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Journal of Consumer Attorneys Associations for Southern California
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10 N 1 N
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Contents Volume 41, Number 5, MAY 2014
Editor-in-Chief Jeffrey Ehrlich Associate Editors Martin Aarons, Joan Kessler, James Kristy, Spencer Lucas, Beverly Pine, Norman Pine, Rahul Ravipudi, Ibiere Seck, Geraldine Weiss, Ronnivashti Whitehead Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Managing Editor Cindy Cantu firstname.lastname@example.org Copy Editor Eileen Goss
Publisher Richard Neubauer email@example.com Art Director David Knopf
Consumer Attorneys Association of Los Angeles President Treasurer Geoffrey Wells Michael Arias President-Elect Secretary Joseph Barrett Shawn McCann First Vice President Immediate Past President David Ring Lisa Maki Second Vice President Executive Director Ricardo Echeverria Stuart Zanville
Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, David deRubertis, Danica Dougherty, Jeffrey Ehrlich, Tobin Ellis, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Jeff Greenman, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Tobin Lanzetta, Tim Loranger, Anthony Luti, Minh Nguyen, Christa Ramey, Rahul Ravipudi, Taylor Rayfield, David Rosen, Jeffrey Rudman, Ibiere Seck, Doug Silverstein, Kathryn Trepinski, Geraldine Weiss, Ronnivashti Whitehead, Andrew Wright Orange County Trial Lawyers Association Secretary President Casey Johnson
President-Elect Ted Wacker
First Vice President Vincent Howard Second Vice President H. Shaina Colover
Third Vice President Geraldine Ly
B. James Pantone
Treasurer Jonathan Dwork Parliamentarian Jerry Gans Immediate Past President Scott Cooper
Executive Director Janet Thornton
Board of Directors Melinda S. Bell, Anthony W. Burton, Brent W. Caldwell, Darren J. Campbell, Cynthia A. Craig, Robert B. Gibson, T. Gabe Houston, Paul E. Lee, Kevin G. Liebeck, H. Gavin Long, 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 © 2014 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
12 Was your client wearing a seatbelt?
Well-known seatbelt defects that may prove the answer is yes, regardless of an accident report to the contrary. Brian Chase
the plaintiff for their deposition in 24 Preparing the automobile case
There is much that’s predictable about the questions – and the traps – when the defense attorney is asking the questions. Steven Goldberg
5-Star safety ratings and how they affect 32 The your auto case
These government- and insurer-sponsored safety ratings should not be used as predictors of the injuries our clients may sustain in a crash. Jeffrey J. Greenman
40 The defense radiologist
Impeaching the common opinions of defense radiologists in cases involving spinal injury. Michael Karns and Bill Karns
an effective deposition of an adverse 48 Taking witness Structure your deposition to take advantage of adverse witnesses in preparation for impeaching them at trial. John Gerard
60 The “Sharing Economy”
I take the money – you take the risk. A look at what may be the first wrongful death action against a ride-sharing application provider, Uber. Christopher Dolan
things I’ve learned in my auto-accident 68 Ten trials The fundamentals of taking an auto case to trial. Joseph M. Barrett
80 Trial Diary
Trying the not so big and glamorous cases, or “why it pays to try tough cases.” Nicholas C. Rowley
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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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the admitted liability auto case: 90 Trying The art of villainizing
Every trial needs a villain: Meet Mr. Von Doom, Mr. Magneto and The Green Goblin. Robert Simon and Brandon Simon
A BOUT THIS I SSUE Vehicular negligence cases It’s the meat and potatoes of personal injury, but don’t think the rules aren’t changing.
Orange County Trial Lawyers Association
Going all in Failing consumers is not an option.
Appellate Reports and Cases in Brief New holdings on expert medical testimony in district courts and on the componentparts doctrine.
Jeffrey Isaac Ehrlich
CAALA C ONNECTION C ENTER Welcoming the newest members to CAALA.
CAALA R ESOURCE C ENTER New CAALA Affiliate Vendors
D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS
E XECUTIVE D IRECTOR
Affiliate Vendors are an excellent resource to help improve your practice and a way to save money.
Consumer Attorneys Association of Los Angeles
The Pack Patient Safety Act: Who are the heroes?
G OVERNMENT R EL ATIONS B ULLETIN Political Updates from Sacramento and Washington
Consumer Attorneys Association of Los Angeles
The power of forgiveness Never apologize for being a trial lawyer.
On the cover: Main Image: Car Crash | innovatedcaptures | www.thinkstockphotos.com
The Advocate Magazine — 7
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About this Issue Geraldine Weiss
Vehicular negligence cases It’s the meat and potatoes of personal injury, but don’t think the rules aren’t changing Let’s face it. Most of us have, are and probably will be handling cases involving automobile negligence. I always have lectured my teens about those “killing machines” on the road. Automobiles may not look like The Terminator or Transformers, but put a negligent or impaired driver behind the wheel and that is what a car becomes. Or the problem could be the car itself which is a product of human creativity and therefore subject to their negligence in a product or manufacturing context. If you are not up to date with your automobile negligence tool kit, digest these words of wisdom in this issue. Robert Simon and Brandon Simon of The Simon Law Group introduce us to a whole host of interesting characters. We meet defense attorney, Mr. Van Doom, defendant Mr. Magneto (whose evil ways always galvanized me in the movies!) and The Green Goblin, otherwise known as the defense expert. Messrs. Simon point out that while playing to a jury’s emotions is easy when liability is disputed, this strategy is made difficult when the defendant admits responsibility. However, a surefire tool you can use to turn the odds back in your favor is the art of villainizing. Every case has a villain and learning how to exploit this will help you maximize damages. Joseph M. Barrett shares ten valuable gold nuggets he has learned from his automobile negligence trials. He lists some fundamental principles which we all should keep in mind. Sometimes we get caught up in the moment or a battle (with one of those villains) and forget these basics. Reading his article reminds us to recalibrate and keep in check the basics. Jeffrey J. Greenman and his wife did us a favor when they decided to purchase 8 — The Advocate Magazine
a vehicle. This led Jeff to explore what “five-star safety ratings” really mean. This rating system is used by the government and insurance industry. However, Jeff scratched deeper than the surface with his lawyer’s intellect and found that these safety ratings probably have very little to do with the injuries that clients sustain. He explores how any pushback from the insurance company relying on safety ratings can be easily deflated. Brian Chase shows his versatile product-liability knowledge by exploring what you do if you find yourself in the situation where it appears your client was not wearing their seatbelt. He encourages you to investigate further. If the case warrants it, retain an appropriate expert and have the vehicle inspected to confirm or deny the issue of seatbelt usage. Your client may have been properly buckled up and a seatbelt defect caused the seatbelt to come loose. Bill Karns and Michael Karns of Karns and Karns, help attorneys undermine the opinions of defense radiologists in spinal-injury cases. It is important to explain to the jury through experts, including defense experts, that radiographic imaging is just that. “Doctors do not treat medical imaging. Medical imaging does not show pain. Medical imaging does not show various types of injury. Medical imaging can never be used to say a plaintiff is not injured. Medical imaging can never be used to say a plaintiff is not feeling pain. Doctors never treat medical imaging. Doctors treat pain, and the pain was caused by the traumatic event/accident.” The Karns’s article contains tips and strategies to make this the reality. Nicholas C. Rowley explores how the smaller cases are often tougher than the “big glamorous ones.” His client, from
Guatemala, did not speak English, was involved in a low-speed, rear-end impact, was fine at the scene, went straight to work after, and waited to go to the doctor until after he got a lawyer. The insurance company refused to pay the small policy limits. Prepare to be riveted to his story. Steven P. Goldberg discusses preparing your client for the big D Day; his deposition. He reminds us to take as much time as necessary to prepare the client. Your client can’t go into the deposition unprepared. A friend of his once said, “We don’t often win our cases at our clients’ depositions, but we can sure lose them at their depositions.” On the converse side, John Gerard discusses some basic tips for taking an effective deposition of an adverse witness/defendant in an automobile case. These include awareness of timing and priority, having a purpose and plan to your questioning, time, space and opportunity (“TSO”), distractibility, accident reconstruction, bias, the importance of listening and observing, the sequence and nature of questioning, impeachment, admonition and controlling the coaching defense counsel. Finally, San Francisco trial lawyer and former CAOC president Christopoher Dolan recently filed in San Francisco what is believed to be the first wrongful death action against Uber, the same ride-sharing app service provider that we have here in Los Angeles. Dolan looks at the new “sharing economy” and the regulation needed to protect consumers. And check out our editor’s note on the Dolan article. If you ever doubt, for even a day, that trial lawyers make a real difference, this will reinforce just how important what we do is.
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10 â€” The Advocate Magazine
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Brian D. Chase
Was your client wearing a seatbelt? Well-known seatbelt defects that may prove the answer is yes! Your client is in an auto accident. At the conclusion of the accident he is found to be unbelted. During the course of the crash he was thrown about the interior of the vehicle and/or ejected from the vehicle and suffered serious injury. The investigating officer “opines” that your client wasn’t wearing a seatbelt at the time of the accident and checks the box in the Traffic Collision Report indicating “lap and shoulder belt not used.” Your client swears he was wearing his seatbelt. Many attorneys under this set of “facts” either do not sign up the case or resolve the case for something far less than full value due to the perceived comparative-fault issue. After all, the investigating officer “opined” that your client wasn’t wearing a seatbelt after his “investigation” was completed and further noted in the Traffic Collision Report that the “lap and shoulder belt [was] not used.” The purpose of this article is to point out the three primary ways an otherwise properly functioning seatbelt buckle can “unlatch” during the course of an ordinary auto accident. I write about this here for two reasons. One, I don’t want anyone to miss the potential auto-defect case, especially if your client has catastrophic injuries and insufficient coverage from other
potential third parties responsible for the crash. Two, if there is a sufficient coverage from a responsible third party, but your client is accused of not wearing a seatbelt, and thus a drastic devaluation of the claim due to alleged comparative fault, you will be armed with some viable theories to rebut that comparative-fault claim.
The three-buckle unlatch defects
• Inadvertent unlatch/release This is a well-known buckle defect in the automotive industry. This is a scenario where your client is properly wearing a seatbelt, gets involved in a crash and during the course of the crash something strikes the top of the buckle (the red/orange push button used to unlatch/release the buckle) and the buckle pops open, i.e., inadvertently unlatches or releases. It is not uncommon for a person’s elbow in various crash modes to strike the top of the buckle and unlatch it. In a frontal or rear-end crash during the rebound phase, a person’s elbow can strike the release button of the buckle and unlatch it. Similarly, in a rollover crash a person’s elbow or hand can easily strike the top of the button on the buckle during the chaos of rolling over. In addition, objects flying around inside the vehicle during a crash can also strike the top of
Figure 1: Surrogate study demonstrating how easily an elbow can access the buckle and unlatch it. 12 — The Advocate Magazine
the buckle and cause an inadvertent unlatching of the buckle. This isn’t some plaintiff ’s “expert driven theory.” It is a reality. The auto industry knows firsthand that in a crash a person’s elbow can strike the top of the seatbelt buckle and unlatch it. As a matter of fact, auto manufacturers’ very own crash testing has proven this precise mode of inadvertently unlatching a buckle. In Figure 2 are two frames from a crash test showing the passenger sidecrash test-dummy’s elbow inadvertently unlatching its seatbelt buckle. In the picture on the left the dummy is fully belted and restrained. In the picture on the right, moments later during the course of the test, the crash-test dummy has rebounded back and its elbow has inadvertently released/unlatched the buckle. You can see the shiny object in the picture on the right, which is the tongue of the seatbelt, fully unlatched. If this were a real-world crash involving your client, the “investigating officer” would have “opined” that your client was not wearing a seatbelt and checked the box in the traffic collision report “lap and shoulder belt not used.” Due to this situation being a real possibility, the auto industry actually performs testing and has test standards
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Seatbelt — continued
pertaining to minimizing just this scenario from occurring in a crash.
Industry testing with inadvertent release
General Motors by at least 1984 had a standard called “Seat Belt Buckle End Release Ejection Test” which expressly states: “the purpose of this procedure is to determine if a 25mm diameter ball will open a buckle by depressing the push-button release.” Ford Motor Company’s internal standard in the mid ‘90s was called “Buckle Inadvertent Delatch” which stated: “end release buckle assembly must not release tongue when contact by a 38mm diameter sphere at any location … to reduce the likelihood of the buckle being inad-
Figure 2: The red circle shows the seatbelt tongue, fully unlatched.
Figure 3: Here a 30mm spherical ball is being pushed over the top of the buckle.
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vertently released by an occupants hand or elbow….” What the test engineers do is rub a spherical ball (Figure 3) over the top of the buckle to see if it can be unlatched. The ball is designed to replicate a person’s elbow. If the buckle unlatches, the buckle fails the test. As an aside, as a general rule the auto industry and suppliers do not like to redesign a part or product when it fails to pass their own internal standards. So, what do they do? Increase the size of the spherical ball of course, so the buckles can pass the test. I have seen buckles that were supposed to pass an internal standard utilizing a 30mm spherical ball. When the buckle failed to pass that test the auto manufacturer/supplier merely changed the test standard to incorporate a much larger spherical ball of 40mm. Federal Motor Vehicle Safety Standard 209 (FMVSS) requires in Section 4.1 (e): “Buckle release mechanism shall
be designed to minimize the possibility of accidental release.” This issue was also addressed in a 1989 patent: “Seat Belt Buckle,” US Patent 4,797,984 (Jan. 17, 1989) describes a buckle design in which “the upper cover is shaped and dimensioned…in such a manner that the tongue is not unlatched…even when a ball having a diameter of 28mm is pressed against the operated surface of the release button.” According to this patent, “the latching of the tongue is hence not released unintentionally even if the operated surface is pressed accidentally by an elbow or the like.” Due to all the literature and test standards dealing with this issue and due to this clearly occurring in the auto industry’s very own testing, the auto manufacturer must admit that inadvertent unlatching can in fact occur in a realworld crash. Of course they will deny it ever happened in your client’s crash. If you are investigating one of these cases, make sure to demand from the auto manufacturer and buckle supplier ALL of their crash testing (design, development, prototype, and certification tests) and take a close look for any buckle unlatchings as depicted above. You will find them from time to time. The manufacturer will object to producing all of this testing and only want to produce the Certification Testing. Of course you will not find any unlatchings occurring in that testing, or at least it is very unlikely. You will have a much better chance of finding these gems in the design and
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Seatbelt — continued
Figure 4: Defective buckle design (left) and alternative design of non-defective buckle. development phase and you need to insist on getting all of it!
The design defect
The design defect in these buckles is that the contour of the top of the push button is such that it protrudes up too far out of the buckle housing and/or a buckle housing that is sloped or carved out too low below the top of the release button. This permits a person’s elbow or other object to too easily access the button, push down on it inadvertently, and cause it to unlatch. In figure 4 are two illustrations of a defectively designed buckle and an alternative feasibly designed non-defective buckle.
False latch/partial engagement
This too is a well-known buckle defect theory and well documented in
the automotive industry. This is a scenario where drivers think they are properly wearing their seatbelts when, in fact, they are not. The driver inserts the tongue into the buckle until enough resistance is encountered to make it seem that the buckle is fully engaged/latched, when in fact it is not. When the tongue and buckle are in this condition, it is known as a false latched or partially engaged buckle. If an accident occurs when the buckle is so configured, the sudden load forces cause the seatbelt tongue to come out of the buckle and leave the occupant suddenly and unexpectedly unrestrained. Here again, this isn’t some plaintiff ’s “expert driven theory.” It too is a reality. Here again, the auto industry knows firsthand from its own crash testing that this can occur. Accordingly, the Federal Govern-
Figure 5. Red circle shows the tongue out of the buckle, leaving the test dummy unrestrained. 16 — The Advocate Magazine
ment and the auto industry have standards that address this defect issue as well. Depicted in Figure 5 is a Ford frontal barrier crash test where at the outset of the test (pictured on the left) you can see the passenger side dummy is fully belted in their 3-point belt. During the course of the crash test, as the vehicle strikes the front barrier (pictured center and on the right), you can see the tongue out of the buckle leaving the dummy completely unrestrained. Again, if this were a real-world crash involving your client, the “investigating officer” would have “opined” that your client was not wearing a seatbelt and checked the box in the traffic collision report “lap and shoulder belt not used”.
Industry testing dealing with inadvertent release As early as 1966 the Federal Government was establishing the Federal Motor Vehicle Safety Standards (FMVSS) including “Standards for Seat Belt Use for Motor Vehicles” which addressed the issue of false latching: “Additional requirements for buckles are included to reduce the probability of false latching …” (Federal Register, August 31, 1966, Page 11528, Title 15, Subtitle A, Part 9.) Specifically, FMVSS 209, Section 5.2(g) states: “A metal to metal buckle shall be examined to determine whether partial engagement is possible by means of any technique representative of actual use.” Additionally, Section 4.3(g) states: “… a metal to metal buckle shall separate when in any position of partial engagement
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Seatbelt — continued
by a force of not more than 22N.” (N = Newtons and 22N is just slightly less than 5 pounds). In 1974, TRW, a major seatbeltbuckle supplier, had a buckle patented
that would design out this defect (Patent 3,807,000 issued April 30, 1974) which expressly stated: “2. … In actual use, it sometimes happens that the wearer mistakes the resistance of the biased latch
Review your transcripts over coffee!
member, and the firmness imparted to the unlatched tongue by the biased latch, for actual engagement. The wearer then incorrectly assumes that he or she is safely “buckled up”. Such an effect is known in the art as “false latching.” …It is an object of the present invention to provide a buckle and tongue combination free of the danger of “false latching”. For decades Ford has had Worldwide Products Acceptance Specifications prohibiting a buckle from being able to be falsely latched, specifically stating that the “buckle assembly and tongue shall be designed to prevent false latching.”
The design defect
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A “side release buckle” is an older style seatbelt buckle that has the push button used to unlatch the buckle located on the side of the buckle. These types of buckles lack a tongue eject feature built into the buckle to spit the tongue out when it is not fully engaged/latched. An “end release buckle” is the more modern buckle we see in most vehicles today with the push button used to release the buckle on the top of the buckle and are designed so that the tongue should be spit out or be ejected when not fully latched. However, some poor designs can permit the tongue to get wedged or stuck inside of the buckle housing without actually latching and then incapable of being able to pull itself out from the tension from the retractor and/or with less than 5 lbs of force as is required by FMVSS 209. I have seen buckles that can be falsely latched and require 25 to 50 pounds of force to remove the tongue from the buckle.
This is also a well-known buckle defect in the automotive industry. This is a scenario where the driver is properly wearing a seatbelt, gets involved in a crash and during the course of the crash, a force is applied to the opposite side of the buckle’s release button. If it is a siderelease buckle the force would be applied to the back of the buckle, opposite the
Seatbelt continues 18 — The Advocate Magazine
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Seatbelt — continued
push button used to release the buckle. If it is an end-release buckle the force would be applied to the bottom of the buckle, again, on the opposite side of the push button used to release the buckle. This applied force in effect pushes the buckle housing toward the release button of the buckle and causes the buckle to unlatch. In other words, instead of pushing on the release push button towards the buckle, like you would to ordinarily unlatch your seatbelt, here you have the exact opposite occurring with the buckle being pushed into the buckle’s release push button. Again, this isn’t some plaintiff ’s “expert driven theory.” It too is a reality. In the 1990s, the auto industry denied this scenario could occur in a real-world crash. They conceded that, yes, you can have your expert manually strike the back side of a seatbelt buckle and cause it to
inertially unlatch, but that that was merely a “parlor trick” and that it could not occur in a real-world crash. However, the industry has since reversed its position on this and now concedes that it can happen. Unfortunately, I have yet to come across a crash test, like the ones discussed above, where it has been conclusively proved and agreed upon that this scenario has occurred. Additionally, there are no FMVSS that cover this issue. In my view this is the more difficult buckle-release theory to pursue. Due to the lack of a crash test demonstrating it, and the lack of any FMVSS dealing with this phenomena, you have to solely rely on your expert and don’t have the collateral benefits of a crash test, FMVSS, and/or an auto manufacturer’s internal standards addressing this scenario. Now, if you have physical evidence of loading on your belt, you can
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clearly make this case, it’s just a lack of what I call “objective criteria” from the industry acknowledging this as a major concern that I feel makes it more difficult to get a jury to believe your expert.
Retain an experienced restraints expert
The purpose of this article was not to go into the type of forensic evidence you would expect to see or not see both in the vehicle and/or on your client when analyzing these theories. That would be an article in and of itself. Regardless, first and foremost, retain an experienced seatbelt expert. I emphasize the word experienced because I have seen time and time again a client that comes into my office who had their case rejected by another attorney because that attorney failed to identify or appreciate a defect. I have seen well intentioned attorneys actually retain an expert to inspect the accident vehicle and then be told by that expert that there was no case. In these instances the attorney did their due diligence and retained an expert to inspect the vehicle. The problem is the expert did not specialize in auto-defect cases per se, but was a more generic engineering expert, well qualified perhaps in general, but not with an understanding in the nuances that appear and can make or break an auto-products case. In closing, if you find yourself in the situation where it appears your client was not wearing a seatbelt, I encourage you to not stop there with your investigation. If the case warrants it, retain an appropriate expert and have the vehicle inspected to confirm or deny the issue of seatbelt usage. You just may learn, one, that your client was in fact properly buckled up and that you do not have to concede comparative fault, and, two, that there is a viable seatbelt-defect case. Brian Chase is senior partner in Bisnar|Chase in Newport Beach. His practice focuses on auto products liability, catastrophic personal injury and mass torts. He is a past president of Orange County Trial Lawyers Association and President Elect of Consumer Attorneys of California.
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The Advocate Magazine â€” 21
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Our Verdicts & Settlements Mid Seven Figures (arm amputation)
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Steven P. Goldberg
Preparing the plaintiff for their deposition in the automobile case “The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave.”— Patrick Henry Steve Goldberg CAALA Board of Governors member I was more than 30 years younger than I am now. I had prepared my client for her deposition in her car-crash case. I wondered if one of the lawyers in the insurance defense law firm was named “Scrooge” because the firm name was “Leach, Biesty, and McGreavy”− a name right out of Dickens. I could feel the evil all round me. It was my first time defending a deposition in an automobile accident case. My opponent was just as inexperienced as me, and he was reading from a multiple-page form that was essentially a long list of questions. I watched as he asked each question and checked off boxes on his form when he completed each question. He rarely asked a follow-up question. He just stuck to the “script.” A few days later, I was at the in-house counsel’s office for Farmers Insurance Company and watched their lawyer do the same thing with their list. By the end of the week, I realized that the questions were pretty much the same and that it was possible to prepare your client exceptionally well for the deposition in an automotive case because you pretty much know in advance exactly what will be asked. The questions are designed to box the plaintiff into giving testimony that will benefit the defendants’ experts and attorneys at trial. Not much has changed. The defense basically asks the same old innocent sounding questions. This article will help the plaintiff ’s lawyer to prepare his or her client to recognize the worst of these sneaky little questions and to help them respond to them properly at their deposition. We will not delve into defense questions/strategies that are common to other types of accidents such as how to respond to questions regarding medical care and treatment or to wage loss. The focus for this article is on issues peculiar to vehicular accidents.
24 — The Advocate Magazine
Of course, you must tell your client how to dress, you must familiarize your client with the admonitions of a deposition and explain to them what a deposition is and how it is a critical stage. If your client is haphazard about the upcoming deposition, he or she will do poorly. You need to impress upon them the importance of the deposition process. I recommend that you not use commercially available videotapes to prepare your client for the depositions. This is an opportunity for you to develop a trust relationship between you and your client. Use it.
Visit the scene
Tell your clients to revisit the accident scene before the deposition takes place. If you tell them to do it, then they will. Have them take note of the directions, north, south, etc., and of landmarks and of the number of lanes all around, not just on their side of the roadway. The witness needs to be familiar with the scene. If you haven’t been there yourself and don’t have great photos of the scene, then you’d better go there too before you prepare your witness for the deposition.
Explain “trick questions”
Preparation equals vigilance. In effect, you should be warning your client about what they should expect to hear and explain the tricks involved in these questions and how to avoid the defense’s traps. You need to explain the types of questions that the witness will hear which are designed to win the case on the issue of liability.
The witness must be aware that the defense questions are calculated to place blame on the plaintiff. If they can
establish even some degree of comparative fault, it will benefit the defense in the future, so the plaintiff must be forewarned. Explain to the witness that there will be questions about his or her trip on the day of the accident. There will be questions regarding the time that they left until they arrived at the place of the accident. There will be questions regarding the route that was taken and the speeds that their vehicles were traveling as well as the traffic conditions, weather conditions, etc. These questions are calculated to get answers allowing the defense to argue that the plaintiff wasn’t driving safely at the time of the accident − perhaps, speeding. I recommend that you wear a wrist watch with a sweep second hand so that you can familiarize the witness with a sense of “time.” People generally are not familiar with the actual length of two seconds, five seconds or even 15 seconds. By showing them that a second is a relatively long period of time, by saying for example, “one Mississippi, two Mississippi, three Mississippi,” the witness will become more comfortable and cognizant of the times involved.
Where were you looking?
There will be questions regarding how long one was driving in his own lane and when lanes were changed, and questions about the perceptions of the plaintiff. A very insidious question begins with “Where were you looking when...” This question will be asked by the defense at many places during the deposition. Where were you looking when you turned the corner? Where were you looking when you were two car lengths from the accident? Where were you looking when you felt the impact? Just before impact?
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Deposition — continued
You must review with your client that when a person properly drives an automobile, he doesn’t just look at one spot. The witness must explain to the defense attorney that it would be impossible to know exactly where he was looking at an exact place and time because when one drives, one is continuously glancing at mirrors, out the windshield, out the side window with his eyes darting about as he drives. The witness must be educated as to how to estimate during the deposition, i.e., how to provide a proper “range” to respond to questions like, “How long did it take you to travel the distance from the corner to the accident?” Or, “how many car lengths were you pushed upon impact?”
Merely seeing vs. taking notice
When is the first time that you saw the vehicle involved in the accident? This is another trick question. The witness must understand that noticing something means it was perceived or observed versus just seeing something because it is visible. One may be driving along on the freeway seeing various visible vehicles and yet not pay much attention to them until an accident occurs. The witness will explain how she took sharp notice versus just seeing them. Otherwise, the defense experts may argue that the plaintiff was inattentive since she should have seen the vehicle well before the accident actually occurred.
Injuries and damages
Modern seats and cabins
Next, you will need to explain the types of questions that the witness will hear which are designed to win the case on the issues of damages and injuries. These questions are calculated to minimize plaintiff ’s injuries at time of trial. It is essential that they properly respond and properly explain the nature of their injuries and how their injuries were consistent with the forces of the accident. Don’t let these questions box your client in.
These evil little questions are calculated to box your client into giving testimony that will make it possible for the defense to minimize damages at time of trial. They are designed to box the plaintiff into giving testimony that she was sitting with her back right square up against the seat, her knees and feet planted straight in front of her and, if the plaintiff is the driver, the hands were at the 10:00 and 2:00 position on the steering wheel while being seatbelted with a modern 3-point seatbelt. Explain to the witness that in the cabin of modern automobiles, much research has gone into designing seats and the interior of automobiles so that serious injury is avoided. Usually, however, that is not how the injured party was sitting at the time of injury and because he or she was either turned or turning in the seat or leaning to the right or left, the forces caused by the other impacting vehicles and acting on your client had a much more complicated “twisting” component. People don’t just sit quietly in their seats. They move to their right or left and move and reach forward or to the side in order to change a CD in their CD player, change the radio setting, reach for their purse, move something on the front seat, open the glove box, put the visor up or down. The lawyer needs to explore this with the client in order to determine what movements were being made by the plaintiff at the time of the accident.
Injury consistent with accident forces
Explain to your client that the injuries complained about must match up with the forces of the accident, i.e., the impacts and movements involved in the accident. Questions like the following will be asked: How many impacts did you hear? How many impacts did you feel? How much time passed between each impact? What part of your vehicle was struck by other vehicles? Was your car moved? In what direction was it moved? How did your body move inside your car during the accident? How were you sitting before the accident occurred? Did your body strike anything inside the vehicle during the accident? What parts of your body were injured in the accident? Was there any warning of the impending accident such as horns blowing or tires screeching? Was your foot on the brake at the time of the accident? How were you sitting?
DARRYL H. GRAVER, ESQ. EXPERIENCED ARBITRATOR/MEDIATOR “Have Gavel Will Travel”
Over 3,000 successful conclusions To Schedule, call Judicate West 800.488.8805
818.884.8474 fax 818.884.8388 26 — The Advocate Magazine
How did the vehicle move? Your body?
Likewise, when a vehicle is struck in such a manner that it does not simply move forward, but rather spins or moves to the right or left, then your client’s body will be subject to a twisting impact, and maybe more than one of them. Good luck convincing a jury that your client’s knee was injured in a collision without any direct trauma or twisting forces to the knee. Therefore, during your preparation for the plaintiff ’s deposition, you must review in detail how your client was sitting in the vehicle and how
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Deposition — continued
his or her body moved upon the different impacts. The injuries will be consistent with the facts of the accident, but you need to review it all with them so they understand how to deal with these questions. Most folks don’t remember if their body moved backwards upon impact or forward upon impact or which came first. The defense questions are calculated to box the plaintiff into the wrong answer. Don’t let that happen. The plaintiff needs to be honest and say that they remember moving in both directions but that it happened so quickly they don’t remember which direction they were moved first.
What happened inside the car?
Did their body strike anything inside the vehicle after or during the accident?
28 — The Advocate Magazine
This is a question that also needs to be reviewed before the deposition. The plaintiff needs to recall as best they can whether they struck an armrest, seatbelts, the steering wheel, a window, windshield, a console, the dashboard, the roof, the head rest, the seat, the gear shift, a mirror so that these injury forces are not overlooked. Have the client remember where their bumps and bruises, cuts and scrapes were. Did air bags deploy? Did that cause injury such as a burn or eye trauma?
Be vigilant. Take as much time as necessary to prepare your client for his or her automobile accident deposition. These cases need preparation. Your client can’t go into the deposition unpre-
pared. It is a nightmare to watch a plaintiff give testimony that is inconsistent with his or her injuries and in such a manner that they can later be saddled with comparative fault because they were tricked by these questions. A friend of mine, Bob Reback of Reback McAndrews, once said that “We don’t often win our cases at our clients’ depositions, but we can sure lose them at their depositions.” Steven P. Goldberg is a partner at Goldberg and Gille, Woodland Hills. His practice areas include product liability, wrongful termination/sexual harassment and discrimination, cumis counsel, business torts, and personal injury.
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Jeffrey J. Greenman
Breaking down the 5-Star safety rating and how this affects your auto case Safety ratings are not in any way indicative of the injury a plaintiff can sustain in a particular car Jeffrey We have all heard of J. theGreenman “5-Star Crash Test Rating” used by the media and consumer reports. You have more than likely relied on this rating system when purchasing a vehicle. My wife and I are new parents and in an effort to be good new parents, we decided to purchase a safe vehicle. Our research relied heavily on the 5-Star Rating we all hear so much about. This is all well and good but I wanted to dig deeper: What exactly is this rating? What tests are actually run? Under what circumstances? Why does this matter to me? My research into this subject was also spurred on by an adjuster haggling with me about the physical damage to my client’s vehicle and the fact that her vehicle was safe, “Her car has a 5-star rating,” he said. “Does that mean she is supposed to be less injured? How do you know that?” I asked. NEWS FLASH! Not only is the insurance industry actually behind this rating system, but runs many of its tests. Of course, their reasoning for doing this is to increase their bottom line. Safer vehicles mean the insurance companies will be paying out less on injury claims which, fortunately for everyone, does save lives. This article explores how the tests are done and how limited they actually are in scope. In my opinion, star ratings are marginally helpful, offering a false sense of security to the purchaser and a weak wall to hide behind for the insurance companies. Let’s look at how this all works. Crash Tests 101
The two independent crash-test information sources are the National Highway Traffic Safety Administration (NHTSA), a branch of the Department of Transportation, and the Insurance 32 — The Advocate Magazine
Institute for Highway Safety (IIHS), a safety-research group sponsored by the insurance industry. Using different methodologies, both organizations conduct front- and side-impact crash tests. In addition, NHTSA tests for rollover propensity and the IIHS evaluates rear-crash protection and roof strength. Although vehicles in general are much safer in collisions than they used to be, more than 20,000 people traveling in passenger vehicles still die in crashes every year. Many factors contribute to fatal crashes, including hazardous driving, failure to wear safety belts, poor road conditions, and the vehicle’s dynamic abilities to avoid a crash. But, as we know the actual vehicle you’re sitting in when a crash occurs can make a life-or-death difference. Crash tests provide insight into the protection offered by the vehicle itself. As a secondary benefit, the published crash ratings encourage automakers to make ongoing improvements. But with two primary testing organizations (government and insurance industry), multiple tests conducted on each car, and competing manufacturer claims, it can be difficult to make sense of it all. This crash-test primer will help us all makes sense of the stars. As we know from litigation and sitting through depositions with our engineering/accident reconstruction experts, structural design and safety systems determine how well a vehicle protects its occupants. But, when it comes to safety ratings, it is only independent crash testing under controlled conditions that differentiates one car from another and tells us how well its key components work together. A crash test may reduce the vehicle to a shattered wreck, yet good structural design keeps passenger-space intrusion to a minimum. Important safety
systems such as safety belts, air bags, and head restraints serve a vital role, by restraining, positioning, and cushioning occupants while a collision takes place. It is important for us to understand how to use these ratings when evaluating a case. The key language here is “independent crash testing under controlled conditions.” None of our clients are ever involved in an accident in a “controlled condition” like they use to rate safety. When an adjuster/defense attorney tells me that my client was in a 5-star safety rated vehicle and should be fine, I respond, “Was my client hit square on with a non-moveable wall like the test that produced that rating?”
NHTSA crash tests
As part of its New Car Assessment Program, NHTSA scores its tests using a scale of one to five stars; the more the stars, the lesser the likelihood of injury or death. The IIHS uses a four-level scale: Poor, Marginal, Acceptable, and Good. Of note, NHTSA reformed its star ratings in late 2010 and overhauled the way it conducts and scores crash tests. The changes were profound enough that the star ratings for 2011 and subsequent models are not comparable to those assigned to 2010 and earlier models. The change has two consequences. First, it will take a few years before NHTSA has tested enough vehicles to create a database useful for making broad comparisons. During that time the other main testing agency, the Insurance Institute for Highway Safety, will be the primary source consumers can consult for comparative crash-test information. The second consequence is more important: NHTSA’s new star-rating system should provide better information.
5-Star Rating continues
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5-Star Rating — continued
Under the old system, most vehicles were racking up four or five stars in every category. The new system intends to be more discriminating.
It’s expected that many cars that had been earning five stars will earn only three under the new system. That’s because NHTSA is now factoring in more
injury parameters, has added more tests, and is including data from dummies representing a small adult female instead of just an average-sized adult male. This is huge news for us as attorneys. Basically, it states the 5-star rating used by NHTSA was fundamentally flawed and overinflated. Taking a 5-star rating down to a 3-star rating is mindblowing to me. Also, it points out that the IIHS testing is the only constant test for crash ratings we can rely on. The new testing will use differentsized dummies. This is a significant change in that, as we already knew, different-sized people can get injured in different ways. People’s height and weight play a significant factor in how their bodies move within a vehicle after a collision. This is encouraging news for our professions and will likely lead to some usable evidence for our not so “averaged”-sized clients. NHTSA has also fundamentally changed the way it assigns the star ratings. Whereas under the old system the scores were based on a calculation of likelihood of serious injury, the new system will compare cars with each other. So it won’t be enough for, say, a car to provide good head protection. To get a top score it will now have to provide better head protection than most other cars.
Important changes by NHTSA
NHTSA will assign a single overall safety score that combines the results from front, side, and rollover tests. Front-crash results will weigh heaviest in the overall score. The 35-mph full-frontal crash test will use a new 5th-percentile (small adult female) dummy instead of a 50th-percentile “male” dummy on the passenger side. Of note is that these accidents are all tested at 35 mph. As we know, the mph in our cases is all over the board, so relying on a crash test rating for anything other than 35 mph is hard to do. New measures for chest deflection, neck extension, and femur and foot injuries will be added to the front-crash score. These measures will be of great
5-Star Rating continues 34 — The Advocate Magazine
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5-Star Rating — continued
value to our clients. We will be able to see the forces behind their bodily movements in an accident. Where their legs, knees, and feet make contact and specifically how their necks are stretched and snapped. The side-impact crash will include data from the head, abdomen, and pelvis, instead of just the chest. The rear passenger will be a 5th-percentile female dummy, instead of a 50th-percentile adult male, and include data from the head and pelvis. In the side impact studies, the 5th-percentile dummy will act more as an adolescent or small adult in the back seat creating more realistic outcomes as to who often rides in the back. A sideways-into-pole test will be added, using the small adult female dummy. This new test is by far the most interesting. This is the first “break” from the conventional testing of head-on controlled testing. This test will be the most “real world” example of what actually occurs on the road. Losing control, spinning and hitting an object whether it be a wall, another car or a tree often occurs to our clients. This data will be interesting for our cases and experts to use. Front crash NHTSA’s front-crash test accelerates a car straight into a rigid barrier at 35 mph, with the entire width of a vehicle’s front end hitting the barrier. Instrument-bearing, seat-belted crashtest dummies in the two front seats record the level of crash forces on the head, neck, chest, and legs. Those measurements correlate with injury, but formerly only the head and chest results formed the basis of the star rating. Individual star ratings are assigned to the driver and the front passenger. Some automotive experts have criticized NHTSA’s full-frontal, rigid-barrier test as unrealistic because such head-on crashes into a flat, solid wall are rare. Others argue that real-world or not, flat-barrier testing is a good way to gauge the effectiveness of the restraint systems, primarily the safety belts and air bags. Again, when was the last time you had a case where your client crashed into a wall at exactly 35 mph? 36 — The Advocate Magazine
Side crash NHTSA’s side-impact test represents a vehicle struck on the left side by a 3,015-pound car traveling at 38.5 mph. Such a scenario mimics what could happen if you were hit on the side at an intersection. Individual side-impact star-rating scores are assigned to the driver and left-rear passenger. For pre-2011 models, only a chest-injury measure dictated the score. For 2011 and later models, the score factors in head, abdomen, and pelvis data as well.
IIHS crash tests
Frontal The Insurance Institute for Highway Safety (IIHS) front-crash tests are quite different from NHTSA’s in that they’re designed to highlight the vehicle’s structural integrity, as well as restraint performance. IIHS now conducts two series of front-crash tests, one that engages 40 percent of a vehicle’s front and a newer test, inaugurated in 2012, that uses a smaller overlap, engaging just 25 percent of the car’s front. Both simulate what would happen if two cars of the same weight and type crashed head-on, partially overlapping. The older test, with the 40-percent offset, engages the portion straight ahead of the driver. The newer test is more like a head-on crash where two cars hit left-headlight to left-headlight or a singlevehicle crash into a fixed object like a utility pole or tree. These are very different from the full-width crash NHTSA uses. Both the IIHS front-crash scenarios use an impact speed of 40 mph instead of 35 mph; and only the left front of the car hits the barrier. The 40-percent overlap test uses a deformable barrier while the 25-percent overlap test uses a rigid barrier. While these tests are an improvement of what was previously tested, they still do not take into account what actually happens in real world situations (i.e., they don’t address how the other vehicle involved “gives way” due to the impact.) However, your engineering expert should be able to account for these factors. One effect of the new small-overlap test is that the vehicle tends to rotate around the point of impact as the crash
proceeds. Since occupants then move to the side as well as forward, the test poses new challenges to some safety-belt and air-bag systems. Even though this is a frontal crash, the side-impact air bags may need to deploy as well. Moreover, many cars are not designed to withstand a corner hit as well as they handle an impact that engages a wider portion of the front. There can be more intrusion into the driver’s foot-well, which can cause severe leg injuries. Car manufacturers have clearly wised-up over the years with the limited testing they were subjected to. Meaning, they would build the cars for the test, knowing that a better test would result in better sales. The cars on the road became very safe for 35 mph straight-on collisions with walls, but not as safe for other types of collisions. The new changes in testing will force manufacturers to address other types of accident scenarios. Both the IIHS frontal tests are more stringent than NHTSA’s because the speed is higher and the crash energy is concentrated on a smaller area. In both, an instrument-equipped crash dummy in the driver’s seat records forces to the head and neck, chest, legs, and feet. Vehicles are rated as Good, Acceptable, Marginal, or Poor based on what happens to vehicle structure, as well as forces on the dummies. Side The IIHS side-impact test is more severe than NHTSA’s. The test uses a heavier striking barrier at 3,300 pounds, compared with NHTSA’s at 3,015 pounds. Further, the IIHS barrier strikes higher up on the tested vehicle to simulate a car being hit on the side at 90 degrees by a typical-height SUV or truck. The IIHS bases its scores on head, neck, chest, abdomen, pelvis, and leg injury. The two dummies in the IIHS side-crash test represent a small adult female or a 12-year-old adolescent. One is the driver, the other a left-rear passenger. Other crash tests performed by NHTSA and the IIHS use a dummy that simulates an average-sized adult male. IIHS rear-impact evaluations Though common, not many rear-impact crashes are fatal. But they do
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cause many injuries, especially whiplash trauma to the neck. The IIHS evaluates rear impacts with physical inspections and crash testing. The crash test simulates a rear-end crash about equivalent to a stationary vehicle being struck at 20 mph by a vehicle of the same weight. Obviously, the insurance industry deals with rear-ender crashes every day. Due to the significant injuries they cause, the IIHS, has set up their own rear-end collision testing. It is important to note that this crash test only pegs two equal weight and height vehicles colliding. As we know, there are countless factors at play in rear-end collisions. The key to rear-impact protection is head-restraint design. Restraints need to be high enough and positioned close enough to the back of the head to cradle an occupant’s head in a rear collision. Those restraints that are clearly too low or ill-designed automatically receive a Poor rating from IIHS, while those with a chance of providing decent protection are crash-tested. Again, there was no indication of different sized dummies being used for these tests which is a major factor when it comes to head restraint and neck injuries.
What the stars don’t say
Crash tests are useful for gauging how well a vehicle can protect occupants in a crash, but no test is infallible or
universal. For instance, most tests use a 50th-percentile (average sized) crash-test dummy, and people much smaller or larger than that may not be protected as well as the scores indicate. Here are some other factors that affect how you should view the scores:
Heavy vs. light vehicles
Since the front-crash tests performed by NHTSA and IIHS simulate a collision between two vehicles of the same weight and height, the scores don’t apply to crashes between mismatched vehicles. In a crash between a big car and a small one, you’re usually better off in the big car. In such cases, the larger, heavier vehicle projects more of its crash energy into the smaller one. This, in turn, helps to better protect the larger vehicle’s occupants, but it can inflict proportionately more injury to the occupants of the smaller vehicle.
Besides their weight, the higher bumper on many taller vehicles such as pickups and SUVs contributes to the truck vs. car mismatch. When an SUV or truck hits a typical passenger car, the impact occurs above the car’s bumper line, exerting its force into weaker portions of the smaller vehicle and inflicting greater damage. To address this, SUVs – especially car-based models – are being
designed with lower, more compatible bumpers.
More on the side
Side-impact tests apply more broadly than front-crash results do. Since the striking vehicle is the same within all the NHTSA tests and within all the IIHS tests, the results apply across all classes. In other words, a Good side-crash score for a small car is the same as a Good for a large car. Again, this test is still limited in its speed and impact location. (Sean Gagnier, Automotive News, September 2012.) Clearly, the extensiveness of testing is limited due to resources. Car manufacturers are not going to subject thousands of cars of each model to crash testing; they would be put out of business. The point of this article? Be wary of these ratings as they only represent a snapshot of actual accidents. There are many other factors at play for you to consider and use to your advantage. A good engineer and accident-reconstruction expert should be able to pick apart any accident. They should use data from these tests and the laws of physics and bio-mechanics to get closer to what actually occurred. In summary, the star ratings give a false sense of security to the buyer, but it is all that is available. The information in this article should be useful in discussion with an adjuster or defense counsel regarding the vehicle’s supposed safety. Every strong vehicle has weak points which can turn into strong arguments for plaintiffs. Jeffrey J. Greenman is a solo practitioner at Greenman Law P.C. in Newport Beach. He specializes in catastrophic personal injury and medical malpractice cases. He graduated from the University of Washington and went on to Law School at Chapman University in Orange, CA. He has been in practice for 6+ years working under and/or in conjunction with Michael Alder, Carney Shegerian, David Reinard, Nick Rowley and Wentworth, Paoli and Purdy. Mr. Greenman was the first-ever recipient of CAALA’s “Rising Star” award in 2013.
38 — The Advocate Magazine
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The defense radiologist Undermining the opinions of defense radiologists in spinal-injury cases What follows is a discussion on how to undermine the opinions of defense radiologists in spinal-injury cases. It is presumed the reader already has a good understanding of radiographic imaging and spinal structures. Terms like MRI, disc desiccation, and radicular pain are not defined herein. Topic headings are structured as if testified to by the defense radiologist, followed by counter arguments and supporting medical literature. Procedural and trial recommendations are set forth at the end of the article. This article is intended to be the beginning of a working document, and CAALA members are encouraged to post additional methods and medical literature relating to these topics on the CAALA listserve.
“There is no compression on the nerve. Compression is needed to cause pain/radicular pain.” This is simply not true. There are a number of pathophysiological reasons for pain and radicular pain other than compression on nerve fibers. There are nerve endings in the spinal structures aside from the nerve roots that may be irritated by a disc herniation, which in turn can cause pain. For example, it is well known that the posterior longitudinal ligament is highly innervated. Virtually all posterior disc herniations will press against the posterior longitudinal ligament, which can cause pain. Back pain, including radicular pain, can 40 — The Advocate Magazine
also be caused by a chemical disc or chemical radiculitis. This is also referred to in medical literature as discogenic pain syndrome and internal disc disruption. Chemical radiculitis is an inflammatory condition of the nerve root due to the rupture of the annulus fibers and dissemination of nucleus pulposus disc fluid along the nerve root. This dissemination of disc fluid may not be visible on an MRI because it generally has similar water content as the surrounding tissues. (Peng, B. Chemical Radiculitis. Pain. 2007 Jan; 127 (1-2):11-6.) The nucleus pulposus disc material contains chemical mediators and inflammatory cytokines, which are produced in an injured disc. These materials irritate nerves and cause pain. The materials leak into the epidural space through annular tears and irritate the adjacent nerve roots, causing pain and radicular pain. (Ibid.) It is widely supported by the medical literature that chemical radiculitis is the primary pathophysiologic mechanism of radiating leg pain in patients with no nerve compression or no disc herniation. (Peng B. Chemical Radiculitis. Pain 127 (1-2): 11-6; Marshall LL, Trethewie ER (Aug 1973). Chemical irritation of nerveroot in disc prolapse. Lancet 2 (7824): 320; McCarron RF, Wimpee MW, Hudkins PG, Laros GS (Oct 1987). The inflammatory effect of nucleus pulposus. A possible element in the
pathogenesis of low-back pain. Spine 12 (8): 760-4; and Takahashi H, Suguro T, Okazima Y, Motegi M, Okada Y, Kakiuchi T (Jan 1996). Inflammatory cytokines in the herniated disc of the lumbar spine. Spine 21 (2): 218-24.) A chemical disc involves the same pathophysiological mechanism as chemical radiculitis except that the nucleus pulposus leaks through tears in the inner annulus only to the point of the outer annulus, which is innervated. The contents of the nucleus pulposus, again, irritate the nerve fibers in the outer annulus, causing pain. The defense radiologist will often testify the innervation of the outer annulus is only a “theory.” Any controversy about whether the outer annulus is innervated was resolved quite some time ago. There are pain receptors in the outer aspect of the entire annulus. (Yoshizawa, et al. The Neuropathology of Intervertebral Disc Removed For Low Back Pain. Journal of Pathology, 1980; 132:95-104.) Discography (discograms) provides helpful data in the identification of pathology consistent with chemical radiculitis and chemical disc. During a discogram, dye is injected into the nucleus of multiple discs to increase the pressure of the disc. The idea is to reproduce the back pain/radicular pain regularly felt by the patient to identify the injured discs which are the source of pain. Contemporaneous x-rays that
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show the dye are taken during the procedure. Not only are these x-rays great visual tools to use at trial, but they also indicate pathology consistent with chemical radiculitis, chemical disc, and a mechanically compromised disc. The location of the dye in relation to the disc is a method used to determine the type of disc injury. For example, there is a strong case for chemical radiculitis if the dye (shown on x-ray) leaks through the disc into the adjacent spinal structures through tears in the annulus. Often overlooked by attorneys, and also physicians, is the psi at the point of reproduced concordant pain. Unfortunately some discogram reports fail to even identify psi. The pressure at which concordant pain is reproduced is
42 — The Advocate Magazine
key in evaluating whether the disc is chemically or mechanically sensitive. If concordant pain is reproduced at a pressure less than 15 psi, the disc is considered chemically sensitive consistent with a chemical disc. If pain is reproduced between 15 and 50 psi, the disc is mechanically sensitive. (Derby R. et al. The ability of pressure-controlled discography to predict surgical and nonsurgical outcomes. Spine. 1999; 24(4):364-71.) There is medical literature that suggests radiating pain is not even caused by compression at all. “Physical pressure on a peripheral nerve does not produce pain; it produces paresthesia.” (Macnab’s Backache, 4th Edition, Wong and Transfeldt, Lippincott 2007, Ch.
4:83.) So what’s causing the pain? According to Macnab, it is the “red and angry” injured nerve, not the continuous compression on the nerve. Macnab stops there. However, it logically follows that nerve fibers can sustain injury and become “angry” during the split second of hyperextension in a rear-end collision. From a biomechanical standpoint the hyperextension impacts the nerve root, causing injury to the actual nerve fibers resulting in radiating pain. The impact on the nerve is sudden and acute, like a crushing injury. It is not sustained as nerve root compression in normal posture, but the damage is done. The nerve fibers (at least sensory) are injured irrespective of whether there
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is continuous compression. There is no medical literature in support of this concept known to the authors; it is a theory which seemingly reconciles Macnab’s finding with a plausible biomechanical cause. It should be noted that Macnab’s Backache is commonly cited by defense radiologists in support of their opinions. It is a must-read for Plaintiff ’s attorneys.
“There are no signs of acute injury on these films. The findings must be/are degenerative.”
This is probably the most common argument raised by the defense radiologists. Evidence of acute injury on radiographic imaging is obviously good ammunition against this argument. There are findings on MRI which are consistent with acute injury. For example, defense radiologist will agree that disc herniations associated with inflammation, edema (swelling), and hemorrhage/bleeding (which may be read as granulation tissue) tend to be consistent with acute injury. These findings will appear as white high intensity zones on T2-weighted MRI imaging. These high intensity zones are relatively easy to see even by the untrained. The appearance of a disc herniation will also tend to show whether it is acute or longstanding. Most defense radiologists will agree that focal disc herniations, as opposed to broad based, are generally regarded as more likely to be acute. Disc extrusions, where disc material actually extrudes above or below the disc space, tend to be acute as opposed to degenerative. Additionally, radiology reports will not address whether a finding is acute or longstanding. It is not the role of an interpreting radiologist to note whether a finding on radiographic imaging is acute or longstanding. A radiologist simply identifies the findings, they do not date them. Review radiographic imaging with your experts to see if there are any signs of acute injury before
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with over five decades of experience • Available throughout So. California
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Member, ABOTA since 1983
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expert discovery. There may be multiple findings on the imaging that suggest acute injury which are not delineated in the interpreting radiologist’s report. Most often there are no signs of acute injury on an MRI simply because there is no MRI taken during the acute phase of the injury. Edema and inflammation will be resorbed by the body over time. This medical phenomenon is no different than the resorption of swelling when you injure your knee. Studies have shown significant resorption (phagocytosis) of herniated disc material within two months of acute injury. (Reijo A. Autio et al, Determinants of Spontaneous Resorption of Intervertebral Disc Herniations SPINE 2006; 3;1247-1252. See also El Barzouhi et al. Magnetic resonance imaging in follow-up assessment of sciatica. N. Engl. J. Med.2013; 368:999-1007.) In the absence of acute findings, use the defense radiologist to explain the limitations of radiographic imaging and peer-reviewed studies in dating spinal pathology. Spinal pathology is not date stamped. There are no tree rings in disc herniations. There are no definitive radiological studies relating to the age of disc pathology. The acuity of
spinal pathology is really not medically important to the general public. This explains the lack of peer-reviewed studies relating to the acuity of spinal pathology on radiographic imaging. Defense radiologists almost always contend any disc pathology/herniation (bulge, protrusion, extrusion, or fragment) is degenerative. The absence of other degenerative findings raises considerable doubt to this argument. Carefully analyze whether there are other signs of degeneration in the spinal structures with your own experts. Disc pathology/herniations without other degeneration changes tend to show the existing disc pathology/herniation is acute. Common degenerative changes include endplate changes, modic changes in the vertebrae (caution: this is similar in appearance to a compression fracture), disc desiccation, disc height collapse, bony changes (spurs/osteophytes). A disc protrusion in a disc without desiccation and normal disc height will more likely be acute.
“Annular tears are degenerative, and not caused by acute trauma.” Without studies to indicate otherwise, defense radiologists simply testify
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that annular tears are only caused by disc degeneration. Pre- and posttraumatic event imaging would be required to determine if annular tears can be caused acutely. It might be a little tough to get volunteers for that kind of study, which explains the lack of literature on the subject. Cadaver testing however, has confirmed acute annular tears caused by an acute event (rear-end impact). Yoganandan, N. et al. Whiplash Injury Determination With Conventional Spine Imaging and Cryomicrotomy. 2001. SPINE Volume 26, Number 22, pp 2443-2448. Macnab’s Backache is often cited by defense radiologists in support of their opinion that annular tears are only caused by degeneration. Nowhere in the 400-plus pages of Macnab’s Backache latest edition does it say that.
“If there was an acute disc herniation, the Plaintiff would have immediate radicular pain.”
This is a favorite amongst defense radiologists. It is also not true. It has been reported that in the first several days of an acute disc herniation, the patient will only feel back pain, and not radicular pain. (Macnab’s Backache, 4th Edition, Wong and Transfeldt, Lippincott 2007, 4:83.) Acute injury does not always result in acute inflammation which leads to pain. For example, a traumatic event may cause a hemorrhagic response which can be a slow process. Inflammation and edema may take time to manifest and accumulate to the point in which it causes pain. Dissemination of disc contents through tears in the annulus will not necessarily occur spontaneously with a traumatic event, but rather will leak slowly over time.
“The plaintiff has an underlying degenerative condition which would have eventually caused pain absent this collision/incident.” Defense radiologists and orthopedists will sometimes argue the plaintiff
would have eventually developed pain absent the collision/incident because of underlying degenerative disc disease. This theory has largely been debunked by numerous studies. A group of 67 asymptomatic individuals were followed in a seven-year study with MRI imaging of the lumbar spine. The study concluded: “The findings on magnetic resonance scans were not predictive of the development or duration of lowback pain. Individuals with the longest duration of low-back pain did not have the greatest degree of anatomical abnormality on the original.” (Borenstein D, O’Mara JW, et al, The value of magnetic resonance imaging of the lumbar spine to predict low-back pain in asymptomatic subjects : a seven-year follow-up study. J Bone Joint Surg. Am. 2001 Sep;83-A(9):1306-11.) With progressive disc degeneration there is no predictive correlation between MRI findings and the continuation or progression of pain. (Masui T, et al. Natural History of Patients with Lumbar Disc Herniation Observed by MRI for Minimum of 7 Years. J. Spinal Disord. Tech. 2005; 18(2):121.) Simple cross examination will reveal the speculative nature of such opinions. For example, ask: when will the pain develop and why? Where will the pain be and why? What types of pain will develop and why? Do not expect specific answers, and be prepared to bring a motion in limine that such opinions are purely speculative and lack foundation. Disc degeneration does occur as part of the normal aging process, but often remains asymptomatic. Radiographic evidence of degenerative changes in the lumbar spine, of course, increases with age. Although difficult to believe, the maximum incidence of backache has a peak at age 45 and thereafter tends to decline even though the degeneration worsens. (Macnab I. Backache. Baltimore: Williams & Wilkins; 1977:90.) There is no medical data to support an opinion that degeneration in an older Plaintiff will lead to pain.
Trial and procedural strategy If the defense designates a radiologist, consider retaining your own radiologist and designating them as a supplemental expert for rebuttal. This will allow you to call your radiologist as the last witness at trial. The opinions of your radiologist, as opposed to the defendant’s, will be the last evidence heard by the jury before closing argument and deliberations. Take the opportunity to aggressively cross examine the defense radiologist with the supporting data at deposition. Be sure to eventually pin them down to something short and conclusory: “You say x, correct? Correct. But these studies show y, correct? Correct.” This testimony is simple, and ideal for use at trial. Do not get into a drawn-out battle with the defense radiologist at trial. It is important to explain to the jury through experts, including defense experts, that radiographic imaging is just that. Doctors do not treat medical imaging. Medical imaging does not show pain. Medical imaging does not show various types of injury. Medical imaging can never be used to say a plaintiff is not injured. Medical imaging can never be used to say a plaintiff is not feeling pain. Doctors never treat medical imaging. Doctors treat pain, and the pain was caused by the traumatic event/accident. Please post to the listserve and email the authors additional studies and topics. Mike and Bill Karns are partners at Karns & Karns. They represent plaintiffs in major personal injury cases. Mike and Bill are both members of Consumer Attorneys Association of Los Angeles (CAALA) and the Consumer Attorneys of California (CAOC). Bill is on the Board of Governors of the Consumer Attorneys Association of Los Angeles (CAALA) and on the Board of Directors of the Consumer Attorneys of California (CAOC).
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John F. Gerard
Deposing the adverse witness in an automobile case A look at structuring the deposition to exploit the weaknesses of an adverse witness Taking the deposition of the defendant or other adverse witness is a critical element in the prosecution of an automobile case. It is usually advantageous to take the deposition of the defendant or other adverse witness before your client or other friendly witnesses have been deposed. This constrains the ability of defense counsel and his client and/or the adverse witness to tailor their testimony based upon what has previously been discovered in the case. In order to gain this advantage, the plaintiff ’s counsel should serve such deposition notices as soon as possible 20 days after the service of summons on the defendant (which is the first day that a plaintiff is permitted to serve a deposition notice under California CodeCiv. Proc., § 2025.210 (b)).
Time, space and opportunity (“TSO”)
Before taking the deposition, review police reports, statements of witnesses, photographs and visit the scene to get an initial sense of whether the defendant and plaintiff had the time, space and opportunity to avoid the accident and whether there were any other factors (e.g., obstructions or distractions) that would prevent the parties and witnesses from observing each other at any point or location. CACI instruction number 700 sets forth the basic standard of care in a motor vehicle case in these terms: A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care and driving a vehicle is negligence. Accordingly, it is essential in every automobile deposition for plaintiff ’s 48 — The Advocate Magazine
counsel to try and establish that the defendant had the time, space and opportunity (“TSO”) to avoid the accident and/or conversely, that the plaintiff did not have the time, space and opportunity to avoid the accident. •Try to determine how far the defendant and/or plaintiff ’s vehicle traveled between points in time and/or locations A and B (e.g. between first observing plaintiff ’s vehicle and impact), between B and C, etc. How much time elapsed between A and B, between B and C, etc. •What was the speed of each vehicle at various points in time or locations? Was there anything that prevented the defendant, plaintiff or witness from observing the other at various points in time e.g., roadway characteristics, obstructions of other vehicles, buildings or foliage. •Was the defendant distracted by anything while he was driving e.g., cell phone or text use, talking with a passenger, listening to radio, reaching for an object within the vehicle, looking at navigation controls, etc.? •Also determine whether the perception of the witness and/or defendant was impaired in any way as a result of alcohol or drugs, lack of sleep and/or visual or hearing impairments. In understanding the significance of the answers to questions regarding these matters, it is important for the lawyer to have a basic understanding of principles of accident reconstruction that are involved in virtually every automobile case. •For example, a vehicle travels at approximately one and one-half feet per second per mile-per-hour (e.g. at 20 mph a vehicle will travel approximately 30 feet per second).
•Similarly, the average perception/ reaction time is one and one half seconds so that the driver of a vehicle traveling 20 mph will travel 45 feet on average (i.e. 30 ft/s x 1.5 seconds) from the time a hazard is first perceived until the driver can react to the danger (e.g., brake). •Be familiar with charts available online or in accident-reconstruction books and articles that set forth total automobile stopping distance vs. speed. These charts will also typically set forth the skid/braking distance as a component in the total stopping distance, which also includes perception distance and reaction distance. When answers are provided by the defendant/adverse witness pinning down the number of seconds that elapsed between certain events and the distances traveled between certain events, one can then derive the speed of a vehicle based upon such facts. For example, if the witness testifies that the defendant’s vehicle traveled 120 feet in two seconds (i.e., 60 ft/s), we would then know that the vehicle had an average speed of 40 mph. This would be indicative of negligence if the speed limit in the area was only 25 mph. Or if the defendant testifies that he was going 40 mph for 5 seconds before entering an uncontrolled intersection, we would then know that the distance traveled was 300 feet (i.e., 60 ft/s x 5 seconds). One could then determine if there was no obstruction to his view of cross traffic from this distance and that he could easily have stopped his vehicle in this distance if he had noticed that the plaintiff was likely to enter the intersection before him.
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Exploring bias of the witness The defendant obviously has a bias in the case. However, in the case of a non-party witness it is important to discover his or her relationship to the litigation, parties, and counsel in the case. Be sure to ask questions about any communications between the witness and any representative of the defendant including when, where and what was said. For example, I recently had a case where defense employee witnesses admitted that they did not understand some of the words in their “written statements” and that they had just signed whatever the defense investigator had put in front of them. One should also be sensitive to the attitude of the witness toward you. Sometimes you can detect a defensive-
50 — The Advocate Magazine
ness or evasive attitude from a witness that can be a tip off to an underlying undisclosed bias.
The importance of listening and observing
When taking the deposition of an adverse witness or defendant it is important to listen to the answers and observe the demeanor of the witness. You need to keep your notes as brief as you can in order to focus your attention on the witness. The answers may be nonresponsive; if so, you must move to strike the nonresponsive part of the answer. The answer may also be evasive or incomplete which requires further probing and may be indicative of untruthfulness. Like a good poker
player you must read body language and look for tells which reveal either lying or discomfort with the subject of the question. Is the witness always reluctant to agree with the suggestions implicit in your leading questions? If so, you may wish to occasionally ask a leading question where you want the witness to disagree with your suggestion. You need to rely upon all your human experiences and training in order to interpret the conduct and mannerisms of the witness in order to make an assessment of his or her credibility and to make decisions about whether to bore in with further questions or simply make a mental note as to what you perceive to
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Adverse — continued
be less than truthful. Remember that a jury will also be observing this witness at trial and you need to evaluate in deposition how a jury will perceive the witness. It is difficult to do that if you are consumed with taking detailed notes and fail to carefully observe the witness.
The sequence and nature of questioning – do not make it easy for a liar
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Many lawyers prepare an orderly detailed outline and go through it in chronological order while questioning a defendant or adverse witness. This type of approach is often a mistake and makes it easier for dishonest witnesses to keep their “story” straight. On cross examination of a defendant or adverse witness, you are entitled to use leading and suggestive questions, to skip around from subject to subject and return to earlier subjects at any time and to ask similar questions more than once. “Asked and answered” is not a proper objection to cross examination. It only becomes objectionable under California Code of Civil Procedure section 2023.010, subd. (c) when questions are posed in “a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”
Therefore do not be afraid to jump around and ask questions out of order as a means of making it more difficult for a defendant or adverse witness to keep a fabricated version of the facts consistent. You should also give some thought in advance to certain “Catch 22” questions where it does not matter what answer the defendant gives because either one will be helpful to your case. For example, I had a police pursuit case where the police officer chased a fleeing traffic violator for 15 seconds over several blocks through several blind red-light intersections at over 60 mph before a fatal accident occurred when my client’s vehicle, lawfully crossing a blind intersection on a green light, was struck by the fleeing vehicle. At one point I asked the officer, “Knowing what you know now, that an innocent member of the public would be killed at the end of this pursuit, is there anything that you would do differently compared to what you did on the day of the accident?” Answer: “No.” This was a terrible answer that made the officer look callous and insensitive to the public’s safety which he was sworn to protect. But if he had answered ” yes” I could have followed up with what he would do
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differently to show he was not properly following the City’s pursuit policy, which required him to stop a
pursuit when the risk to the public safety outweighed the nature of the offense.
Impeachment If you have impeachment material, for example an inconsistent statement from either a police report or a recorded statement, you must decide whether or not to directly confront the witness with the inconsistent statement in the deposition or to hold off on direct impeachment for trial. This is a judgment call, but in either instance it is important to ask the questions that will “close the corral” to eliminate as many explanations that would permit the witness to try to explain away the inconsistency at the time he or she is finally confronted with the impeaching material. Isn’t it true that you spoke to the police about this accident at the scene? Isn’t it also true that your memory of these events was much fresher at the time that you spoke to the police at the scene? Were you under the influence of any alcohol or other drug that would have impaired your ability to give accurate information to the police at the scene? Did you sustain any injuries in the accident that impaired your ability to give truthful and honest answers to the police at the scene?
In order to prevent a witness from walking away from earlier testimony in the deposition or from changing testimony at a later time — either when correcting the deposition or at a trial, it is important to give a strong admonition at the start of the deposition that includes the witness’s agreement to speak up and let a questioner know if he or she did not fully understand the question. You should explain that you will rephrase or repeat any question that the witness did not understand, and that you are not a mind reader and so, if the witness does not speak up and explain that he or she did not fully understand a question, we will all have to assume that he or she understands it. You can explain that it will not be necessary during the remainder of this deposition for your counsel to remind you “if you understand” because
Adverse continues 56 — The Advocate Magazine
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you clearly understand now. Ask them if this is fair and they will agree.
Controlling the coaching defense counsel
Given this admonition, and the witness’s agreement, you now have a ground to prevent defense counsel from continuously chiming in with “if you know” or “if you remember.” If that happens, remind the witness and defense counsel that these comments are unnecessary and constitute improper coaching, since the witness has already been given such an instruction at the outset. Some defense counsel improperly attempt to coach their witnesses during the deposition by making “speaking
objections”. If the defense counsel begins coaching the witness by using “speaking objections,” you need to immediately object and advise that any objection should be simply stated without argument or further explanation e.g., vague and ambiguous, calls for speculation. If it continues, you should then further advise counsel that if they persist in making speaking objections and coaching the witness, you will seek permission from the court to read not only the answers of the witness but also all of counsel’s coaching comments so that the jury can fully appreciate and evaluate the credibility of the witness in light of counsel’s coaching. Usually this will be suffi-
cient to get most lawyers to back off and curtail their coaching activities. If, however, defense counsel continues to coach the witness, you must threaten to terminate the deposition to seek a protective order and sanctions against counsel and, in an appropriate case, the defendant, for this ongoing behavior. And, if necessary, make good on the threat. John F. Gerard is a former board member of the CAALA Board of Governors and is peer-rated AV Preeminent by MartindaleHubbell. His practice focuses on personal injury, wrongful death and insurance bad faith. He graduated summa cum laude from UCLA Law School 1974.
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Christopher B. Dolan
The “Sharing Economy” I take the money – you take the risk The rapid growth of social networking and computer Christopher applications, B. “apps,” Dolan has created a new economy, the sharing economy. In its purest form, the sharing economy is the process by which underutilized assets are capitalized upon by letting them out to others, or by the sharing of expenses for a common activity. When I was in college, there was a cork board that people would place index cards on stating they would be driving from Boston to Connecticut and they would offer a ride in exchange for sharing the cost of gas. Now, that board is your smartphone, the exchange is for cash, and the cork board is getting 20 percent.
The three developing areas in which this model presents currently are ride sharing, car sharing, and the short-term letting out of extra rooms to itinerant guests. Ride sharing is the provision of point-to-point, pre-arranged, transportation in exchange for a “donation” or a pre-determined price. Think Uber, Uber X, Lyft or Sidecar. Car sharing is the rental of your car, by the hour, or day, through Getaround, Relay Rides, etc. The big transient apartment share provider is Airbnb. This all sounds great, right? A little extra money on the side, what’s the harm in that? Each of these enterprises uses a computer app or platform, to broker the connection. The app owner takes a share of the money, yet they seek to escape all liability, proclaiming that they do not provide transportation services, are not car rental companies, or do not provide lodging. Instead, they merely provide a platform upon which the sharing economy can create greater utilization of underused resources. In this new economy, the marketmaker wants to share; they take the 60 — The Advocate Magazine
Uber announced on March 14 that it was closing an insurance gap in its service. The company announced that it is now providing contingency insurance that covers property damage and injuries caused by an Uber driver even when he or she is between fares. Uber says it’s the first in the country to provide coverage when a driver is between passengers and hasn’t accepted a new ride request. The new policy will provide drivers with liability coverage that meets or exceeds the California legal requirements. The new insurance deals with any damage and injuries not under the driver’s personal policy, Uber said. — Editor
money, you take the risk. They eschew any responsibility for making sure that the transaction embodies the public safeguards that are incumbent upon common carriers and inn keepers. While technology may change the way that services are delivered, it should not change the fundamental principles of law that have provided safety, security and accountability for generations.
Uber launched its app in 2010, linking unoccupied, private livery vehicles with those seeking transportation. Uber owns no cars of its own. Uber functioned as an automated dispatch service linking professional, regulated and insured, livery vehicles with passengers. Drivers, in between prescheduled appointments, could go on to the app and make their services immediately available. Passengers, instead of waiting for – or in some instances praying for – a taxi to come by, could now use their smartphone to summon the nearest available towncar. The passenger subscribed to Uber by placing their credit card on file. The drivers enrolled with their vehicle and account information; no enrollment fee
necessary. Uber made the market and processed the transaction, making its money on transaction fees.
In 2012, Lyft and Sidecar were launched, providing app-based transportation transaction services between private passengers and private vehicle owner/drivers in exchange for a suggested “donation” so as to try to evade common carrier liability. Unlike taxis that can be randomly hailed, rideshare drivers must have been requested through the app (prearranged) prior to picking up the passenger. Uber, seeking to cash in on the phenomena, used its snazzy application and brand to launch Uber X, similar in design and concept to Lyft and Sidecar. All these companies were born in San Francisco, the Wall Street of the new sharing economy. Uber X, Lyft, Sidecar and other ridesharing enterprises sought to differentiate their business from, and avoid the regulations applicable to, the taxi industry. The Taxi and Limousine Commission, the industry regulator, in addition to controlling the number of cabs allowed on the road, sets the permissible tariff and heavily regulates vehicle safety, driver training, scheduled maintenance, disability access and antidiscrimination practices.
If it looks like a common carrier…
At first, Uber’s business went unaddressed by regulators. This, largely because the vehicles were, for the most part, regulated and insured as Charter Party Carriers. (See Cal. Pub. Util. Code, §§ 5351, 5360 & 5360.5.) But when Lyft, Sidecar and Uber X started flooding the city with unlicensed, unregulated, private passenger vehicles, the taxi concession and its lobbyists became justifiably concerned. These vehicles had overcome the
Sharing Economy continues
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barriers to entry into the passenger transportation sector by simply ignoring them. Where taxis had to be permitted, inspected, maintained, insured and their drivers screened and trained, all these rideshare
drivers had to do was have a car, some gas, a smartphone and a bank account. In mid-2012 the California PUC issued a cease-and-desist order to these operations, fining them each day that
they continued operations. In December 2012, the PUC opened a Rulemaking Procedure to determine how onlineenabled apps might affect public safety. During the Rulemaking Procedure, Uber, Lyft and the others insisted that the PUC did not have the authority to regulate them because they were nothing more than information services rather than part of the transportation industry. The PUC rejected the argument and created a new transportation category, the Transportation Network Carrier (TNC). Uber, as part of its effort to avoid accountability, stated in its contract with users and to the PUC that it was not a common carrier because it didn’t actually transport people. In comments submitted by my office on behalf of the Consumer Attorneys of California (CAOC), we argued that this was a business involved in the transportation of persons for hire and, therefore, was a common carrier. (See comments at cbdlaw.com/cpuc-comments/) The PUC agreed, declaring not only that TNCs were common carriers but prohibiting them from trying to obtain a waiver of their responsibilities as such. (See CPUC Rulemaking 12-12-011 @ cbdlaw.com/cpuc-rulemaking/.)
Where’s the insurance?
Another major issue which threatened public safety was the absence of insurance to cover losses caused by TNC drivers. Uber, Lyft, and their cohorts proclaimed that the public was protected by the drivers’ private insurance. Taxi and charter party carriers are required to maintain commercial policies. Charter Party Carriers are required to maintain $750,000 insurance for vehicles carrying seven or fewer passengers, $1.5 million for eight to 15 passengers, and $5 million for 16 or more passengers. Uber X, Sidecar and other rideshare drivers only had to provide the State’s minimum $15,000 in coverage. Even this was put into question as the insurance companies declared that they would deny coverage to rideshare drivers as they were engaging in commercial activity. 62 — The Advocate Magazine
Sharing Economy continues
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Again, CAOC and others, including the taxi lobby, weighed-in and the PUC required that TNC’s carry a minimum of $1 million in commercial insurance to cover injuries caused by TNC drivers while providing transportation services.
An untenable risk of harm
Uber works because both the passenger and driver have simultaneous access to a GPS system embedded in the app. Users can see the type and location of the nearest empty/available cars. The passenger selects a car and instant messages their request and, immediately, the driver’s smartphone flashes. The driver has only seconds to accept that request or they can lose the fare. The driver accepts via instant messaging back to the passenger by tapping the app screen. Drivers are encouraged to call or text the passenger while they use the GPS to navigate to the pickup location. Drivers position their smartphones directly in their field of view on the window or dash so that they can see and respond to it promptly. Drivers get “rated” by the passengers. Fear of negative ratings may compel drivers to engage in risky activity. A driver who is slow in getting to the pickup, refuses to carry numerous passengers, or does not drive as fast as the
Despite the driver telling the police he was driving for Uber, Uber denies any responsibility (and coverage under their insurance policy). Their position is that the driver was not an employee and, even though he was logged on to the app and appearing as open and available, he did not have a passenger in his car so he was not engaged in business for Uber. Uber’s position is that they have Photo courtesy Christopher Dolan no responsibility and provide no coverage unless the driver has passenger wants is subject to negative accepted a ride request and is either feedback, injuring their relationship with driving to the pickup or carrying the Uber and deterring future riders. passenger. The tragic case of Sophia Liu In this tragedy, where a child has died in front of the mother, herself On New Year’s Eve 2013 at 8:00 gravely injured, and where the City of p.m., Sophia Liu was killed and her San Francisco has already paid over mother and brother seriously injured, $500,000 in medical bills, the defendant when they were struck in a crosswalk by driver has only a $15,000/30,000 policy. a vehicle being driven by an Uber X Uber, in denying coverage, would leave driver who was making a right turn. the taxpayers and family to bear all of The last thing Sophia’s mom rememthe risk and loss associated with their bers is seeing the driver looking down business. This cannot be tolerated. and his face being illuminated by the Sharing Economy continues light of a cell phone.
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Sharing Economy — continued
Liu et.al. v. Uber Technologies et.al As this appears to be the first rideshare fatality case in the world (Uber provides services in many countries worldwide), I have had to develop a legal strategy to obtain accountability. The complaint alleges legal theories never before advanced. Consider it my app for fighting the callous barons of the sharing economy (the complaint can be found at cbdlaw.com/cpuc-complaint/). I confront the “no passenger in the car” defense by pointing out the obvious; Uber’s value comes from showing passengers empty and available nearby cars. Full cars do not appear on the app. Uber attracts business by selling empty cars; it gets paid when one gets filled. It follows that as soon as a driver is signed
on to the app, they are providing an economic benefit to Uber and Uber must bear the costs arising out of their enterprise. I plead that Uber is negligent in its hiring, training and supervision. Their rules, regarding the use of the app and GPS, require drivers to engage in distracted driving in violation of the law; that Vehicle Code sections 23123.5 (no instant messaging or texting) and 26708 (restricting use and placement of GPS) are, by the very nature of the app, violated by drivers who are logged on whether trawling for, driving to, or carrying a passenger. In essence, they train drivers to be negligent. I also use these same facts to plead negligence per se. I further plead that the app is a dangerous and defective product, thereby
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The law has always adapted with technology and the development of new markets. Every mode of transportation, whether it be the horse, trolley, train, car or plane has its associated risks. Our active and timely participation in the development of consumer protections, through regulation, legislation and litigation is essential as technology evolves. In deciding what strategies to employ now, we must think about transportation changes in the not-so-distant future. Soon technology companies such as Google will be operating driverless vehicles. As they are developing the technology, we must be developing the law so as to provide justice to those who, I N T H E inevitably, will be harmed.
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invoking the strict product liability doctrine. The known and intended use of the product/app, by design, requires driver distraction: Watching for an instantmessage request, having to respond immediately, texting or calling the passenger, and use and placement of the GPS, by design cause foreseeable harm and damage secondary to distracted driving. It is applicable to my clients as strict liability and extends not only in favor of the users and consumers, but also in favor of bystanders such as pedestrians. (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 585-587; Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 715; Preissman v. Ford Motor Co. (1969) 1 Cal.App.3d 841, 855.)
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Joseph M. Barrett
Ten things I’ve learned in my auto-accident trials The fundamentals of taking an auto case to trial
1. You don’t represent the car
Joseph M. Barrett
I had a tough case once that I was going to take to trial, where the property damage didn’t quite pass the “squint test.” If you have to squint to see the property damage, most people will not believe someone got hurt. That’s the test I’d been told applies to such cases. I was depressed. I was being sent to trial and I felt like I was going to a gunfight Joseph M. Barrettwith a knife. How could IAssociate win? Editor But I was wrong. Although it is very true that a strong crash that injures people usually has dramatic property-damage photos to go with it, a reality of life is also the fact that people get hurt all the time in crashes that just “don’t look bad.” Gary Dordick gave me a great piece of advice I’ve never forgotten and have shared countless times: the property damage isn’t the case; the person is. Although we know that, Gary’s idea was simple: voir dire the jury with the following question. “How many of you have ever been in a car crash where you, or someone you know and loved, was really hurt, hurt bad, but there was hardly any damage to the car?” This simple question can lead to the best dialogue in voir dire. By taking this approach, you can get a jury that agrees that, even though they will see pictures of a car with hardly any damage, they will be open-minded on the case if they believe the plaintiff. Also, this can completely neutralize the defense’s biomechanical and medical experts’ claims that it is impossible your guy was injured in this low impact accident. In simple terms, this is about focus, and not carrying into the courtroom the biases found in insurance adjusters’ evaluations or held by people who are cynical about car crash cases. Instead, you can keep the focus on the person you work for, the person who was injured by someone else’s carelessness. We often forget the truth about car crashes and their violence. In a tenth of a 68 — The Advocate Magazine
second an energy pulse from a vehicle often weighing thousands of pounds goes through your client’s vehicle like lightning and it changes their body in ways that cause pain, tear nerves or muscles, cause chemical changes in them that leads to pain, and can dramatically alter their lives. If your client is telling the truth and if you believe them, then don’t be defensive just because the pictures don’t look bad. It’s too late to dwell on that. Show the photos first, but focus on the person: that they were not prepared for this impact, and that they were hurt. Make the case about personal responsibility: the defendant was careless, the impact hurt the plaintiff, and you’re there for economic justice to get what’s fair − that’s all. Don’t be shy and don’t be defensive about it.
2. Millimeters don’t matter So many lawyers and doctors get caught up with how big the millimeters of the bulging disc are on the MRI − is it effacing the cord, is there stenosis, yada yada yada. Don’t play that game. Your client has real chronic pain, and that needs to be your focus. He may never have big disc bulges or surgeries. Yet the injury happened; the pain is real. I’m not suggesting that you ignore the hard medicine. Embrace it. But always keep the focus on the change in the life of the person you’re fighting for, not sterile images. One person can have blinding pain from a 3 mm. cervical disc bulge, while a different person feels nothing. Doctors treat pain, and the case is about pain. So when the defense is suggesting that the medical tests are not indicative of injury and the claimed injuries may not be real, put the focus where it ought to be, on the changes to that person’s life: Their lack of sleep, loss of focus, mounting medical debt − all the things that went haywire because of the crash.
The defense argument that proof needs to be in the form of an MRI or an x-ray to have real pain is simply false, and it’s a trap. You need to get the jury to understand that this case is about personal responsibility. Someone messed up, controlling a very large, heavy, injuryproducing machine: a vehicle. There are rules of how you must control such a vehicle. And the injuries are apparent; have been since the crash scene. They are medically documented. I find that the David Ball approach works really well: Balancing the harms and losses. You must get a jury in voir dire who will listen and be fair. You must get jurors who care about the truth, their role as jurors and doing justice. Nick Rowley speaks of brutal honesty. I try that too. I try to put the jury in that car. Feel that crash, subtly. But if you can make it “real,” make it important, make it about justice, fairness, personal responsibility; you have a good shot. The best lawyers are sincere. They know their plaintiff and they literally fight for them. I did a trial with Mike Alder once, a true privilege. We cared so much for our lady who’d tripped over a curb stop. Not the biggest case in the world, but we won because we cared. And the jury saw that, from start to finish.
3. Doctors and their credentials matter
The medical records and the doctors are not choices we make. But who testifies at trial is your choice. Try to consider a very credible source. A treating doctor is often the best witness you could find. But many times, they have no experience in the courtroom and will not be cooperative in meeting with you, going through the exhibits, preparing for direct and cross-examinations, or understanding the standards of proof you must meet in the CACI instructions.
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Fundamentals — continued
Therefore, consider also choosing the “right” doctor to be the expert the jury believes. Such an expert should be well-credentialed and have an independent background. If they do forensic work, their bias will be exposed, so the most credible doctors either work in hospitals and do some forensic work on the side, or testify for either side, without a perceived bias. If your doctor worked on a lien basis, embrace that fact and be the first to explain it. Let the jury know that the reason plaintiff ’s doctor worked on a lien was because the plaintiff could not afford a doctor. Also, make clear that the plaintiff has to pay that lien, win or lose. Tell the truth and the jury will appreciate it. There’s nothing to be ashamed of in selecting a great and independent expert, or helping your plaintiff get expert care on a lien. And practically speaking, in today’s world, such a medical bill may help you get justice along with providing real assistance. Juries care about the credentials of the doctors and the experts. Know what they are and make it clear during trial how excellent your experts are. Be thorough from the start. Get the ambulance report and the ER and hospi-
70 — The Advocate Magazine
tal records. Do they corroborate your plaintiff telling you she was knocked out? Make sure she gets to the best experts early. Choose trustworthy, honest doctors who know how to diagnose accurately and the truth will serve everyone best. And demand to speak to the doctors after your clients see them. Talk with them. Get reports. Read them, act on the suggestions of the doctors and feel comfortable to challenge them on their findings if you have reasons to dispute them. You have a shared goal with them − to manage the medical evidence and make sure you’re all working towards accurate diagnoses. There is an evolution to consider in the medical management. This can be staggered through the first year of handling the case. The key is to stay on the management, stay on the plaintiff and the doctors so you know what you have and don’t have, and then follow up. Management is the key. In the hypothetical case suggested it might go like this: • Ambulance • ER Hospital • Initial consult with orthopedist • Initial consult with neurologist • Physical therapy • Pain medicines
• Injections of pain medicine • Surgical consult for neck • Neuropsychologist evaluation • Potential for brain-imaging studies • Potential for cognitive behavioral assessments • Potential for other pain management techniques: acupuncture, chiropractic, etc. • Potential for physiatrist consult for global assessment of chronic pain etiology, effect of neck injury and TBI on whole person • Life-care plan project (LCP) • Vocational loss assessment subsequent to LCP When you choose the medical expert, just know that their credentials, what they reviewed, their experience with you, their plaintiff vs. defense experience, their hospital experience, their demeanor − all matter. The medicine itself is critical, but who speaks to it is often the most important part of the damages case. If your expert(s) has more credibility, then the jury will listen much more closely. Every trial lawyer has seen how jurors listen intently to the credentials of the expert. How organized do they
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Fundamentals — continued
appear to be? How well do they explain their understanding of the crash? How well do they use models, illustrations, other exhibits to educate and explain the injuries and treatment, and their chronicity? If you and the expert are prepared
and organized, you’re well on the way to success. After that, the next critical aspect to this phase of a trial is making it interesting. It is critical to understand and communicate, in an interesting way, with your
medical experts, the moment of injury − to emphasize that transmission of force through the body, causing trauma. They must effectively explain why the person you’re fighting for was truly hurt. And they must tie this into the defendant’s conduct, the size and weight of the vehicles, and why people get hurt like this. To do this right, there is no shortcut on the medicine. You need to understand the fracture or how soft tissue injuries happen, why they cause pain, how nerves are damaged, how they heal or don’t heal, etc. You must master the injury to have an effective dialogue about it with your experts. This will also allow you to be effective getting concessions from the defense expert on cross-examination too. If you don’t know why your client is suffering, how can the jury?
4. Effective exhibits matter
An excellent medical illustration will easily pay for itself. I like them actually drawn by a great medical artist who works with your main medical expert. Other sources can be found at CAALA Conventions, in the Advocate, or asking around the trial bar. Sometimes you can incorporate a great MRI into the illustration. Sometimes you just use the great MRI and an ELMO. I like physical objects the best: a model of a knee, or a skeleton or a brain or whatever the injury is. If it is a pain syndrome, I like to draw what I call the cycle of pain, or show an illustration, which explains how pain causes mood changes, depression, fatigue, lack of good sleep, ineffective work, on and on. A vicious cycle. Sometimes the exhibit is a great picture of the crushed car, the bumper itself, or an object crushed inside the car. The idea is, jurors think visually. You should remember that and incorporate it into how you show and tell during the trial. Keep things interesting.
5. It’s all about the plaintiff
If the plaintiff doesn’t come off as believable, you have a problem. If you don’t like them, will others? That said, 72 — The Advocate Magazine
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Fundamentals — continued
A one of the hard truths about what we do is that sometimes people with bad personalities, bad fashion choices or bad histories do get really hurt and the case has serious value. And you need to humanize
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74 — The Advocate Magazine
to be like Pope Francis in those situations: Embrace the humanity of it all. What happened in the crash, what people saw, heard, smelled, or felt brings a case to life. Capture it before it fades and is lost. If there’s a video, seek to preserve it ASAP. The important thing to remember when you take the case on is, you have the opportunity to gather evidence now, and as we go, what we will need and utilize at trial. This means you need to get to the scene to take pictures before it changes, and to get your engineers there to do measurements and capture what is there to be captured. Find witnesses who saw the man whack his head. They will be critical at trial, if they exist. The fact they too were surprised by the violence of the hit, saw his legs buckle, saw the immediate swelling, saw him go to his knees to the ground, knocked out, woozy; that all proves the case to an extent if it exists. Jurors want to hear that stuff. Your job as the lawyer and later the trial lawyer is a bit like being a playwright, or a movie director. You find the pieces, the people, and assemble them in a convincing order. Preserve the evidence before it disappears. You can’t go back and re-create it, so talk to the plaintiff, those with him, get reports of the incident, track down witnesses and preserve physical evidence while things are fresh. Or it’s gone. And that’s on you. Once you take the case, make a commitment to do it right. Build the blocks of evidence.
6. The impact must be injuryproducing
If you don’t buy it, the jury won’t either. You’ll never settle the case and a jury is less likely to award reasonable damages if the accident doesn’t seem sufficient to produce the injuries you are claiming. While it’s true that people can be badly injured in low-impact accidents as discussed above, it’s much easier if the injuries you claim match up with the severity of the accident. If you find yourself constantly rationalizing the case, it probably isn’t one to take or keep. I once worked for a lawyer that had a “three
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Fundamentals — continued
flea” theory. If a case had too many fleas, it was a dog. Cases with minor impacts come with fleas.
7. Don’t waste the jury’s time
The best lawyer I knew was Charlie O’Reilly, whom CAALA named Trial Lawyer of the Year Award after his untimely death. Charlie was a great mentor to so many of us. One thing he always emphasized was to keep it moving; keep it snappy. If you only have ten minutes with the witness − it is important, it is useful − then keep it to ten minutes. The jury will appreciate it. Especially in today’s multimedia world with jurors on iPads, smart phones, so many things capturing their attention. They get bored quickly if you don’t keep the pace up and make things interesting. It is impossible to always be fast, and sometimes, like when you’re hammering on the damages, you want to take your time. But if you can move it along, do it.
8. Everything changed in a millisecond — pain!
The most important part of auto accident trials, if you’re going to win justice for your client, is to accurately convey the violence and trauma of the crash. Most car crashes have an energy pulse that lasts about one-tenth of a
76 — The Advocate Magazine
second. In that moment, everything changes. Muscles, tendons, ligaments and bones may be distorted, broken and ripped due to the massive pulse of energy. You cannot emphasize that enough. Once body parts get ripped and broken, most doctors will tell you they never really are the same again. In a big crash, lives are radically changed. The real question should be did they get better, and if so, when? Explaining the trauma, what it did, and how it caused pain is critical. The healing process needs to be explained, but so should the pain process. And the costs of both! I start talking about the degree and duration and effect of pain as soon as it starts dominating the conversation with the plaintiff. Pain generators such as certain activities should be noted. What brings it on? Sunlight? Movement? A particular time of day? What does it feel like? Burning? Stabbing? Dull? Achy? Can we estimate it on a 1 – 10 scale? There are so many ways to discuss pain. Use the Internet and Google “pain.” Educate yourself as a trial lawyer in this field on the subject of pain. Just as important as understanding chronic pain is understanding pain management. You should always keep an eye on what is working, and what is not,
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THE FOLLOWING CAALA OFFICERS, BOARD MEMBERS AND PAST PRESIDENTS FROM 2000 DESERVE OUR THANKS FOR THEIR FINANCIAL SUPPORT TO REFORM MICRA. Dolan Law Firm (A. Kirby) Panish, Shea & Boyle (A. Shea, R. Ravipudi) Greene, Broillet & Wheeler (G. Wells, C. Spagnoli, T. Rayfield, T. Lanzetta) Shernoff, Bidart, Echeverria & Bentley (R. Echeverria, D. Dougherty)
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Fundamentals — continued
while your client sees various providers in the course of his or her medical management. If shots don’t help, then stop them, of course. If a type of pain pill makes your client nauseous, make sure the doctor hears that and considers a change in medication, or another form of pain management. Basic stuff, but the key is paying attention and listening. Time has a great effect on what pain does to someone. We all suffer with a sprain for a few days, maybe a week or two, sometimes. We all get a toothache. A paper cut. We all know pain. But what many of our clients know that so many in the general population will never know is, what happens when you have a lot of pain for a lengthy period of time? And what happens when the doctors tell you, “I have no solution. This is the way you’ll always feel”? Chronic pain can rob people of their careers, change relationships, wear people down. It can also take away joy of life, take away the joy of favorite activities, become a gradual wearing-down of the psyche and the soul. Document this erosion of the person you first met when you signed the case up. Who knows about this? Find out!
plaintiff whining and complaining, but maximize the emphasis on the changes.
Who knows about the accident? Who was this person before? What changed? Get your client to give you the names not found in police or incident reports. These could include close family members old enough to testify, co-workers, people they play sports with, play music with, quilt or play bridge with. The witnesses should do the major heavy lifting in effectively communicating pain to an insurance company in a settlement video or in a trial, because they have no dog in the hunt.
10. Don’t oversell, or be oversold
Make sure you spend time with the witnesses, and trust your instincts in determining whether they’re trying to sell you crap to make their friend money, or whether they’re telling you the truth. Don’t let the plaintiff play you into making the case more than it is. That road costs you so much time and money, and ultimately leads to a crash and burn at a trial. Conversely, if the witnesses are credible, start thinking about order of presentation and where the emphasis needs to be in themes for trial. Don’t overstate things: pigs get fed, hogs get slaughtered.
9. Once it’s broken, it’s never the same
This is a reality in so many cases about the people we fight for. They never can move their neck the same, or play tennis again, or maybe they can’t sit at a keyboard without pain. Sometimes they can’t sleep on their side, or even get a good night’s sleep without a pill or heating pad. Emphasizing the permanency of some injuries, what it costs for pain relief, what changes occurred in the job or the family, are the heart of a good PI case arising from a big car crash. You need to lay this foundation with your experts, and then add the human touches with the witnesses. Minimize your
Joseph M. Barrett is a Senior Trial Lawyer with Kabateck Brown Kellner, LLP. He is also the CAALA President-Elect. After doing mostly car-crash trials in the early years of his career, his success since 1989 led to admission into ABOTA and current recognition as one of the Top 100 Trial Lawyers in California by the National Trial Lawyers, and a SuperLawyer designation 20062014.
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The Advocate Magazine â€” 79
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Nicholas C. Rowley
Trial Diary Trying the not so big and glamorous cases The smaller cases are often tougher than the big glamorous ones. For this reason my partners and I still try these tough cases as often as we can, practicing what we preach. This article is in diary form on a specific case I am currently fighting. This was originally not our case. I received a text message from a good friend, Candice Bond, Thursday morning of the week before last, saying: “Nick, I really need your help….would you please try a case on Monday…” This was the first I had heard of the case. I learned that the client, from Guatemala, doesn’t speak English, was involved in a low-speed rear-end impact, was fine at the scene, went straight to work after, and waited to go to the doctor until after he got a lawyer. Delta V of 47mph. The insurance company refused to pay the small policy limits. Seven hours later, at 7:00 p.m., on the 25th floor of a fancy insurance defense firm in downtown Long Beach, I meet Keith Bruno and am taking the deposition of the prior treating physician and preserving his testimony by videotape. Fast forward to Tuesday, March 12, 2014, and I’m one witness away from start of closing argument. In this trial I‘ve witnessed and mentored Keith Bruno in his first personalinjury trial. Keith has done an equal part of this trial and we have had the assistance and physical presence and support in trial each day from Andy Wright. Andy Wright and Candice Bond dedicated themselves to this case for the past 3 1/2 years. We decided only two of us would sit at counsel table and drew straws so it ended up being Keith and I splitting up the trial. We first decided I would do most of everything because Keith had never done a personal-injury case. However, as we saw what he was capable of, I split the trial up evenly with him. Keith has over 100 jury trials under his belt, most all criminal defense cases, zero personal injury cases. 80 — The Advocate Magazine
Keith’s performance in this trial is as good as the best civil trial lawyers I know in this country. He’s top notch, and without a doubt, among the best I’ve ever seen. I don’t say things like that often. If I say somebody’s good, they’re good. Keith is great! He started out as a public defender and has validated a lot of what I’ve believed for years – that the best trial lawyers start out practicing criminal law, usually public defenders, scrappers for the little people fighting against all odds. Prosecutors, not so much, in my opinion. They’ve got it way easy, even easier than insurance-defense lawyers. So, the way we divided up the case is I handled mini-opening and voir dire, Keith did the opening statement, we have split-up witnesses and the closing. I believe in never trying a case alone and will always share the stage at trial when a lawyer is competent and can do what needs to be done in opening and closing and cross examination. The defense case has five parts which mirror what we often see: (1) minor impact, just a tap; (2) delay in treatment; no complaints or medical treatment for 11 days and after getting a lawyer; (3) inflated medical bills all on a lien; (4) exaggerated injuries and damages; the sub rosa footage shows there was and is nothing wrong with the client, a 50year-old pizza delivery driver of 15 years, from Guatemala, who does not speak English, who went back to work after he was rear-ended and kept delivering pizzas; and (5) according to science, the claimed injuries are impossible. During mini-opening statement, I brought up the defenses and told the jurors I needed them to be brutally honest and to tell me how they feel about being part of this case where I am going to ask for a million dollars for a man who speaks no English and looks normal.
Voir dire went as well as it could have gone. I addressed the delay in treatment over and over, the value of a Guatemalan pizza delivery man who doesn’t speak English, and money for pain and suffering. Keith did the opening and it was fabulous. Our focus in this trial has been the human story of a hard-working, pain-free man, and that our client is not a liar, cheat, exaggerator, or a fraud. Rick Friedman’s book, Polarizing the Case, is a must-read for all personal-injury trial lawyers. The photographs of the defendant’s vehicle showed nothing and the photographs of our client’s vehicle, which had 355,000 miles on it, showed a minor impact.
A human story
Scary? No! There is so much more to the human story than what the defense says, the same litany, which we have heard time-and-time again by the same casts of characters. The way they defend these cases is cookie-cutter. Human stories are not! Okay, time to go back in. Lunch is over. I’m back home now. We had twenty minutes left after instructions, and I decided to split up my closing to give the jurors something strong to think about and feel the humanity before they went home. I started out passionately because that was how I felt. I pointed out how shameful it is that the defense treated our client cheap and worthless for 3 1/2 years. I attacked the defense experts and reminded “the law says you do not have to accept an expert’s testimony and the reason why is that experts are just human beings with opinions who get paid money.” I told them that the real way to learn about a case is from the human beings who have lived, not paid experts. I talked about the client’s mother, a 73-year-old woman
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Diary — continued
from Guatemala and his 89-year-old father back in Guatemala whom he takes care of and sends money to. This man was hurt, we all know he was hurt, and we don’t need a paid expert witness to come in here and tell us otherwise; we know better than that. We know the defense has the ability to refuse to pay and bring in their hired experts. They expect people to give up. Cesar Chavez said “you cannot humiliate a person who has pride” and this man has pride. The defense expected him to give up, to not have the courage to come to court, but he has pride and I am proud of him. I am proud of all of you for being here and listening to what happened and the way he’s been treated, disrespected and devalued for the past 3 1/2 years. The evidence has shown us that. But, there is no justice, no hope without you; the only people who can stand up and make a difference and make this right is you. I asked for a little over a million dollars, exactly what I thought was right. Sometimes juries agree with me, sometimes not. What I do know is that as of 4:30 p.m. they had a lot to take home. It’s 2 a.m. I’m awake. I can’t sleep. I am thinking about the jury, our client, his mother. Wondering if I pushed too hard. Need to start softer in the morning. My wife Courtney, who rear-ended a man the day before, also wakes up. Her neck hurts. She is so upset, but most worried about the man she hit. She feels horrible. I make her some food. It takes us a while to fall back asleep. Courtney and I are a trial team and try our cases together. She is a phenomenal trial lawyer and instructor at Spence’s Trial Lawyers College where we met years ago. This is the first in a long time that I’ve been in trial without her. I don’t like it. Neither does she. We have another case she is preparing for trial. And, despite how busy she has been, we’ve worked on this case together each night. She met the client and his mother and has been helping me, giving all the support she can.
The closing argument
It’s now noon Wednesday, closing arguments are done, jury has the case. 82 — The Advocate Magazine
The defense counsel did a good job. Keith handled the rebuttal and was amazing. He was real, connected, addressed all the points that he needed to. We lost both a juror and alternate and that means that the alternate I am afraid of is on our jury. He’s not good for us, and I believe he’ll be foreperson. Closing this morning began: It means a lot that you’re here, you make justice possible. Yesterday my wife got in a car accident, and last night her neck started to hurt, she is pregnant, and scared, but what she’s most concerned about is the man she hit. It was her fault. And, you know what she said to me. She said she won’t allow the man she hurt to go through anything like this or be treated this way. No way! She’s going to call him today and see how we can help. Our client was treated as a liar and cheat from day one. He is everything but that. I went through the medicine, lay witnesses, and defense experts, but mostly I talked about common sense, credibility, and the human story. I explained that the money we are asking for is a lot, but at the end of the day I want our client to end up with something that makes a difference in his life. This case and all the care cost a lot, and he deserves to be left with something. As he told you, his body aged because of all this. He was 50 years old and had a body that didn’t hurt. After he got hit he thought he’d get better and he toughed it out. Didn’t go to a doctor right away. Yes his doctor was set up by a lawyer. That’s what he had to do to get care for himself. He’d worked for Pizza Hut for 15 years. Didn’t have health care. Knowing he was hurt and needed help, he got a lawyer. That’s what a reasonable person would do. And one of the reasons why, is he was not getting phone calls returned by the defense. He was ignored. Not speaking English and never having been in anything like this, he exercised his right to get a lawyer. One of our most important jobs is to help our clients get medical care. The defense lawyer asked the jury to give $15,000. Ridiculous, but still scares me. The jury could do just that. Some
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wrote down his number. I’ve had crappy verdicts on cases just like this. The toughest part of the defense closing was sub rosa footage in eight different windows on the big screen all playing at the same time over and over again, of our client two days before lumbar decompression surgery, looking normal, delivering pizzas, doing crunches and bench presses at the gym, in and out of the car, carrying things, looking like there was nothing wrong with him. While I point out on cross of the private investigator that he only showed six minutes of 40 hours of surveillance, it still stings badly. Now, I am worried about me. My pride, ego, reputation, are all on the line. That is brutal honesty. The other part of me says: Wait a minute, this is what I believe in, the outcome, whatever it happens to be, is what it is, I did my best and I am proud of my team. Proud of myself for jumping into this fight. I’ve been given a set of skills and if I only use them on the cream of the crop cases that I know I’ll win and that will make me a big-timer, then I’m not who I say I am. Or, I haven’t learned as much as I think. It’s now 6:30 p.m. I am at home. The jury deliberated all day and I went home frustrated. The foreperson is exactly who I feared. There was one question and request for read-back of the testimony of our client where he said he went to see a doctor a few days after the accident and defense counsel accused him of not disclosing that during discovery. But, the read-back wasn’t that bad. Our client said he went to a multi-specialty clinic a few days after the accident because he was in pain and they said he needed to see a specialist and that is why he got a lawyer. The defense lawyer attacked him and said “did you tell me that in discovery?” and our client responded through the interpreter “I don’t understand what you mean.” The transcript at that point had the judge interrupting for the morning recess. The defense lawyer moved on after the break, so that was it. Whew!
Diary continues 84 — The Advocate Magazine
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Diary — continued
It is 10:41 a.m. the next day, Thursday, day two of deliberations. I’m proud of jurors who are in there fighting for our client. I got here at 8:30 a.m. in jeans and a tee shirt to be with our client. I usually don’t wait for juries. I go nuts. So, I work out like a mad man, fly away somewhere, or even into another trial to maintain sanity. I felt I need to be here this morning and I’m glad I am. These are our people, much more than the defense lawyer whose true client, the insurance company, only has money running through its veins. Let me tell you how we put on our case. Lay witnesses are most important. We put our client’s mother and his best friend on the stand and they told the jury through a Spanish interpreter who our client is. We talked about how he lived his life, what was important to him, his values. Keith handled these witnesses and told the story of a hard-working man who believes in honesty and integrity. I had taken the videotaped deposition of the internist who our client had seen over the eight years pre-injury and I went through every examination and how specific our client had been about his problems. I pointed out how he always waited to complain about his problems, and how he never had a single complaint concerning his neck, back, shoulder, or knee. I videotape expert and physician depositions, do my direct examinations, and play them for the jury at trial in lieu of live
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testimony. You can do this under the Code of Civil Procedure even if the witness is available. My theory is that the jury is 100percent focused on the video. There are no lawyers walking back and forth, no objections, no cross examination, and no surprises. You can replay clips of the video in closing. This saves time, money, and I believe jurors get more information into their brain than they would with some live witnesses. Also, the reality is that the defense is often unprepared so there isn’t any adequate cross examination. I put our client on the stand and asked him about his life and body before and after. One thing that was big was that he had neck pain after but it went away after eight weeks. It was his low back, right knee, and left shoulder, which continued to hurt. “The defense is accusing you of trying to make something out of nothing and exaggerating your injuries, why in the world then would you tell the doctors that your neck stopped hurting after eight weeks?” “Because that is the truth.” “That is the truth.” I asked about what it was like being evaluated by the defense doctors and how they treated him. Was it different than the doctors who helped him get better? He explained. We talked about how he was trained as an accountant in Guatemala but coming to America he could only get work in the agricultural fields and took to pizza delivery. We talked about how the medical treatment and surgery helped him get better and how most of his pain is now gone.
When it came to the treating doctors, I put them on the stand and embraced the liens. I owned that they had a financial stake in the outcome but also that our client would still be responsible if we lost the case. We talked about whether liens are ethical or dirty and about the difference between being a treating physician and hired forensic expert. We didn’t have a biomechanical expert. So, I cross-examined theirs, had a field day, and asked him to cite a single crash test involving a 50-year-old man with these two exact vehicles. My cross was effective but the best part was a technique
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I’ve used over the years where I have the expert demonstrate, without words, using his own body, how our client’s body moved at impact. I stand at one end of the courtroom and say “when I say crash move your body the way you believe my client’s body moved. …. CRASH…” The way the defense experts move their bodies is ridiculous. The best part is when they try to talk while doing it and I stop them, “start over, let’s try again, without words. Just show us….CRASH…” Pretty funny to watch. The next big question is asking whether they took a man of the same age and body type, put him in the same make and model of vehicle and rearended him to see what would happen. Here, the expert had pictures of a younger man sitting in a similar vehicle to “demonstrate” his opinions. I asked “well, you didn’t have that man grip the steer-
ing wheel as hard as you could and have him press hard on the brake and brace for the collision in fear and then rear-end him did you?” “No, because that might hurt him.” In closing argument I had Keith stand up and say “imagine if I ran at seven miles per hour and slammed my body into Keith. Imagine if he was 50 years old and he was bending over, then I did it. My client’s body went from zero miles per hour to seven miles per hour in less than half of a second. And he was hurt!” The defense spine expert, Dr. Dillon, said the back surgery had a “placebo effect.” I had a field day with that and pointed out how the neck pain went away and how that showed our client was credible. He agreed. I got him to agree to injury to the big muscles in the lower back. “The big strong muscles and soft tissues in his back which protect the spine were injured, you give us that Dr. Dillon, true?
“YES.” I then used a program on my iPad called MusclePro to show all the different layers of soft tissues all the way down to little soft tissues that hold the vertebral bodies in place. He had to admit that because the big stronger tissues were injured that the littler ones that I dissected down with the iPad program were harmed also. Dr. Rothman came in and did his usual presentation. I was nice to him as always and addressed how pain and acute injuries to the soft tissues wouldn’t show on the MRIs he had seen. After I finished with him, a juror asked him two questions: 1) How often do you say a person was injured? and 2) How long would signs of an acute injury to the tissue be present on the films?
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Dr. Rothman’s answers were golden: 1) Injuries in emergencies only show 10 percent of the time; when people come to the emergency rooms the films only show 10 percent of injuries; and 2) If I hit you and caused damage to your soft tissues we would see the swelling and damage for about 10 days; if it was minor damage maybe for 5 days. But if you were hit really hard with blunt trauma, the signs of that would last and be visible on MRI films for about three weeks. After three weeks the signs of the acute trauma would go away.” This was gold and I ordered the transcript for all of us. Dr. Rothman is helpful and honest at the end of the day if you ask the right questions. The defense medical-billing expert, Nancy Frasier-Michalski, took the meds down to 20 percent of what they were and said the billing was fraudulent. She had an impact on the jury on direct but on cross she would not even look at me and was almost robotic. I pointed that out to the jury how she believed that her work on the case was worth 20 percent of the value of the total of all the medical providers who took care of my client over three years. I asked her who audited her bills. I pointed out how she has done only forensic work for the past 14 years and she testified to a number of things that were inconsistent. I thought she looked bad on cross but she played on the jurors’ prejudices and said that on our case the medical facilities were charging 10 times what is ethical. It was a tough thing to hear and it took a lot of control to not lose my temper with her. Keith cross-examined Dr. Kivitne about the knee and shoulder injury. We ordered his testimony because Keith got him good. Dr. Kivitne wrote a report early on for the defense with a conclusion addressing the neck and back and saying the impact was so minor that no neck or back injury was possible. His partner, spine surgeon Dr. Dillon, testified differently. Keith nailed Dr. Kivitne with this on the stand. Three times Dr. Kivitne refused to answer any question on the neck or back and said he was not qualified to testify about the neck or the back. Keith showed his conclusion in his report and
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embarrassed Dr. Kivitne who blurted out how he wrote that conclusion before he had really reviewed the case and saw everything. It was a golden moment! It’s almost noon. Jury is still deliberating. We’ll get a verdict today. We tried a tough case for a simple Guatemalan man who doesn’t speak English, who has been delivering pizzas for 15 years and who went back to work the very day he was hit. He had had a shoulder surgery, a low back decompression, and a knee surgery. The medical bills are a lot and all on a lien because he had no other way to get care. He is an honest man and he was hurt. Trying cases for the small-case clients of the world is important and I hope I have the courage to do more of them. It’s Friday afternoon now. The jury asked for a new roll of butcher paper. There are good humans in that room standing up for justice. At a minimum we have sure wreaked havoc upon AAA and stood up for the rights of a good hardworking man. It’s Saturday. They deliberated for over two and one half days on this little not so glamorous case. Back on Monday. Fight the good fight and not just the big glamorous cases that we know we can win.
Specializing in Eye-Related Side Effects of Head and Facial Injuries for Personal-Injury Patients www.northvalleyeye.net Steven Rauchman, M.D. Board Certified Ophthalmic Surgeon
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The jury deliberated for three days. Awarded $198,000 in past economic damages and $200,000 in past non-economic damages. With the 998 demand of $100,000 which AAA refused to pay, the judgment with pre-judgment interest and costs exceeded $600,000. AAA paid a settlement of $510,000 (more than 5 times the policy limits) within 48 hours of the judgment. Immediately, AAA raised its offer three times higher on another case that is set for trial. Try the tough cases and never give up. Nicholas C. Rowley is the husband and trial partner of Courtney Rowley, a dedicated trial lawyer, and proud dragon slayer. He is a partner at Carpenter, Zuckerman & Rowley, the author of Trial by Human which can be found on trialguides.com, and he has served as lead trial counsel in over 85 jury trials. MAY 2014
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Trying the admitted liability auto case: The art of villainizing Mr. Von Doom, Mr. Magneto and The Green Goblin Every good trial attorney knows that the best way to obtain a large verdict is to play on the jury’s heart strings. In cases where the defendants are denying liability, this is easy. Most jurors, regardless of the venue, respond strongly to themes of failing to take any responsibility for one’s own reckless behavior, showing no remorse, learning no lessons, and blaming the victim. But what happens if, on the eve of trial, the defendants admit liability? It can be difficult to introduce those themes when liability is admitted. So the question remains – How do I elicit a strong emotional reaction when liability is not in dispute?
Pick your villain
In the months leading up to trial, identify all of the key players – the defendant, defense experts, defense attorney, etc. – and “pick your villain”. Every story has a hero, and every story has a villain. Have you ever heard the old poker phrase “If you can’t find the sucker in the room, it’s probably you”? Well, the same rings true when trying a personal-injury case. Juries instinctually will dislike your case because you are asking for too much money. So, if you cannot find a villain on the defense side, look at your side of the table – it could be your client, your expert or – gasp – even you! You should concentrate on thinking of the plaintiff ’s side as the white knights, and the people across the table as your villains. But who will it be? There are three main groups to choose from – the defense attorney, the defendant, or the defense expert(s). You should be able to pick at least one in any trial, but hopefully, you will be able to use all three.
Villain #1: the defense attorney
You should be able to tell within five minutes of meeting opposing counsel whether they are your villain. They are fairly easy to spot – loud, aggressive, in your face, insurance-propaganda90 — The Advocate Magazine
Kool-Aid-drinking, and abrasive. They are the type of people who hate you, your client, the system, and their job. Everything is a fight – no matter how small or how hopeless their arguments are. They will fight you tooth and nail on every evidentiary issue and will fail to see how their case has any shortcomings. For illustrative purposes, we will call this person “Mr. Von Doom.” Opening In your opening statements, after telling the jury what the evidence will show, tell them the main reason we are here is because the defendants refuse to accept responsibility to be accountable for all the harms and losses of our client. Always refer to Mr. Von Doom as a very skillful and savvy attorney when speaking to the jury. For instance: The skillful Mr. Von Doom has hired experts to try and confuse you from the issues. The skillful Mr. Von Doom will try and take things out of context, and detract you from what is really at issue in this case; which are the injuries to my client. Just remember, when he brings up something that is not relevant, he is doing it for a reason: to confuse you. Corporations and defendants pay large sums of money for these skillful attorneys such as Mr. Von Doom to come in here and muddle the issues and try to get a discount for the harms they created. Statements such as these will really get the Von Dooms of the world frazzled and worked up. They will go on the offensive in their opening statements and be overly aggressive and abrasive with witnesses. They cannot help themselves – it is in their nature. The most important item to remember when choosing to villainize Mr. Von Doom is that you never stoop to his level. If he is your villain, you must think of yourself as the white knight. Do not take the bait and play in the mud or engage in below-the-belt shots. Be overly nice – give the jury the impression that you do not
need to play dirty to win because you are not hiding anything and that the facts are in your favor. Defense expert witness examinations Most people who hate lawyers do so because they think they are trying to hide the truth from them. Use this to your advantage. When the defense expert witness is on the stand, bring up things like “Mr. Von Doom never showed you this MRI, did he?” – “Isn’t that something you would normally like to see when forming an opinion?” Study the record reviews and the IME reports – there is always something that the defense attorney forgot to give them. Maybe it is a deposition or a photograph – it could be anything. Make the jury think that Mr. Von Doom failed to hand over these vital pieces of information in an effort to hide something from them.
Your client’s examination
This is an opportunity to really show the jury how much of a bully Mr. Von Doom has been. Go through all the written discovery in the case, correspondence with defense, and the deposition of your client. Pull out all of the inflammatory tactics that Von Doom has engaged in and show them to your client before he takes the stand. This will allow your client to testify about the anxieties and stress of trial. Show the jury how much emotional distress your client has had to go through just to get his day in court – no one likes being called a liar, and it will certainly resonate with the jury. There are certain defense attorneys who are famous for these kinds of tactics. They will send you letter after letter telling you that your case is frivolous and will send over an obscene amount of irrelevant, harassing discovery to drown your client. Use this to your advantage – for instance: • Remember that letter Mr. Von Doom wrote you telling you that this lawsuit was frivolous and needs to be dismissed immediately?
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STATE BAR DEFENSE James Kamanski 2012, 2013 and 2014 Southern California Super Lawyer Villains — continued
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• Remember all of the discovery you had to respond to – asking about your eating habits the day of the accident and your dating life? • Do you remember when the defense attorney took your deposition for six hours and asked intrusive, irrelevant questions for a simple car accident? On cross, make sure your client knows not to take Mr. Von Doom’s bait. We like to coach our clients to “kill him with kindness.” Another good tactic is to limit objections when your client is being cross-examined – too many objections make it seem like you are hiding things and do not want the jury to hear evidence. Remember – think of yourself as the white knight. We have nothing to hide – ask anything you want! Closing argument Be sure to point out all the creative lawyering that Mr. Von Doom tried to pull during the trial. Make an entire slide about it in your closing PowerPoint followed by the jury instruction that says a lawyer’s questions are not evidence. Remind the jury every time Mr. Von Doom took depositions out of context. One very effective tactic to use during closing arguments is to ask Mr. Von Doom questions that “you’d like to know the answer to.” You can put them in writing on your last slide of the PowerPoint. Ask Mr. Von Doom to answer these questions, because we are all wondering. All of these questions are usually ones that they cannot answer. And they will look terrible for not answering and avoiding them all together. If they take the bait and answer the questions, they will be thrown off of their game and detract from their original closing – it’s a winwin scenario! But what happens if the defense attorney is not a “Mr. Von Doom”? What if you cannot villainize him? Where do you turn next?
Villain #2: the defendant
In almost every trial we can still push the accountability theme, regardless of liability. The defendant wants to say
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they are sorry, but then say they are not responsible or accountable for the damage they have done. There is no better way to drive this home than having the defendant on the witness stand. For illustrative purposes, let’s call the defendant, Mr. Magneto. Here are some pointers for making the juries despise the defendant: Discovery responses Go through all the defendant’s discovery responses where they put insane answers, usually crafted by their lawyers, where they say things like “I deny that the Plaintiff is hurt” or “Plaintiff failed to mitigate her damages.” This can really blow up in their face. Read them to Mr. Magneto and then ask if he even knows the damages to your client. Most of the time, Mr. Magneto is extremely unprepared and will not know the injuries to your client, making himself look silly and nonchalant. Publish these discovery responses to the jury. Make the jury see how important this trial is to your client and how unimportant it is to Mr. Magneto. Failure to apologize One thing that we have found that really infuriates jurors is when defendants fail to apologize or show remorse for what happened to your client. Here are some of the types of questions that we like to ask the defendant regarding this topic: Mr. Magneto, you knew my client was hurt at the scene, right? You knew they were taken to the hospital, right? Did you ever reach out to them in the hospital to see how she was doing? Did you follow up at all to check in on her? Did you ever even say you were sorry? The best question to ask, and the one that gets objected to most frequently, is “Have you learned any lessons from this experience”? In our experience, most defendants cannot articulate any lessons they have learned. This really hits home with a lot of jurors and can help drive up your general damages award for your client. Closing Argument This is where you really have to hammer home the themes of responsibility and accountability. Tell the jury that in
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Don’t let the Defense Medical Exam Ruin your P.I. Case We will send a Doctor to observe your clients’ next DME! your clients’ next
Villains — continued our community, when we mess up, we take responsibility. If your recklessness caused harm, you have to pay for all of the harms and losses suffered. You do not hire an expensive lawyer and try to get out of paying for your mistakes. It is not right to try to get a slap on the wrist when your client suffered much more than that. Also, bring back the testimony where Mr. Magneto failed to learn any lessons from the experience. Tell the jury that most people are taught these lessons from their parents at a really young age, “You break it; you buy it.” Explain to them that Mr. Magneto has never learned that lesson. If you have been the white knight during this entire trial, this is where you can let Mr. Magneto really have it. But what if your defendant is Aunt Bee from the Andy Griffith Show? You certainly do not want to harass a little old lady in front of the jury. Where do you turn next???
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Villain #3: the defense expert
Every once in a blue moon we get the straight-shooter defense expert. They are credible, their opinions reasonable, and they do not have a ton of bias. Trust me, these experts actually exist! But, for the most part, we all see the same defense experts over and over and over again. All these villains have the same faces, so I will collectively call them, the Green Goblin. Before The real way to beat the Green Goblin is in the preparation before trial. An entire treatise can probably be written on slaying the Green Goblin in this stage, so I will keep it brief. Go to his office for the deposition and take as many photos around as you can. Gold can be found! Ask the CAALA Listserv for information and recent activity on the expert. Read prior depositions of the Green Goblin. Most of the time you can set it up in depositions with direct impeachment based on what you already read in prior depositions or his actual expert activity. The Green Goblin always lies about where he was the week before, and where he will be the week after next. He cannot help it. They know their constant defense work looks bad, so they always downplay
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how often they do it. Be prepared, do your research, and you will have defeated the Green Goblin before it even takes the stand. Pumpkin bomb and all! Jury Selection Plant the seed early. Ask the jury if any of them have experience as a plaintiff in a lawsuit. Ask them if they ever were examined by a doctor for the other side. Ask them to talk about it. Right away you get these people to tell their story on how the defense expert lied in his exam, and made stuff up, and said how that juror was not hurt when they really were. Then, ask the panel who thinks experts can be bought? Ask any doctors on your panel if they know anyone who does expert work. Ask them if these people have “been bought.” Ask the jury, as they sit there today, are they more likely to believe an expert who has been hired by a party, or a doctor who is coming via subpoena, not hired by either party. Then ask them why. This will set the stage for the jury to despise the Green Goblin. Opening Statement It is very important that you always videotape the Green Goblin’s deposition.
This allows us to tell the jury in opening what his opinions will be, how these opinions are ridiculous, and how biased The Green Goblin is. Play the best clips you can. Tell the jury in opening that you will prove the bias of the Green Goblin and give examples. If you know how much he makes a year, tell the jury. If you know how often he works for the defense attorney, tell the jury. Do not let the defense attorney beat you to the punch during the Green Goblin’s direct and soften your blow. If you have a true Green Goblin, let it be known right away. Expose it! Examination The biggest thing to understand about the Green Goblin is this – he is a liar. Not only this, but he knows his science and his area of practice better than you do. Do not battle The Green Goblin on his home turf! Play on your terms! Go after him on bias, his lies, get concession, and get out. Hopefully the Green Goblin gets so rattled with all the bias you found that it will start to free fall. Then cue the video deposition for some fun impeachment. If this is done correctly, the jury will already hate The Green Goblin before it even
takes the stand. They will be rooting for you, their hero, to slay him in open Court. Robert Simon is the founder and managing partner and trial attorney at The Simon Law Group with offices in Los Angeles, California, and Santa Ana, California (www.thesimonlawgroup.com). The Simon Law Group was founded in December of 2009 and specializes in Personal Injury and Wrongful Death cases. Robert Simon received his Bachelor of Arts Degree in Criminal Justice from George Washington University and his Juris Doctorate degree from Pepperdine Law School in Malibu, California in 2005. Robert is an active member of the Consumer Attorneys Association of Los Angeles (CAALA) and was also the President of the Trial Lawyers’ Charities (TLC) during 2013. Brandon Simon is a trial attorney at The Simon Law Group. Brandon has been an integral part of the creation of The Simon Law Group, even before its inception in 2009. Brandon received his bachelor’s degree in Business Administration from George Washington University and his Juris Doctorate degree from Thomas Jefferson Law School in San Diego, California, in 2014.
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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
Appellate Reports and cases in brief About on expert medical testimony New holdings this Issueand on the component-parts doctrine in state courts in district courts
Messick v. Novartis Editor-in-Chief Pharmaceuticals Corp.
Jeffrey Isaac Ehrlich
__ F.3d __ (9th Cir. 2014) Who needs to know about this case? Lawyers attempting to introduce expert medical testimony in district courts within the Ninth Circuit. Why it’s important: Holds that a qualified physician’s differential diagnosis Jeffrey Isaac Ehrlich meets the Daubert and Kumho Tire standards for admissibility. Holds the district court abused its discretion in excluding plaintiff ’s medical experts in productsliability case against drug manufacturer. Synopsis: Linda Messick developed osteoporosis after chemotherapy for By Jeffrey Ehrlich breast cancer and wasIsaac treated with the Editor-in-Chief drug Zometa for several months in 2002. Zometa is a bisphosphonate, a class of drug commonly used to treat multiple myeloma. Such drugs are used to reduce or eliminate the possibility of skeletalrelated degeneration and injuries to which cancer patients are particularly susceptible.
About this Issue
After Messick encountered several dental problems, two oral specialists examined her in November 2005 and discovered osteonecrosis near three of her teeth. Both doctors treated her under the assumption that she was suffering from bisphosphonaterelated osteonecrosis of the jaw (“BRONJ”), a condition recognized by the American Association of Oral and Maxillofacial Surgeons (“AAOMS”). Other potential causes of osteonecrosis of the jaw (ONJ) include: peridontal and dental disease, osteomyelitis, corticosteroid use, cancer, radiation therapy, compromised immunity, and trauma. While ONJ may be caused by many factors, the AAOMS’s diagnostic definition of BRONJ sets out its unique features: it lasts more than eight weeks and is not related to radiation therapy. Messick’s BRONJ healed between March and October 2008, about three years after diagnosis. She and her husband brought suit against Novartis for strict products liability, negligent manufacture, negligent failure to warn, breach of express and implied warranty, and loss of consor-
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tium. Novartis moved for summary judgment, and to exclude the testimony of her experts, including Dr. Jackson, a boardcertified oral and maxillofacial surgeon. Messick offered Dr. Jackson’s testimony on ONJ and BRONJ generally, and on the causal link between her bisphosphonate treatment and later development of BRONJ. Dr. Jackson has extensive experience diagnosing and treating ONJ, including ONJ in patients who had been treated with bisphosphonates, and he is the primary oral and maxillofacial surgeon managing ONJ in the Sacramento area. The district court excluded Dr. Jackson’s testimony as irrelevant because of its view that his “differential diagnosis only determines that Ms. Messick’s ONJ was related to her bisphosphonate use, and he admitted that a diagnosis of BRONJ does not mean that bisphosphonates caused her ONJ.” Reversed. The Ninth Circuit held that the district court applied too high a relevancy standard without reference to California law, which required only that the plaintiff prove that Messick’s bisphosphonate use
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MICRA 96 — The Advocate Magazine
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was a substantial factor in her development of BRONJ. The district court also abused its discretion in finding that Dr. Jackson’s testimony was unreliable. The reliability threshold requires that the expert’s testimony have “a reliable basis in the knowledge and experience of the relevant discipline.” (Kumho Tire Co., Ltd. v. Carmichael (1999) 526 U.S. 137, 149, 119 S.Ct. 1167.) While the district court has a duty to act as a “gatekeeper” to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards, a differential diagnosis made by a qualified physician meets the standard of reliability. In response to the district court’s finding that Dr. Jackson failed to explain the scientific basis for his conclusion that Messick’s BRONJ was related to her treatment with bisphosphonates, the appellate court explained, “Dr. Jackson repeatedly referred to his own extensive clinical experience as the basis for his differential diagnosis, as well as his examination of Messick’s records, treatment, and history. Medicine partakes of art as well as science, and there is nothing wrong with a doctor relying on extensive clinical experience when making a differential diagnosis. Dr. Jackson also relied on the AAOMS’ definition of BRONJ in reaching his diagnosis and causation conclusions, which itself persuasively uses the three elements to distinguish BRONJ from other ONJ or delayed healing conditions. These sources form an appropriate scientific basis for his opinions, and the district court abused its discretion in concluding otherwise.”
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Ramos v. Brenntag Specialties, Inc.
(2014) __ Cal.App.4th __ (2d Dist., Div. 4.) Who needs to know about this case? Lawyers litigating products-liability cases where the component-part defense is asserted. Why it’s important: Holds, at the demurrer stage, that the componentparts doctrine does not bar a worker’s product-liability claims against suppliers of metal alloys and mold materials. Declines to follow the decision MAY 2014
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Appellate — continued
Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, which applied the component-part doctrine to similar claims. Synopsis: Maxton affirmed a judgment for the manufacturers of raw-metal products, based on the component-parts doctrine, finding that the raw materials supplied by the defendants were not inherently defective or dangerous in themselves, and that the manufacturers had no duty to warn the workers, and could not be held liable for failing to warn. In Ramos, the plaintiff alleged that he had worked as a mold maker, machine operator, and laborer for Supreme Casting & Pattern, which manufactured metal parts through a foundry and fabrication process. He alleged that while employed by Supreme, he worked “with and around” metals, plaster and minerals that respondents supplied to Supreme. Some of the respondent defendants provided metal products (metal suppliers), which were melted in furnaces to form metal castings. The casting process used molds created from plaster, sand, limestone and marble supplied by the remaining defendants, (mold material suppliers). According to the complaint, Ramos developed interstitial pulmonary fibrosis as the result of his exposure to, inter alia, fumes
from the molten metal and dust from the plaster, sand, limestone and marble. The defendants obtained judgment on the pleadings under Maxton. Reversed. California courts have limited a supplier’s strict products liability for injury arising from certain uses or applications of its product under three distinct but potentially overlapping doctrines. Two of these doctrines – often called the “bulk supplier” and “sophisticated buyer” rules – focus on whether the product, before causing injury, passed to, or through, a party who knew (or should have known) of the product’s hazards. The first doctrine is ordinarily invoked when a supplier, upon selling a product in bulk to an intermediary who passes it on, warns the intermediary of the product’s hazards. In contrast, the second doctrine is ordinarily invoked when the supplier provides the product to a purchaser – either an intermediary or an end user – who knows (or should know) of the hazards, regardless of any warning to the purchaser. Although conceptually distinct, the two rules are sometimes combined under the term, “bulk sales/sophisticated purchaser doctrine.” The third doctrine is known as the “component parts” or, where applicable, “raw materials” doctrine. Under that doc-
trine, suppliers of component parts or raw materials integrated into an “end product” are ordinarily not liable for defects in the end product, provided that their own parts or materials were nondefective, and they did not exercise control over the end product. The doctrine is reflected in section 5 of the Restatement Third of Torts, Products Liability, which states that a component part supplier is subject to liability for harm caused by the end product only when the component itself has a defect that results in injury, or the supplier plays a material role in integrating the component into the end product whose defects cause injury. (Rest.3d Torts, Products Liability, § 5.) The court held that Ramos’s complaint (FAC) adequately pleads strict liability and negligence claims predicated on warning and design defects. Regarding the warning defect claims, the FAC alleges that respondents’ products were specialized materials used as respondents specifically intended in Supreme’s manufacturing process. The FAC further alleges that respondents’ metal products were “inherently dangerous” in themselves when melted during the casting process, as they released metallic toxins known to cause interstitial pulmonary fibrosis. The FAC also alleges that respondents’ plaster,
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sand, limestone and marble were “inherently dangerous,” as they released silica dust and other known causes of interstitial pulmonary fibrosis when Ramos scooped them out of bags, poured them into containers, and handled them in other ways. According to the FAC, although state and federal regulations identified the products or their constituents as hazardous, respondents provided no warnings to Ramos. In addition, respondents failed to comply with their statutory duty to provide appropriate material safety data sheets to his employer, Supreme. The FAC further asserts that Supreme was not a sophisticated purchaser, as it was “a small unsophisticated company with a relatively small number of employees,” none of whom was aware of the hazards of working with respondents’ products. In the court’s view, those allegations were sufficient to state “defective warning” claims as well as claims for strict liability predicated on a defective design. To the extent that Maxton can be read to conclude that the component parts doctrine is ordinarily applicable to the type of claim asserted in the FAC, the court disagreed with its rationale. Ramos alleges a direct injury from the intended use of respondents’ products – not from any fin-
ished product, manufacturing system into which the products were integrated, or apparatus built to the employer’s specifications. Hence, the component-part doctrine does not apply. In addition, the claims asserted in the FAC do not fit within the doctrine’s rationale, because the FAC alleges that Ramos suffered injuries not from a defective “integrated product” that incorporated respondents’ products, but from those products themselves, which he used as respondents intended in the course of Supreme’s manufacturing process. The court also rejected the defendants’ argument that Supreme’s lengthy use of the foundry, standing alone, would establish that it was a sophisticated purchaser as a matter of law. And when a worker asserts defective-warning claims against a product supplier, the employer’s status as a sophisticated purchaser does not shield the supplier from liability as a matter of law; the supplier must also show that it had some reason to believe the worker knew, or should have known, of the product’s hazards.
Short(er) takes: Attorney’s fee awards; in camera review of billing records; due process violations: Concepcion v. Amscan Holdings,
Inc. (2014) 223 Cal.App.4th 1309 (2d Dist., Div. 7.) Plaintiffs brought a class action against a retailer for requesting personal identification information in violation of the Song-Beverly Credit Card Act. The case settled, and the Superior Court Judge, Kenneth Freeman, approved the settlement and awarded fees and costs to class counsel. In ruling on the fee application, Judge Freeman relied on an in-camera review of class counsel’s timesheets, which were not made available to the retailer’s counsel for review. Reversed. “Under our adversarial system of justice, once class counsel presented evidence to support their fee request, [defendant] was entitled to see and respond to it and to present its own arguments as to why it failed to justify the fees requested.” The court also rejected the suggestion that the billing records contained privileged information, warranting in-camera review. The court doubted that all – or even much – of the information was privileged. And if it was, it could be redacted. Discovery; time limits on depositions; modification of the limit. Certainteed Corporation v. Superior Court (2014) 222 Cal.App.4th 1053 (2d Dist., Div. 3.)
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Appellate — continued
Section 2025.290 of the Code of Civil Procedure limits the deposition of a witness by counsel other than the witness’s
counsel of record to “seven hours of total testimony” (Id., subd. (a)) or “14 hours of total testimony” (Id., subd. (b)(3)), with
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certain exceptions. The second sentence of subdivision (a) states, “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” The court concluded that this provision requiring additional time applies not only to the seven-hour limit imposed by subdivision (a) but also the 14-hour limit imposed by subdivision (b)(3). The trial court, however, retains the discretion to limit a deposition in the interests of justice. Here, the plaintiff, Hart, was suffering from asbestos-related illness. The trial court granted his motion for trial preference, which was based on a physician’s declaration that Hart’s survival for even a few weeks was subject to substantial medical doubt. Plaintiff ’s counsel noticed Hart’s deposition, and conducted a direct exam that took roughly 14 hours. Defendants then conducted several hours of additional questioning, before two defendants filed a motion seeking additional time to complete the questioning. After his client had been subject to 14 hours of additional questioning, Hart’s counsel suspended the deposition. The trial court denied the motion, finding that Section 2025.290 was ambiguous about whether it had the authority to grant the motion. The Court of Appeal vacated the order and remanded, directing the trial court to exercise its discretion to determine whether or not additional time was appropriate. The court stated, “[w]e conclude that section 2025.290 not only authorizes the court to allow additional time to depose a witness in these circumstances, but requires it to do so unless the court, in its discretion, determines that the deposition should be limited for another reason. 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. He is the editor-in-chief of Advocate magazine.
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From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
From the PackExecutive Patient Safety Director
Who are Stuart theZanville heroes? CAALA Not surprisingly, there’s no mention For the next six months a campaign of Bob and Carmen Pack or other parwill be waged to protect patients in ents of children lost to medical negliCalifornia. You wouldn’t think it would gence. require a campaign to do that; it sounds But demeaning and even demonizlike a no-brainer. Why would anyone be ing those who have been harmed by opposed to protecting patients? unsafe medicine, unsafe products or The campaign is for the Troy and unsafe business practices is nothing new. Alana Pack PatientStuart Safety Act that will be Zanville They are easy targets because for the on California’s November ballot. If CAALA most part, they are neither rich nor powpassed, it will require drug and alcohol erful. They are just ordinary people − testing of doctors; crack down on prechildren, the elderly, homemakers, the scription drug abuse and ensure that poor – who have been harmed through injured patients and their families can no fault of their own and have nowhere hold negligent doctors accountable. else to turn. The opposition is the medical indusJoanne Doroshow is Executive trial complex of hospitals, insurance Director of the Center for Justice & companies and physicians. Those supStuartand Zanville Democracy. She has worked with many porting it are patients their families. Association of Los Angeles and individuals who have travfamilies If the first 30 Consumer days of Attorneys the campaign eled to Washington, D.C., and state capiare any indication, however, you’d never tals to oppose so-called “tort reform” know that this measure is about protectlaws. Doroshow writes that “for their ing patients and their families. The trouble, these victims are often heckled Washington Post said the measure “pits and insulted by doctors to their face. She doctors against trial lawyers” and Reuters says that doctors are not supposed to be called it “a political fight between lawyers cruel, but that sometimes they are.” and doctors.” An article in the L.A. She adds that “it’s not easy for Times talked about “trial lawyers and By Stuart Zanville patients who have lost a leg, their eyeconsumer groups” going against “insurConsumer Attorneys Association of Los Angeles sight or a child to continue hearing from ance companies, doctors and other medical lobbies that they – victims who healthcare providers.” The American file claims – are the problem, as opposed College of Emergency Physicians says the to the medical negligence that caused Pack Act will make it “easier and more these tragedies.” profitable for lawyers to sue doctors.” The media, the political pundits and Berkeley Professor George Lakoff on the opposition are only talking about plaintiffs doctors versus lawyers, with no mention of the people that the initiative will proLakoff is the cognitive scientist who tect. has studied and written about frames, the mental structures that shape the way we The victims see the world. He has also written about plaintiffs. That is an insult to the more than “Plaintiffs are and should be por440,000 people who die each year as a trayed as courageous souls,” Lakoff says. result of preventable physician or hospi“After having suffered harm at the hands tal errors, making medical negligence of the defendant, they must stand up to the third leading cause of death in this the rigors of the justice system, including country, after heart disease and cancer.
From the Executive Director
From the Executive Director
intense cross-examination and personal attacks, and they must display the great patience to withstand the delays of the process.” Lakoff continues, “They do it not just for themselves, but for the public as well. They are serving a cause of justice and they’re serving the cause of justice for the entire population. They’re speaking for everybody.” He adds, “When you bring a lawsuit, it’s not just on your behalf; it’s on behalf of the public. It’s very important. Plaintiffs are usually not seen as heroes.” Lakoff says we need to make them heroes. “They have gone through hell first by being injured (or losing a loved one), and then they have to go through hell again. Their job is threatened, their family is threatened, their livelihood is threatened and so is their emotional stability. The public has no idea that to be a plaintiff is to be a hero, is to be courageous. This is very hard to believe.” But it is true, and when you have discussions with anyone regarding the Pack Patient Safety Act, you have to make sure they understand who the heroes are. Parents who lost children due to questionable medical practices say they back the initiative not for the money, but to hold bad physicians accountable. Dr. Richard Thorpe, president of the California Medical Association, says he opposes the initiative because “It is bad for patients, bad for taxpayers and bad for California’s entire system of health care delivery.” You have six months to educate California’s voters about which side is courageous and which side is cruel.
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Sacramento Update By Lea-Ann Tratten CAOC Political Director We are going to trial In late March, the registrars of voters in all 58 of California’s counties began poring over more than 840,000 signatures collected in support of the Troy and Alana Pack Patient Safety Act. This ballot measure will be the first in the nation to address the alarming medical-negligence crisis now quietly gripping the nation. How bad is that crisis? The Journal of Patient Safety study pegged the number at 440,000 deaths caused by preventable errors, making it the third leading cause of death in the nation. Captain Chesley “Sully” Sullenberger, the airline pilot of “Miracle on the Hudson” fame who in retirement has taken on patient safety as a cause, has likened the number to the equivalent of three jets crashing each day, 365 days a year, with no stop. Think about the tragic loss of lives on the Malaysian aircraft – and then triple it on a daily basis. Suffice to say, government would act quickly to stem the epidemic of medical negligence. CAOC is at the forefront of the patient-safety movement in putting the Pack Act before voters. The medical industrial complex has stymied reform in the statehouse for far too long. This industry – with $230 billion in gross profits in California alone – has a stranglehold on our state lawmakers, a fact brought home when attempts to settle the long-running dispute over MICRA’s unbending damages’ cap came crashing down in the days leading up to the March 24 deadline for submission of signatures for the Pack Act. First, let me offer a little background. CAOC spent most of 2013 working toward a legislative solution to MICRA. If we think of the political process as akin to the run-up to trial, this was our effort at settlement negotiations. On July 8 of last year, CAOC leadership met with the medical-industry leaders in an attempt to reach a mutually agreeable solution to the outdated cap. The medicalindustry leadership informed us that they had no intention of abandoning the cap and would not negotiate an increase of even a single dollar. Only after that direct rebuff did CAOC support the filing of the Pack Act. Despite the metaphorical stick in the eye from the medical industry, CAOC continued pushing to forge a legislative solution. Senate President Pro Tem Darrell Steinberg (D-Sacramento) stepped up and introduced SB 1499 in February. In that bill he stated his intent to bring the parties together to address the unjust $250,000 MICRA cap on noneconomic damages in malpractice cases and avoid a costly initiative battle. Steinberg’s considerable skills as a mediator were tested as the medical-industry coalition repeatedly sent mixed signals concerning a willingness to negotiate. Just days before the deadline for Pack Act signatures to be submitted, a compromise seemed possible that called for a doubling of the cap. Former CAOC President Mark Robinson worked with Steinberg behind the scenes to help forge agreement. In the final days, political heavyweights Bill Lockyer and Jim Brulte joined the fray in attempting to talk reason with medical-industry leaders. The last-minute machinations fizzled the morning of March 24, just a few hours before our partners in supporting the Pack Act – Internet
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executive Bob Pack and Consumer Watchdog – were slated to hold a press conference in Los Angeles formally announcing the final signature submission. At this point it is doubtful that the industry ever had the will to settle. They were dragging us along hoping we would blink and throw our only leverage – those 840,000 signatures – into the waste bucket. They underestimate the resolve and determination of the trial bar. The time for negotiations has ended. The coming campaign battle over the Pack Act is like a trial. Our jury is the California electorate. Their verdict will be rendered Nov. 4 on Election Day. Armed with truth and justice, we are ready for the fight. Not since the days of the legendary “Terrible 200s” initiative fight of 1996 has the trial bar been so unified and energized. This year’s battle is bigger than MICRA. It is bigger than our TLAs or our practices. It is about fighting for the dignity of millions of Californians who have lost faith in a political process that protects the insurance industry over people. We are mad as hell, and we aren’t going to take it anymore. Please join us in this battle.
Washington Update By Linda Lipsen CEO, American Association for Justice Fighting three dozen tort reform bills As of this writing, nearly three dozen bills containing tort “reform” and anti-civil justice provisions have been introduced in the 113th Congress, including H.R. 4106, the “Saving Lives, Saving Costs Act,” introduced by Reps. Andy Barr (R-KY) and Ami Bera (D-CA). This bill seeks to drastically reform the healthcare and medical liability litigation system by allowing doctors, instead of judges and juries, to decide health-care liability actions, unnecessarily allowing state claims to be removed to federal court, preempting state law at the expense of patients, and imposing a one-sided “loser pays” system on patients. The American Association for Justice Public Affairs team will continue to monitor this legislation and work to ensure that this bill, and others like it, is never enacted into law. This congressional session, we’ve noticed the trend of the introduction of smaller anti-civil justice measures. This practice is in contrast to what we saw in previous sessions with the introduction of H.R. 5, which was a massive bill that capped damages and limited fees in medical malpractice, medical products, and nursing home cases. In addition to the previously mentioned H.R. 4106, another example of a smaller but dangerous bill is H.R. 1733, the Good Samaritan Health Professionals Act of 2013, which provides immunity to doctors who cross state lines to volunteer during disasters. At first glance, it sounds like a good idea. But the bill conflicts with the Volunteer Protection Act, which provides immunity to volunteers but not the entities that organize them, such as the Red Cross, which ensure that volunteers are legitimate, pass background checks, and possess necessary licenses. Because medical licenses are a state function, H.R. 1733 directly preempts statelicensing requirements. There might be a way to solve this problem, but the broad immunity that H.R. 1733 provides isn’t it.
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From the President Casey Johnson
Orange County Trial Lawyers Association
Going all in We are on the offensive, and failing consumers is not an option As plaintiffs’ trial attorneys, we know all too well how life can change in the blink of an eye. For most of our clients, one day they are living their “normal” lives. Whether reporting to work each day to earn a paycheck or performing invaluable services at home, cleaning and taking care of children, each simply goes about their daily lives. Most take for granted the presence of friends and family members, the ability to perform activities of daily living unassisted and the joy of living without pain. Then, in an instant, their “normal” is changed forever. The past several weeks have provided two profound opportunities for trial attorneys to reflect upon how we can best serve consumers whose lives have been dramatically altered due to no fault of their own.
All for one
Last month, over 200 attorneys from across the state descended upon the desert for the Consumer Attorneys of the Inland Empire/OCTLA Palm Springs Seminar. This year’s seminar represented the first year OCTLA partnered in this legendary event. The energy and camaraderie generated by the melding of these organizations proved infectious and harkened, for many, a return to what a gathering of trial attorneys should be all about. Saturday’s keynote address, by past CAOC and OCTLA President Wylie A. Aitken, urged attendees to take a good look at themselves and reflect upon those less attractive aspects of “the business” that have caused the plaintiffs’ bar to bring criticism upon itself – illustrated most graphically by pervasive (and ethically questionable) attorney-to-consumer advertising. How can we, as a profession, really be serving all consumers’ best interests when plaintiffs are frequently forced to seek early representation while still
mourning the loss of a loved one or rehabilitating from catastrophic injuries, as a result of the onslaught of attorney solicitations? And even if such solicitations (sent under the guise of advertisements) pass ethical muster, don’t they just serve to perpetuate the ambulancechaser image and reinforce jurors’ otherwise misinformed biases against plaintiffs? Is signing up any one case more important than preserving the dignity of the profession and helping to maintain juror neutrality, so that once in court plaintiffs will at least get a fair shake? We must take time to reflect upon how we are engaging in the business of law to make sure that we aren’t doing more harm than good to consumers everywhere. The questionable acts of any one of us will be seized upon by our wellfunded opponents and used to continue to influence public opinion and, ultimately, jury results. We simply cannot afford to do any further harm to consumers.
All or nothing
The second reality check came recently with Consumer Watchdog’s filing of the signatures with the California Secretary of State in order to qualify the Troy and Alana Pack Patient Safety Act for the November ballot. Up until now consumer advocates have been working furiously to protect the rights of those harmed as the result of medical malpractice. To many it seemed unfathomable that the medical establishment (and its insurers) would not recognize the invaluable protections provided by randomly drug-testing doctors and cross-referencing a statewide database to eliminate drug shopping by patients. Or the civil right protections afforded by allowing reasonable compensation for those harmed by malpractice. Despite super majorities in both the California Senate and Assembly, and a governor who has admitted that enacting
damages caps (during his first reign in California) was a mistake, not a single bill was introduced to protect consumers from the injustice of a forty-year-old law. Now that the signatures have been filed, there is no turning back. A proposition number will be assigned in the coming months, but in the meantime, it is incumbent upon all consumer advocates to start educating the public about the importance of the patient safety initiative. The doctors and medical insurers have already started their misinformation campaign, and have pledged $60 million to fight the proposition. There is simply no way consumers can ever match the financial resources of these powerful corporate interests. We all must ask what we can do to ensure that patient’s rights are protected. If we are truly consumer advocates, no matter the focus of our individual practices, we cannot sit this one out because “I don’t do medical malpractice.” That is not the right attitude. This is the first time that trial attorneys have been on the offensive in decades and it is about time. We are the voices of all consumers, a voice that has been muffled and ignored for years and years and the time to reassert the importance and influence of the consumer is now. Our voices can only be heard if the resources are dedicated to getting the message out. It will cause us all to dig deep in our pockets, and look deep into our souls, but failing consumers in this effort is simply not an option. The great, late United States Senator Paul Wellstone is credited with stating, “If we don’t fight hard enough for the things we stand for, at some point we have to recognize that we really don’t stand for them.” If consumer attorneys do not join the fight and stand up for patients’ rights, then maybe we have to ask ourselves what we really do stand for.
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CAALA Connection Center Connect with New CAALA Members:
We welcome the following new members who joined CAALA during the month of March.
CAALA Connection Center Eric Abramson
Abramson Smith Waldsmith, LLP
The George Washington Law School
Law Office of Edgar Poghosyan
Law Offices of Anie N. Akbarian, APC
Southwestern School of Law
Murrin Law Firm
Law Office of Jesus Eduardo Arias
UWLA School of Law
Mesriani Law Group
Arias Ozzello & Gignac LLP
Rushovich Mehtani LLP
Arias Ozzello & Gignac LLP
Law Offices of Gerald L. Marcus
Saedi Law Corporation, P.C.
Carpenter, Zuckerman & Rowley, LLP
Taylor & Ring
Cellino and Barnes, L.C.
Cellino and Barnes, L.C.
Law Offices of Richard A. Fisher
Law Offices of Schurmer & Drane
Rushovich Mehtani LLP
Russell & Lazarus, APC
Schonbrun DeSimone Seplow Harris & Hoffman, LLP
Attorney at Law
Law Offices of Payam Tishbi
Carlos F. Mendoza
Abraham Lincoln University
Lalw Office of Carlos F. Mendoza
Manibog Law, PC
Law Offices of Vincent W. Davis & Assoc.
Southwestern School of Law
Attorney at Law
Pepperdine Law School
The Law Offices of Joseph R. Manning, Jr.
Kiesel Law LLP
Gibbs Law Group
Attorney at Law
UCLA School of Law
Southwestern School of Law
Law Offices of Wiesman Pirian, APC
Ghozland Law Firm
Law Office of William Green & Associates
Southwestern School of Law
104 â€” The Advocate Magazine
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amputees. Vocational expert − loss of earning capacity. Plaintiff/Defendant. Risk Management Information, Inc. 101 N. Convention Center, Dr. Ste. 100 Las Vegas, NV 89101 Contact: Jennifer Bowen Georgitis (866) 441-7366 Email: email@example.com CATEGORY: Expert Witness | Legal Research | Lien Resolution Comprehensive real estate and title information reports, nationwide. Certifications of title for lien purposes. Comprehensive and detailed information on plaintiffs and defendants and their profiles. LAHD reports on premises. Tom Stevenson of Atlas Settlement Group 24265 Juanita Drive Laguna Niguel, CA 92677 Contact: Tom Stevenson (800) 485-0336 Email: firstname.lastname@example.org CATEGORY: Banking/Financial Services | Life-Care Planning | Structured Settlements Their experienced and professional consultants provide unparalleled personal attention, dedicated to meet your clients’ financial needs. Providing customized financial plans during settlement, utilizing structured annuities. TrialWorks Case Management Software 1550 Madruga Ave, Suite 508 Coral Gables, FL 33146 Contact: Trace Wagner (800) 377-5844 Email: email@example.com
CATEGORY: Arbitration/Mediation After nearly 20 years representing plaintiffs in catastrophic injury cases, Ms. Saldana now provides mediation and arbitration services throughout California.
CATEGORY: Practice Management TrialWorks Case Management Software brings organization and efficiency to firms of all sizes. Designed for a litigation practice, TrialWorks combines document assembly, calendaring/docketing, email tracking, intake, timekeeping and accounting into a centralized location.
Occupational Assessment Services 300-3 Route 17 South, 4A Lodi, NJ 07644 Contact: Jessica Laciura (973) 365-4017 Email: Jdavisoas@gmail.com
U.S. Legal Support 363 N. Sam Houston Parkway East, Ste. 1200 Houston, TX 77060 Contact: Jenny Stone (619) 204-3057 Email: firstname.lastname@example.org
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CATEGORY: Computer Forensics As one of the largest full service legal support companies in the nation they are committed to providing personalized service and custom solutions to meet our clients’ specific needs. MAY 2014
The Advocate Magazine — 105
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May 21, 2014 Affordable Care Act Seminar 5:00pm - 6:00pm Registration 6:00pm - 9:00pm Program CAALA Conference Center Downtown Los Angeles
ASSOCIATION OF LOS ANGELES
CAALA Consumer Attorneys Association of Los Angeles 800 West Sixth Street,#700 Los Angeles, CA 90017 (213) 487-1212 www.caala.org
Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm May 1, June 5, July 10
ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Corcoran, Tim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .97 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Hanger, Bob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .89 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .52 Sepassi & Tarighati, LLP . . . . . . . . . . . . . . . . . . . . . . .13 Announcements and Career Opportunities CAALA Affiliate Vendors . . . . . . . . . . . . . . . . . . . . . .83 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .85 CAALA VEGAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79 Los Angeles Trial Lawyers’ Charities . . . . . . .29, 30-31 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61 Attorneys – Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Banifsheh, Danesh & Javid, PC . . . . . . . . . . . . . . .22-23 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 CaseyGerry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Cheong, Denove, Rowell & Bennett . . . . . . . . . . . . . .77 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98, 99 Dolan Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .49 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck LLP . . . . . . . . . . . . . . . . . . . . .56 Kamanski Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .69 Law Offices of Marc I. Zussman . . . . . . . . . . . . . . .107 Law Office of Michels & Lew . . . . . .Inside Back Cover Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .17
106 — The Advocate Magazine
Manly & Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 McGonigle, Timothy . . . . . . . . . . . . . . . . . . . . . . . . . .21 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .39 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Shegerian & Associates . . . . . . . . . . . . . . . . . . . . . . .15 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . .43 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Court Reporters Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .18 Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . .52 Haiby, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Expert Witnesses – Medical Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . .41 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . .37 Expert Witnesses – Technical & Damages Balian & Associates . . . . . . . . . . . . . . . . . . . . . . . . . .95 Boster Kobayashi . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Collins, Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Phillips, Fractor & Company . . . . . . . . . . . . . . . . . . . .44 Financial Services BBVA Compass Bank . . . . . . . . . . . . . . . . . . . . . . . . .81 California Attorney Lending . . . . . . . . . . . . . . . . . . . .87 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Farber, Patrick (Struct. Settlements) . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .51 Millennium Settlements . . . . . . . . . . . . . . . . . . . . . . . .72 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Summit Structured Settlements . . . . . . . . . . . . . . . . . .93 Valdez Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82 Zea, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm May 15 (5pm), June 19, July 17 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm May 15 (4pm), June 19, July 17 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm May 13, June 10, July 15
Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 CSC Anatomy Arts . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . .7 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Legal Graphics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 MotionLit Video Group . . . . . . . . . . . . . . . . . . . . . . . .76 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . .67 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .19 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 Investigators Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Legal Marketing Berbay Corporation . . . . . . . . . . . . . . . . . . . . . . . . . .50 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Nutris Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 PJ West & Associates . . . . . . . . . . . . . . . . . . . . . . . . .97 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Legal Support Services 4 Corners Deposition Summaries . . . . . . . . . . . . . . . .84 USA Express Legal & Investigative Services . . . . . . .78 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .63 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .74 North Valley Eye Medical Group . . . . . . . . . . . . . . .89 Total Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 Polygraph Investigations Trimarco & Associates . . . . . . . . . . . . . . . . . . . . . . . .73 Software HiPerSoft Corporation . . . . . . . . . . . . . . . . . . . . . . . .33
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I refer all of my securities cases to Marc Zussman and I have also worked with him. He is an excellent lawyer. — Brian J. Panish Attorney
Refer your Securities Arbitration (FINRA) or Litigation Cases for a Generous Referral Fee. With a success rate greater than 90%, we are well equipped to maximize your clients’ recovery on a wide variety of securities law-related matters. We take pride in our referral relationships and our ability to share attorneys’ fees with referring attorneys. We represent investors who have lost money due to mismanagement of their portfolio by their investment professionals. We accept cases from the 2008/2009 market crash.
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From the President Geoffrey Wells
Consumer Attorneys Association of Los Angeles
The power of forgiveness Never apologize for being a trial lawyer. What we do matters. As many of you know, we are moving forward with the battle to enforce drug and alcohol testing for doctors and increasing the MICRA cap for our clients. The impact of these changes will not only identify bad doctors, but it will affect wrongful death cases involving children and elderly Americans who no longer have an income. Honestly, these are the most vulnerable of our society, and they deserve equal protection under the laws of California. Everyone is going to have to step up and support the initiative that we all know is the right thing to do for the consumers of this great state.
The power of humanity
I thought I would share another incredible experience as a trial lawyer that reflects the power of forgiveness and the power of humanity in the life that we live as civil trial lawyers. The case involved a 39-year-old daughter who was the last of four adult children. The daughter’s boyfriend had just proposed to her several days before the accident. She was on her way to work one morning along the Pacific Coast Highway north of Ventura. She was stopped in traffic because a lane closure had occurred due to a mudslide. Behind her rolled up two Ford trucks – one was an F-150, the other was an F-350. They were both traveling in her lane and going around 60 mph. Unfortunately, the lead truck did not realize that the traffic had stopped in his lane. At the last second, the lead truck swerved to the shoulder and missed hitting the stopped car by feet. Unfortunately, the truck behind him wasn’t so lucky and hit the stopped car at 108 — The Advocate Magazine
a speed near 60 mph, killing the 39-yearold woman. While working up the case for trial, we could not determine what percentage, if any, a jury might place on driver number one, so we had to keep both drivers in the case through trial. Ultimately, the jury found driver number one 10-percent at fault and driver number two 90-percent at fault. However, the most incredible moment occurred after the trial was over. Our client, who was the mother of the decedent, had been asking us for months if she could speak with the defendant driver of truck number two – the striking vehicle. We told her “no” and that perhaps when the case was over, she could speak with him. After the verdict and while everyone was still mingling about in the courtroom, she asked again if she could speak with the defendant driver number two. We told her “yes” with some apprehension, not knowing what she was going to say. What happened next is something I will remember the rest of my life. She went up to the defendant and his wife. He was a big guy – about 6 foot, 3 inches tall and over 270 lbs. Our client, who was 70 years old and a retired nurse, was about 5 foot, 2 inches tall and 100 lbs. She tapped him on the shoulder and asked if she could speak with him. I saw him turn to her and he seemed very guarded and nervous, but said “yes.”
The power of forgiveness
She said “I want to tell you something and I want your wife to hear it, too.” She continued, “I want you to know that I forgive you and on behalf of my
daughter and my family, I want you to move on with your life and put this behind you.” I could see that the defendant driver was shocked by this statement. Tears began to well up in his eyes. His wife started to cry. He reached out and hugged our client and told her, “I am so sorry for everything.” They stood there and cried together for a few moments. I looked over at the court reporter who was still hanging out by her recording machine and she was crying too. She told me later, “I have been working in the courthouse for over 20 years and I have never seen a moment like that.” It was incredible and it was a reminder of the importance of forgiveness and closure that can come as a result of a civil trial. When you hear someone tell you that there are too many lawsuits and too many lawyers and too many frivolous cases, remember to tell them the story of Mrs. Donovan and the truck driver. Always be proud of the service we provide to our cities, counties and states. The civil justice system in America helps keep the peace and provide opportunity for forgiveness every day. Never apologize for being a trial lawyer; rather, hold your head high and remember what we do really matters.
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& LAW LAW OFFICES OF MICHELS & LEW MEDICAL MALPRACTICE • PERSONAL INJUR INJURY Y
Verdicts and Settlements Totaling Over 10 Figures.
BRADFORD S. DAVIS, M.D.
MARTIN P. WENIZ
STEVEN B. STEVENS
JEROME J. CALKINS
OUR TEAM • CAALA Trial Lawyer of the Year • CAALA Appellate Lawyer of the Year • Board Certified Physician • President Elect KABA • CAALA Board of Governors
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Published on May 6, 2014