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Journal of Consumer Attorneys Associations for Southern California
Examining the percipient expert in medical malpratice Effective cross-examination to reveal if the right medical tests were run and if the follow-up followed protocol
DAMAGES& EXPERTS THE USE OF
Designating effective experts to prove emotional injuries Asking the jury for pain-and-suffering damages, including PTSD
The “fifth vital sign:” Finding hard proof of pain and suffering in medical records General damages in negligence actions: A primer from the bench Experts – they’re not just for trial Controlling costs by using experts efficiently and effectively Damages: What to expect from the defense in contesting damages More than chattel: Emotional-distress damages for intentional injury of a pet Seven hours or less: California’s new seven-hour deposition statute
EXPERT ADVICE ON HOW TO PROVE EMOTIONAL DISTRESS
F i dl d/C
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Jim and Eric Traut have had exceptional verdicts in more than 200 jury trials with over 100 six and seven-figure verdicts and settlements. Their combined 58 years of successfully litigating cases before Orange County juries provides them the experience, and equally important, the resources, to win big — and to pay you a generous referral fee.
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The Advocate Magazine â€” 5
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Contents Volume 40, Number 3, MARCH 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
First Vice President Ted Wacker
Second Vice President Vincent Howard Third Vice President H. Shaina Colover
B. James Pantone
Parliamentarian Jonathan Dwork Immediate Past President Douglas Schroeder
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
14 Experts – they’re not just for trial
Use them for MSJ oppositions and to prepare for depositions and mediation.
Thomas G. Stolpman
20 What to expect when the defense contests damages Be prepared for defendant’s “canned” arguments and the reliance on “averages.” Is your client “average”?
Daniel Y. Zohar
the percipient expert 28 Examining in medical malpractice cases
Effective cross-examination of a physician in malpractice cases with medicaltesting errors can reveal if the correct tests were ordered and if the physicians followed-up with the correct treatment and procedures.
Arlan A. Cohen
effective experts to prove emotional 34 Designating injuries
The effective use of expert witnesses to detail your client’s emotional injuries is valuable at trial.
40 General damages in negligence actions: A primer
Causation, extent of emotional distress and familial relationships are all key to recovering non-economic damages.
Hon. Rita Miller
Finding hard proof of pain and suffering
Investigation of medical records can reveal evidence of the “fifth vital sign.”
William H. Newkirk
70 California’s new seven-hour deposition statute
Will it prevent abuses in depositions and also save money? Or will it cause more delays?
Hon. John L. Segal with Ashley Fouladbakhsh
cost control while making effective use 82 Maintaining of experts
Learn when to hire experts and what you and your staff can do to contain costs.
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
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Asking the jury for pain and suffering damages, including PTSD
Asking for non-economic damages can present a challenge for the plaintiff’s attorney, especially in the absence of hard physical injuries.
Bruce G. Fagel
Hey! You better not hurt man’s best friend Suing for emotional damages: When is a dog more than chattel?
Damages & Experts And a word of thanks to our editor-in-chief. Cindy Cantu A PPELL ATE R EPORTS Recent cases of interest to members of the plaintiffs’ bar. Harris v. City of Santa Monica — The Supreme Court addresses the impact of the so-called “same decision” defense in FEHA cases.
G OVERNMENT R EL ATIONS B ULLETIN Updates from Sacramento & Washington.
D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS CAALA R ESOURCE C ENTER
CAALA’s new Resume Clearinghouse
Jeffrey Isaac Ehrlich
A win-win for two groups of CAALA members.
CAALA C ONNECTION C ENTER
— New CAALA Affililate Vendors
CAALA Editorial Calendar for 2013 …And introducing the Advocate associate editors.
E XECUTIVE D IRECTOR
Consumer Attorneys Association of Los Angeles
Consumer Attorneys Association of Los Angeles
For the men and women who are victims of sex crimes For me, it’s personal. Lisa Maki
Test for trial lawyers: Who is your BFF (Best Founding Father)? The Bill of Rights is not just a menu we can pick and choose from. Stuart Zanville
On the cover: Main Image: Man Upset | Jupiterimages | www.thinkstockphotos.com Smaller Image: Frustrated Surgeon | Jupiterimages | www.thinkstockphotos.com
The Advocate Magazine — 7
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Damages & experts They go together like a horse and carriage Plus – a “thank you” to our long-serving Editor-in-Chief, Jeffrey Ehrlich Every year for CAALA’s Las Vegas Convention, we have an excellent line-up of speakers who prepare articles for the convention syllabus. These speakers are all experts in their respective areas and their articles offer unique insights into tort practice. These articles are usually read only by convention attendees, but this month we are offering them to our entire Advocate audience – over 10,000 attorneys. The writers focus on the theme “Damages & Experts.”
On Damages Covering damages, we have an article by Daniel Zohar on What to Expect from the Defense Concerning Damages, while Judge Rita Miller writes about General Damages in Negligence Actions: When Are They Recoverable? William Newkirk discusses Finding Hard Proof of Pain-andSuffering Damages and Bruce G. Fagel, a medical-malpractice attorney and former ER physician, offers advice on Asking the Jury for Pain-and-Suffering Damages, including PTSD. Donna Bader, an appellate attorney and former editor of Advocate, gives us
an account of how emotional distress damages were recovered for intentional injury to the family dog, and how that recovery was upheld on appeal.
Using Experts is covered in a wide range of topics: Getting the Most out of Your Experts While Maintaining Cost Control in Your Cases by Geoffrey Wells; Emotional Injuries and Designating Effective Experts by Louanne Masry; Thomas G. Stolpman discusses how Experts Are Not Just for Trial; and Arlan A. Cohen, a medicalmalpactice specialist who is also a physician, discusses Examining the Percipient Expert in Medical Malpractice – Effective Cross-examination of a Physician in Cases with Medical-Testing Errors.
New Seven-Day Depo Rules
If you’re going to use experts, you’re certainly going to depose them, and there are new deposition rules in California. Judge John L. Segal reviews the new 7-hour deposition rule and its exceptions, and discusses how it’s likely to play out.
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I could not have put this issue together without the help of our Editor-inChief, Jeffrey Ehrlich. Each month, Jeff takes time out of his busy Ehrlich appellate practice to review and edit every article that is published in Advocate. That is roughly 150 articles each year. And not only does he edit each article, he also writes the monthly Appellate Reports column. He does an incredible job, and we can’t thank him enough for his contributions; they have helped make Advocate arguably the most successful publication for trial lawyers in the country. I’d like to tell you a little more about Jeff. He is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont. He handles appellate work and legal writing for California trial lawyers, frequently concerning insurancerelated issues. He is a cum laude graduate of the Harvard Law School, and is a Certified Appellate Specialist by the California Bar’s Committee on Legal Specialization. As a sole practitioner, he handles every aspect of the appeal – from research, to summarizing the record, to drafting the brief, to arguing the appeal. He is a member of the CAALA Board of Governors and is the first two-time winner of the Ian Herzog Appellate Lawyer of the Year Award, having won it in 2004 and 2008. Jeff has argued more than 200 appeals in courts across the country, including the U.S. Supreme Court, the California Supreme Court, more than half of the U.S. Circuit Courts, and every Appellate Court in California. He has had over 67 published appellate opinions. Jeff is a true unsung hero serving the members of CAALA and the legal community. We thank him.
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10 â€” The Advocate Magazine
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Thomas G. Stolpman
Experts â€“ theyâ€™re not just for trial Experts are a resource for opposing MSJs and to prepare for depositions and mediations In too many cases, we start thinking about experts in the case a few days before our expert designation is due under Code of Civil Procedure section 2034. By rushing around to retain trial experts, we often miss out on the input that they can have during the earlier stages of the case.
In medical-malpractice cases, the attorney has to get the records reviewed by a medical doctor or other health-care professional in order to determine whether or not there is a viable case and in order to comply with the procedural requirements involved. Although I learned that early on the combination of MICRA and juror bias and favor of doctors mitigated against handling medicalmalpractice cases, I often found that the expert was able to give me a roadmap to use during the discovery process, particularly when taking depositions of the health-care professionals involved, including doctors, nurses, therapist, etc. In many other cases, such as construction-site accidents, after a few years of practice, it was easy to know what the good cases were and how to conduct the investigation and discovery without the need for an expert. However, in some cases, such as product-liability cases, which are more like medical-malpractice matters, before spending significant sums of money in a case, having an expert look at the product and give opinions about its design/manufacture can be very helpful in both case selection and in formulating a strategy for the case. 14 â€” The Advocate Magazine
A good example of this type of work is a case presently in our office, in which we are suing on behalf of homeowners and residents for personal injuries and property damage arising out of the exposure to stray electricity and electromagnetic fields (EMFs). Before filing the lawsuit, we engaged several experts to assist us in understanding the issue involved and in navigating through the holdings of several appellate cases which seem to foreclose claims of injury based upon exposure to EMFs. These experts will assist us in drafting discovery documents, such as document requests and interrogatories and in helping us to prepare for depositions of key utility employees. They were also instrumental in helping us to draft a complaint which we hope overcomes the demurrers and motions to strike which have been filed by Southern California Edison Company.
Motion for summary judgment/ adjudication forum
It seems that in almost every case, the defense files a motion for summary judgment or summary adjudication. In medical-malpractice cases, the healthcare providers will file these motions and attach a declaration which simply states that the care and treatment rendered by the moving party was within the standard of care. This requires an opposing declaration by an expert opining that the standard of care was violated in some particular respect. For defendants, this is a way to figure out where the plaintiff is going with her case. By having the expert address the issue of who complies with the
standard of care, the trial lawyer is in a position to meet with the expert and to flesh out the case as one prepares to take the depositions of the declarant whose testimony was filed by declaration in the motion. As in the investigation stage, the key benefit to the trial lawyer is being educated about the technical issues in the case. We occasionally see dispositive motions filed in products-liability cases using the same defense strategy, and as in the medical-malpractice situation, using the expert to assist in preparing an opposing declaration is an education opportunity for the trial lawyer.
As we enter the phase of post budget-cut trial-court operations, mediation and settlement conferences are going to become even more critical in resolving cases. In the last 15 years, we have seen amazing developments in the sophistication of the materials submitted by parties to the mediator. Simple mediation briefs are still filed in many cases, but mediation notebooks are put together by many lawyers to lay out the entire case for the mediator and for the other side. This makes a lot of sense because of my belief that providing the defense with more information is better than providing them with less information. This is based upon the simple process followed by insurance companies and self- insured entities in dealing with claims. Without substantial information, the attorneys and adjusters cannot document their files
See Experts, Page 16
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Experts — continued from Page 14
sufficiently to get settlement authority which will help the case to settle. By providing them with information, plaintiffs’ attorneys are giving them the ammunition they need to evaluate the case and to have the claims people who make the decisions (usually people whom we never meet during the pendency of a claim) issue settlement authority which will settle the case, set reserves which allow flexibility in changing that authority, and in bulletproofing their decision when the file is audited at a later time. Experts can be used to help prepare the mediation notebook to provide key photographs or other documentary evidence, and on occasion to submit a report to the mediator and the other side. Given the general preference not to have experts prepare reports, which merely become roadmaps for the person taking their deposition before trial, one must waive the benefits of working to settle the case versus opening up the case as much as one does by having an expert prepare a report. In a few cases, experts have actually attended mediation sessions.
The bottom line in the mediation context is whether one wants to make every effort to settle the case at mediation, or whether, as happens in some cases, the mediation is likely to fail and a trial is likely to occur. Having made the determination of which outcome is likely to occur, the trial lawyer is in a position to make decisions about how much to disclose during the mediation.
As noted above, experts can often be useful in helping to prepare written discovery designed to elicit key information which will be necessary in satisfying the elements of proof in a particular case. The experts often know the role involved in a particular field and often have significant knowledge about a particular defendant and how they operate. These types of insights can be critical in drafting discovery requests which require response rather than objections that they are ambiguous or that the responding party doesn’t understand what is being requested. Having worked with the expert in the beginning of the discovery process,
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the trial lawyer will then be in a better position to draft responses to discovery which comport which language will be used at trial.
Experts in deposition and trial preparation
As has been discussed above, experts can be very useful in depositions and for trial preparation. By the time depositions begin, the lawyer should have certain themes established which will prevail in the case. The lawyer should be familiar with the jury instructions which are likely to be given at trial. In addition, the trial lawyer must have knowledge and a grasp of the technical issues of the case which evolve the bargain being used, the technical alternative available to the manufacture or other defendant, etc. In certain cases over the years, lawyers have actually had their experts attend the deposition of an opposing expert so that they are able to assist in formulating further questions based on the answers given by the deponent.
See Experts, Page 18
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Experts — continued from Page 16
Conclusion We started with the proposition that recognizes that most of us don’t really think about experts until our designation is about to prepared and served. By waiting well into a case before selecting experts, one can save some money, but ultimately lose out on preparing an effective case that can be settled or, if it is necessary to try the case, won at trial. When I open a case, as I am interviewing the potential client, I am already thinking about how I am going to argue the case, thinking about the themes which will resonate with jurors.
To fully develop those themes, most cases require that an expert help the trial lawyer address the questions which have to be answered during the course of the case. As litigation becomes more and more expensive, this may seem to be an onerous burden, but if lawyers are going to handle substantial damage cases, they must be prepared to spend the time and money necessary to obtain fair compensation for the client. After all, that is the job of a trial lawyer.
Thomas G. Stolpman served as president (1996-97) and member of the Board of Governors of the State Bar of California. He is a principal in the Long Beach law firm of Stolpman, Krissman, Elber & Silver, LLP where his practice is limited to tort claims with substantial damages (personal injury, property and commercial), expert consulting (legal malpractice, insurance bad faith) and mediations. He received his B.A. from UCLA in 1972 and his J.D. from USC in 1976. He has been very active in other professional associations, including CAALA (1989 President), CAOC (1987-1990 Board of Governors), ABOTA (1989, 1996 Secretary); as well as too many more to mention.
18 — The Advocate Magazine
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Daniel Y. Zohar
Damages: What to expect from the defense in contesting damages Be prepared for defendant’s “canned” arguments and the reliance on “averages.” Is your client “average”? In this article I will provide an overview of what trial lawyers can expect from the defense when it comes to litigating the damages issues in a case. Because I am a plaintiff ’s lawyer, this topic can be more accurately described as the plaintiff ’s perspective about what to expect from the defense. But since I started my career doing defense work, I think I can shed some light on how defense lawyers typically approach damages throughout a case and in trial.
The defense fallacy of probabilities and averages
In most automobile personal-injury cases, the insurance carriers will rely on someone from their roster of biomechanical/accident reconstruction experts to attack your damages claim. Aside from the obvious areas of cross-examination (bias towards the defense, having testified hundreds of times only for the defense, having earned hundreds of thousands of dollars, if not millions, doing so, etc.), typically these experts attempt to opine about the “probability of injuries” and “causation” in light of various studies of accident statistics, including crash tests. However, such opinions also are based on a fallacious principle, shown by the following example of a defense argument: • Statistical studies show that for impacts of similar parameters, the typical level of injuries and medical expenses are only X. • Plaintiff ’s claimed injuries and corresponded medical expenses are X + Y. • Therefore, plaintiff ’s damages are exaggerated. First, in truth, this type of opinion is really just a backhanded way of saying that your client is lying. You should bring this to the surface and ask the expert if that’s what they are really saying. For example: 20 — The Advocate Magazine
Q: Mr. Smith, isn’t it true that what you are telling this jury is that because people in other, similar accidents, according to your studies, were not hurt as badly as my client, then you would not have expected my client to suffer injuries more serious than those other people, correct? A: Correct. Q: Now, are you actually saying that my client is lying? A: No, I’ve never met your client before. Q: But you’re certainly suggesting to this jury that when my client says she suffered certain injuries and felt a certain amount of pain, they should question that testimony because your studies show that someone in that type of accident shouldn’t typically have been as badly hurt, right? A: Right. I’m looking at scientific probabilities, and those scientific probabilities show that the injuries should have been more minimal than what your client is claiming. So the expert will likely concede that they are not outright claiming that your client is lying, but that they want the jury to infer that what your client is claiming isn’t consistent with the expert’s statistics and the resulting averages, and therefore she should be discredited. But here is the problem with that argument: an average outcome, whether it is related to injuries resulting from a certain magnitude of impact, or for any kind of statistic, is necessarily a result of numbers which are both higher and lower than the average. So for example, let’s say that for an impact of 20 mph between vehicles of a certain size going at a certain speed, the defense’s statistics state that the typical victim required $7,500 worth of medical care. Assuming that is a valid statement (and of course, there are many ways to attack this premise itself, given the parameters involved, how the statistics were collected, the ages of the persons studied, the locale where they were treated, etc.),
what that expert cannot say, if they want to follow the rules of logic and common sense, is that no accident with those same parameters can result in more than $7,500 in damages, nor can they necessarily say that your client is less likely to have suffered $15,000 (or any amount more than $7,500) of medical expenses than they are to suffer $7,500. If they do say this, you need to go on the attack and expose their logical flaws. To show the fallacy at work, let’s use a non-legal example. If you studied the statistics of all the players in the NBA, you could easily figure out what the average points per game scored per player (add the total amount of points scored for all games, divided by the number of players and then divided by the number of games). Let’s assume that the average NBA player scores 9.5 points per game. According to the defense argument, Kobe Bryant should not ever score 30 points per game, and is more likely to score 9.5 per game each night than he is to score 30. According to the defense, anyone who argues that Kobe will likely score 30 points per game is either lying or should not be believed, because statistically the average player scores much less than that. Of course, this conclusion is perfectly wrong. We know that Kobe Bryant does in fact score 30 points per game on average. We also can deduce from that that a number of other players must score less than 9.5 points per game in order for the average to be 9.5 overall. But the fact that overall, the average player scores only 9.5 points per game tells us nothing about what we should expect from Kobe Bryant each game. In fact, if you were to place a bet in Vegas, based on the statistical scoring averages, hoping that Kobe will score only 9.5 points per game, you would lose a lot of money!
See Damages, Page 22
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Damages — continued from Page 20
In short, what the defense often attempts to do is to claim as valid only those damage amounts that fall below the average and exclude all of those claims exceeding the average. By claiming that it is unlikely that your client should suffer damages greater than the average, they are asserting a fallacy no different than saying that Kobe Bryant will never score more than 9.5 points per game or that he is somehow more likely to score only 9.5 points, rather than 30. Instead, the fact that your client’s amount of damages exceeds the average is completely normal and expected, statistically speaking, since as stated above, to get to the average, by definition, there must be results both higher and lower than the average. If you can expose the defense expert as relying on this fallacy, you can undermine their opinion completely.
22 — The Advocate Magazine
Use the “Reverse Triangle” technique A little over one hundred years ago, in 1911 in New York City, there was a fire at the Triangle Shirtwaist Factory which took the lives of 146 people, mostly young women. The owners of the building had locked the doors to prevent the girls from taking unauthorized breaks, but as a result, when the fire broke out, many of the workers could not escape the building and died. The owners were prosecuted, but were famously acquitted. Many attribute the acquittal to the crossexamination of one of the prosecution’s key witnesses by defense lawyer Max Steuer. This witness was one of the young girls who managed to escape, and when she initially told her story to the jury of the horrors that she observed, it was a very dramatic, moving account with
many jurors brought to tears. But the defense kept asking her to repeat her story, time and again. Each time she retold her story, she used very similar terms and repeated herself almost word for word. Her testimony then started to sound canned and prepared, and the emotional aspect was completely drained out. All the drama was now lost, and the jury perhaps felt like they had been manipulated. After hearing from 103 prosecution witnesses and 52 defense witnesses, the jury deliberated for only two hours and acquitted the defendants. (Note – despite the number of witnesses presented, the trial lasted only from December 4, 1911, until December 27, 1911. It is hard to imagine such a trial being completed today in little over three weeks!)
See Damages, Page 24
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The lesson from the Triangle Fire trial is that juries do not take kindly to scripted, prepared testimony and argument, nor do they like to feel that a lawyer or witness has been toying with their emotions unnecessarily. There are several relevant applications to our cases today, but here is a smattering of those lessons as they relate to damages: First, be careful not to over-prepare your clients for their testimony. Make sure they use their own words and don’t appear to be trying to remember what to say. As Mark Twain once said, “If you tell the truth, you don’t have to remember anything.” Prepare your client enough to ensure that the important information is conveyed, but if it seems memorized or coached, you will lose the jury. Use other witnesses to convey the impact on your client so that you are not relying solely on your client to explain their hardship. Before and after witnesses, such as spouses, friends, and co-workers can sometimes be even more effective than your client at providing anecdotes showing the impact on your client’s life. Lastly, use what I refer to as the “Reverse Triangle” technique, which is a way of taking the defense’s canned arguments and evidence and using it against them. It’s important to understand that the typical defense attorney handles hundreds of files at a time, and often simply is not able to become thoroughly engaged in a case until it is close to trial. As a result, defense lawyers will often make the same arguments, use the same experts, and follow essentially the same script in each case to make up for this lack of time. You can use this to your advantage by pre-empting what you expect them to do, perhaps warning the jury in advance whether in voir dire or opening statement, and stealing their thunder, so to speak.
Two typical defense themes
Usually you will hear one of two assertions by the defense: • If liability is clear, then they will argue that Plaintiff is overreaching on damages. • If liability is tough, then the defense will claim that your case is frivolous. 24 — The Advocate Magazine
You must be prepared to address either of these at trial, and if possible, frame these issues for the jury in your own way, before the defense has their opportunity to do so. For example, if liability is clear and the trial will be about the extent of the plaintiff ’s damages, you need to make sure that you give the jury a rationale for the damages you are requesting. Frame your damage requests in a way that shows them to be reasonable and in the middle of the road, rather than everything you could have asked for. Perhaps in closing, talk about how medical costs are rising each year, but explain that you have to base your damages on today’s costs and that if medical expenses skyrocket in the future, you can’t come back and ask for more. Thus, in the context of inflation and rising health-care costs, your requests are quite reasonable. (Most jurors probably have first-hand experience with rising medical costs, so this should resonate with most panels.) Also, keep in mind what I call the “slingshot effect.” If you seem like you are stretching to explain your damages, the jury is more likely to rein them in. On the other hand, if you come across as being inherently reasonable, whereas the defense appears to be taking too hard of a line, the jury will likely react in the opposite way. I like to think of the analogy of selling a house. I knew someone who listed their house at $800,000 when they were told that it was really worth about $750,000. They received no offers. Another person whose house was also worth $750,000 instead listed it for $725,000. They received multiple offers, and then a bidding war ensued, pushing the price up to $800,000. Thus, by slightly underselling the price of the house, they were able to slingshot the value to well over what the market was bearing. They created a situation where the psychology of the potential buyers changed, so that a person who would have never initially offered to pay $800,000 was now fighting for the honor of doing so. I believe many times you can do the same with a jury, changing their psychology, by
being a little more modest with what you request, but making it clear that the case could very well be worth more than that and telling the jury that they should award what they believe is the fair amount, more or less, based on the evidence. I believe most jurors want to do what they feel is right. If you push them too far, they will push back. But if you show them that there might actually be a vacuum in terms of full and complete justice, jurors may wish to fill that vacuum by supplementing your damages in their verdict. With regard to the defense theme that your case is frivolous, there are several things that can be done to pre-empt such an argument. For one, take measures to make sure the jury understands that by being at trial, the plaintiff is more inconvenienced than them, and thus, would have no incentive for bringing a claim to trial unless it had merit. Your client must be present every day unless there are truly extenuating circumstances, and if they cannot attend, you need to make sure the jury understands why. If you know in advance that your client may have to miss some days of trial, you may be able to address this in voir dire, particularly if the reason is medical in nature. Also, the jurors must feel that the plaintiff did everything they could to make things better, but nevertheless remained injured and needs to be fully compensated. Thus, they tried to work as best they can, but fell short. They saw their doctors and followed their advice, but still didn’t heal as they had hoped. They must come across as reluctant to have filed a lawsuit. They must come across as being closer to humble and understated, rather than someone who feels they are entitled something. On the other hand, if the jury feels that your client didn’t do everything they could to make the best of their situation, the jury may react with resentment. In addressing the accusations of “frivolous lawsuits,” you may also wish to use some of your voir dire to ask jurors about frivolous defenses. Sometimes I like to ask jurors if they ever heard of the “Twinkie Defense.” Usually someone will raise their hand and talk about the man who shot
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Harvey Milk and was acquitted because his doctor said that eating too many Twinkies essentially made him insane. In actuality, this is not what was really argued in that case, but that is how the case is often remembered, much like how the McDonald’s coffee case is also misunderstood and misrepresented. Either way, use examples like this to explain that there are both frivolous lawsuits and frivolous defenses, and that neither is acceptable. Get the jury to agree that if someone has a valid claim, it’s not right for the defendant to abuse the court system to avoid paying them. This usually ties in well in closing argument once you’ve cross-examined their experts and shown how they’ve testified hundreds of times for the defense and on each of those occasions offered opinions which are based on fallacies and misrepresentations.
26 — The Advocate Magazine
Lastly, be clear in the very beginning, during voir dire and opening statements that you are going to be asking for money. Rather than be coy about it, I think you should address this head on. In doing so, though, make sure to set their expectations early. If you’re going to be blackboarding millions of dollars of damages, be sure to make that clear in voir dire and opening. If you’re not going to be asking for millions or hundreds of thousands of dollars, make that clear, too. You may explain that they’ll probably be disappointed to learn that this case does not involve millions of dollars, but nevertheless, involves something that is very important to your client. Either way, you don’t want the jury to be surprised by what you ask for. If you establish reasonable expectations up front, and then meet those expectations with your evidence, you should get favorable results.
Conclusion If you plan ahead and anticipate what the defense will do in trial with regard to your damages, you can neutralize their impact and in some instances, use them in your favor. Daniel Y. Zohar is the founder of the Zohar Law Firm, P.C. in Los Angeles. He is a graduate of Duke University (1990) and UCLA School of Law (1993). He focuses his trial practice in the areas of contingency business litigation/business torts and consumer rights. He is an AV Peer Review Rated attorney who has been recognized the last eight years as one of Southern California’s Super Lawyers. Daniel is a frequent contributor and presenter for CAALA. He is a member of the Boards of both CAALA and the ABTL (Association of Business Trial Lawyers).
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PHONE: 800-522-7965 • 213-977-0211 • FACSIMILE: 213-481-1554 www.girardikeese.com
1126 WILSHIRE BOULEVARD, LOS ANGELES, CA 90017
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Arlan A. Cohen
Examining the percipient expert in medical-malpractice cases Effective cross-examination of a physician in a case with medical-testing errors [Editor’s Note: This is the first of a two-part article originally written for the 2012 CAALA Convention syllabus. Part two discusses the most common medical tests and their ramifications in a medical-negligence action.] There are few more pleasant moments at deposition or in trial than those in which you show the deponent or the jury that you know more about the science of the specific topic at hand than the opposing “medical expert” or that the self-proclaimed “authority” may not be as expert as he thinks. (Or, in the immortal words of Sonny Steele in the movie, The Electric Horseman: “Well, maybe them experts ain’t so expert.”) Almost as pleasant are the moments when, by dint of your own research or understanding, you help your own retained expert understand and support a reasonable theory of your own case, and help him or her deal effectively with spurious defenses. Medical knowledge, the basis for expert opinions, comes generically from two sources, classifiable perhaps as “mostly from within” and “entirely from without,” the former being the insight that physicians gain from careful observation of patients they personally care for, the latter from all other outside sources: books, printed and Internet articles, medical school and residency teachings, lectures, meetings, and the like. Though sometimes you are dealing in litigation with medical issues that the expert actually deals with on a continuous and unremitting basis, more often than not, the medical issue in a given case can be crafted through judicious questioning to be so narrow and specific 28 — The Advocate Magazine
to your client (“Just how many isolated 4 mm herniations of the disk at L2-3 in elderly, diabetic, hypertensive females of this ethnic persuasion who sweep chimneys for a living have you personally cared for as the primary physician, doctor?”) that the expert’s personal experience with patients for whom he has been the decision-making physician is limited, and he must admit that most of the information on which he bases his views is derived from what he has read or heard from authorities. Even if the medical issue, narrowly drawn, is one that the expert deals with regularly, it is prohibitively likely that the expert has not conducted the type of structured and critically reviewed analysis of your client’s medical issue that others, with larger patient populations, who have conducted planned, sometimes prospective, occasionally double-blind studies, all critically reviewed by peers before publication have done to get their work into the medical literature. Once you obtain the acknowledgement that nothing the expert has done in his clinical practice is more than a repeated anecdote, with all the biases, approximations and selective understanding that potentially dim recollections bring, and that an even modestsized, peer-reviewed published study, done under controlled conditions and critically analyzed for legitimacy before publication is likely to contain more reliable information than the expert’s imperfect memory, the world of actual medical knowledge, documented in shared communications which are as accessible to you as they are to the “expert,” becomes the universe of
discourse of the case, rather than the small hamlet of “personal background, training and experience.” This opens up numerous opportunities to use facts as tie-breakers in conflicts between experts, particularly since Evidence Code section 721 was modified, some 15 years ago or so, to permit your own expert to validate scholarly treatises as being “reliably authoritative” on direct, with this validation permitting you then to cross-examine opposing experts on those treatises whether or not, as the earlier standard had required, the opposing experts had “read, reviewed, or relied” on those treatises. Nowhere has the evidence of indications, strength and reliability of findings, and limitations of interpretation been as potentially helpful to litigators as in the area of “objective” patient testing. Most tests, radiographic, electrical, hematologic, biochemical, infectious disease or otherwise have fairly clearly defined ranges of normal. In using the results of these tests to prosecute cases, there are several generic approaches to dealing with the defendant and his experts.
Why didn’t you do this test?
This question is a personal favorite. It lays the foundation for an even more irreverent question, set out below, that tends to strongly encourage settlement, and the angst of the question is justified as the defendant or expert realizes that the question is medically legitimate. So, for example, if a patient of a certain age comes in with any of the myriad accepted signs of coronary insufficiency,
See Percipient, Page 30
W c fi a p s t e It fr F A t
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there must be an explanation for the absence of appropriate cardiac enzymes, particularly those specific to acute heart damage, like troponins, and the failure, even if these are initially normal, to order follow up treadmill/ scan/arteriographic testing of the coronary circulation; if the chest pain is consistent with pulmonary emboli, an explanation is required for the failure to obtain arterial blood gases, a search for a source of emboli with a Doppler exam and, if the symptoms are suggestive, a helical CT scan of the lungs; if a patient comes in with a “thunderclap headache,” a headache worse than he or she has had in the past, the absence of a CT scan and possibly a lumbar puncture must be explained; if an adult of middle years comes in with new cognitive problems , some form of radiographic evaluation of the contents of the cranium is required. At times, this inquiry requires sequential follow up: If you did a CT scan for a thunderclap headache, knowing that the CT scan may miss early bleeds 10 percent+ of the time, why did you not do a lumbar puncture before you sent the patient home, to erase the 10 percent false negative rate of your evaluation? The irreverent question that has occasionally moved refractory defendants to settlements takes the test that should have been done, notes what year it first was generally available, and then asks the defendant or expert what he or she did for the patient that could not have been done by a physician the year before the test became available. Or earlier. Example: in one case in Seattle, a schoolteacher in her early 40s had begun acting strangely over a matter of months, losing her recent memory and making atypically irrational decisions. The defendant neurologist determined during a single, rushed office consultation that she needed no testing – not even plane films of the skull, much less an EEG, a CT scan or an MRI, and that her diagnosis was purely psychological (though the patient had in fact a then-resectable frontal lobe tumor causing this 30 — The Advocate Magazine
deterioration). I could (and did) plausibly ask him at deposition: “Please set out exactly what you did for this patient that could not have been done by a neurologist in the year 1850.” Since MRIs have been around roughly since the late ‘70s, CTs a bit before, starting approximately in the mid-‘70s, if your case involves a situation where these tests should have been done but were not, an explanation as to why defendant was practicing “1970s medicine” on a patient he saw in the 21st century may reasonably be required, and the issue raised by the question may be effective. A gentler approach is appropriate where the defense to the question: “Why didn’t you do the test?” is the usual “based on my background, training and experience, I didn’t think it was needed.” This opens the door to a series of questions that a first-year medical student might find offensively simple: • You have no more experience or training than most others in your specialty, true? • You don’t order tests just to spend the patient’s money, do you? • The test I’ve mentioned is generally available and freely ordered by specialists in your field, true? • Let’s get down to basics: let’s not ask “what” the test is, but “why” the test is, and why it was invented and has come into general use in your profession. • This test was invented precisely because clinical evaluation alone, regardless of the background training and experience of the clinician, was not enough: the evaluation led to guesswork, often inadequate. The “why” of this test is this: the test gives specific information that is needed for the patient to be accurately diagnosed and treated. If this were not the case, if the usefulness of this test over and above clinical evaluation were not established, the test would not generally be ordered. • In sum, tests exist because of the intrinsic uncertainty of clinical evaluation alone, and they persist and come into general use because they increase the accuracy of diagnoses.
This line of reasoning should be followed up with three or four illnesses that the test clearly diagnoses but as to which clinicians would otherwise have to guess.
Why was the test not properly performed and interpreted?
If the indicated test was ordered and performed, though you lose the first criticism, noted above, there are tactical advantages available, nonetheless, that accrue because the test was requested. Ordering the test meant that the treater knew that a disease process which could be proven, refuted or analyzed as to its nature and extent had a high enough probability for the standard of care to require that this diagnosis be included in the differential diagnosis and properly evaluated. The ordering of the test is a concession that the “missed” diagnosis was one whose probability was not so remote that the reasonable health care provider could leave it out of his analysis. An improperly, defectively, negligently performed or improperly interpreted test may arguably be worse than no test at all. If an initially undiagnosed patient, while being followed, fails to improve or gets worse, a thoughtful physician may become alerted to the possibility of a disease which has not previously been considered, and for which no testing has been done, and may order the appropriate diagnostic test. That same physician, falsely reassured by the results of an improperly performed or improperly interpreted test, may direct his attentions elsewhere because of the false belief that the disease process has already been “ruled out.” Improper interpretation of a test may issue out of the acts or the omissions of the health-care provider who does the test, since the provider ordering the test may lack the training to interpret the result himself (e.g. the failure of a mammographer to recognize a mass, clusters of pleomorphic calcifications, or anatomic distortion; failure of a radiologist to recognize a new chest mass; failure of a colonoscopist to find and biopsy or remove a colonic mass). It may also issue out of the failure of the clinician to
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understand the meaning for his patient of a properly performed and interpreted test (e.g. the failure of the practitioner to arrange for aspiration or biopsy of the suspicious breast lesion; or failure to follow short term and arrange for a tissue diagnosis of the new chest lump; or failure of the practitioner to require a scrupulous source for a site of blood in the stool).
If the test was properly performed and interpreted, why did you not act appropriately?
On several levels, this is the saddest question to have to ask. It focuses on aspects of poor care that have their genesis not so much in ignorance, or on chance missing of the significance of a finding in the setting of a hectic, busy schedule, both of which at some level are understandable, but on an analysis of hubris and narcissism on the part of physicians who haven’t been told they are completely wrong in their thinking for years, since they have been surrounded by nurses, patients, colleagues, and hospital personnel, none of whom are motivated to correct a doctor’s willingness to cut corners or make decisions that are palpably incorrect. In one case, a Kaiser vocational rehabilitation specialist disregarded a plain film finding of calcifications in the pelvis of a chiropractor, with a recommendation of a CT scan because, “I didn’t agree with the radiologist that this was needed” with the chondrosarcoma, having grown for another two years, requiring removal of most of the patient’s pelvis. In another, or others, the surgeon confronted with fresh red blood failed to look for the rectal cancer that grew for three years into a Stage IV cancer because, “I knew that this bleeding must have been from hemorrhoids.” In another, a patient whose pacemaker had failed was permitted to go 10 days before its replacement was scheduled, dying of a preventable arrhythmia in the interval because, “In my experience this was not an emergency procedure.” The examples are endless.
Doctors, many of whom are well trained when they start practice, and start out hewing to the habits of careful practice they were taught in residency or fellowship, then begin to cut corners in unsupervised, busy, private practices. They get away with it most of the time, then come to believe that cutting corners is proper practice, not realizing that they are playing a potentially lethal form of Russian Roulette with their patient’s health by not adhering to the rigorous principles of their training. When questioned about why they didn’t act on clear information given to them, their only fallback is what amounts to little more than: “Gee, I’ve always gotten away with it before.” They will say “This is how I’ve done it on hundreds or thousands of patients” but “getting away with it” is the more accurate description of this conduct. It rarely occurs to such physicians that their own experience with the adverse consequences of their sloppy care may not become known to them: other doctors may handle their complications, patients may switch physicians if they do poorly under the first physician’s care, the patient may never understand the connection between the doctor’s negligent conduct and his or her bad outcome, or, as is the case in 7/8 of all clear incidents of harmful negligence, no lawsuit is considered or filed.
Why did you act on the abnormality, when you should have left the patient alone?
Developments in medicine over the past 30 years and a basic understanding of critical definitions of “abnormal” have created new, sometimes subtle issues about what to do with reportedly abnormal lab values. First, the definition of “normal” for objective tests with numbers attached to the normal range needs to be understood. It generally means: “The mean result in our lab +/- two standard deviations from the mean in our study population.” This definition brings up two interpretive caveats. First, the “normal” in one
lab may not be the “normal” in another lab if they use different study or baseline populations. A patient’s results in different laboratories must be interpreted according to the normal in the laboratories in which the tests are performed. A creatinine of 1.1 on Monday and a creatinine of 1.4 a week later may or may not mean worsening kidney function. If the upper limit of normal in the lab used on Monday is 1.2 and that in the lab used a week later is 1.5, there has been no clear change in kidney function. Second, given the statistical definition of “the mean +/- two standard deviations,” which is that 95 percent of “normals” will fall within that range, means that five percent of normal patients will have test results that have been defined by the laboratory as being abnormal, when the patient is fine. Five percent of reported abnormals are “false abnormals.” In addition, the widespread use of “screening tests” ranging from yearly pap smears to SMA20 blood tests to screening PSA blood test to yearly chest x-rays has resulted in the widespread finding of true abnormalities that nonetheless have no clinical meaning, but that, if acted on too quickly or with too much enthusiasm, cause more harm than good to the patient. One example is the recent recommendation that PSA screening for prostate cancer be limited, because elevated PSA values, which have frequently led to prostate biopsy or surgery, may be the result of benign hypertrophy of the prostate, or even of small, asymptomatic, clinically irrelevant prostate cancers, which, if left alone, would remain small, asymptomatic and clinically irrelevant for decades, with the patient dying of other, unrelated causes. Yearly chest films have proven to have no effect on finding chest masses early enough to make a difference in lung cancer mortality. Elevated serum calciums, which before screening SMAs came into wide use, normally came to a physician’s attention only when the patient had symptoms of hypercalcemia, then became common MARCH 2013
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findings in asymptomatic patients. For almost 10 years, surgeons performed surgeries to remove small benign adenomas
of the parathyroid, to restore blood calcium to normal, even on asymptomatic patients. Then, studies showed that a
very large percentage of such asymptomatic patients had this mild elevation of serum calcium chronically, without complications, and could safely be watched for the rest of their lives, with surgery being done only if the sign worsened or complications began. This eliminated the largest proportion of parathyroid surgeries that would otherwise have been done. It behooves the attorney to understand when abnormalities are real and when they could be illusory; and when the standard of care requires restraint, rather than action by the health-care professional even when an apparent abnormality is a true one. All of these tactics require a foundation of understanding of what tests are available for your client’s clinical circumstance, which ones are most suitable to give the information a reasonable health care provider should want and use, and what their strengths and limitations are. Full textbooks and countless articles (most of them available in abstract form on PUBMED on the net, PUBMED being the free public NIH database of articles, the full articles being available from large public medical libraries, at most hospitals and all teaching hospitals) have been written on each component of each of the categories of testing set out below. In the next installment of this article, I’ll set out in abbreviated form, what the physical or physiological basis for the tests are, what their essential strengths and weaknesses are, and, where appropriate, the specific medical problems for which these tests are most appropriate. 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. He graduated from Harvard Law 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.
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Experts to “prove” emotional injuries Expert witnesses can support your client’s own testimony on emotional damage One of the most valuable elements of a tort claim is the right to compensation for emotional damages that a plaintiff has sustained and will endure in the future. These are commonly known as “general damages” or “noneconomic damages.” What constitutes emotional damages is all of the physical discomfort and emotional reactions caused by a defendant’s wrongdoing. A plaintiff is entitled to compensation for all physical pain suffered and also for all resulting “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, or ordeal.” (Capeluto v. Kaiser Found. Hosps. (1972) 7 Cal.3d 889, 892-893; see also CACI 3905A). There is no limit on the amount a jury may award for emotional damages. Therefore, emphasizing your client’s emotional damages is critical to maximizing recovery in civil cases. The only guidance a jury is given as to how much to award for emotional damages is that it must determine what is “a reasonable amount based on the evidence” and to use its “common sense.” (CACI 3905A). And for future emotional damages, a plaintiff must also prove that he or she “is reasonably certain to suffer that harm” in the future. (Ibid.) Traditionally, many attorneys relied only on the testimony of their client to establish emotional damages to the jury. Recently, however, plaintiffs’ attorneys are relying more and more on expert psychological evaluations of the client and the testimony of both expert and lay witnesses to discuss the emotional impact the injury has had on the plaintiff. An expert may not testify to the ultimate issue of the monetary value of emotional damages your client has suffered, but experts are permitted to provide very useful, necessary information to the jury. Given the value of emotional damages in every civil case, it is absolutely necessary 34 — The Advocate Magazine
that the plaintiff ’s attorney carefully evaluate the extent of emotional damages suffered by a client.
Role of the expert
The primary role of an expert witness is to educate and persuade. For emotional damages, an expert should be prepared to address the following issues: • Test and initiate appropriate treatment, if necessary • Define important terms (focus on terms from jury instructions) • Discuss the plaintiff ’s level of functioning • Explain the plaintiff ’s emotional challenges and hardships and effects on dayto-day life • Discuss the plaintiff ’s future needs and costs of those needs (including hospitalizations, treatment, and medication for remainder of life) • Explain the link between liability and damages • In some instances, provide a foundation for overcoming statute of limitations problems, such as delayed discovery
Types of experts
In determining the type of expert you should use to detail the emotional damages suffered by your client, you should look to both professionals in the mental health field, and also to “nonprofessionals” or lay persons.
Mental Health Professionals Generally, mental health professionals fall into two categories: psychologists and psychiatrists. Psychology is the scientific study of human behaviors and mental processes. Psychologists are trained in the administration and interpretation of psychological tests and are trained to provide counseling. The American Psychological Association (APA) recognizes over 54 sub-specialties of psychologists. some of which are listed in the chart below. If the plaintiff has a medical condition that impacts his mental or emotional condition, or if the plaintiff is taking psychotropic medications, then the retention of a psychiatrist should be considered. Psychiatrists are different from psychologists as they are trained as medical doctors and have additional training in psychopharmacology and can prescribe medications. Defendants will often bring a motion in limine to prevent a psychologist from testifying as to the need for psychotropic medications on the grounds the psychologist is not qualified. Therefore, a psychiatrist should always be considered if medications are a component of your damage s claim. Both a psychologist and psychiatrist can be designated, but to prevent an objection on the grounds of cumulative or duplicative testimony, carefully separate the
See Emotional injuries, Page 36
Exce Sub-specialties of Psychologists • Clinical psychologists • Cognitive and perceptual psychologists • Counseling psychologists • Developmental psychologists • Educational psychologists • Engineering psychologists • Health psychologists
• Industrial/organizational psychologists • Neuropsychologists (and behavioral neuropsychologists) • Rehabilitation psychologists • School psychologists • Social psychologists • Sports psychologists
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areas of testimony between the two experts. There is also a specialist in the field of mental health known as a “forensic” psychologist or psychiatrist. A forensic psychologist or psychiatrist is one with special training and experience in the application of psychological or psychiatric knowledge to questions posed by the legal system, such as competency or the evaluation of a specific emotional harm, such as Post-Traumatic Stress Disorder. A forensic specialist may also have a clinical practice. However, when acting in the capacity of a forensic specialist on behalf of a plaintiff, he or she is not providing therapy to the patient, but is instead conducting an evaluation of the plaintiff for use by a retaining attorney or court. Typically, in civil cases, the mental health professional who conducts a “defense mental examination” is identified as a “forensic” specialist. If a plaintiff has undergone therapy with a “treating” psychologist, it is often beneficial to designate both the treating professional to discuss the emotional feelings and problems addressed by the plaintiff during sessions, and also a forensic specialist to evaluate and test the plaintiff, identify the specific emotional injuries of the plaintiff, and to discuss the future needs of the plaintiff, including the costs of those needs. Non-professional/lay person testimony In addition to the testimony of a mental health professional, lay witness testimo-
36 — The Advocate Magazine
ny is important to show how the emotional damages sustained from the defendant’s wrongdoing have affected the plaintiff ’s personal and professional life. A lay witness is often the best person to explain the plaintiff ’s needs, struggles, and challenges. Many attorneys mistakenly believe that a lay witness may never testify in the form of an opinion. Such testimony, however, is admissible if it is rationally based on a witness’s perceptions, helpful to a clear understanding of the witness’ testimony, or otherwise permitted by law. (See Evid. Code § 800.) Courts have wide latitude in determining whether opinion testimony is admissible, and, generally, trial judges tend to admit lay opinion rather than to exclude it because it usually is “helpful to a clear understanding” of some issue or testimony. Opinions regarding a person’s health, appearance, demeanor, mental conditions, and the pain and suffering of another is permissible lay opinion testimony. A party failing to object to the opinion testimony of a witness waives the issue on appeal. (In re Joseph G. (1970) 7 Cal.App.3d 695, 700.) When considering the type of lay person who can provide testimony regarding a plaintiff ’s emotional damages, the following categories of persons should be considered: • Caregivers • Friends • Teachers • Coaches • Co-workers • School Counselors • Family Members • Ex-spouses
Find out the things that are, or were, most important in your client’s life which have been altered, and try to find one lay witness to address each of those things.
Finding the right professional expert
As a general rule, juries give more weight to the better qualified expert or one with the most experience on a specific issue presented. Therefore, it is important to take the time to find the right expert for your case. First, it is important to properly identify the area(s) for which expert testimony is needed, i.e., consultation, testing, or treatment, and the type of mental health professional best suited for your client’s needs. Second, look for a mental health professional who has experience in treating or testing persons who have suffered similar injuries as your client, i.e., sexual abuse victims, amputees, widows. Third, it is important to consider the expected costs of the experts. Generally, psychiatrists and “forensic” specialists tend to be more expensive than a “treating” psychologist. Once these factors have been determined, the search can begin for the best expert for your client. Often the search for an expert begins with referrals by word of mouth. Many experts advertise in legal magazines such as Advocate. In today’s “cyber world”, there is a universe of information available to assist in finding an expert. In addition to online expert directories, many experts maintain their own Web sites or “blogs” where they post opinions or articles on topics which may be related to your case. Audio interviews, podcasts, and lectures of many experts are also available online. Also, social networking sites like “Facebook” or “Linked In” can be very useful. The Internet and social networking sites should also be considered to determine if the potential expert has written or said anything that may be harmful to your case. Depositions given by experts in the past can be researched through many consumer attorney associations or in the national TrialSmith deposition bank, accessible through www.caala.org.
See Emotional injuries, Page 39
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Often overlooked places to find an expert include universities and mental health institutions. In addition, the Los Angeles Superior Court lists, on its Web site, an “approved panel of psychiatrists and psychologists” who are forensic specialists (See “lasuperiorcourt.org”).
The expert witness disclosure document
ARA TA CA
To prepare for trial, each side needs to know which experts will testify for the other side and, generally, the scope of the expert’s intended testimony at trial. As such, either party may compel the exchange of expert witness lists and related information pursuant to Code of Civil Procedure section 2034.010 et seq. The following information must be exchanged by each party: Expert List A list setting forth the name and address of each person whose expert opinion that party expects to offer at trial by live or deposition testimony (or a statement that the party does not presently intend to offer any expert testimony.) (Code Civ. Proc., § 2034.260(b)). This list should include all retained experts and also every treating physician or mental health professional you might call at trial. Expert Witness Declaration In addition, an “expert witness declaration” must be attached for each expert designated who is either a party to the action, an employee of a party, or “retained by a party” for the purpose of forming or expressing an opinion. (Code Civ. Proc., § 2034.210(b).) Although a non-retained treating physician or mental health professional must be on the expert list, no expert witness declaration is required for non-retained experts. The Expert Witness Declaration must be signed by the designating party’s attorney and must contain the following information pursuant to Code of Civil Procedure section 2034.260(c): • Qualifications of the expert; • General substance of expected testimony; • Representations that the expert has agreed to testify and will be sufficiently
familiar with the pending action to provide a meaningful oral deposition concerning the specific testimony the expert is expected to give at trial (including any opinion and its basis). • Expert’s fees The “general substance of expected testimony” portion of the declaration is an essential part of the designation and the language used to describe your mental health expert’s scope of opinions must be carefully considered. To be meaningful, enough facts and opinions should be disclosed to enable the opposing party to determine whether to depose the expert, and to prepare for cross-examination and rebuttal at trial. (Bonds v. Roy (1999) 20 Cal.4th 140, 146147.) Inadequate disclosure of the “general substance of expected testimony” is grounds for exclusion of the expert’s testimony at trial under Code of Civil Procedure section 2034.300. An example that could be used in a case of sexual abuse might include the following: Dr./Mr. Smith will testify about all psychological and medical issues affecting Plaintiff and her family, as it relates to the case; causation; damages; conduct by sexual predators, including threats or directives or other conduct designed to keep the victims from reporting the assault; the reasonableness or unreasonableness of Plaintiff ’s conduct in response to being sexually assaulted; the delayed reporting syndrome for victims; impact of assault on victim’s narrative and reporting of events; Plaintiff ’s treatment, injuries, diagnosis, prognosis, findings on examination, treatments, tests, need for future treatment, medical billings, reasonableness of medical services, reasonableness of medical charges, urgency or non-urgency of medical care; medical standards; impact of injury upon the Plaintiff; the impact of sexual misconduct on victims including Plaintiff; the long lasting effects of sexual misconduct; and any other related matters. Dr./Mr. Smith will also respond to any opinions expressed by any expert witness called by Defendant.
Labeling the emotional injury
How you communicate to the Court and the jury regarding the emotional damages suffered by your client is of paramount importance. You and your expert should avoid overbroad, legal terminology such as “pain and suffering” or “emotional distress” to describe your client’s emotional damages. Instead, use the terms listed in CACI 3905 (and discussed above) such as humiliation, anxiety, and inconvenience as specific, separate items of damages. But also add others, such as shame, hopelessness, loss of identity, and fear of the future, as CACI 3905A specifically permits other “damages” to be listed in that jury instruction. Be creative. Ask your expert to define each item of emotional damage and discuss each as a separate injury to the jury. Also, in determining a value for your client’s emotional damages, jurors are also looking to your expert to specifically identify a diagnosis of your client’s emotional injuries. Jurors like labels. Specific diagnoses of emotional injuries include the following: • Post-Traumatic Stress Disorder (PTSD) • Generalized Anxiety Disorder • Phobias • Panic Disorder • Personality Disorder • Dysthymia (Depressive Neurosis) • Major Depression/Major Depressive Event In conclusion, emotional and psychological injuries are a critical, and often under-emphasized, element of damages in most civil cases. It is essential to work-up the psychological and emotional impact that your client has suffered at the hands of a defendant’s wrongdoing. The effective use of expert witnesses to detail your client’s emotional injuries is extremely valuable at trial and can be very persuasive in convincing juries to award substantial verdicts. Louanne Masry is a partner at Taylor & Ring in Los Angeles. In addition to litigating general negligence cases, her specialties include elder abuse and sexual abuse cases. She has been honored as a Fellow with the Litigation Counsel of America and as a California Super Lawyer. MARCH 2013
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B Hon. Rita Miller Los Angeles Superior Court
General damages in negligence actions Causation, extent of emotional distress and familial relationships are all key to recovering non-economic damages
[Editor’s Note: This is the first of a two-part article on general damages. Part two will look at limitations specific to certain causes of action.] This is a very basic guide to when general (non-economic) damages are recoverable in negligence actions. It seeks to assist in an understanding of the overriding principles that govern their recovery by illustrating that three factors are responsible for almost all the rules. The first of the overriding principles is that many of the limitations on recovery of general damages arise from efforts by lawmakers or courts to allow plaintiffs to recover only what damages were actually caused by defendants and, conversely, to protect defendants from paying for damages they did not actually cause. 40 — The Advocate Magazine
The second key to a systematic understanding of when general damages are likely to be recoverable is that lawmakers seem uncomfortable allowing general damages in cases that are not serious. No doubt, their reasoning is that negligent infliction of emotional distress is a slippery slope which, at its worst, might allow monetary damages for emotional distress based on the most trivial of playground insults. Physical injury was the original gatekeeper to this slippery slope. By requiring physical injury, the law sought to limit general damages to cases of serious injury. Thus, a plaintiff could not recover damages for emotional distress unless she had suffered direct physical injury. In recent years, courts have allowed alternative gatekeepers that relate to the
seriousness of the injury to substitute for the previous rule that general damages were only available in negligence cases where the plaintiff suffered physical injury. In “bystander” cases like Dillon v. Legg (1968) 68 Cal.2d 728, the requirement of a close familial relationship to the person who suffered direct physical injury was developed as a way to make sure that the bystander who sought to recover emotional distress damages without himself having suffered physical injury had suffered sufficiently serious emotional distress to merit recovery of general damages. This requirement of a close family relationship is the third theme that runs through the laws relating to a plaintiff ’s ability to recover general damages when
See General damages, Page 42
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he was not physically injured himself. Similar limitations based on the closeness of familial relationships have been adopted in loss of consortium and elder abuse cases, again, to assure that only those
with serious emotional distress can recover general damages without suffering their own direct physical injury. Wrongful-death cases are a mirror image of the rule: plaintiffs in a wrongful-
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death case cannot recover emotionaldistress damages. Apparently, public policy requires more than a general familial relationship. It allows general damage to a spouse, and only a spouse, for loss of consortium, and to a familymember-bystander who was traumatized by seeing the injury occur, but not to a person who is a more distant family member and did not see the accident – such as a plaintiff in a wrongful-death case. In Molien v. Kaiser Foundation Hospital [S.F. No. 24084. Supreme Court of California. August 25, 1980], the California Supreme Court finally allowed a plaintiff to proceed on a direct claim (as opposed to a bystander claim) for negligent infliction of serious emotional distress where the plaintiff had not suffered physical injury. However, the court built in the requirement that the plaintiff plead and prove that the injury was “serious,” to overcome the reluctance to slide down the slippery slope of allowing general damages in cases where injury is not serious. Unless these requirements centering on a showing of “seriousness” are met, the plaintiff will not be able to state a cause of action allowing general damages for negligence without having suffered physical injury. We start with the basics.
General authority for recovery of damages for torts Various sections of the Civil Code provide for the recovery of damages. Civil Code section 1708 provides that “[e]very person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.” This sentiment is repeated in Civil Code sections 3514 and 3520, which provide respectively “[o]ne must so use his own rights as not to infringe upon the rights of another” and “[n]o one should suffer by the act of another.” Civil Code section 3281 defines and authorizes the recovery of damages:
See General damages, Page 44 42 — The Advocate Magazine
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“Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.” Civil Code section 3333 defines compensatory damages in a tort action: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” This standard is different from the standard in contract cases because, in torts, it is not necessary that the detriment could have been anticipated. For instance, in a tort action, plaintiff, unbeknownst to defendant, may have a pre-existing condition that makes her unusually susceptible to injury. The law allocates the risk of an unusually susceptible plaintiff to the tortfeasor, inter alia, to deter tortious conduct and to impose its costs on the tortfeasor rather than the victim. The rule is otherwise in contract cases. General (or non-economic damages), are one of the two types of compensatory damages. The other type of compensatory damages consists of special (or economic) damages.
General (non-economic) damages consist of “subjective non-monetary losses including but not limited to pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” (See Civ. Code, §1431.2(b)(1).) By contrast, special (economic) damages consist of out-of-pocket cost of repair or replacement of things, cost of repair of real property, loss of use of things, value of use of converted real or personal property, past or future medical or other expenses incurred, past or future loss of earnings or earning capacity, loss of economic opportunities, financial damage due to loss of reputation, loss of interest or other sums of money that would have been earned, recovery of value of unauthorized use of name or likeness, loss by a spouse of household services, loss of ability to provide household services, burial costs, and any other “objectively verifiable monetary losses” actually incurred. (See, Civ.Code, § 1431.2(b)(1).)
Many significant limitations
Causation of actual damages is one of the elements of any tort. If there are no damages, there can be no recovery.
(Fields v. Napa Milling Co. (1958) 164 Cal.App.2d 442, 448.) As is noted in the Introduction, many of the rules set forth in this section arise from the requirement of causation.
Actual damages are required for an award
Consistent with the rule that damages must be caused by the tortfeasor to be recoverable, the law has created a rule to distinguish between situations where: 1) we know damages have been caused, but cannot quantify them; and 2) we do not know if they were caused at all. The law deals with the distinction through the mechanism of an award of “nominal” damages. Civil Code section 3360 provides for the recovery of “nominal damages” “[w]hen a breach of duty has caused no appreciable detriment to the party affected . . . .” The statute provides that, in such cases, plaintiff “may yet recover nominal damages.” In other words, if there are damages but they are so trivial from an economic perspective as to be virtually incalculable (not “appreciable”), plaintiff can still succeed on her claim of negligence because there are damages – they are just so small as to be incalculable.
See General damages, Page 46
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The damages must be so trivial as to be virtually incalculable – not just small. A person who actually suffered $10 of damage, for instance as the cost of a broken fountain pen, recovers actual damages of $10, not nominal damages. Typically, the award for nominal damages is $1 or 1 cent. It is error to award more as nominal damages. (See, e.g., Maher v. Wilson (1903) 139 Cal. 514, 520.) Nominal damages are found most often when a defendant has invaded a legal right of a plaintiff that has no monetary value, and the lawsuit is brought as a matter of principle to vindicate the right that was invaded. This type of award sometimes is made in false imprisonment, abuse of process, invasion of privacy, and trespass cases, among
46 — The Advocate Magazine
others. (See, e.g., ibid. (false imprisonment with no economic damage.)) A $1 recovery can be important when it makes the plaintiff the prevailing party, entitled to recovery of costs. If disaster strikes and you lose on all but your false imprisonment cause of action, an award of nominal damages may make you the prevailing party for purposes of cost awards. Thus, there may be times when it is wise to ask the jury for $1 at the very least for the invasion of your client’s rights. Some might be tempted to speculate that a $1 judgment in your favor can provide the basis for plaintiff ’s recovery of punitive damages. However, as the law of proportionate punitive damages has evolved, the award of punitive damages would have to be tiny based on a $1 judgment.
General damages not recoverable if amount is speculative One aspect of the requirement of causation is that plaintiff must prove that damages actually were caused by defendant. It flows from this that damages must be proven without resort to speculation. This gives rise to the rule that damages whose existence or causation is speculative may not be recovered. But, importantly, once the existence and causation of damages is proven, their amount need not be established with absolute precision. (See Fishbaugh v. Fishbaugh (1940) 15 Cal.2d 445, 453, (in the absence of such a rule, a person severely injured but unable to quantify the amount of injury would be denied recovery unfairly.))
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Cases concerning “wrongful life” are a good example of actions in which damages have been held to be speculative. California courts once held that a child born with disabilities did not possess a right of action for “wrongful life” against a negligent doctor because such a remedy “contradicts the fundamental belief that human life has value.” (6 B. Witkin, Summary of California Law (10th Ed.) Torts, sec. 979, p. 234.) In Turpin v. Sortini (1982) 31 Cal.3d 220, 233-234, the California Supreme Court questioned, or implicitly rejected, this rationale in favor of a more insightful rationale. The court there denied such children the right to recover general damages for “wrongful life” on the ground of speculation – that the general damages to the child as a result of being born with a disability, compared to not being born at all, could not be determined through any rational, non-speculative means of calculation. (Id. at 235-237.) Consequently, in “wrongful life” suits, when doctors fail through negligence to prevent conception of certain children or botch the intended termination of a pregnancy, the child cannot recover damages for emotional distress based solely on the fact that she was born. (Turpin v. Sortini (1982) 31 Cal.3d 220.) However, a child born with an injury that could have been prevented may recover damages. (Id. at 238.) It is important to be able to articulate and argue the difference between speculative damages and damages that are just difficult to quantify, the first does not allow recovery and the second does. (Compare Fishbaugh v. Fishbaugh (1940) 15 Cal.2d 445, 453 (uncertainty of amount of damages) to Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1150 (uncertainty if damages would ever occur – where evidence indicated that future surgery might never occur, damages based on future surgery were too speculative to recover.))
Damages which have not yet occurred – future surgeries, etc. – sometimes present problems of actual causation of
damages. Civil Code section 3283 establishes that prospective damages may be recovered if they are sufficiently certain to occur. It provides: “Damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future.” The certainty requirement often is the most serious obstacle to recovery of prospective damages. For instance, if the plaintiff has not yet had surgery, but is reasonably certain to have it after trial, he may receive an award for pain and suffering he is reasonably certain to experience in connection with the surgery. However, this is very different from the case where it is unknown whether the plaintiff will need or choose to have surgery in the future. (E.g., Scognamillo v. Herrick,106 Cal.App.4th, supra at 1150.)
Damages allocated severally among independent tortfeasors
Liability can be joint and several or several. Joint and several liability arises when defendants are “joint tortfeasors.” That term applies only to persons who act “in concert” to accomplish something, and whose joint efforts cause the injury. (See Gray v. Sutherland (1954) 124 Cal.App.2d 280.) The Restatement 3d of Torts: Apportionment of Liability, section 10, states that, under the principle of joint and several liability, the plaintiff “may sue for and recover the full amount of recoverable damages from any jointly and severally liable person.” Joint tortfeasors can be distinguished from tortfeasors whose acts are independent of each other, even if their acts are simultaneous or occur at the same place. For instance, two or three hunters may all fire their weapons simultaneously or successively and hit the same man standing in the woods, who they have mistaken for a deer. (E.g., Summers v. Tice (1948) 33 C.2d 80, Orser v. George (1967) 252 Cal.App.2d 660.) One may graze his arm, one may hit him in the chest and one may ultimately be found to have missed entirely. The liability of independent tortfeasors is not joint:
it is several. It must be, as a judgment against one may be proper, while a judgment against another – whose shot missed or who merely grazed a hand – may need to be different than the judgment against the other. (Ibid.) Where liability is several, as in the case of independent concurrent or successive tortfeasors, liability for both general and special damages must be allocated among the severally liable individuals. There are complex rules for such allocations, some of which involve differently situated defendants. For instance, how should damages be allocated among the three shooters, or between one tortfeasor who acted intentionally and another who acted negligently, or between one who is liable based on vicarious liability and another who is liable for her own acts, or between one who is strictly liable and the other who was negligent or willful? These rules are too numerous to be discussed here. Witkin contains a helpful discussion of the rules. (5 B. Witkin, Summary of California Law (10th Ed.) Torts, sec. 47 et seq.) Again, the law seeks to apportion liability according to each defendant’s share of the causation. Probably, it would do so in cases of joint tortfeasors, but for the difficulty of apportioning fault when two or more defendants have acted in concert causing a single result. In those cases, liability is joint and several. As stated in the Restatement 3rd of Torts quoted above, that means that each of the parties who acted in concert is liable for the entire amount of the damages. However, as is discussed below, a plaintiff may not recover more than the total judgment by pursing each of the defendants who are jointly and severally liable. Payment by each reduces the amount due to the plaintiff. (Id.§ 44 et seq.) As the court stated in the Orser case, mere knowledge of another person’s acts is not “concerted” action that imposes joint and several liability. (Orser v. George, 252 Cal.App.2d, supra at 667.) The parties must act in concert for joint and several liability to apply. (Ibid.) The law does adjust, however, for the likelihood that the tortfeasors will be in a MARCH 2013
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better position to prove their proportionate shares of causation of damages. (E.g., A’s bullet damaged the hand, causing less suffering and disability than B, whose bullet hit the chest.) It does so by provid-
ing that the defendants bear the burden of establishing their proportion of fault. Otherwise, the plaintiff might suffer an inequitable result simply because she could not pinpoint the proportion of
each defendant’s fault, if any. (See Summers v. Tice, supra.)
Recovery for general damages and Prop. 51 Before 1986, California followed the rule of joint and several liability as to economic and non-economic damages caused by joint tortfeasors. Concerns about joint and several liability arose because it imposed on persons with a small percentage of fault (sometimes governmental entities – whose damage awards came from the pockets of taxpayers) the duty to bear the entire burden of the verdict. (Civ. Code, § 1431.1.) This concern appears to have led to the enactment of “Proposition 51,” adopted by the voters in 1986, which appears at Civil Code sections 1431 et seq. The law provides that liability for special damages remains joint and several among all tortfeasors – that each can be required to pay the entire damage award. But Proposition 51 changed the rule as to general damages. General damages were made “several,” not joint: “Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.” (Civ. Code, § 1431.2(a).) Thus, while a plaintiff can recover all of her economic damages from any defendant, she must track down each defendant to collect that defendant’s share of her non-economic damages.
Damage recovery reduced by factors
Another consequence of the requirement of causation is that the law attempts to apportion damage awards so the defendant is not required to pay for damages caused by the plaintiff himself. The affirmative defense of failure to mitigate damages is available to defendants on claims for general damages as well as special damages in virtually all tort cases. (See Green v. Smith (1968) 261 Cal.App.2d 392, 396.) Thus, a plaintiff 48 — The Advocate Magazine
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who allows his wound to turn gangrenous because he negligently failed to consult a doctor is part of the cause of his own injury, and the law dictates that he should bear his proportionate share of the financial responsibility. However, the plaintiff is only required to use reasonable diligence in caring for his injuries. If defendant claims plaintiff should have done something unreasonable, impractical, or so costly that plaintiff cannot afford to do it, plaintiff will not be charged with comparative fault. (E.g., Valle de Oro Bank v. Gamboa (1994) 24 Cal.App.4th 1686, 1691.) For instance, an indigent plaintiff with no insurance will not be held responsible for failing to obtain expensive surgery that he cannot secure. The obvious rationale for this rule is causation again – plaintiff did not cause the aggravation of his injury if he could do nothing about getting surgery. Similarly, if plaintiff ’s own negligence is partly to blame for his injury, the defendant will only be liable for his own percentage of fault and plaintiff will be responsible for the remainder. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 590 fn.2.) The law of comparative fault is different from the law of contributory negligence, which held that, if plaintiff contributed to his injuries, he would be barred from recovery of anything. The American Motorcycle case changed
California law from contributory negligence to comparative fault in 1978. This change was consistent with the notion that defendants should not be relieved of paying for damages they actually caused.
Recovery of more than plaintiff’s damages not permitted
If a plaintiff recovers 30 percent of her damages from Tortfeasor A, the law will only allow her to recover the remaining 70 percent from Tortfeasor B. (See Spaulding v. Cameron (1952) 38 Cal.2d 265, 269.) Again, causation theory prevents plaintiff from recovering more actual damages than she suffered and protects defendant from paying more than the damages he actually caused. The same theory recently was articulated in Howell v. Hamilton Meats & Provisions (2011) 52 Cal.4th 541, 548549.) The holding in that important case was that a plaintiff can only recover as damages the amounts of medical bills the provider actually requires him to pay, even if the amount is discounted from the face value of the bills or the ordinary market value of the services. The holding was stated as follows: When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts as full payment, pursuant to a preexisting contract with the injured person’s health insurer, an amount less
See General damages, Page 52
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General damages — continued from Page 50
than that stated in the provider’s bill. In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider’s bill but never paid by or on behalf of the injured person? We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount. (See Civ. Code, §§ 3281 [damages are awarded to compensate for detriment suffered], 3282 [detriment is a loss or harm to person or property].) The collateral source rule, which precludes deduction of compensation the plaintiff has received from sources independent of the tortfeasor from damages the plaintiff “would otherwise collect from the tortfeasor” (Helfend v.
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Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6 (Helfend)), ensures that plaintiff here may recover in damages the amounts her insurer paid for her medical care. The rule, however, has no bearing on amounts that were included in a provider’s bill but for which the plaintiff never incurred liability because the provider, by prior agreement, accepted a lesser amount as full payment. Such sums are not damages the plaintiff would otherwise have collected from the defendant. They are neither paid to the providers on the plaintiff ’s behalf nor paid to the plaintiff in indemnity of his or her expenses. Because they do not represent an economic loss for the plaintiff, they are not recoverable in the first instance. The collateral source rule precludes certain deductions against otherwise recoverable damages, but does not expand the scope of economic damages to include expenses the plaintiff never incurred. By a parity of reasoning, under Howell, it is unlikely that courts will admit evidence of the undiscounted “value” of medical bills. Plaintiffs will only be able to gain admission of the actual amounts for which they are liable to their doctors, even though the amounts are lower than the amounts stated on the undiscounted bills. This is because Howell indicates that the issue is the amount of damage or harm actually incurred, not the theoretical value of the services rendered.
In particular, it seems unlikely that the undiscounted price of the medical services will be admissible to show the estimated cost of future medical bills. There is a wide range of prices charged by medical providers for the same service, and those prices are changing all the time. It would be speculative to use existing medical bills to predict the amount that will be charged for future services, especially when the evidence demonstrates a custom and practice of discounting the face amount of the bills. Hon. Rita Miller graduated first in her class from Loyola Law School in 1979, summa cum laude. She joined the downtown Los Angeles firm of Munger Tolles & Olson upon graduation, where she became a partner in 1985 and remained until 2000, specializing in civil litigation on behalf of plaintiffs and defendants. Judge Miller was appointed to the bench by Governor Davis in 2000. She currently sits in the Stanley Mosk Courthouse in downtown Los Angeles, where she handles general jurisdiction civil matters. Judge Miller was named Trial Judge of the Year by CAALA in 2012. Judge Miller serves on the Executive Committee of the L.A. Superior Court. She is an author of the California Judges Benchbook Series and also serves as Associate Editor of Gavel to Gavel, a magazine published by and for bench officers of the L.A. Superior Court. Judge Miller has been a founding member of the Loyola Law School Civil Justice Program since 2004.
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William H. Newkirk
Finding hard proof of pain and suffering Investigation of medical records can reveal evidence of the “fifth vital sign” As elements of damages or personalinjury claims, “pain” and “suffering” are both obscure and controversial. “Pain” is a medical concept, while “pain and suffering” is a legal concept. Because that is so, the concepts often present major barriers for jurors before awarding damages, and play a major role in inconsistent results in trial from one case to the next, and from one attorney to another. Indeed, many of the recent calls for caps on damages have relied on studies purporting to show the vast disparity between jury verdict awards for general damages with the same or similar injuries. Most of those studies cite the fact that juries are given little, if any guidance, in how to reach their verdict deciding on how to assign monetary value to these vague notions. CACI 3905 instructs: The following are the specific items of non-economic damages claimed by plaintiff: Past and future physical pain/mental suffering … [etc.]. No fixed standard exists for deciding the amount of these non-economic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense… The “Use Notes” for the CACI instructions on “pain-and-suffering” damages offer little, if any additional guidance, and actually make the concept even more nebulous. Here is what the seminal cases on “non-economic damages says on the subject: If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of. In general, courts have not attempted to draw distinctions between the elements of “pain” on the one hand and “suffering” on the other. Rather, the unitary concept of “pain and suffering” has served as a convenient 56 — The Advocate Magazine
label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. Admittedly, these terms refer to subjective states, representing a detriment which can be translated into money lost only with great difficulty. But the detriment, nevertheless, is a genuine one that requires compensation, and the issue generally must be resolved by the “impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence. Indeed, mental suffering frequently constitutes the principal element of tort damages. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892.)
David Ball on Damages
David Ball, in his epic work on damages (Damages: The Essential Update, Second Edition, Chapter 4: Noneconomic Damages), asks rhetorically: What life experience can jurors use to help them decide how much they should give in non-economic damages? How can common sense possibly help? Intangible [never use the term ‘noneconomic damages’ in front a jury!] damages are hard to get for two primary reasons: jurors rarely see what purpose the money can serve, and jurors never know how to figure out how much to give. Ball cautions that: Telling the jury nothing more than: no one can tell them, – not the judge, – not the lawyers. They just have to use their own life experiences and common sense – is the litigator’s equivalent of shooting yourself in the foot. While some methods, such as per diem arguments can give guidance on how to reach a verdict on “pain and
suffering,” they are successful usually by giving examples of readily calculable methods and amounts that do have some simple concrete examples jurors can easily relate to. But they have been frequently criticized as not having any evidentiary basis and are disallowed by some judges for that reason. If, in urging an award of pain-andsuffering damages, you offer no figure at all, you are leaving jurors with no guidance at all. If you can’t tell them how to do it, and the judge can’t tell them, and no one else can tell them, you leave them to conclude that it isn’t possible to do correctly, and since it is impossible to do, it shouldn’t be done. The consequence of that process is resentment that leads them to conclude that the myth of litigation lotto is really what the exercise is all about. Lawyers need to give the jury something that is a tangible – or at least a credible, common-experience benchmark on which to calculate pain-and-suffering damages. With nothing else to rely on, jurors frequently calculate non-economic damages as a multiple, or a proportion of economic damages. Or, they give nothing at all, having concluded that an award of the economic damages accomplishes the job of taking care of the harm caused. If there is $50 in medical bills, they may conclude the plaintiff, who has had pain and suffering should get $100 for that– if they like her – but $25 if they don’t. However, if the jury awards nothing at all for pain and suffering but otherwise awards damages for economic damages, the failure to award damages is inadequate as a matter of law. (See: Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931) In Capelouto, the court established several important rules relating to evidence on pain and suffering, saying: the absence of medical testimony cannot itself serve to foreclose recovery for pain and suffering; expert testimony is not a prerequisite to the framing of a
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question for the jury on this issue. Although plaintiff ’s own testimony commonly establishes his damages for pain and suffering, attorneys frequently invoke the testimony of other parties as well. We have long upheld the admissibility of such testimony including that of lay witnesses relating to observations of the suffers and voluntary declarations and expressions of pain. Nor do we consider the evidence objectionable as hearsay. Involuntary declarations and exclamations of a person’s present pain and suffering are admissible as tending in some degree to show up his physical condition. Thus, although expert testimony may undoubtedly be helpful, it is not necessary to establish a basis for an award for pain; lay testimony suffices. (Capelouto, supra, at 893.) The only direct evidence of pain and suffering comes from the injured party, but jurors are skeptical of the veracity of the claims of pain from the plaintiff, particularly because they see such testimony as motivated by self-gain, causing it to lose its impact if not supported by other evidence. So, while perhaps expert testimony from a physician may not be necessary in every instance, the physician is perhaps
the most important and credible witness the plaintiff can offer. In the eyes of the jury, unlike the plaintiff and his family, who may have a motive to lie or exaggerate, the physician stands to receive no economic benefit from the ultimate verdict. More importantly, doctors, unlike lawyers, are perceived by society as honest professionals, bound by morality and their Hippocratic Oath to do good. But even with a physician available to testify on the plaintiff ’s pain, years of exposure to thousands of patients with complaints of pain are bound to have an impact on the degree of conviction with which the treating physician delivers his intonations on the patient’s pain and suffering. That may cause the doctor, who is the frequent witness to pain, to deliver the concept in a less than persuasive manner, unless additional props and prompts are available. And, because “pain and suffering” is a nebulous concept, finding evidence of its existence that jurors can recognize from their own experience is somewhat misleading, since the experience of pain is subjective, and not experienced in universally the same way for everyone. Fortunately, tangible evidence of pain and suffering is readily available from medical records, which when used
properly by the lawyer examining the physician or other qualified health-care provider, along with the plaintiff, gives that evidence a kind of concreteness that jurors can use as an anchor to calculate the monetary piece of the concept. While pain and suffering is a legal concept, pain is a medical concept. Translating the fuzzy medical concept into ordinary meaning gives it concreteness for a jury. The tools to do so can often be found in hospital, clinic and physician office records of treating health-care providers, which sometimes may be used, after proper admission into evidence, to bolster the appreciation of the jurors to the reality of pain and suffering of the plaintiff.
Pain as a vital sign
In recent years, awareness of pain has become such an important medical concept that it is now the focus of a new discipline in medicine – one which is really interdisciplinary – involving neurologists, anesthesiologists and surgeons, known as Pain Management. To improve Pain Management, the Veteran’s Health Administration launched a campaign in 1999 to designate: “Pain as the Fifth Vital Sign,” requiring a pain intensity rating from
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0 to 10, 10 being worst, for all clinical encounters (J. General Internal Medicine 2006 June; 21) 6:607-612. That same year, California AB 791 was signed into law, adding section 1254.7 to the Health and Safety Code, declaring: …(d) every health facility licensed pursuant to this chapter shall as a condition of licensure, include pain as an item to be assessed at the same time as vital signs are taken. If indeed those vital signs are obtained, they need to be recorded in the medical records for a patient, and become a valuable tool for the lawyer to give concrete evidence of pain and suffering written by a qualified examiner whose credibility is unimpeached. Conversely, the absence of those findings, because of the mandate of Health and Safety Code
section 1254.7 (b) can be used to crossexamine the medical expert witness, even if he is the defense expert. Doctors and nurses now are required to determine pain intensity in accordance with a uniform rating scale describing: “the onset, duration, variation and patterns, alleviating and aggravating factors, and ‘effects of pain.’” meaning the impact on daily life, function, sleep, appetite, relationships with others, emotions, concentration, etc. In other words, the very same reliable factors that the physician must have to adequately treat the patient’s pain, and now must document, are the very ones the attorney can use to prove “pain and suffering.” Doctors often use the terms: intractable, chronic, intermittent, lancinating, pulsating, referred, and acute, to describe the onset, duration and pattern
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of pain, and its impact on the life of the patient, and do so as a diagnostic tool. Where those terms are recorded in the records, they refer not only to the sensation of pain, but the response of the individual to the pain, which translates into suffering which becomes immediately understandable to the layman by his or her own experience. Studies have shown that when these intangible concepts are given voice from a reliable witness whose credibility is presentably paramount, rather than from the lawyer, all of those subjective and intangible concepts suddenly become tangible and real. When the doctor is describing the pain to the jury, it translates from intangible to tangible. It is no longer the lawyer telling about the client’s pain, no longer just the plaintiff ’s word. Instead, ladies and gentlemen, you can trust the doctor! It’s real. Unfortunately, seldom is the case that doctors take heed of the campaign to make pain a “fifth vital sign” which is dutifully described with each clinical encounter in the medical records. And when that is the case, as is more commonly so, the absence of notations of pain is something which can also be used to impeach the plaintiff ’s claim, just as the presence of such notations can be used to bolster those claims. Because that is so, every plaintiff ’s attorney has a duty to obtain and inspect the medical records of recent treaters to find the necessary evidence of pain and suffering. Hospital, clinic and medical records can be introduced into evidence as exhibits and witnesses can testify from them, particularly medical-expert witnesses, and the subject and authors of the entries in the medical records may be allowed to testify about their content, as well. Some judges actually allow portions of medical records to be taken to the jury room, where the jurors can be expected to pour over them in microscopic detail. (See, McDowd v. Pig’n Whistle Corp. (1945) 26 Cal.2d 696, 700.) When that occurs, and jurors are allowed to look at the records, they frequently overlook
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some entries and misinterpret others. Oftentimes, the records are voluminous and replete with arcane medical terminology, subject to misinterpretation. For that reason, most courts allow the medical records into evidence on proper foundation or stipulation, but prohibit them from being taken to the jury room. (Code Civ. Proc., § 612 and Evid. Code, § 352.) Admission of a part of the records does not prevent any party from objecting to other entries in the records. Inadmissible matter is not made admissible simply by inclusion in a hospital record. As a general rule, only those portions of the record are admissible that would be admissible if testified to by the author of the records. However, testimony by a doctor that explains and interprets specific
entries in a hospital record can be allowed on the premise that the doctor is clarifying the evidence contained in the record (Gillett v. Gillett (1959) 168 Cal.App.2d 102); or (b) illustrating part of the matter on which his opinion is based (Evid. Code, § 802. cf., Evid. Code, § 803). A medical-expert witness can also be examined about all the items in the record that support his or her opinions, and can translate and explai n medical terminology and abbreviations. A lawyer can also glean information from medical records that was not known to the adverse medical witness when he or she reached her medical opinions, which sometimes can be the basis for allowing the introduction of selected portions of the medical records.
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60 — The Advocate Magazine
Where to look and what to find there Entries reflecting the patient’s medical status, history and response to treatment can be found at various places in a hospital record. A history may be recorded on separate printed documents, or on handwritten documents containing hardto-read entries and difficult-to-interpret abbreviations and symbols. All of them should be examined in their entirety, before using them as an exhibit at trial. Medical records are, in pure form, a record of what the patient or some other person did or said outside the courtroom, in the context of the health-care providers’ venue. As such, they are hearsay. Nonetheless, a medical history entry and testimony about it can often be received over a hearsay objection, either as a business record exception to the hearsay rule (Evid Code, §§ 1271, 1272); or for the limited purpose of establishing the basis for a medical opinion. In that context, evidence of a medical history recorded in a hospital or doctor’s office record is admissible on the same grounds as a medical witness’s testimony about the history provided to him by the plaintiff himself. Although the modern trend is to create computerized, or electronic medical records (EMRs), many individual records are in both handwritten and typewritten form. Indeed, there may be both forms created, but only the EMRs produced in response to a subpoena, without specifically designating all handwritten notes made during the course of the provision of health care in the facility for a specified time period. Frequently, a physician will handwrite a note of an event or procedure, and dictate a note of the same event through the hospital transcription system. Transcribed notes contain at the bottom, an indication of when the note was dictated (i.e.: D: 8/4/12), and when it was transcribed (e.g.: 8/7/12). Hospitals generally require that operative reports and discharge summaries be dictated and transcribed within days of the event, and if that is not done, the doctor will receive a notice from the custodian of records to complete the
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records. The JCAHO requires hospitals to demand that admission and discharge be timely completed by physicians as a condition of the physician maintaining hospital staff privileges. The dates of dictation of notes of events should always be compared to the dates of the events they describe, particularly when there are no handwritten notes of the same event, as would otherwise be expected.
The face sheet or cover sheet of the hospital record usually records census information and personal identification information about the patient, and usually also contains information about collateral sources of payment. It may be particularly important in the early evaluation of the case to determine whether the
basis for a governmental lien may exist, such as MediCal or Medicare, which then obligates the lawyer to notify the agency and honor the lien.
Admission and discharge summary
This document usually contains a history of the immediate hospital episode, summarily documenting the admitting status of the patient, the reason for the admission, and what was done during that hospitalization, as well as the discharge status of the patient. It records the patient’s acute and chronic medical conditions, and events which cause a significant change in the status of the patient during the hospitalization. It may also contain some valuable information about prior medical events which led up to the hospitalization, and conditions
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which were a significant concern in providing health care, such as complications and untoward events. Physician-caused injury is frequently referred to as an “iatrogenic” event.
The surgeon in charge of any operation performed in a hospital or outpatient surgery center is obligated to generate a report giving the details of the procedure, including the pre- and post-operative diagnosis, the proposed procedure, any changes from that preoperative plan, the anesthesia used, who was present, and a description of the significant events which occurred. Most often, they are dictated by the surgeon themselves, and transcribed by the hospital transcription service. Oftentimes, the reports of the surgical procedure follow a canned script, which can be rather easily detected by looking for the presence or absence of detail: the less detailed, the more likely canned. A plaintiff ’s attorney can ask a medical witness to interpret the details of the report, which generally has the impact of impressing on jurors the seriousness of the patient’s condition requiring surgery.
OT BL L BR SYST LE
These pages of the medical record are generally handwritten, except in some more modern EMRs, containing templates for usual medications ordered for similar procedures which the physician usually checks off. They contain a host of abbreviations and symbols, and may also show the time they were made, and how they were made. Orders may be direct, written by the physician herself, directing specific conduct, medications, testing, etc.; or they may be verbal orders, designated as such: “V.O.”, or “T/O”, meaning orders made by a physician over the telephone to a nurse. In all instances, the person writing the order entry should sign the order, and the person making the order should countersign the latter kinds. Nurses should also indicate on the physician order form when the orders are carried out. These may
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show when narcotic pain medications were given, and the time should correspond to the medication record. The frequency of physician-ordered pain medications is a good indication of the severity of the pain, and is something that is ripe for direct examination about the pain levels, frequency, and response to pain, i.e., pain and suffering.
Physician progress notes
Doctors’ notes of the day-to-day progress of the patient during a hospitalization are intended to describe pertinent details of their progress in treatment as observed by the physicians who treat them. They are supposed to contain statements of both the objective findings and observations, and subjective assessment of those findings. They are distinct from the Physician Orders, and are a great source of the information about pain and suffering, since they are intended to be the factual findings which may support opinions, including opinions about the nature and extent of the pain and suffering. This is the place where notes describing the “Fifth Vital Sign,” written by a physician, are frequently found, and is usually the place where the physicians’ diagnoses are written. Indeed,
progress notes often contain a formula, called the “SOAP” formula, an acronym referring to S=Subjective assessment; O=Objective findings; A=Assessment diagnoses, including differential diagnoses; and P=Plan, or plan of care. As previously stated, pain is subjective, and notes relating to the patient’s subjective complaints are frequently noted in brief in this section of the medical records. However, medical records have many sections which contain diagnoses, causation comments, history, and the like, since doctors are rarely concerned about separating statements of what they find objectively from what they conclude about subjective complaints. Doctors are allowed to testify from entries they make in the records to interpret the entries, and describe their subjective and objective assessment of those entries. (Kelley v. Bailey (1961) 189 Cal.App.2d 728.) Medical-expert witnesses who offer opinions about entries made by physicians other than themselves may also be able to testify about the meaning of the objective findings and interpret the subjective assessment in that context. They are permitted to base their opinions on information they derive from a patient’s hospital records, if that information is
something which may be relied upon by an expert in forming an opinion on the subject (See Evid. Code, §§ 801, 802). But, see Garibay v. Hemmat (2008) 161 Cal.App.4th 735, in which a summary judgment for a defendant physician was reversed by the Court of Appeals, which concluded that medical records upon which the supporting expert had based his declaration were not properly authenticated and thus, not properly in evidence. In reversing, the Garibay court said: Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule. Such records, however, must be properly authenticated. (People v. Moore (1970) 5 Cal.App.3d 486.) Evidence Code section 1271 states the business records exception to the hearsay rule: Evidence of a writing made as a record of an act, condition or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition or event; (c) The custodian or other
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Nurses also record their observations of the day-to-day, hour-by-hour, and sometimes minute-by-minute events and circumstances of the patient, in a separate segment of the medical records. Their notes are routinely the most detailed, and contain the most frequent and florid details of the “Fifth Vital Sign.” Indeed, Nursing Notes are the portion of the chart that are the most important indicators of the “onset, duration, variation and patterns, alleviating and aggravating factors, and ‘effects of pain’, meaning the impact on daily life, function, sleep, appetite, relationships with others, emotions, concentrations,. . . etc.”, which a physician can describe to the jury.
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qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness. (Id., 161 Cal.App.4th at p. 742.) Thus, admission of the medical records, or at least the portions of the medical records which the expert is asked to offer opinions about, is critical to the process of eliciting “pain-and-suffering” evidence contained in the notes of the hospital or physician.
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There is perhaps no better place in a hospital chart where information is available to show jurors, to bring to life concepts of pain and suffering, than the medication record in the chart. Every medication given to a patient on a physician’s order is recorded in that separate segment of the chart, regardless of how it is delivered. The medication record tells not only what medications are provided to the patient in response to the doctors’ orders, but in what dosage amount, and when the medications are delivered. The listing includes medications delivered by “PCA” or patient controlled automatic delivery systems. Necessarily, the medications listed include everything from antibiotics, aspirin and antacids to narcotics, opiates
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E and psychotropics and beyond. For an attorney to be able to use that information, a medical expert need not necessarily be consulted, or retained. The Internet is available as a source of information about drugs and medications listed on the Medication record, and a list of the medications, their dose and frequency of administration can then be obtained from anyone who audits the medical record. From that list, those drugs and medications which are painrelief medications, from narcotics to NSAIDs (non-steroidal anti-inflammatory medications) can be drawn up. Any witness with medical expertise can be examined at trial about the purpose of the medications. The Internet lists the relative strength of most pain-reliever medications, from NSAIDs first, through
morphine derivatives such as Dilaudid. With a little effort of making the list and having the medical witness confirm the dose and time of administration, a very concrete demonstration of pain, as well as suffering, can easily be communicated to the jury. If narcotic medications are used for any length of time, prolonged, or chronic use can lead to its own set of consequential problems which are part of the suffering from pain that is readily understandable to jurors. Once the records, or the portion of the records which are critical, are admitted into evidence, they can then be put on the projector screen, and published to the jury. Doing so brings “Pain and Suffering” to life, making them concrete and readily discernable circumstances, and is a tool which should never be left
unused. The jury’s own subjective response to subjective information published on the big screen is bound to have a much more concrete reception. William H. Newkirk is with the Law Offices of William Newkirk specializing in medical negligence, professional negligence and personal injury. He is a member of the American Board of Trial Advocates and the Consumer Attorneys Association of Los Angeles Board of Governors (Emeritus). He has received Recognition of Experience Certificates in Medical Negligence and Trial Practice. He is an author and lecturer on medical negligence and personal injury litigation, and is an occasional legislative witness in medical negligence issues. He received his B.A. from UCLA in 1970 and his J.D. from Southwestern University in 1974.
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Hon. John L. Segal Los Angeles Superior Court and Ashley Fouladbakhsh
California’s new seven-hour deposition statute From depos of unlimited length to seven hours or less: Will it prevent abuses and save money? , Los Angeles Superior Court not survive more than six Hon.1,John L. Segal Effective January 2013, deposiwho may Fouladbakhsh tions in Californiaand civilAshley proceedings are months); (4) depositions in employment limited to “seven hours of total testimocases; (5) depositions of persons most ny.” On September 17, 2012, Governor qualified under section 2025.30; and (6) Jerry Brown signed Assembly Bill No. a second seven-hour deposition by a party that appears in the case after the 1875, which amended California Code of conclusion of the deposition of a witness. Civil Procedure section 2025.290. The (Code Civ. Proc.Code, § 2025.290(b).) Legislature enacted the new law to preThese are potentially very big exceptions; vent perceived abuses in depositions and they may be big enough to swallow most to reduce the increasing costs of litigadeposition practice in & Ashley of theFouladbakhsh rule. tion attributable toHon. John L. Segal California. (Cal. Assembly 2011Perhaps the most significant effect of Los Angeles1875, Superior Court 2012 Reg. Sess. (2012).) Will the new the new rule is that it places the burden statute achieve either goal? on the deposing party to ask the court Previously, there was no statutory for additional deposition time to allow a limit on the length of depositions, “fair examination.” Previously, the burden was on the deponent to seek a proalthough California law did allow a tective order to stop excessive or harassdeponent to move for a protective order ing deposition questioning. (See Code to stop abusive deposition tactics. Civ. Proc., § 2025.290(c); Emerson Elec. California’s new statute will bring state Co. v. Superior Court (1997) 16 Cal.4th law more in line with federal law, which 1101, 1110.) Under the new statute, already limits depositions to seven hours. Unlike Federal Rule of Civil Procedure there is a presumption that a deposition 30(d)(1), however, Code of Civil is limited to seven hours, and the burden Procedure section 2025.290 does not is on the party taking the deposition to require that the deposition be completed show that the party needs additional in one day. Under both rules, the court deposition time for a particular witness. may grant additional time “if needed to The exceptions fairly examine the deponent or if the • 2025.290(a): Court Order deponent, another person, or any other Section 2025.290(a) of the new circumstance impedes or delays the statute provides that the court may examination.” (Fed. Rules Civ. Proc. authorize additional deposition time “if 30(d)(1); Code Civ. Proc., § 2025.290(a).) needed to fairly examine the deponent In addition to a party’s right to ask or if the deponent, another person, or the court for more than seven hours any other circumstance impedes or of deposition time under section delays the examination.” (Code Civ. 20205.290(a), section 20205.290(b) lists Proc., § 2025.290(a).) There are a variety six exceptions to the seven-hour limit of circumstances that may justify extendthat do not appear in the federal rule, ed deposition time. The advisory notes to although some of the exceptions appear Federal Rule of Civil Procedure 30(d)(1) in federal cases interpreting the rule. state that circumstances indicating the These exceptions are (1) depositions purneed for additional time include deposisuant to a stipulation by the parties that tions where the witness needs an interthe seven-hour limit will not apply; (2) preter, the witness has not read numerdepositions of expert witness; (3) deposious or lengthy documents that the tions in complex cases under Rule 3.400 deposing party provided in advance of of the California Rules of Court (with an the deposition, or the case involves exception to the exception for deponents
70 — The Advocate Magazine
multiple parties or events occurring over a long period of time. Other situations that may warrant more time include when an opposing party delays the deposition by making unnecessary objections, or if a party stalls by having frequent and lengthy conferences with counsel. (See E. Cuaderes & E. Jones, III, Recent Amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, 39 Houston Lawyer 10, at 13 (Sept./Oct. 2000).) A particularly motivated and obstreperous attorney defending a deposition can consume most of a seven-hour period of time by repeatedly making lengthy speaking objections, engaging in unnecessary colloquy, and insisting on having detailed meet and confer sessions on the record. In evaluating requests for additional time, the court is likely to take into account whether the deposing party made efficient use of the seven hours authorized by the statute. (Schwartzer, Tashima and Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, ¶ 11:1523 (Rutter 2012 ed.). The court may deny additional deposition time to a party who unreasonably prolongs the questioning. For example, in Roberson v. Bair (D. D.C. 2007) 242 F.R.D. 130, 138, the court denied the defendant’s request for more deposition time because counsel for the defendant concentrated on peripheral issues and the deposition ended without any questions specifically directed to plaintiff ’s allegations. The court observed, “It has been said that a writer’s best friends are a deadline and a page limitation. The same may be said of lawyers conducting depositions.” (Ibid.) Under the new California statute, counsel taking the deposition will have to balance the urge to cover every detail exhaustively with the need to obtain the
See Statute, Page 72
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most critical information during the allotted seven hours. Even if counsel intends to ask the court for more time, counsel will want to be able to show the court that he or she did not waste time on irrelevant issues and tangential details. But even with a “good” deposition record – either of efficient questioning by the deposing attorney or of unruly behavior by the defending attorney or the witness – it is unclear whether trial courts will have the time and incentive to review an entire deposition transcript to analyze whether seven hours was enough time for a particular witness. The rule does not specify whether the party requesting additional deposition time must or should make the request before or after the deposition. Presumably, if counsel or the witness must make expensive travel arrangements for the deposition, the parties should ask the court to resolve any issue about the length of the deposition beforehand. On the other hand, before granting additional deposition time the court may require the parties to complete the first session of the deposition, so that the court can evaluate how much material the attorneys can cover in seven hours, whether any of the parties or the witness is unduly delaying the efficacy and flow
of the deposition, and whether additional time is warranted. Some federal courts have refused to consider such a request until the parties have exhausted the first seven hours. (See, e.g., Malec v. Trustees of Boston Coll. (D. Mass. 2002) 208 F.R.D. 23, 24; Brooks v. Motsenbocker Advanced Developments, Inc. (S. D. Cal. 2008) 2008 WL 2033712 at *3.) Although there may be cases where the need for additional time is evident even before the deposition occurs, some courts under the federal rule have (See, e.g., see also Parkland Venture, LLC v. City of Muskego, 2010 WL 4723411 at 1 (E.D. Wis. 2010) (court will not grant a protective order brought prematurely based on a fear that counsel will use abusive tactics during the deposition).) • 2025.290(b)(1): Stipulation Under new section 2025.290(b)(1), the parties can stipulate that the sevenhour time limit does not apply to particular witnesses or to the entire case. The advisory notes to the federal rule state that the seven-hour limit is merely a guide and that parties should work together to determine a fair time limit. (Condit v. Dunne (S.D.N.Y. 2004) 225 F.R.D. 100, 112 [citing Advisory Committee Notes to 2000 Amendments to Fed. Rules Civ. Proc., rule 30(d)].)
Parties should take advantage of the opportunity in appropriate cases to stipulate around the time limit in order to avoid costly motion practice and unnecessary judicial intervention. As a practical matter, counsel representing the deponent should accommodate reasonable requests for additional time. Agreeing to extend the deposition a few hours may be far more convenient and fiscally responsible than responding to a motion for additional deposition time for a witness, appearing in court to argue the motion, and having to schedule and reassemble the attorneys, the witness, and the court reporter (and videographer) for another deposition session at a later date. Be sure that any stipulation is clearly established – and is either put in writing or on the record in open court. Cedar Rapids Lodge & Suites, LLC v. JFS Development Incorporated (N.D. Iowa 2011) 2011 WL 4757975, provides a cautionary tale about the potential adverse consequences that can flow from failing to nail down an agreement to exceed the sevenhour limit. There, the court held that a party’s statements about the timing of a deposition failed to show that there had been a stipulation to exceed the limit,
See Statute, Page 74
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and the court denied the motion for extra time. • 2025.290(b)(2): Expert Witness Section 2025.290(b)(2) exempts expert-witness depositions from the seven-hour limit. The advisory notes to federal rule 30(b) state that “with regard to expert witnesses, there may more often be a need for additional time…for full exploration of the theories upon which the witness relies.” At first blush, it is understandable that the Legislature included expert depositions in the list of exceptions to the seven-hour rule. Expert testimony can be complicated. At second blush, however, it is less understandable. Expert depositions, although sometimes complicated, are generally not that long, except perhaps in complex cases, to which the exception in section 2025.290(b)(3) for complex cases applies. It is hard to imagine an expert witness deposition lasting more than seven hours in most non-complex civil cases. For this article we conducted a non-scientific poll of three lawyers: one plaintiffs’ attorney, one defense attorney, and one Superior Court judge who was a civil litigator. One had never had an expert deposition last more than seven hours, one had one deposition in 20 years of practice that lasted more than seven hours but should not have lasted that long, and one had experienced seven-hour-plus expert depositions only rarely outside of complex cases. Moreover, given the proliferation of experts in litigation, it is much more likely that a party will designate multiple experts to testify on different areas or subject matters, each of whom will be subject to relatively narrow deposition questioning, than one expert witness to testify on many different subject matters. • 2025.290(b)(3): Complex Cases Under the new California statute, complex cases are exempt from the seven-hour limit. (Code Civ. Proc., § 2025.290(b)(3).) Federal courts have generally recognized under the federal rule that complex cases usually require
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additional deposition time. (See, e.g., Gibbs v. Family Care Center of Indiana, LLC (N.D. Ind. 2011) 2011 WL 772877, at *1.) Federal courts also routinely grant additional time to depose significant witnesses in complex cases. (See, e.g., Adelphia Recovery Trust v. Bank of Am., N.A., (M.D. Pa. 2009) 2009 WL 1794992 at *2 [allowing three-day deposition of important witness based on complexity of the case and likelihood that the witness possessed significant information].) The exception in section 2025.290(b)(3) recognizes the need for more deposition time in cases designated as complex. Under 2025.290(b)(3), complex cases are not subject to the seven-hour time limit. But if a licensed physician states in a declaration that the deponent suffers from an illness that raises substantial medical doubt of survival beyond six months, then the deposition will be limited to 14 hours of total testimony over two deposition days of no more than seven hours each day. This rule raises the prospect of disputes between the parties about the physician’s conclusions. • 2025.290(b)(4): Employment Cases Any case brought by an “employee or applicant for employment against an employer …relating to the employment relationship” is exempt from the seven-hour limit. (Code Civ. Proc., § 2025.290(b)(4).) The usual rationale for this exception is that employment cases
often involve events occurring over a long period of time, which sometimes requires more than seven hours of deposition time. Employment cases also often involve a significant amount of documentation about which the deponent must be questioned. (See, e,g., Saeed v. Count of Nassau (E.D.N.Y. 2011) 2011 WL 6945755 at *2 [additional deposition time granted in employment case involving more than 500 pages of documents produced during discovery].) One recent article suggests that one of the potential consequences of the new California deposition statute is that parties may try to frame their claims or defenses so that the case qualifies as employment-related or complex in order to take advantage of the deposition exceptions for these types of cases. (See Constance J. Yu, The New 7-hour Deposition Rule in California – Are the Exceptions Under the New Rule an Open Invitation to Litigants to (Mis)Characterize their Claims and Defenses as Complex or Employment-Related?, California Minority Counsel Program, Oct. 1, 2012 [predicting that courts may see an increase in filings characterizing ordinary multi-party cases as “complex”].) It is hard to believe, however, that this problem will materialize. Under California Rule of Court 3.400, the court, not the parties, ultimately determines whether a case qualifies as
See Statute, Page 78
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Tha complex, and it should not be too difficult in most situations to identify which cases involve an “employee or applicant for employment against an employer …relating to the employment relationship.” • 2025.290(b)(5): Persons Most Qualified Section 2025.290(b)(5) exempts from the seven-hour limit a witness designated as a “person most qualified” to testify on an issue pursuant to Code of Civil Procedure section 2025.230. This provision may turn out to be a very large exception to the seven-hour deposition rule. The effect of subdivision (b)(5) may be to exempt from the presumptive limit some of the most important and knowledgeable witnesses in cases involving entity parties, further weakening the effect of the new statute on limiting the length and expense of depositions. By carefully drafting the person most qualified deposition notice and describing “the matters on which examination is requested” with enough “reasonable particularity,” counsel may be able to get most or all of the witnesses of any significance to fall under section 2025.230, thus removing those witnesses from the seven-hour limit under section
2025.290(b)(5). Moreover, subject to a protective order, there is no limit on the number of matters that a responding entity must produce a person most qualified to testify about. By drafting the right kind of “person most qualified” notice under section 2025.230, an attorney may be able to get around the time limit entirely, at least for most witnesses of any significance. • 2025.290(b)(6): New Parties Section 2025.290(b)(6) provides that parties appearing in a case after a deposition has concluded are entitled to another seven hours of examination time, just as they are entitled to a second deposition under section 2025.610(a). (Code Civ. Proc., § 2025.290(b)(6).) If a new party discovers additional information in a later deposition, which was not reasonably discoverable in the first deposition, then that discovery could be grounds for the parties who participated in the first deposition to ask the court to reopen the deposition, even though the first questioner may have exceeded his or her statutory time limit. (See Quality Aero Tech., Inc. v. Telemetrie Elektronik GmbH (E.D.N.C. 2002) 212 F.R.D. 313, 319 [newly-discovered information is a suffi-
cient justification for additional deposition time].) Thus, parties have the incentive to identify all the parties to the case before the plaintiff or cross-complainant is deposed, in order to prevent repeated depositions of these key witnesses. Conversely, prospective (co)defendants have the incentive to postpone joining in a case until depositions have concluded in order to take advantage of a new seven-hour time period. Indeed, a group of defendants may be able to obtain an additional seven hours of deposition time for a witness whose deposition otherwise is concluded by bringing in a new, “friendly” and perhaps related party, such as a subsidiary or affiliated entity, and then invoking subdivision (b)(6). • 2025.290(b)(c): Protective Orders The new statute does not affect the existing right of any party to move for a protective order or the court’s discretion to make any order to limit a deposition in order to prevent “unwarranted annoyance, embarrassment, oppression, undue burden, or expense.” (Code Civ. Proc. § 2025.290(c).) The burden is on the moving party to establish “good cause” for
See Statute, Page 80
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such a protective order. (Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) Thus, in some cases the party taking the deposition and the party defending the deposition may file cross-motions under section 2025.290 for additional time and section 20205.240 for a protective order, respectively.
Will California’s new seven-hour deposition statute create more problems than it solves? The many exceptions and their application to different kinds of cases are certainly fertile grounds for discovery-motion practice. Any attorney who regularly participates in pretrial discovery knows that time flies in a deposition when everyone is having fun and the attorneys are paid by the hour. The seven-hour time limit applies to time spent on the record, exclusive of rest breaks and lunch breaks. (Cal. Assembly 1875, 2011-2012 Reg. Sess. (2012).) Under the federal rule, all parties have a right to request reasonable breaks during a deposition, regardless of which side is conducting the deposition. (See Blackmon, 2011 WL 663195 at *2 [rejecting the argument that breaks initiated by deposing party should be deducted from time spent in actual deposition].) Generally, courts do not penalize parties
for reasonable deposition tardiness. (Id.; see Dow Chem. Co. v. Reinhard (E.D. Mich. 2008) 2008 WL 1735295 at *1 (excusing deposing party for being an hour late to deposition].) If a deposition goes beyond the time limit, the deponent must object on the record and adjourn the deposition; otherwise, the time limit may be waived. (Dorn v. Potter (W.D. Pa. 2002) 191 F. Supp. 2d 612, 615.) The new California statute does not address the issue of what happens when attorneys disagree with each other or the court reporter about measuring time, or even who is supposed to keep track of time spent questioning. Although it is unlikely that counsel will argue about the length of bathroom and lunch breaks, these kinds of disputes, and the necessity of court intervention to resolve them, are not unheard of. The new California statute could lead to discovery disputes in cases involving multiple parties taking the deposition of an individual witness. The advisory notes to the federal rule state that in “multi-party cases, the need for each party to examine the witness may warrant additional time, although duplicative questioning should be avoided and parties with similar interests should strive to designate one lawyer to question about areas of common interest.” (Kleppinger, 283 F.R.D. at 334.)
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The parties may disagree about how to allot the time among multiple parties represented by different counsel, and about the order of questioning among the various attorneys. In addition, as the number of defendants and cross-defendants increases, it becomes less likely that each party will have a sufficient amount of time to examine the witness in seven total hours. Order of questioning and allocation of time among co-parties may lead to discovery motions to regulate the allocation of the seven hours. The purpose of California’s new seven-hour time limit was to conserve party and judicial time and resources by limiting the length of depositions and decreasing the number of motions for protective orders to limit deposition abuses. (Cal. Assembly 1875, 2011-2012 Reg. Sess. (2012).) In current practice, motions for protective orders to limit or terminate a deposition are relatively rare. Trial courts are generally not called upon to supervise the kind of deposition conduct that can give rise to such a motion. In the short term, the new deposition statute, with its “firm” seven-hour limit, may actually place a greater burden on the courts in the form of increased motions to extend deposition time or to enforce the rule or one of its exceptions. Although in a sense the new statute may
do little more than shift the burden of obtaining a protective order from the party defending the deposition to the party taking the deposition to justify questioning beyond seven hours, it may create new kinds of discovery disputes that eliminate some or all of the cost savings associated with shorter depositions. Over the long term, however, the seven-hour guideline for depositions may serve to reinforce the idea in California civil litigation practice that parties and their attorneys should use deposition discovery efficiently to obtain information truly needed for trial, and that if they stray too from this purpose of the discovery process, the courts have additional authority to control abuses.
Judge John L. Segal serves on the Los Angeles Superior Court. He received his B.A. in 1982 from Williams College, and his J.D. in 1987 from the University of Southern California Gould School of Law. After law school, Judge Segal worked as a law clerk for Judge Robert S. Vance, Sr., of the United States Court of Appeals for the Eleventh Circuit. His law practice at the firm consisted of civil litigation and appeals. He was appointed to the Superior Court by Governor Gray Davis in December 2000. He is currently assigned to an unlimited jurisdiction civil courtroom in the Stanley Mosk Courthouse. Ashley Fouladbakhsh is a second year law student at the University of Southern California Gould School of Law.
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Geoffrey S. Wells
Get the most out of your experts while maintaining cost control Experts are essential to most cases, but so is knowing when to incur the cost of the expert In almost all tort cases today, an expert witness is required, either as a liability expert or as a damages expert or both. Many times, we need multiple experts to cover both liability and damages. In a typical automobile accident case, one should at least retain an accident reconstruction expert early-on in the case. You can keep expenses down by using initially only the police report which should contain witness statements as well as investigating officer observations, photos, diagrams and calculations. Usually, one does not need to pay the expense of the expert going to the scene of the accident until down the road in the litigation. There are obviously exceptions to this, one being the situation where there may be a piece of evidence at the scene that might be altered or destroyed. In those cases, getting the expert out to the scene early-on is imperative. The attorney can go to the scene of the accident himself and take digital photographs that can be sent to the reconstruction expert in the case. This costs your client nothing and provides the expert with basic information for preliminary expert analysis. If it turns out that the defense does not contest liability, you have saved your client a substantial cost. If liability is contested, then obviously you will have to pay to your expert reconstructionist to conduct a site inspection. In the typical road-design case, a traffic engineer must be retained to investigate if in fact there is a viable dangerous condition theory available. Be mindful of the design immunities that apply and take a realistic approach to your ability to get around these immunities. The road-design case requires the filing of a timely government tort claim 82 — The Advocate Magazine
which needs to include many theories of liability. The retention of a traffic engineer early-on in the case can help the attorney to devise a strategy as far as the different theories of dangerous condition that are available to plaintiffs. Once litigation is commenced, many times you may be able to get the defense to provide you with accident history of a particular intersection and/or roadway. This information can be sent to your traffic engineer for evaluation to see whether or not you can find an exception to the design immunity rule for that intersection or roadway. The requests in discovery for this information cost your client nothing as opposed to hiring an expert to obtain the information which would be a cost incurred by your client. In the typical non-auto products liability case, you must retain some type of design and/or safety engineer to assess any design and/or safety engineering issues concerning the product. The attorney or client can and should go out and buy exemplar products on their own and provide these to the expert witness. This may save your client time and money as opposed to having the expert go out and find and purchase exemplars. Additional liability experts, such as biomechanical engineers, human factors engineers, etc. can be added to your case after you have a better analysis of the viability of your claim and the value of your case. Obviously, we always want to hold down expert costs in our cases, but we must also consider the overall value of our case when making up a budget for expert witnesses. Sometimes it is necessary to retain multiple experts early-on in a case. If you can wait to send the expert witnesses the working material until you have a better handle on the overall case value, you will save your client costs. If the case is
resolved early, many experts will refund all or a portion of the retainer because they didn’t do any actual work on the case. This is a topic you should discuss with your experts when you first retain them.
Creative ways to use your expert
After you have obtained the initial accident collision report in an automobile accident case and after you have determined that you have a viable theory of liability and a defendant who has coverage, I always try to get basic information on the amount of the insurance coverage available before I go out and hire a lot of experts. Assuming there is a decent amount of coverage, the next question is what materials you should send your expert witness early-on in the case. The important point here is that the expert charges for his time reviewing any and all materials sent to him. I once had an automobile vs. automobile case where the defense took the plaintiff ’s deposition over six days. There were seven or eight volumes to the deposition transcript and it was over 500-plus pages long. If I had just sent the entire transcript to the reconstruction expert without any additional instructions, there would have been over $10,000-$15,000 in costs just for the expert reading the deposition. Instead, I referenced for the expert where in the deposition the key pages concerning the facts were that would be important about the accident. Although I had to send the expert all eight volumes of the deposition, I outlined in an instructional letter the key pages of the deposition for the expert to focus on so that he would not spend unnecessary time reviewing a transcript that had nothing to do with the facts of the accident. Specifically, I asked him not to review the entire deposition and to focus
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in on the pages only concerning the accident which would be the subject of his reconstruction. As a result, I was only charged for an hour or two of his work in the review. At his deposition before trial, he was able to state that he had received the whole transcript, but only reviewed the parts of the testimony concerning the accident which were important to him. Although the defense wanted to try and make a point of the fact that he hadn’t reviewed the whole eight volumes of deposition in detail, once the matter went to trial, it really didn’t come out very well on cross-examination and made the defense look bad for having taken an
unreasonably long deposition of the plaintiff in the case. Similarly, damage expert witnesses can work on a portion of the overall material as well. You can send the whole transcript to the damage witness, but then ask him to review only the key testimony about the injury or damages included in the deposition. Many times, this can save your client thousands of dollars in costs. The damage expert should be able to explain on cross-examination why it is that he or she did not review the facts of the accident and/or other collateral issues which would not be the subject of his/her expert testimony.
Another cost-cutting measure for damage witnesses is the use of treating doctors. Usually, it is less expensive to hire the treating doctor as an expert in your case. However, many times the treating doctor does not like to testify as an expert and/or get involved with lawyers and lawsuits. If the treating doctor will not cooperate, then you must get a non-treating expert to di scuss your client’s injuries and damages. The good news is that most medical records are now stored on computers, along with many of the radiological reports. It is far less expensive now to obtain these reports on digital media
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Cost Control — continued from Previous Page
and forward them to the medical expert witness. Since I think it is safe to say that the defense almost always disputes the plaintiff ’s injuries and/or damages, it is necessary to obtain the key diagnostic films and medical records and get them on disc as soon as possible. However, in an effort to keep costs down, you can wait to send these items to a damage expert until a little later on in the case after a liability picture has become more clear. A word of caution: You are almost always going to need someone to explain your client’s injuries to the mediator, jury and/or arbitrator. It is best to try to have an overall medical doctor expert to discuss the injuries incurred by your client. Sometimes as
84 — The Advocate Magazine
in the case of a head-injury plaintiff, you will need multiple medical experts to discuss those injuries. For example, in the traumatic brain injury (TBI) case, one is always going to need to retain a neurologist, a neuropsychologist, and a psychiatrist. Many times, an injured plaintiff who was hurt in the workplace will have a neurologist and neuropsychological exam that was a part of their worker’s compensation treatment. If so, obtaining these records cou ld save your client costs and negate the need to have your client re-tested with neuropsychological testing if it was already performed as part of their worker’s compensation case. You should be able to obtain the raw data from the worker’s compensation testing and have it sent
directly to your neuropsychological expert and/or you could consider just retaining the physician used in the worker’s compen sation case if they will cooperate.
Economic damage experts
Usually, the economist expert is the last expert that one retains in the case. The materials that are provided to the economist are usually limited to wage and payroll records, employment and/or benefit package records. Many times, the plaintiff ’s deposition is also sent to the economist to confirm background on their work-life experience. In an effort to keep costs down, many economist experts today will provide counsel with a preliminary economic
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analysis that will cost you less and can be used at least for settlement, mediation and/or other purposes in the case. If the case cannot be resolved and the expert will have to give a deposition for trial, again you can set forth the key portions of the testimony that are relevant for the economic analysis for their review. There are downsides to selectively providing written materials to the expert witnesses. If the case goes to trial, the defense can make a point of the fact that the expert does not have all of the materials involved in the case. This is a judgment call for the plaintiff â€™s lawyer as to what materials to send to the expert. Also of importance today is the use of e-mails. It should be noted that any and all e-mails sent to expert witnesses will probably be
produced at the deposition, and you should be mindful what you put in any correspondence to any expert on any case.
There are always to-do items that you or a member of your staff can take care of early-on in the case to obtain/secure valuable evidence and other information for your expert. Do it! This is the fastest and easiest way to keep case costs down for your client. If the case goes to trial it is always costly, and a lot of that cost is in your experts. Both plaintiff and defense should strive to try to keep the early-on costs for expert witnesses down in non-essential matters, especially in cases that have a real opportunity to settle during mediation.
Geoffrey Wells is a partner in the firm of Greene Broillet & Wheeler, LLP and joined the firm in 1992. Since that time, he has been involved in over one hundred (100) multi-million dollar trials and settlements and is currently the liaison counsel in the CedarsSinai over-radiation cases. Currently, he serves as First Vice President for Consumer Attorneys Association of Los Angeles. He is an elected member of the American Board of Trial Advocates and is also a member of AAJ and CAOC. He is a graduate of the University of Washington (B.A., 1981) and received his law degree from Pepperdine University School of Law (1985).
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Bruce G. Fagel
Asking the jury for pain-and-suffering damages, including PTSD Start by selecting the right jury and following with evidence that clearly establishes the physical and emotional pain Any case involving pain-and-suffering damages starts with the selection of a jury. Since most jurors will use their personal experience to evaluate all issues in any case, especially damages, all jurors need to be questioned about any personal experiences with physical pain, emotional suffering, disability, or any other issues in their background that will affect how they view your client’s case. While it may be considered beneficial to have jurors who have suffered physical pain and/or emotional suffering in their past, most such individuals were likely not compensated for their pain and suffering and may be less willing to do so for your client. However, as a practical matter, any juror with such a history in their own background will likely be excused by the defense, either for cause, or as one of their challenges. Since you will be asking jurors to award intangible non-economic damages for pain and suffering to your client, the next best juror would be someone who understands the pain and suffering in others and is sympathetic to such pain and suffering. Jurors with children, especially young children who are often unable to verbally express the pain they may have, will likely be more understanding and sympathetic to the pain and suffering of others. Also, jurors who have pets, will be better able to understand that other individuals can experience pain without necessarily being able to express such feeling verbally. This may be especially important in a case where your client has difficulty in being able to verbally express his or her pain and suffering. Although pain and suffering is, by definition, non-economic damages, the current state of the economy will still play a role in how a juror determines such non-economic damages. To that extent, a juror who is unemployed and has been out of work for some time (not 86 — The Advocate Magazine
an unusual demographic for many jurors today) is not likely to view someone else’s pain and suffering in a very favorable light. Also, jurors who are retired and on a fixed income may be less understanding about a claim for pain and suffering (in a case without economic damages), and students who have little real-world experience may be reluctant to award damages for pain and suffering since they will have no frame of reference in their personal lives.
Presentation of evidence
The testimony of your client is essential in any case where you ask a jury to award damages for pain and suffering. In some cases, a client’s pain and suffering will be obvious from their condition and appearance, but in most cases, it is not. Also, since there is no directly measurable way to demonstrate pain and everyone reacts differently to pain, oral testimony by your client may be woefully inadequate to show pain, either in the past, present or future. Some clients may want to exaggerate their pain, and they need to understand that since most jurors are very skeptical of any request for monetary damages for pain and suffering, especially in the absence of any significant economic damages for either loss of earning or medical expenses, the worst thing they can do for their case is to attempt to exaggerate their pain. The most objective evidence of your client’s pain and suffering will come from their treating doctors. Unfortunately, many doctors are emotionally immune to their patient’s complaints of pain and they will either ignore such complaints or under-report them. When a treating doctor is able to understand and document their patient’s pain, such testimony will be critical in any case for pain and suffering damages. Also, if your client’s condition is chronic, such that there will be
significant pain and suffering in the future, such evidence will require the treating physician to attest to such future pain and suffering. Early in any case where you anticipate asking a jury to award damages for pain and suffering, you need to carefully review your client’s medical records and even meet with the treating physician to obtain their support for your client’s claims. In any case involving significant pain and suffering damages, you will need expert witnesses to explain the nature and extent of your client’s pain, especially if you are asking for significant future damages for pain and suffering. There are several different types of experts who may be applicable to specific cases. If your client’s emotional distress is an issue, either as a result of pain or in spite of pain, you should have your client seen by a clinical psychologist. This is especially important in cases where your client has difficulty in explaining their emotional distress or how their change in circumstances from the negligent injury has affected their life. A psychologist may need to see your client several times to get a full picture of their emotional distress and offer opinions about future damages. Some clients may have their own psychologist or other mental health worker they have seen either prior to or during the pendency of the case, but most such individuals do not make the best witnesses in court and it is usually worth having your own retained psychologist for trial. In cases involving significant physical pain, a pain management expert will be necessary to both explain the nature and extent of your client’s pain and offer opinions about future problems. Pain management physicians are especially helpful in cases where there may be no obvious physical evidence of pain and your client may have difficulty in explaining
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such pain. If your client has significant and chronic pain, they should be evaluated and treated by a pain management physician during the pendency of the case. This allows for documentation of their pain and response to management, or lack of response which will be helpful for any jury to conclude that your client has significant pain. Also, any expert in pain management who may testify at trial will be far more believable if your client has such documented pain from a pain management specialist prior to the retention of your expert for trial. Some clients may seek treatment from an acupuncturist who is sometimes able to provide pain relief that is not possible from a traditional pain management physician. While many jurors may be skeptical to the concept of acupuncture, most pain management physicians will understand the role of acupuncture and will be able to explain such treatment to a jury. This allows your client to utilize the services of an acupuncturist without offending the jury who will be asked to both recognize such pain management and also award damages for such pain. Whenever the plaintiff utilizes the services of either a psychologist for emo-
tional distress or a pain management expert for physical pain, the defense will want to conduct their own defense medical exam of your client. As can be expected, most of the experts that are routinely used by the defense will offer an opinion that your client is over-exaggerating their pain, especially since such an opinion is more subjective than objective. Even when the plaintiff ’s expert uses any of the more recent testing that can demonstrate pain, the defense expert will discount or attempt to discredit such testing.
Economic vs. non-economic losses
In any case where there are economic losses, involving either work loss or medical expenses, it is far easier to convince a jury that your client has significant pain and suffering. Many treating physicians will often use a fairly low threshold for placing a patient on disability and the fact that a patient is on disability, while creating some economic lost wages, does not necessarily equate to significant pain and suffering. Also, many clients cannot afford to go on disability and will continue to work even if they have significant pain. Under these
circumstances the need for medical treatment for pain management and documentation of such pain is even more important since jurors will naturally think that anyone who continues to work cannot have much pain. Medical expenses for pain management, even if paid for by insurance, are often critical to show that your client actually suffers from provable pain. Also, if you want to show future pain and suffering, having past medical expenses that document such pain, in addition to expert testimony will often be needed to convince a jury that your client’s pain and suffering is chronic and will continue into the future. The more challenging case for pain and suffering damages is where there is no loss of earnings and no medical expenses. Jurors may be naturally suspicious of any plaintiff who claims significant pain and suffering where there are no losses for either wages or medical expenses.
Jury Instruction – CACI 3905 A
The CACI Jury Instruction for physical pain, mental suffering, and emotional distress comes after CACI 3905 which
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classifies such damages as items of noneconomic damages. The instruction also includes loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, in addition to emotional distress. Future damages require proof that the plaintiff is reasonably certain to suffer such harm, and the jury is further instructed that there is no fixed standard for deciding the amount of such damages. The overall impact of this instruction gives wide latitude to argue various types of non-economic damages, in addition to pain and suffering, but the end result to the jury is that they will be asked to arrive at a specific amount for any and all such past and future non-economic damages, without separating the specific type of non-economic damages for which they award damages.
Asking jury for a specific dollar amount
Many great trial attorneys have offered opinions about the pros and cons of asking the jury for a specific dollar amount for pain and suffering, or other non-economic damages, and it is clear that there is no correct answer to this question. A decision about whether to ask a jury to award a specific dollar amount or if asked, what the amount should be, must be decided after all the evidence has been presented in the case. By the time the case goes to the jury, you should be able to have some understanding about how well the evidence came in on damages, the make-up of the jury and their response to the evidence, especially how well the plaintiff and the plaintiff experts on damages testified. Since the jury is told that the argument of counsel is not evidence, many jurors will automatically reject any sum suggested by an attorney. While it may be possible that a jury could award an amount greater than that suggested by an attorney, such is usually the stuff of movies rather than reality and more often than not, the jury will award an amount less than requested. Leaving the amount of damages for pain and suffering to a decision by the 88 â€” The Advocate Magazine
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jury avoids such possible disappointment by the plaintiff.
Post Traumatic Stress Disorder (PTSD)
Although this psychological disorder is well recognized within the medical and psychology community, most jurors may be suspicious of such a claim outside of a military situation. In any case where there is documented evidence that the plaintiff suffers from a post traumatic stress disorder, the jury needs to be carefully questioned during voir dire about their understanding and natural prejudice about such a claim. However, in situations where PTSD is the major psychological harm suffered by the plaintiff, the
jury will require education about this disorder and how it can occur in situations outside of a combat zone. Since it is impossible for any plaintiff to adequately explain how or why they suffer from PTSD, in such cases it is essential that well-qualified experts both examine the plaintiff and explain this disorder to the jury. For any plaintiff who has documented PTSD it may be helpful to use both a treating psychologist and a retained expert to be able to fully explain the nature of PTSD and how it affects the plaintiff. In some cases, PTSD may be the only manifestation of the plaintiff ’s pain and suffering, yet its impact on the plaintiff can be as debilitating as any physical pain.
Bruce Fagel, M.D., Univ. of Illinois (1972), Phi Beta Kappa. Licensed to practice medicine in Illinois and California. J.D., Whittier College (1982). Featured in “The Best Lawyers in America, 2007.” Eight-time nominee by CAALA for Trial Lawyer of the Year. Recently featured in the National Law Journal as “The 10 Best Trial Attorneys in the Nation.” He is a member of the Birth Trauma Litigation Group of the American Trial Lawyers Association, and a Fellow of the America College of Law and Medicine. Dr. Fagel served as a consultant on medical malpractice law to the California Judicial Counsel Committee that wrote the new CACI jury instructions.
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Book Review Donna Bader
Hey! You better not hurt man’s best friend Suing for emotional damages: When is a dog more than chattel? Although man may claim he is the most evolved of any species on earth, no one can honestly question the unique bond that has developed over the centuries between humans and their pets, especially dogs. We celebrate their birthdays, buy them funny little outfits, give them endless amounts of treats, and invite them into our beds. Sometimes they are just pets, but other times, pets occupy a place so special in their owners’ hearts that even another human being has trouble competing. So, what happens when our little furry friends are intentionally injured, as Romeo experienced, in the case of Plotnik v. Meihaus (August 31, 2012) Cal.App.4th 1590?
Summary of the case
After the Plotniks moved into their new home in Laguna Niguel in 2001, they immediately started to experience problems with their neighbors, the Meihauses. The Plotniks built a 6-foot 90 — The Advocate Magazine
fence and were sued by the Meihauses. The lawsuit was settled but it included mutual restraining orders. Despite this agreement, the Plotniks continued to experience problems with their neighbors although they tried to ignore them. The events culminated in an exchange when Mr. Plotnik went to inspect the other side of his fence, which was located in the Meihauses’ backyard. At that time, his little 12 lb. miniPinchser, Romeo, slipped the gate and ran onto the Meihaus property. Mr. Plotnik tried to retrieve his dog without going onto his neighbors’ property, but as he ran to the front of the properties, he heard his dog squeal and watched as Romeo flew through the gate, rolled head over paws down a steep slope and slammed sideways into a tree. Romeo tried to walk, but his hip was dislocated due to being struck by Mr. Meihaus with a baseball bat. Hours later, Mr. Plotnik
had another confrontation with his neighbor’s adult sons, who threatened both him and the dog. A lawsuit was filed and litigated by attorney Jon Mitchell Jackson of Jackson & Wilson, alleging various negligence and intentional conduct theories, including intentional infliction of emotional distress, breach of contract, trespass to chattel, assault, and negligence. The only special damages were about $2,800 for Romeo’s surgery and another $300 for a pet stroller used to walk Romeo around the neighborhood in the months that followed. Neither David nor Joyce Plotnik incurred any medical bills because of this incident.
The trial begins
At the beginning of the trial, the potential jurors were informed, “David and Joyce Plotnik allege John Meihaus, Jr., breached a written settlement agreement by harassing, vexing and annoying
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them. This wrongful conduct includes John Meihaus, Jr., harming their dog.â€? That was initially all that the potential jurors were told about the injuries to the Plotniksâ€™ dog. The trial court asked the potential jurors whether anyone had a pet and most replied they did. The jurors talked about the injuries their dogs had suffered, some of which resulted in the pet being put down. One juror described having spent over $12,000 on her dog. Then this exchange followed: The Court: Okay. All right. And you love this child a lot. Prospective Juror: It is my daughter. The plaintiffsâ€™ attorney then asked, â€œAnd does everybody here, based upon
the statement of the case that Judge Fell read to you, do you feel comfortable with being able to serve on a jury in a case involving alleged harm to a dog, alleging harassment between neighbors, things like that?â€? Later, the plaintiffsâ€™ attorney noted, â€œThis case is about allegations of the plaintiffsâ€™ dog being struck by a baseball bat by one of the defendants.â€? One juror spoke about not giving a second thought to paying for her petâ€™s medical bills, â€œNo second-guessing, either. We were going to max out a credit card. We would spend our entire savings. Like, it is a defenseless animal. They canâ€™t fight for themselves, so you need to do it.â€? She finished by again referring to her pet as her â€œbaby.â€?
Another juror said she was brought up to believe animals were different than people; however, â€œ[n]ow that I have kids I donâ€™t feel that way anymore. Iâ€™m kind of like you. I would make sure that my basset hound is taken care of.â€? When it was indicated that the dog in question was about 15 inches high, the prospective juror gasped, â€œThat is just too little of a dog. It is not justifiable, not in any way.â€? Another juror said, â€œI have issues with animals. My â€“ one of our neighbors poisoned our dog when I was in high school.â€? She did not believe she could be fair and impartial. Her past experience was â€œpretty traumatic. We walked outside to water the dog and found our
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dog dead . . . it was a dog we had since I was just a little kid.” Of course, not all of the prospective jurors felt the same way. Others expressed an opinion as to viewing dogs or pets as “animals,” for which they had financial limits on medical expenses. Others had bad experiences with harassment and bullying behavior. It seems so commonplace that one would expect such misbehavior as part of being alive.
The special verdict form included a space for emotional distress damages. There was no objection that such damages were not proper, even under a theory of trespass to chattel. The jury awarded the Plotniks over $431,159 in damages. The trial court awarded the Plotniks attorney’s fees of $93,780, plus $5,821 in costs, but reduced the damages by $80,000, keeping intact an award of emotional distress for injuries to the dog Romeo. The defendants filed an appeal.
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I am an appellate attorney, and at this stage of my career and life I try to pick appeals that are of interest to me. As much as trial attorneys try to find themes in their cases, so do appellate attorneys. It starts from the moment the potential client walks through the door and begins to talk about their case. My mind shifts into gear, and I try to imagine appearing before three justices at oral argument. Can I convey a strong passion in my client’s case? If I can’t, I don’t want to take the case and hope the clients can find someone else who has more zeal for it. Agreeing to handle Plotnik v. Meihaus was really a no-brainer for me. I love dogs! And the picture of an angry neighbor using a baseball bat on a 12-lb. mini-Pinscher, sending him flying through the air into a tree, was too much for me. It didn’t matter whether the dog was on his property or not. And the picture of the dog Romeo struggling to walk on his front paws because his hip
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was dislocated; again, it was hard to imagine. In their appeal, the Meihauses sought to chip away at the damage award, stating, “[t]his case is about the role of our Superior Courts policing socially polite behavior between two neighboring families.” (Appellants’ Opening Brief, (AOB) pg. 1.) Appellants argued the dog trespassed on their property and Mr. Meihaus was merely defending himself. He apparently was so concerned that he left the scene and went into the backyard to obtain a baseball bat, “guiding” the dog back to his property, before going off to music practice. (AOB, pg. 21.) The Meihauses argued California does not permit pet owners to recover emotional damages for injury to an ani-
mal, relying on McMahon v. Craig (2009) 176 Cal.App.4th 222, a case involving negligence by a veterinarian. That case was decided by the same panel hearing the Plotnik appeal. While the law supports damages for interference with personal property or a trespass to chattel (Intel Corp. v. Hamadi (2003) 30 Cal.4th 1342), no case provided for damages for emotional distress. The Plotniks distinguished McMahon v. Craig, supra, because that case involved negligence and not the intentional behavior that was involved in their case. They argued McMahon applied to malpractice claims and “was never intended to give a tacit approval to beating a party’s dog with no potential for damages. It makes little sense that a defendant could destroy a piece of furniture or
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a car, incurring liability for damages, but family pets are exempt and can be destroyed or maimed without recourse.” (Respondents’ Brief, pg. 38.) The Meihauses added insult to injury by arguing, [that] not only did Meihaus act in self-defense, but the Plotniks committed a criminal act by not controlling their dog. (Appellants’ Reply Brief, pg. 12-13.) The Court of Appeal issued its opinion in Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, confirming the right of pet owners to recover for mental suffering caused by a tortfeasor’s intentional act that either injures or kills the pet. It rejected the argument that Meihaus acted in self-defense, opining that this presented a factual issue for the jury to decide.
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While agreeing McMahon v. Craig, supra, supported reversal of the negligence count, the Court could find no case that prohibited recovery of damages for emotional distress. It noted there were criminal penalties for intentionally maiming or wounding a dog, pursuant to Penal Code section 597(a), as well as punitive damages if a tortfeasor injures an animal through willful or gross negligence. The court stated: We believe good cause exists to allow the recovery of damages for emotional distress under the circumstances of this case. In the early case of Johnson v. McConnell, supra, 80 Cal.545, the court noted ‘while it has been said that [dogs] have nearly always been held to be entitled to less regard and protec-
tion than more harmless domestic animals, it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt.’ (Id. at p. 1607.) Believing there was a duplication of damages not addressed by the trial court’s remittitur, the Court of Appeal modified the damages for an award of $59,950 in favor of David Plotnik, and $100,209.53 in favor of Joyce Plotnik, along with the attorney’s fees of $93,780. The Meihauses filed a Petition for Review, noting other states have denied such emotional damages. Of course, there is always another side to the story and other states have confirmed the
same type of award that the Plotniks achieved. The Petition for Review was denied by the California Supreme Court December 12, 2012, and Plotnik v. Meihaus stands – much to the celebration of pet owners – as valid law. Donna Bader, a certified appellate specialist, has practiced for over 35 years in Orange County. For their work on this case, she and trial attorney Jon Mitchell Jackson were receipients of a 2013 CLAY Award for litigation by California Lawyer magazine. Bader is the author of An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial, which was written to help trial attorneys protect their cases before they reach the appellate stage. www.AnAppealtoReason.com.
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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
Appellate Reports and Cases in Brief About
Recent cases this Issue of interest to members of the plaintiffs’ bar IsaacMonica Ehrlich Harris v. City Jeffrey of Santa
Editor-in-Chief (2013) _ Cal.4th _ (Cal. Supreme) Who needs to know about this case: Lawyers handling FEHA cases Why it’s important: The Supreme Court addresses the impact of the socalled “same decision” defense in FEHA cases – that is, what happens if the employee proves that unlawful discrimiJeffreyfactor Isaac motivating Ehrlich nation was a substantial the termination of their employment, but the employer proves that it would have made the same decision absent such dis-
About this Issue
crimination. This case decides issues concerning the standard of proof, the burden of proof, and the remedies available in mixed-motive FEHA cases. Synopsis: Harris was a probationary bus driver for the City, which made her an at-will employee. She had several preventable accidents and “miss-outs” (failure to call in ahead of time to report that the employee will not be reporting for an assigned shift). She became pregnant and was terminated. She sued the City under the FEHA, claiming she was fired because she was pregnant, a form
of sex discrimination. The City claimed that it had legitimate, non-discriminatory reasons to terminate her, as an at-will probationary employee. The case went to trial, and the City requested an instruction stating that the City would not be liable if the jury found that the termination was based on both legitimate and discriminatory reasons, but that the legitimate reasons standing alone would have induced it to make the same decision. The trial court refused the instruction. The jury awarded Harris $177,905 in damages, and the trial
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court later awarded her $401,000 in attorney’s fees. The Court of Appeal reversed, finding that the requested
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instruction accurately stated California law, and it was prejudicial error for the trial court to refuse it. The Supreme
Court granted review, and affirmed in part. Government Code section 12940(a) prohibits employers from discriminating against employees and job applicants “because of ” their race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition . . . marital status, sex, . . . age, or sexual orientation. The core issue in the case is the meaning of “because” under the FEHA. The Court noted that there are at least three plausible meanings of the phrase “because of ” in the FEHA – (1) discrimination was a ‘but for’ cause of the employment decision; (2) discrimination was a ‘substantial factor’ in the decision; or (3) discrimination was simply a ‘motivating’ factor in the decision. The Court found that the text of the statute did not shed light on which approach was correct, nor did the Legislative history. After examining the treatment of similar language under federal law, the Court resolved to attempt to construe the phrase in the manner that best gave effect to the Legislature’s purpose in enacting the FEHA, and discerned both a private purpose (compensating individual victims of discrimination) and a public purpose (deterring and remedying discrimination.) Ultimately, the Court summarized its holding in these terms: When a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time. If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement. However, where appropriate, the plaintiff may be entitled to declaratory or injunctive relief. The plaintiff also may be eligible for an award of reasonable attorney‘s fees and costs under section 12965, subdivision (b).
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Aryeh v. Canon Business Systems (2013) __ Cal.4th __ (Cal. Supreme) Who needs to know about this case: Attorneys handling UCL claims Why it’s important: Holds that the statute of limitations on UCL claims is subject to common-law accrual principles, including the principle of continuous accrual. Hence, a UCL claim may accrue each time a recurring wrong is committed. Synopsis: Aryeh leased copiers from Canon. The leases had a monthly copy allowance, which required Aryeh to pay an additional charge if the monthly allowance was exceeded. Aryeh determined that Canon employees were running test copies – over 5,000 in 17 service visits between February 2002 and November 2004. These copies caused Aryeh to exceed his monthly allowance, resulting in higher costs and late fees. Aryeh sued Canon in 2008 seeking restitution for violating the UCL (Business & Professions Code section 17200, et seq.) Canon demurred, arguing that the claim was time-barred under the UCL’s fouryear statute of limitations. The trial court agreed and dismissed the case, finding that the UCL claim accrued when the first violation occurred, in 2002. A divided Court of Appeal affirmed. The majority agreed with the trial court, and found that the statute of limitations could not be extended by the delayed-discovery or continuing-violation doctrines. The dissent would have reversed based on the theory of continuous accrual. In a unanimous opinion the Supreme Court reversed, finding that the doctrine of continuous accrual applied. The Court explained that common-law equitable doctrines concerning the statute of limitations include the continuing violation doctrine, and the doctrine of continuous accrual. The former aggregates a series of wrongs or injuries for limitations purposes, and treats the limitations period as accruing on for all of them on the commission or sufferance of the last of them. The continuous-accrual theory allows a series of wrongs or
injuries to be viewed as each triggering its own limitations period, such that relief may be partially time-barred as to older events, but timely as to those within the limitations period. The Court held that accrual of UCL claims was subject to common-law doctrines. The Court noted that the UCL was a “chameleon,” which borrows violations of other rules and makes them independently actionable. “Given the widely varying nature of the right invoked, it makes sense to acknowledge that a UCL claim in some circumstances might support the potential application of one or another [common-law] exceptions and in others may not. That a cause of action is labeled as a UCL claim is not
dispositive; instead, the court must examine the nature of the underlying right sued on and the circumstances attending its invocation, to determine the point of accrual of the claim. The Court then determined that the factors that warrant application of the continuing-violation doctrine were not alleged in the complaint. The complaint alleged a series of discrete, independently actionable wrongs. The conduct did not become apparent only through the accumulation of a series of harms. The plaintiff conceded he was aware of the wrongful conduct and recognized it as wrongful, in 2002. The theory of continuous accrual, however, would apply to the claim as it
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was alleged. The Court has long held that separate recurring invasions of the same right can each trigger their own
limitations period. “Generally speaking, continuous accrual applies whenever there is a continuing or recurring obliga-
tion.” Because each new breach of the allegation provides all the elements of a claim – wrongdoing, harm, and causation – each may be treated as an independently actionable wrong with its own time limit for discovery. But unlike the continuing-violation doctrine, which renders the entire course of conduct actionable, the theory of continuous accrual supports recovery only for damages for those breaches occurring within the limitations period. Aryeh’s complaint alleged a continuing duty on Canon not to impose unfair or fraudulent charges on Aryeh’s recurring monthly billings. Under the theory of continuous accrual, he could recover for wrongs occurring within four years of the date he filed his complaint.
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Contracts; parol evidence rule; fraud exception to rule: Riverisland Cold Storage v. Fresno-Madera Production Credit Ass’n (2013) __ Cal.4th __ (Cal. Supreme). An established common-law and statutory exception to the parol evidence rule allows a party to present extrinsic evidence to show that an agreement was tainted by fraud. In Bank of America etc. Assn. v. Pendergrass (1935) 4 Cal.2d 258, 263, the Court limited this exception, holding that evidence offered to prove fraud “must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing.” The Court held that “[T]he Pendergrass limitation finds no support in the language of the statute codifying the parol evidence rule and the exception for evidence of fraud. It is difficult to apply. It conflicts with the doctrine of the Restatements, most treatises, and the majority of our sister-state jurisdictions. Furthermore, while intended to prevent fraud, the rule established in Pendergrass may actually provide a shield for fraudulent conduct. Finally, Pendergrass departed
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from established California law at the time it was decided, and neither acknowledged nor justified the abrogation. We now conclude that Pendergrass was illconsidered, and should be overruled.” Arbitration; enforcement of arbitration clause by non-signatory: Kramer v. Toyota Motor Corp. (9th Cir. 2013) __ F.3d __ . Plaintiffs purchased 2010 Toyota Prius automobiles from Toyota dealerships. They brought a class action against Toyota Motor Corporation (“Toyota”), the manufacturer, alleging the cars had braking defects. Toyota moved to compel arbitration, based on arbitration agreements between the plaintiffs and the Toyota dealerships where they purchased
their cars. The district court denied the petition to compel arbitration, finding that Toyota could not compel arbitration because it was not a signatory to the arbitration agreements between the plaintiffs and the dealers. Affirmed. Toyota first argued that the issues of the scope, interpretation, and applicability of the arbitration provision were to be decided by the arbitrator not the court. The court held that, where the dispute at issue concerns contract formation, it is generally for the court to decide. The Purchase Contracts that contain the arbitration agreements evidence an agreement between plaintiffs and the dealerships to arbitrate the issue of arbitrability. Given the absence of clear, unmistakable evidence that the plaintiffs agreed to arbi-
trate the issue of arbitrability with nonsignatories to the Purchase Agreements, the district court had the authority to decide whether the dispute was arbitrable. Toyota argued that the plaintiffs should be equitably estopped from avoiding arbitration with it because the plaintiffs’ claims were intimately founded in and intertwined with the underlying contract obligations. The court examined each of the plaintiffs’ claims – for violation of California consumer-protection laws, for violations of the UCL, for violations of the False Advertising Law, and for violating the implied warranty of merchantability – and found that they were not interwined with the Purchase Agreement. The court reached the same
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conclusion concerning plaintiffs’ claim for breach of contract, which was pleaded as an alternative to the claim for breach of implied warranty, and was founded on the same actions underlying that claim. Beverly-Song Credit Card Act; online retailers; customer information: Apple, Inc. v. Superior Court (2013) __ Cal.4th __ (Cal. Supreme). The Beverly-Song Credit Card Act forbids retailers in California from requiring, as a condition of accepting a credit card for payment, that the cardholder write their personal information on the transaction form. It also forbids retailers from recording the required personal information. The plaintiff, David Krescent, sued Apple for violating the Act. He alleged he had downloaded
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songs from Apple’s iTunes site, and was required to provide his telephone number and address to complete his credit-card purchases. Apple demurred, arguing that the Act did not apply to on-line transactions. The trial court overruled the demurrer, and the Court of Appeal denied Apple’s writ petition. Reversed. The Court held that the statute’s text, structure, and purpose showed that it was not intended to apply to on-line purchases. Insurance; law-or-ordinance exclusion; concurrent causation: Reichert v. State Farm Gen. Ins. Co. (2013) __ Cal.App.4th __ (4th Dist., Div. 3.) The Reicherts purchased a house in Huntington Beach and sought to remodel it before moving in. The house was located in a flood plain. Their original plans would have increased the value by more than 50 percent, which triggered a FEMA requirement to raise the ground floor by nine feet. To avoid this, they submitted a second set of plans, which would have used more of the existing walls, and which kept the increased value to 49.93 percent. But the existing walls supported eight-foot ceilings, and the new plans called for 10-foot ceilings. After the walls were demolished, the discrepancy was noted, a stop-work order was issued, and the City ultimately ordered that the house be demolished. The Reichert’s claim against their homeowner’s policy was denied, so they sued State Farm for breach of contract and bad faith. The trial court granted summary judgment for State Farm. Affirmed. The policy included a standard exclusion for “loss which is caused by . . . (a) Ordinance or Law, meaning the enforcement of any ordinance or law regulating the construction, repair, or demolition of a building or other structure.” Here, the record shows that the house was demolished as the result of the City’s enforcement of FEMA flood-plain regulations. The Ordinance or Law exclusion therefore applies. The Reicherts argued that they had purchased “Option OL,” which provides additional coverage to compensate for additional costs necessitated by changes in
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building codes or ordinances. The court held that Option OL would have given the Reicherts additional coverage if there had been a covered loss, but that the provision did not cancel out the Ordinance of Law exclusion. Since there was no covered loss, the option did not apply. The court also rejected the Reicherts’ attempt to rely on the concurrent-causation doctrine to obtain coverage, which sought to define the cause of the loss as the negligence of their builder or architect. The policy contained a provision stating that the policy did not cover losses caused by the listed excluded causes, and further stating that the exclusion applied “regardless of whether one or more of the following, directly or indirectly cause, contribute to or aggravate the loss: . . . ‘defect, weakness, inadequacy, fault, or unsoundness in planning . . . or design, specifications, of any property.” The court held that this provision eliminated coverage for the contractor’s negligence. Whistleblower protection; wrongful termination; California False Claims Act, Labor Code section 1102.5, McVeigh v. Recology San Francisco (2013) __ Cal.App.4th __ (1st Dist., Div. 3).
McVeigh sued his former employer, Recology San Francisco, a waste-collection and recycling business. He alleged that he was fired in retaliation for reporting possible fraud by Recology concerning California Redemption Value payments made by and to Recology. The trial court granted summary judgment in favor of Recology, finding that his whistleblower claim failed because he was merely performing his regular job responsibilities when he reported the weight-tag inflation, and thus Recology did not know he was engaging in protected activity. It also held that because he was terminated three years after first reporting on the fraudulent scheme, he could not demonstrate that he was fired in retaliation for engaging in protected activity. Reversed. Labor Code section 1102.5 protects an employee from discrimination for reporting claims of illegal conduct by a fellow employee; not just claims that the employer has acted illegally. McVeigh’s report of illegal conduct could constitute protected conduct even if he was simply doing his job when he made the report. The statute also applies to whistleblowers who report possible, as opposed to actual, false claims. To engage in protected conduct, the
employee must have reasonably based suspicions of a false claim and it must be reasonably possible for the employee’s conduct to lead to a false claims action. McVeigh’s first cause of action failed to meet this standard because it was limited solely to false claims against Recology, but his second cause of action also included potential false claims against the State, and was therefore actionable. Although McVeigh was not fired until three years after he reported the conduct, the record shows that he was subject to adverse employment action before that. Accordingly, whether McVeigh was able to show a causal connection between his termination and the report was a triable issue of fact. 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.
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CAALA Connection Center Introducing the Advocate Associate Editors
Norman Pine is a partner in the AV-rated firm, Pine & Pine, in Sherman Oaks, California. He is a Certified Appellate Law Specialist (SBLS), handles appeals for plaintiffs throughout California. Honors include: CAALA’s “Appellate Attorney of the Year” (2003); CELA’s highest honor, the “Joe Posner Award” (2008); A-V rating; and the Los Angeles Daily Journal’s “Top Employment Lawyers” in California (2009, 2011-2012).
The Advocate Editorial Board is made up of our Editor-in-Chief Jeff Ehrlich, Managing Editor Cindy Cantu, and our Associate Editors. They are an amazing group of volunteers who spend countless months, weeks and hours putting together each Advocate issue you read.
CAALA Connection Center
Joseph M. Barrett is CAALA First Vice President, and is looking forward to being CAALA President in 2015. Joe is a leader in California tort law, and has been nominated Trial Lawyer of the Year by his CAALA peers. A member of ABOTA, Joe is well-known for his civil rights and product liability achievements. He focuses on catastrophic injury and wrongful death cases across California, taking on major auto companies, insurance companies, pharmaceutical companies and governments. Joe received his B.A. in Journalism/ Political Science from the University of Massachusetts, Amherst and his J.D. from Southwestern University School of Law. He also serves on the CAOC Board of Governors, and is a supporter of AAJ and Public Justice. Joan Kessler, a full-time mediator and arbitrator at ADR Services, Inc., received her Ph.D. in Communication before she attended law school. She was a jury consultant and taught Communications and has practiced law for over 25 years. Many of the communication strategies she taught and her extensive experience as a litigator enhance her mediation and arbitration practice. She specializes in employment, real estate, trust/estate, business, commercial, entertainment, and insurance cases. Joan is also on the American Arbitration Association panel of arbitrators. James R. Kristy is the principal trial attorney at The Kristy Law Firm, in Seal Beach, California. Since 2003, James has successfully represented consumers and small businesses. The Kristy Law Firm’s mission is to hold corporations – including insurers, HMOs, and employers – responsible for their harmful acts. His expertise encompasses insurance bad faith, including medical, liability, and homeowner insurance; wrongful death; employment; homeowners associations (Davis-Stirling Act); and construction defect, among other practice areas. James has obtained verdicts or awards against defendants such as Kaiser Permanente and Atlantic Mutual Insurance Company, and has recovered millions of dollars for his clients through verdicts, awards and settlements. A member of CAALA’s Board of Governors since 2005, James is past Chair of CAALA’s Education Committee. Beverly Tillett Pine is a partner in the AV-rated firm, Pine & Pine, in Sherman Oaks, California, and focuses her practice exclusively on civil appellate law. She has spoken on appellate and/or employment law issues and is co-editor (along with Norman Pine) of the annual Employment Law issue of Advocate. Beverly is the 2012 recipient of the Ian Herzog Award given by CAALA to the Appellate Lawyer of the Year. 102 — The Advocate Magazine
Rahul Ravipudi is an attorney at the Law Firm of Panish, Shea & Boyle where he focuses on wrongful death, catastrophic injury, employment and consumer class-action matters. Rahul is also an adjunct professor at his alma mater, Loyola Law School, where he teaches Trial Advocacy. Linda Fermoyle Rice is a partner in the Woodland Hills law firm of Rice & Bloomfield. With over 30 years experience in the field of complex personal injury litigation, she enjoys an AV rating by Martindale-Hubbell, is a member of ABOTA and serves on the Board of Governors for Consumer Attorneys Association of Los Angeles. Linda has tried dozens of lawsuits throughout the state and has an extensive background in medical-legal issues. Linda is the 2012 recipient of CAALA’s prestigious Ted Horn Memorial Award. 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. Ibiere joined the firm in 2008 and is a graduate of Loyola Law School. She is a member of Consumer Attorneys Association of Los Angeles and Consumer Attorney of California’s Board of Governors and serves as the Chair of the CAALA New Lawyers Committee and co-chair of the CAOC Community Service Community. Ibiere also serves on the board of the Langston Bar Association and the Los Angeles County Bar Executive Committee. In addition, she 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, Ibiere was selected as one of the Southern California Super Lawyers Rising Stars. Carolin Shining is an accomplished trial lawyer with expertise in scientific and technical matters in the areas of mechanical equipment, chemical processing and biochemistry. She is also a registered U.S. Patent Attorney. She earned her coordinate degree in Biochemistry and Lyman Briggs studies from Michigan State University and her juris doctor from the School of Law at the University of Michigan. She has completed trials to verdict in which juries awarded over $9 million, and has been responsible for settlements in excess of $10 million. Her expertise also includes patent, trademark and copyright applications and prosecution in a wide variety of fields. Carolin regularly acts as co-counsel in complex litigation matters where additional support in client and expert depositions are needed.
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Geraldine Weiss is an associate at the Law Offices of Michael J. Piuze, Los Angeles, which specializes in major plaintiff personal injury cases. She has obtained many multi-million dollar settlements/ verdicts for her clients and has been involved in several record-breaking verdicts ranging in topics from civil rights violations to tobacco litigation. She was educated in England and obtained her undergraduate degree from the University of Cardiff in Wales. After moving to the States, she received her J.D. from Whittier Law School. Geraldine serves on the CAALA Board of Governors, is a member of CAOC and was in its group of nominees for the 2008 Trial Lawyer of the Year.
Below is the 2013 Advocate Editorial Calendar. Article contributors are encouraged to submit articles directly to the Associate Editor of the issue where your legal topic would be most appropriate. Please review the Advocate Article Submission Guidelines for complete instructions. They can be found on the homepage of the CAALA Web site at caala.org.
2013 ADVOCATE EDITORIAL CALENDAR ISSUE April May
THEME Employment & Labor Law The Law Office: Management, Marketing &Technology June Insurance: Coverage & Bad Faith July Auto, Truck & Motorcycle Cases August Perspectives from the Bench September Alternative Dispute Resolution October Business Litigation November Products Liability December Law & Motion and Appeals 2014 January Class Actions & Complex Cases February Trial & Evidence
ASSOCIATE EDITOR Norm & Bev Pine
EDITOR E-MAIL firstname.lastname@example.org
Copy Due To EDITOR February 1
Geraldine Weiss Jeffrey Ehrlich Carolin Shining Joseph Barrett Joan Kessler Linda Fermoyle Rice James Kristy Jeffrey Ehrlich
email@example.com March 1 firstname.lastname@example.org April 1 email@example.com May 1 firstname.lastname@example.org June 3 email@example.com July 1 firstname.lastname@example.org August 1 email@example.com September 9 firstname.lastname@example.org October 1
Rahul Ravipudi Ibiere Seck
November 1 December 2
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The Advocate Magazine â€” 103
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From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
Test for trial lawyers: Executive Director Who is your BFF (Best Founding Father)? Zanville is not just a menu we can pick and choose from The Bill ofStuart Rights CAALA Conservatives should support civil jurytrials for the same reasons liberals should support the right to bear arms: It’s in the Constitution! It’s time for a history lesson. Let’s start with a pop quiz. Question No. 1: Raise your hand if you know why trialStuart lawyers should love Zanville James Madison. CAALA Question No. 2: Raise your hand if you know how the majority of the Founding Fathers felt about trial lawyers. I thought so.
Andrew Cochran, trial lawyer, Conservative Republican and Founder and Editor of The 7th Amendment Advocate blog, wrote that “James Madison loved civil suits. He considered the right to a jury trial for civil suits equal in importance to each and every right in the Bill of Rights, including the freedoms of speech, assembly and religion and the right to bear arms.” By the way, March 16 is Madison’s birthday. Each reader of this column should take a minute to celebrate on his behalf. The 7th Amendment Among the Founding Fathers, You won’t get MCLE credit, but if Madison wasn’t alone in his support for you finish reading this column you’ll trial by jury. There were seven key Stuart learn what the men who Zanville wrote the Founding Fathers (the men who framed, Consumer Attorneys Association of Los Angelesand signed the Declaration of Constitution thought about you and the drafted civil justice system. Independence and the U.S. Constitution). This will come in handy the next They were John Adams, Benjamin time you hear a Tea Party Conservative Franklin, Alexander Hamilton, John Jay, tell you in one breath how much they Thomas Jefferson, James Madison and revere the Constitution and in the next George Washington. why trial lawyers should be removed Here are quotes from Madison, from the planet. Jefferson and Hamilton that tell you how memorized, If you don’t have them Zanville they felt about the work you do: By Stuart or at least written Consumer above your desk, here The civil jury is a valuable safeguard to Attorneys Association of Los Angeles are the 50 words that justify your exisliberty. — Alexander Hamilton tence as trial lawyers: I consider (trial by jury) as the only In Suits at common law, where the value anchor ever yet imagined by man, by which in controversy shall exceed twenty dollars, a government can be held to the principles the right of trial by jury shall be preserved, of its constitution. — Thomas Jefferson and no fact tried by a jury, shall be otherIn suits at common law, trial by jury in wise re-examined in any Court of the civil cases is as essential to secure the liberty United States, than according to the rules of the people as any one of the pre-existent of the common law. rights of nature. — James Madison — The 7th Amendment to the I don’t have a quote from John Constitution of the United States of Adams about trial lawyers, but before he America became a Founding Father and a presiThose words were written by James dent, he was a famous trial lawyer so I’m Madison, Founding Father, fourth pretty sure I know where he stood. President of the United States and the So there you have it, a majority of principal author of the Constitution and the key Founding Fathers including the the Bill of Rights. He took them very one who wrote the Constitution, supportseriously. ed trial by jury and the work done by
From the Executive Director
From the Executive Director
104 — The Advocate Magazine
trial lawyers. It’s safe to say they would oppose every “tort reform” bill proposed in Congress.
The 2nd Amendment
Today, the hottest political topic is the 2nd Amendment and the right to bear arms. Andrew Cochran recently wrote in The 7th Amendment Advocate that “Conservatives love the 2nd Amendment. The 7th Amendment? Not so much. But the funny thing is, the 7th Amendment could be what saves the 2nd Amendment… If seven million gun owners each individually file lawsuits along with a request for a restraining order keeping the Obama regime from imposing whatever gun control it has in mind, numbers alone dictate that some of those lawsuits will land in front of judges that support the 2nd Amendment.” Cochran added: The Founders created one civil justice system and protected civil jury trials under the 7th Amendment for all causes and cases, from the protection of gun rights and religious liberty to the defense of economic rights exploited in the free market, through lawsuits for defective products and medical malpractice. I conclude this history lesson by quoting Cochran one more time when he wrote recently that “Real Conservatives need to defend each and every Godgiven right enumerated in the Bill of Rights…The Bill of Rights is not a menu that we can just pick and choose from, like we do at a restaurant…Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through tort reform.”
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Sacramento Update By Nancy Drabble CAOC CEO and Chief Lobbyist Court funding crisis: It’s time to draw a line. The general public typically thinks of our courts as stolid, unbroken realms of justice. But as any practicing attorney knows all too well, this bedrock of our republic has been under assault by unprecedented budgetary pressures in California. Massive cuts over the past five years have forced the closure of whole courthouses, the firing of court employees and a marked slowdown of justice. As the old axiom goes, justice delayed is justice denied. These days, there is a lot of justice being denied all over California. THE PROBLEM: More than $1.1 billion in general fund cuts since 2007-08 The past five budget cycles have seen the courts’ share of the state’s general fund budget slashed dramatically by more than $1.1 billion. That reduction is among the highest percentage cuts to any sector of government. And the biggest cuts have come in the civil courts, which invariably take a back seat to the needs of the criminal courts. To help offset the budget slashing, basic fees for civil cases have been boosted by $116 million since 2010. Nearly all of those fee increases had their greatest impact on the state’s civil trial courts, raising the economic barriers to the public’s access to the courts. The filing fee for complex civil cases, for instance, rose from $550 to $1,000 per case, an 80 percent increase. THE FALLOUT: Court operations have been hammered in many ways The cuts of recent years have hit especially hard at some of the state’s most vulnerable citizens – women, children, the poor, veterans, the disabled. Self-help and family law courts are typically among the first services reduced, court officials report. Also hard hit have been foreclosure and rental disputes, and individuals seeking restraining orders to escape the cycle of violence. Whole courthouses have been closed in some regions. As attorneys in Los Angeles County know all too well, 10 courthouses are
being shut down and services are becoming centralized, threatening to make a bad situation even worse. THE FUTURE: Dwindling reserves and exhausted one-time fixes mean bigger cuts to come Without wholesale efforts to turn back the tide of red ink, the future is bleak for California’s courts. State court administrators mitigated operational cuts by boosting fees, borrowing from court construction projects and canceling the state’s Courthouse computer project. But those sorts of fiscal band aids have been exhausted. Meanwhile, court funding coming from the state’s General Fund – the prime source of financing most state operations – has dwindled over the past five years, falling from 56 percent in 2008-09 to just 20 percent this year. If that General Fund money isn’t restored in the years to come, the courts could be pushed toward collapse. THE SOLUTION: Start restoring general fund support of the courts Short of the courts gaining an independent funding source, the state’s justice system should become a higher priority for increased funding. Our courts are as important a bulwark of our society as any other arm of government. To that end, general-fund backing must be boosted to stave off the worst impacts that affect all Californians, but particularly our most vulnerable citizens – the poor, women and children in domestic violence situations, the elderly abused in nursing homes, combat veterans and the disabled. CAOC has been doing its part for years, but no more so than 2013. Securing increased general-fund revenue and boosting the overall funding for the courts has become the organization’s highest priority. But none of us can do this alone. We need trial lawyers to spread the word of the crisis in our courts. Tell your friends, tell your family, tell your neighbors. Write a letter to the Governor or your own lawmakers with examples of how your clients face being hammered by this crisis. Share your stories with the CAOC Communications Team to help fuel our ongoing efforts with the media and our advocacy efforts in the Capitol. We are all in this together. The future of our courts and the rights of your clients are at stake.
Washington Update By Linda Lipsen AAJ CEO and Chief Lobbyist Two Congressional bills go after patients’ rights We’re less than two months into the new congressional session, and we’ve already seen two bills introduced that will affect patients’ rights – H.R. 36 and S.B. 44. H.R. 36, the Healthcare Safety Net Enhancement Act, grants emergency room providers immunity under the Federal Tort Claims Act. Introduced by Rep. Charles Dent [R-PA], this bill is identical to one that was introduced last Congress and adopted by the House as an amendment to H.R. 5, the sprawling medical-healthcare-pharmaceutical-nursing home liability bill. H.R. 36 received bipartisan support last session and is similarly supported in the current 113th Congress. In addition to giving complete immunity for any harm caused by hospitals, emergency room departments, and any physician practicing emergency medicine, the bill would transfer the liability for such harm to taxpayers, making the federal government responsible for compensating victims of all emergency room negligence. Meaning, the federal government will pay for the medical errors committed by private, corporate hospitals and physicians; meanwhile, the federal government is denied any ability to address or reprimand those who commit medical errors. According to its official title, S.B. 44, introduced by Sen. Portman [R-OH], is, “A bill to improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system.” While the full text of the bill is not yet available, we are quite certain, based upon the description provided by the bill’s title, that this bill will focus on medical malpractice. So far, this bill has one co-sponsor, Rep. Inhofe [ROK]. AAJ is committed to working on these and many other issues that affect your practice and your clients. We appreciate your support of our mission to preserve and protect the 7th Amendment right to trial by jury.
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Advertiser’s Index Contents Index Advertiser’s
ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 DiCaro Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .88 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .96 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .50 Pasadena Mediation Group . . . . . . . . . . . . . . . . . .100 PMA Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . .87 World Wide Mediators . . . . . . . . . . . . . . . . . . . . . . .52 Announcements and Career Opportunities CAALA Affiliate Vendors . . . . . . . . . . . . . . . . . . . . . .79 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .75 CAALA Vegas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Jury Verdict Alert . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73 Attorneys - Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .25 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . .52,100 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . . .61 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . .48 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .45 Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .19 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .63 Michels & Watkins . . . . . . . . . . . . . . .Inside Back Cover Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 White, Zuckerman, Warsavsky, Luna & Hunt . . . . . .35
Court Reporters Atkinson Baker Court Reporting . . . . . . . . . . . . . . . . .26 Jonnell Agnew & Associates . . . . . . . . . . . . . . . . . .100 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .81 Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . .101 Haiby, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83
Expert Witnesses – Medical American Medical Forensic Specialists . . . . . . . . . . .23 Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . .67 Expert Witnesses - Tech. & Damages Balian & Associates (Retail Industry) . . . . . . . . . . . . .57 Bowley Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . .78
106 — The Advocate Magazine
Expert Witnesses - Tech. & Damages (cont.) Feldman, Phillip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Forensis Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Phillips, Fractor & Company, LLC . . . . . . . . . . . . . . . .88 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .91 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103 Farber, Patrick (Struct. Settlements) . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .29 Lawsuit Financial . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Pensions Annuities and Settlements LLC . . . . . . . . . . .41 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Ringler & Associates – Michael Zea . . . . . . . . . . . . .80 Summit Structured Settlements . . . . . . . . . . . . . . . . . .76 The James Street Group (Structured Settlements) . . .97 Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Courtroom Presentations . . . . . . . . . . . . . . . . . . . . . . .94 CSC Anatomy Arts . . . . . . . . . . . . . . . . . . . . . . . . . . .81 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . .7 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Medivisuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
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 SSOCIATION OF
March 13, 2013 CAALA Webinar: Business for New Lawyers 12:00 - 1:00pm Online Program Free for CAALA Members March 23, 2013 Trial Lawyer Skills for the New Attorney 8:00am Registration 9:00am - 4:00pm Program 4:00pm - 6:00pm Hosted Reception Biltmore Hotel 506 S. Grand Ave. Downtown Los Angeles
Board & Committee Meetings
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Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm Mar. 7, April 4, May 2
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Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm Mar. 21, April 18, May 16
Investigators Hudson Investigations . . . . . . . . . . . . . . . . . . . . . . . . .93 Jack Trimarco & Associates . . . . . . . . . . . . . . . . . . . .43 Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . . .62 Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Legal Marketing Berbay Corporation . . . . . . . . . . . . . . . . . . . . . . . . . .46 Pro Se Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 PJ West & Associates . . . . . . . . . . . . . . . . . . . . . . . . .74 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Trial Survey Group . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Legal Support Services Lion Street Litigation Support . . . . . . . . . . . . . . . . . . .84 USA Express Legal & Investigative Services . . . . . . .64 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .59 Docs on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Glendale Surgery Center . . . . . . . . . . . . . . . . . . . . . .53 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .42 North Valley Eye Medical Group . . . . . . . . . . . . . . .66 Power Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-13 Total Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Organizations CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96
Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Mar. 21, April 18, May 16 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm Mar. 19, April 16, May 14
Orange County Trial Lawyers Assn. 25602 Alicia Parkway, #403 Laguna Hills, CA 92653 (949) 916-9577 www.octla.org March 28, 2013 So, you want to sue the Government? 6:00 - 8:00pm Tustin Ranch Golf Club 12442 Tustin Ranch Road Tustin April 25, 2013 State of the Court 6:00 - 8:00pm Tustin Ranch Golf Club 12442 Tustin Ranch Road Tustin
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CAALA Resource Center
CAALA’s new Resume Clearinghouse is a win-win for two groups of CAALA members
CAALA is always looking for ways to provide benefits to its members. We work hard to identify members’ needs and do our best to fill them. A new resource is now available that we think will satisfy the needs of two groups of members: those looking to hire attorneys and staff and those looking for the right employment opportunity. As a service to its members, we have created the CAALA Resume Clearinghouse on the CAALA Web site. This is a page within the Web site’s Resource Libraries that provides a place for CAALA members seeking employment to post their resumes so they can be read by CAALA members who are hiring. If you have been in either position, you know the challenges. Employmentseekers are looking for effective ways to get their resume read by the right people. Attorneys looking for a new employee are overwhelmed with resumes from less-than-qualified candidates. That’s why CAALA Board of Governors member David Rosen suggested we create the Resume Clearinghouse. Law students and new lawyers will see this as another significant benefit of their membership in CAALA. By joining the Association, they immediately learn the value of being able to connect with more than 2,300 outstanding civil trial lawyers. The Resume Clearinghouse lets them put their resume into the right hands.
Any CAALA member seeking employment may submit their resume for inclusion in the Clearinghouse, including law students and legal staff. You must be a CAALA member in good standing in order to submit a resume. The resumes may be viewed at any time by any CAALA member looking to hire an attorney or legal staff professional. The resumes will be kept in the Clearinghouse for 60 days. If you are a current CAALA member and are interested in submitting your resume to the Clearinghouse, you may do so by e-mailing your resume to firstname.lastname@example.org. Plus, CAALA members who receive resumes from candidates but may not be hiring at that time may also submit those resumes for inclusion in the Clearinghouse if the candidate is a CAALA member. Current CAALA members may access the Resume Clearinghouse at any time by going to the Resource Libraries link under the Litigation Resources button that is on the home page of www.caala.org. If you have questions, contact Liz Hagan at email@example.com. Providing resources that allow members to connect with each other is one of the primary missions of our Association. The Resume Clearinghouse is a perfect example of how CAALA strives to accomplish that mission.
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.
ADR Services, Inc. 915 Wilshire Blvd., Suite 90017 Los Angeles, CA 90017 (626) 577-7805 Contact: Lynne S. Bassis e-mail: firstname.lastname@example.org www.adrservices.org/neutrals/lynne-bassis.php
Dolan Xitco Consulting Group 501 W. Broadway, Suite 710 San Diego, CA 92101 (619) 272-6677 Contact: Anne Dudley e-mail: email@example.com www.dolanxitco.com
First Class Reporters 5404 Whitsett Avenue, #154 Valley Village, CA 91607 (760) 831-4490 Contact: Deborah L. Stough e-mail: firstname.lastname@example.org www.firstclassreporters.com
CATEGORY: Arbitration/Mediation Working at the intersection of law and human emotion, Lynne Bassis, Esq. harmonizes the legal, business and personal issues such that settlement occurs.
CATEGORY: Expert Witness Litigation support, financial analysis and expert testimony. They provide independent and objective analyses and opinions employing advanced methodologies and techniques in economics, microeconomics, finance, accounting, and statistics.
CATEGORY: Court Reporters, Translation Services, Video Services Professional, experienced, and reputable court reporter or videographer for all your deposition and court needs.
California Deposition Reporters 599 S. Barranca, Penthouse Covina, CA 91723 (800) 242-1966 Contact: Jamie Kirk e-mail: Jamie@caldepo.com www.caldepo.com CATEGORY: Court Reporters, Court Appearance/Contract, Arbitration/Mediation Local & National Service 24/7. Online and mobile phone transcript access. Conference Rooms, Interpreters, Videoconferencing, Realtime. Family owned and operated. Womanowned certified business.
EB Mediate 16133 Ventura Blvd., 7th Floor Encino, CA 91436 (818) 753-2326 Contact: Erica Bristol e-mail: email@example.com www.ebmediate.com CATEGORY: Arbitration/Mediation EB Mediate provides efficient, cost-effective, confidential mediation services. Flexible hours and “virtual” mediation available upon request. Synergy Settlement Services resolves the most complex settlement related issues for law firms so lawyers can focus on being trial lawyers.
Synergy Settlement Services 4025 Edgewater Dr Orlando, FL 32837 (407) 637-9319 Contact: Mirena Umizaj e-mail: Mirena@synergysettlements.com www.synergysettlements.com CATEGORY: Settlement Consultant, Lien Resolution, Structured Settlements, Financial/Retirement Planning Their team of highly skilled professionals includes attorneys, Certified Financial Planners, certified Medicare set-aside consultants, subrogation experts, nurse consultants and case managers.
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From the President Lisa Maki
Consumer Attorneys Association of Los Angeles
For the men and women who are victims of sex crimes To me, it’s personal This column is devoted to men and women who are victims of sex crimes. One of the secrets I kept was that I was raped twice before I hit 21 years of age. I didn’t tell anyone about it until much later in life. It was not a family member or someone I knew, even though two-thirds of sexual assault victims know the perpetrator.
In laypersons’ terms, many victims of crimes that include sexual abuse are able to disassociate themselves from the horrific acts during the crime itself. This dissociate continues and develops into DID or Dissociative Identity Disorder. How else might one block out pain and memories of what happened or is happening? To fully experience the crime would devastate the psyche and be deadly. Some victims do not remember being sexually violated until much later in life, if ever. This leads to the sick, societal cry that the person is just “making it up.” There is also “Stockholm Syndrome” which develops subconsciously and on an involuntary basis. It has been described as a victim’s emotional “bonding” with their abuser. Some people call this the “battered woman syndrome.”
What should you look for in your clients, friends and children? It is important to keep in mind that the first instances of sexual abuse normally 108 — The Advocate Magazine
occur in childhood and the rest prior to the time one reaches 30 years of age. Of course, there are sexually transmitted diseases which go undetected in the underage population and can destroy a young person’s reproductive system without them even knowing it. And there is more. Many survivors experience severe feelings of anxiety, stress or fear and/or Post Traumatic Stress Disorder (PTSD) and suffer from depression. Some abuse alcohol or other substances to relieve their suffering. Some victims deliberately inflict physical harm on themselves. Many suffer from eating disorders such as anorexia and/or bulimia. Many become victims of continued sexual or physical abuse at home or in the workplace. They also have difficulty in setting boundaries and keeping them because they were never old enough to know what boundaries were and how to care about themselves enough to set and maintain them. Sexual abuse of children isn’t limited to one gender. The Catholic Church and the Boy Scouts of America have just released thousands of documents that prove that religious institutions, non-profits and our schools add to the problem and cover up years of heinous acts. It took years for dedicated lawyers and non-lawyer advocates to get disclosure of files that describe the accusations of sexual abuse by clergy and scout leaders. I hope that the Boy Scouts and the Catholic Church will provide help and support to all those who have been
harmed by people they thought they could trust and appreciate that they are part of the problem. In our practice we see many victims of sexual abuse. Sadly, when I meet with female clients, I can tell within about five minutes if they have been abused without asking them any questions about abuse. Importantly, way more likely than not, victims of these unspeakable crimes have a history of past sex abuse. Many defense attorneys make great fodder of this, and claim the past abuse is what the client is suffering from. The legal process tends to re-victimize the victim and turn the victim into the perpetrator. This defense and belief comes from a clear misunderstanding of victims. There is help from a national organization called RAINN. That stands for the Rape, Abuse & Incest National Network. You can find them at www.rainn.org. The statistics they have collected are astonishing. Take for example rape. Only three percent of rapists ever serve a day in jail. For every 100 rapes, 46 are reported, 12 lead to an arrest, and of those, only nine are prosecuted. In my 20 years of practice I hate to say it, but I’ve only had three clients whose reports of rape or sexual abuse resulted in charges being filed. A broken system. But, there is help and hope. Never be afraid to ask. You are not alone and CAALA stands with you every step of the way.
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