox, Nicole Glasscock, Liz Hagan, Genie Harrison, Elizabeth Hernandez, Jeremy Kerman, Aimee Kirby, Margaret Kirby, Candice Klein, Ryan LaChapelle, Shayne LaChapelle, Gerry Marcus, Lisa Maki, Kathy Volz Mardirossian, Jill McDonell, Mark Mina, Laura Newman, Shawn Pereira, Beverly Pine, Pam Ramirez, Allison Schulman, David Shapiro, Ken Snyder, Gail Solo, Stacy Tillett, Geraldine Weiss, Ryan Weiss, Ema Grace Yakatan.
(left to right): Hannah Borison, Craig Borison, Chaya Borison, Jill McDonell, Deborah Chodos, Liz Hagan, Lisa Maki, Brian Chase, Molly Chase, Riley Mina, Joseph Barrett, Allison Schulman, Catherine Baklayan.
Los Angeles Regional Food Bank Sort-A-Thon Project May 30, 2013 Participants: Joseph Barrett, Sean Bina, Deborah Chodos, Alexis Djivre, Tobin Ellis, Gabriel Gutierrez, Brooke Hodge, Martin Kanarek, Peter Kunstler, Kwedi Moore, Lyssa Roberts, Bill Smith, Michelle West, Stuart Zanville
(left to right): Liz Hagan, Riley Mina, Margaret Kirby, Aimee Kirby, Ema Grace Yakatan, Linda Echegaray, Deborah Chodos, Elizabeth Hernandez, Lisa Maki, Stacy Tillett, Beverly Pine.
Heal the Bay Nothin’ but Sand Beach Cleanup May 18, 2013 Participants: Catherine Baklayan, Joseph Barrett, Ben Beck, Craig Borison, Hannah Borison, Chaya Borison, Cindy Cantu, Pouya Chami, Brian Chase, Molly Chase, Deborah Chodos, Dan Danziger, Katalina De La Rosa, Liz Hagan, Martin Kanarek, Howard Kornberg, Lisa Maki, Jill McDonell, Axel Morales, Niloo Savis, Allison Schulman, Michael Waks, Suzan Waks, Jared Waks, Niki Waks, Alyssa Schabloski, Bill Smith.
Team CAALA inspected, sorted and packaged food in the heart of the Los Angeles Regional Food Bank warehouse.
The Advocate Magazine — 105
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 106
Advertiser’s Index Contents Index Advertiser’s
ADR Providers Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .97 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .94 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .42 PMA Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . .72 Announcements and Career Opportunities CAALA Affiliate Membership . . . . . . . . . . . . . . . . . . .73 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .71 Winer, McKenna & Burritt, LLP . . . . . . . . . . . . . . . . . .14
Expert Witnesses - Technical & Damages (cont.) Boster Kobayashi & Associates . . . . . . . . . . . . . . . . .43 Feldman, Phillip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Phillips, Fractor & Company, LLC . . . . . . . . . . . . . . . .92 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .77 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Farber, Patrick (Struct. Setlmnts.) . . . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .45 Lawsuit Financial . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Ringler & Associates – Michael Zea . . . . . . . . . . . . .99 Summit Structured Settlements . . . . . . . . . . . . . . . . . .91 The James Street Group (Structured Settlements) . . .79
Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69
Graphics/Presentations/Video CVisualEvidence LLC . . . . . . . . . . . . . . . . . . . . . . . . .27 Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Courtroom Presentations . . . . . . . . . . . . . . . . . . . . . . .56 Attorneys – Accepting Referrals CSC Anatomy Arts . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . .7 Banifsheh, Danesh & Javid, PC . . . . . . . . . . . . . . .22-23 High Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61 Bronstein, Peter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .37 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80,81 Information Service Providers Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 West, A Thomson Reuters Business . . . . . . . . . . . . . . .75 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .49 Insurance Programs Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Lawyers Mutual Insurance Company . . . . . . . . . . . . .35 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .21 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Matloff Company . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . . .16 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .57 Investigators Law Office of Philip Michels . . . . . . .Inside Back Cover Hudson Investigations . . . . . . . . . . . . . . . . . . . . . . . . .34 Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .25 Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . .100 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Trimarco & Associates . . . . . . . . . . . . . . . . . . . . . . . .33 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .19 Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Legal Marketing Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Berbay Corporation . . . . . . . . . . . . . . . . . . . . . . . . . .26 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . . .15 Shook & Stone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Legal Nurse Consultants Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 PJ West & Associates . . . . . . . . . . . . . . . . . . . . . . . . .98 Vartazarian Law Firm . . . . . . . . . . . . . . . . . . . . . . . . .50
Court Reporters Atkinson Baker Court Reporting . . . . . . . . . . . . . . . . .30 Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .82 Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . .52 Haiby, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99 Legal Support Services 4 Corners Deposition Summaries . . . . . . . . . . . . . . . .96 USA Express Legal & Investigative Services . . . . . . .95
Expert Witnesses – Medical Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . .41 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . .74
Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .63 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Massihi, Allen, DPM . . . . . . . . . . . . . . . . . . . . . . . . . .70 North Valley Eye Medical Group . . . . . . . . . . . . . . .93 Parehjan & Vartzar Chiropractic, Inc. . . . . . . . . . . . .60 Power Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Expert Witnesses - Technical & Damages Balian & Associates . . . . . . . . . . . . . . . . . . . . . . . . . .87
Organizations CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
106 — The Advocate Magazine
ASSOCIATION OF LOS ANGELES
Consumer Attorneys Association of LA CAALA 800 West Sixth Street,#700 Consumer Attorneys A L A Los Angeles, CA 90017 CAALA (213) 487-1212 Consumer Attorneys www.caala.org A L A July 10, 2013 Trying Cases Under the New Court Consolidation Plan 6:00pm - 8:15pm CAALA Conference Center Downtown Los Angeles
August 29, 2013 - September 1, 2013 CAALA Vegas Convention The Wynn Las Vegas Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm July 11, Aug 1, Oct 3 Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm July 18, Sept 19, Oct 17 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm July 18, Sept 19, Oct 17 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm July 16, Sept 17, Oct 15 Orange County Trial Lawyers Assn. 25602 Alicia Parkway, #403 Laguna Hills, CA 92653 (949) 916-9577 www.octla.org July 25, 2013 How to Spot a Potential Cross-over in your PI Case 6:00-8:00pm Tustin Ranch Golf Club 12442 Tustin Ranch Road, Tustin September 8, 2013 Bench v. Bar Softball Game & Picnic Game Time 11:00am Picnic Lunch 12:30 -2:00pm Grant Howald Field & Park 3000 Fifth Avenue, Corona Del Mar October 14th 2013 Columbus Day Golf Tournament 9:00am-7:00pm EL Niguel Country Club 23700 Clubhouse Drive Laguna Niguel
r PI Case
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 107
CAALA Resource Center Looking for an article from a back issue of Advocate? Quick tip resources @ the “Library of Advocate Articles” The “Library of Advocate Articles” offers quick practice tips on just about every legal subject you can imagine. The library includes back issues of Advocate articles from as far back as 1998. They are available in PDF format for all CAALA Members free-of-charge! Log-in to the CAALA Web site on the home page and follow these step-by-step instructions on how to download the articles: 1. Browse over the “Legal Education” button on the homepage and click on “Advocate Articles”. 2. The default search feature is by “Subject”; however, you can also search by “Author,” “Date Published” or “Publisher” by clicking on the respective links at the top right-hand of the screen.
3. Once you find the article, click on the “Details & Pricing” link for an article summary, author bio(s) and the original publication date. 4. When you are ready to download a PDF of the Advocate article, click on the “Order Now” button on the right-hand side of the screen. 5. Follow the instructions on the screen to confirm your registration for the Advocate article. Articles are free to CAALA members, but non-members will be prompted for credit card payment information. 6. After the download is complete, SeminarWeb will notify you via e-mail. Questions? E-mail email@example.com or call 800-701-5161.
New CAALA Affiliate Vendors
Our Affiliate Vendors are an excellent resource to help improve your practice. They provide goods or services specifically for plaintiff trial lawyers. Please support our Affiliate Vendors by contacting them for your business needs and projects. LiveDeposition.com 14900 Ventura Blvd., #310 Sherman Oaks, CA 91403 (818) 392-8499 Contact: Tawny Labrum E-mail: firstname.lastname@example.org
Mehta Family Healthcare 17401 Ventura Blvd., A-29 Encino, CA 9136 (818) 788-6817 Contact: Amit Mehta E-mail: email@example.com
Severe Injury Specialists 11650 Riverside Drive, Suite 5 N. Hollywood, CA 91602 (818) 980-7221 Contact: Dr. Haroot Tovanyan E-mail: firstname.lastname@example.org
CATEGORY: Legal Software Consultants | Court Reporters LiveDeposition.com’s Web-based deposition solution allows legal teams to remotely attend and participate in realtime depositions without downloading or installing any software.
CATEGORY: Pain Management/Physical Therapy | Chiropractic Wellness center providing various types of care with a range of physical therapy, chiropractic, acupuncture, massage, nutrition, pain management.
CATEGORY: Orthopedic | Chiropractic | Practice Management Network of chiropractic and orthopedic doctors specializing in patients with severe trauma, electronic health records, proper treatment and case management.
CAALA Connection Center
CAALA Connection Center
New CAALA Members: We welcome the following new members who joined CAALA during the month of May
Law Offices of Theresa Barta
Emenike Law Firm
Metzger Law Group
Century Law Group
Walter Clark Legal Group
Law Office of Brian W. Toppila
M. Walter Hulkower
Dinsmore & Sandelmann, LLP
The Hanagami Law Firm
Levy Law Firm
Law Office of Nina Baumler
Law Offices of Jeffrey B. Goldstein
Panish Shea & Boyle
Engstrom, Lipscomb & Lack
Thomas Bleich Law Office of Thomas Bleich
Lawrence Bohm Bohm Law Group
The Simon Law Group
Attorney at Law
Law Offices of John P. Fitzmorris
Michael F. Frank, Attorney at Law
Walter Clark Legal Group
Jason Cirlin Woolf Gafni & Fowler LLP
Wasserman Comden Casselman & Esensten
Law Offices of Michael R. Kaiser
Aram Khachoyan D & Z Law Group, LLP
Jong Kim Law Offices of Jong Yun Kim
Law Offices of Jeffrey B. Goldstein
Gordon Phillips Phillips & Raja, LLP
Grzegorz Michalak Linda Lozano The Cifarrelli Law Firm, LLP
Garo Madenlian Kevorkian & Madenlian
Aja Mann The Douglas Firm
Attorney at Law
David Scott Mohney Waldron & Bragg
Nick Nita CLS
Elvin Tabah Jose Garay, APLC
Barry Walker Walker Trial Lawyers, LLP
Stephen Danz & Associates
Howarth & Smith
Kabateck Brown Kellner
Terri Scott Kabateck Brown Kellner JULY 2013
The Advocate Magazine — 107
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 4:48 PM Page 108
From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
CAALA VEGAS Unique in the true meaning of the word One of the most frequently misused words in the English language is the word unique. When used correctly, it is powerfully descriptive. When used incorrectly, it is meaningless. This column will teach you the proper usage of the word and also tell you what CAALA Vegas has to do with a lesson in etymology. It’s definitely all in the words. Let’s start with the word unique. Webster’s definition is: 1.) Being the only one 2.) Being without an equal The dictionary lists the following synonyms: incomparable, matchless, peerless, unequalled, unparalleled, unrivaled. Unique requires no modifiers. Forget about something being very unique, slightly unique or somewhat unique. The word stands alone. Like the word pregnant, you either are or you aren’t. So here is a sentence that uses the word unique correctly: CAALA Vegas, the annual convention of the Consumer Attorneys of Los Angeles, is unique. Any of the 2,000 attorneys who attended last year’s convention will confirm the veracity of that sentence, but don’t take their word for it. If you are technologically savvy, try a Google or Bing search for any of the following terms: lawyers convention, attorneys convention, trial lawyers convention, plaintiff attorneys convention. Do so and you will find that CAALA Vegas is at the top of the search results. Like I just said, CAALA Vegas is the only one; it’s without an equal. This year’s convention will be on Labor Day Weekend from Thursday, August 29 to Sunday, September 1 at the Wynn Las Vegas. If you have not yet done so, you can register at CAALAVEGAS.org.
A social community
In the past 31 years, the CAALA convention has evolved in the same ways as society or the legal universe. 108 — The Advocate Magazine
The convention has become a social community. In the May/June issue of CalSAE’s, The Executive, Clare Price wrote that “the five pillars of a social community attitude are Engage, Collaborate, Learn, Share and Empower.” She could have been writing about CAALA Vegas, because those words exactly describe why CAALA Vegas is successful, popular and unique. Those are the CAALA Vegas attributes adhered to by Cindy Cantu, CAALA’s Senior Director of Education and Events, who has directed and overseen the incredible evolution and growth of CAALA Vegas for the past 15 years. This year’s convention is under the auspices of CAALA Education Chair and Vice Chair Douglas Silverstein and Genie Harrison and Convention Co-Chairs Mike Arias, Lucia Hatfield, David Hoffman, Shawn McCann, Jeffrey Rudman, Geraldine Weiss, Ronnivashti Whitehead and Andrew Wright. The convention allows attendees to earn up to 20 hours of MCLE credit (including Legal Ethics, Elimination of Bias and Substance Abuse Prevention) and also enjoy hosted nightly networking special events – each with its own theme, décor and menu – all without leaving the Wynn convention space.
21 education sessions
More than 130 of the nation’s premier trial lawyers, jurists and legal professionals will be speaking at the 21 separate education sessions that all take place contiguous to the Convention Trade Show that features more than 100 providers of legal products and services. The presenters will speak on topics of current interest to attendees, whether they are new attorneys or seasoned veterans. New topics this year include full panels on the new LASC Court Procedures, Medical Malpractice and Elder Abuse, Premises Liability,
Negotiation Skills and the Science of Persuasion using the latest techniques in Cognitive Science. The roster of presenters is an unprecedented assemblage of leading trial attorneys including Browne Greene, Bruce Broillet, Tom Girardi, Christine Spagnoli, Jack Denove, Amy Solomon, Lisa Maki, Brian Panish, Don Keenan, Ray Boucher, Mike Alder, Phillip Baker, Tracey Kennedy, Gary Dordick, Chris Dolan, Mike Bidart, R. Rex Parris and Nick Rowley. This year’s CAALA Vegas will again offer the popular Sunday Red-Eye Breakfast session on Insurance Bad Faith and a hosted networking lunch exclusively for CAALA members. A Sunday golf outing at the exclusive Wynn Golf Course is also being offered with reduced Green Fees for convention attendees. Primary sponsors of this year’s convention include Girardi | Keese (Exhibit Hall and Coffee Breaks); Engstrom, Lipscomb & Lack (Connection Center and Free Wi-Fi); The James Street Group, Greene Broillet & Wheeler and Taylor Ring (Thursday Kickoff Party); Kabateck Brown Kellner (CAALA Member Meeting); Louis Masry Millennium, Panish Shea & Boyle and Bruce Fagel (Friday Judges Reception); Alder Law, Patrick Farber and Doctors on Liens (Saturday Cocktail Party) and the Law Firm of Philip Michels (Sunday Red-Eye Breakfast Session). CAALA Vegas registration is open through August 31 at CAALAVEGAS.org. Registration is open to all attorneys, law firm staff, jurists and law student CAALA members and includes all sessions, syllabus on USB flash drive, continental breakfasts, coffee breaks, Thursday, Friday and Saturday parties and Sunday Breakfast. To contact Stuart at CAALA, email him at email@example.com.
Advocate July13 issue_Advocate template 2007.qxd 6/19/2013 6:48 PM Page 109
ELIZABETH A. HERNANDEZ
STEVEN B. STEVENS
BRADFORD S. DAVIS, M.D.
2014, President-elect Korean American Bar Association
CAALA Board of Governors
2001, CAALA Appellate Lawyer of the Year
In-house Medical Director
A new name for California’s premier medical malpractice team. PHILIP MICHELS
LAW OFFICES OF
2011, CAALA President 2003, Trial Lawyer of the Year
A N D A S S O C I AT E S
M E D I CA L M A L P R ACT I C E AT TO R N E YS
OVER TEN FIGURES IN VERDICTS & SETTLEMENTS 8-Figure Verdict Cerebral Palsy 8-Figure Settlement Wrongful Death
7-Figure Verdict Brain Damage
7-Figure Verdict Spinal Cord Injury
7-Figure Settlement Baby Injury
7-Figure Arbitration Award 7-Figure Settlement Misdiagnosis Birth Injury
7-Figure Settlement Transplant
“The Law Offices of Philip Michels and Associates is one of the premier California Med Mal law firms. No stone is left unturned.”
— Michael Bidart, Shernoff Bidart Echeverria Bentley LLP “When it comes to Med Mal, there is no one better. This winning attorney has impeccable trial skills.”
— Brian J. Panish, Panish Shea & Boyle LLP 11755 Wilshire Blvd., #1300 Los Angeles, CA 90025-1540
Advocate July13 issue_Advocate template 2007.qxd 6/18/2013 6:08 PM Page 110