Advocate April 2014 issue

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Journal of Consumer Attorneys Associations for Southern California

DAMAGES And using EXPERTS to prove them

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Contents Volume 41, Number 4, APRIL 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 cindy@caala.org Copy Editor Eileen Goss

Publisher Richard Neubauer rn@theadvocatemagazine.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

POSTMASTER:

Send address changes to ADVOCATE c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine

APRIL 2014

Features:

non-economic damages in the 12 Winning wrongful death trial

Trial strategy to get the jury motivated to award fair non-economic damages.

Ricardo Echeverria

jury and the award: 18 The Convincing 12 strangers

Helping the jury understand the damages, particularly in an employment case, can be difficult. The author explains why the jury must like your client before they will help your client, and how you can make that happen.

Carney Shegerian

storm: How to recognize a traumatic 28 Brain brain injury

The author describes necessary elements of both science and legal skills to evaluate and litigate a traumatic brain-injury case.

Joseph M. Barrett

complex regional pain syndrome simple 40 Making for a jury

1

50 Fighting sub rosa corruption

1

Pain is subjective by its very nature, and proving a CRPS case relies on developing strategies to deal with the doubters. The author describes CRPS and discusses the limitations to trying this challenging type of case.

Spencer Lucas

An introduction to recently emerging issues with sub rosa corruption and a strategy to deal with sub rosa in trial.

Brian Panish and David Rudorfer

damages for spinal cord 64 Presenting and peripheral nerve injuries

Serious spinal cord and nerve injuries are life-changing, and presenting the damages can require multiple, expensive experts.

Victor L. George

76 Videotaping your expert witness

Videotaping experts’ depositions makes good sense. It guards against the unavailablilty at trial of a key witness and may help with impeachment of defense witnesses.

Thomas M. Dempsey

Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294 e-mail: advertising@theadvocatemagazine.com Rate card available online at www.theadvocatemagazine.com

Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: editor@theadvocatemagazine.com. Please check the website for complete editorial requirements.

Reprint permission: E-mail written request to Managing Editor Cindy Cantu: cindy@caala.org

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86 Experts: Who you really need for what case

A frank discussion of the types of experts used in different cases: premises liability, auto accidents (including MIST) and medical malpractice.

Bill Karns

punitive damages against drivers 92 Seeking distracted by electronic devices When litigating a case against a distracted driver, adopt the legal principles providing for punitive damages against drunk drivers.

Patrick K. Gunning

Departments:

8 97

A BOUT THIS I SSUE Damages and experts A fresh look at damages and the experts who help to prove them.

103

F ROM

THE

P RESIDENT

Orange County Trial Lawyers Association

Taking our message to Sacramento

Spencer Lucas

How a tragic incident at Disneyland led to greater safety at amusement parks.

Appellate Reports and Cases in Brief

Casey Johnson

Gulliver Schools – A cautionary tale on settlement agreements that contain confidentiality clauses.

104

CAALA C ONNECTION C ENTER Welcoming the newest members to CAALA.

105

CAALA R ESOURCE C ENTER New CAALA Affiliate Vendors

106 108

D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS

Jeffrey Isaac Ehrlich

101

F ROM

THE

E XECUTIVE D IRECTOR

Consumer Attorneys Association of Los Angeles

Trial Lawyers: Be proud that you are a special interest group

Affiliate Vendors are an excellent resource to help improve your practice and a way to save money.

How they differ in purpose.

Stuart Zanville

102

G OVERNMENT R EL ATIONS B ULLETIN Political Updates from Sacramento and Washington

F ROM

THE

P RESIDENT

Consumer Attorneys Association of Los Angeles

Trust your instincts and you’ll make a difference A moving example of what it means to trust your gut.

Geoffrey Wells On the cover: Main Image: Gingerbread Man with Broken Leg | Jeffrey Hamilton | www.thinkstockphotos.com

APRIL 2014

The Advocate Magazine — 7

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About this Issue Spencer Lucas

Damages and experts A fresh look at damages and the experts who help us prove them This month in Advocate we explore important issues dealing with damages and the expert witnesses we hire to help prove them. For trial lawyers, these are among the top areas in which we can share information to heighten our effectiveness for clients. Hiring the right experts and properly working up the damages is fundamental to turning an average case into an excellent one.

The authors include distinguished trial lawyers who share with us some of their secrets of reaching landmark verdicts on behalf of catastrophically injured clients.

A special thanks to Carney Shegerian, CAALA 2013 Trial Lawyer of the Year, for taking time in the middle of a trial to explain his secrets to getting excellent damage awards in employment cases.

Carney’s article sets forth the basics of damages in employment cases and discusses his trial techniques in persuading the jury.

Victor George takes us into the world of spinal-cord and peripheralnerve injuries, sharing his vast expertise in this complicated area. Victor offers his

insight into the selection of experts – and the cost of these experts – from a recent case involving a Chevy Tahoe rollover resulting in a severe spinal-cord injury.

Brian Panish and David Rudorfer provide their unique perspective on successfully dealing with the “corruption” of sub rosa surveillance taken of the plaintiff during litigation. The writers offer techniques for obtaining defendant’s key surveillance in discovery and using it to your advantage during trial.

Joe Barrett explains the nuances of traumatic brain injury in his article, “Brain storm.” Joe gives a detailed anatomical description of the brain coupled with a keen analysis of how to recognize and present a traumatic brain injury, particularly when it’s not obvious.

Ricardo Echeverria, last year’s CAALA Trial Lawyer of the Year, takes on the issue of proving non-economic damages in a wrongful death case. From his extensive trial experience, he presents an insightful discussion from voir dire and opening statement through presentation of evidence and final argument.

Bill Karns provides guidance regarding the types of experts required for various personal-injury cases. Bill outlines the various experts needed to successfully prove liability and damages, whether it be a case of premises liability, medical malpractice or automobile collision.

Patrick Gunning writes about the rise of drivers using electronic devices while driving, and using this as a basis for establishing punitive damages as you might in a DUI case. Patrick writes from his experience successfully litigating this issue and shares the legal research needed to win.

Tom Dempsey writes about the importance of videotaping expert depositions and the required procedures to effectively use video to your advantage in the courtroom.

Lastly, I have written about Complex Regional Pain Syndrome. The article stems from a recent chronic-pain trial and highlights important issues in dealing with a chronic-pain case and the steps you must take to maximize the value of your case in front of a jury.

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APRIL 2014

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10 — The Advocate Magazine

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Ricardo Echeverria

Non-economic damages in the wrongful death trial Sympathy is not what you’re looking for and, frankly, sympathy is inadequate Perhaps the most important category of damages in a wrongful death trial is non-economic, and yet, it is usually the most difficult evidence to put on at trial.

Why is that? With economic damages, jurors can objectively see exactly what their award is paying for, whether it’s medical bills, lost wages or lost profits.

There is an objective basis for their award. But jurors are generally more reluctant to award significant non-economic damages for a number of reasons.

Besides the tort-reform jurors who think that all non-economic damages should be capped or banned, even otherwise well-intentioned jurors can have difficulty awarding significant non-economic damages. Usually, the reason behind the reluctance is a general feeling that any award of non-economic damages will not bring the decedent back.

Your job as a trial lawyer is to get the jury motivated to award a fair noneconomic damage award. But getting jurors to that point starts at the beginning of trial during voir dire, continues through the presentation of evidence, and culminates during closing argument.

This article will suggest how to effectively present your non-economic damages during a wrongful-death trial.

Voir dire

You really can’t expect a juror to award the non-economic damages that you will be asking for unless you have properly laid the foundation during voir dire. This is your only opportunity to talk to jurors about their feelings about noneconomic damages. And when I say “talk” to jurors, I mean listen to jurors.

Don’t ask the standard, “Can you be fair and impartial?” or “Can you promise to follow the law?” Inevitably, even the most callous tort reformers will tell you that they can be fair and follow the law. I start 12 — The Advocate Magazine

APRIL 2014

every voir dire telling jurors that they don’t owe me anything, nothing at all, with one exception. That is, their brutal honesty. I also start by explaining that everyone has prejudices, and that’s ok.

Some prejudices we have are because of where or how we were raised, while others have been formed through life experiences. After getting the jurors comfortable to understand that all you really want is their honest views about things, ask them open-ended questions and don’t be afraid about the answers you’ll get. Ask jurors questions like, “What do you think about our jury system that allows for compensation for the loss of the love of a family member?”; “Do you like that idea? If so, why?”; “Do you not like that idea? If not, why not?” Try to get jurors talking about their views on non-economic damages. You will learn far more about potential jurors by listening to their answers than you will getting simple “yes” or “no” answers to loaded questions.

Of course, if you’re able to get jurors talking about their feelings about noneconomic damages, you’ll inevitably reveal some really bad, and some really good, potential jurors. Don’t worry about those jurors. None of them will likely make the panel anyway. It’s the jurors who are in between that you need to focus on. Within that group, make sure that you identify the leaders from the followers. Obviously, the leaders who are bad potential jurors are the ones to get rid of first.

At a minimum, the jurors who remain on the panel should be ready, willing and able to follow the evidence wherever it takes them. I think it is a good idea to tell jurors up front that if they don’t think you’ve proved your case, then they must be prepared to look your client in the eye and give him or her nothing;

nothing at all. But, on the other hand, if that same juror thinks that you did prove your case, they also need to be ready, willing and able to render an appropriate and fair award; an award that simply equals and matches the harm presented by the evidence. It comes back to the brutal honesty that you’re asking the jury to give you, nothing more and nothing less.

Finally, since a verdict literally means to “speak the truth,” jurors should understand from the very beginning that there will be things that they are supposed to consider in rendering a verdict, as well as thing they are not supposed to consider. This will become important later during closing argument, as discussed below, when going through the jury instructions. But it is imperative that the jury understand the concept that there is stuff that must be considered as part of their verdict, and stuff that cannot be considered. The only way a truthful and honest verdict can be reached is if the rules are followed. If not, a dishonest verdict will result, and the jury needs to understand that up front.

Opening statement

One of the biggest mistakes lawyers make is to remind jurors that their opening statement is not evidence. Really, why do that? There’s an instruction that tells them that anyway and it’s inviting the jury to tune out, “because it’s not evidence.” Instead, tell the jury, “Everything I’m about to tell you we will prove to you with the evidence in this case.” Of course, don’t overstate your case, but don’t understate it either. Be frank, up front, and organized in telling your client’s story. Most importantly, keep it simple and to the point. Jurors will appreciate your preparation which will

Non-economic continues

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Non-economic — continued

give you credibility, which you will need when asking for non-economic damages later.

In addition to telling your client’s story, the opening statement is a time for you to continue to establish the theme for your case. You should be able to succinctly tell the jury what the case is about. For example, a common theme in wrongful death cases is “taking responsibility” or, to put it more accurately, “taking full responsibility”. This theme applies not only to the liability aspects of the case, but the damages as well. This theme must be reinforced during voir dire, opening statement, during evidence, and in closing. Awarding less than the full damages is not making the defendant take “full” responsibility.

Take time during your opening statement to talk about the damages your client has suffered just like you talk about the liability parts of your case. Explain the magnitude of the loss your client has suffered and the impact the death of the decedent has had on your clients.

Further, explain that the award you will ultimately be seeking will be a fair one.

In order to be fair, the award must simply match and equal the harm that’s been caused to your client, nothing more

and nothing less, which is all you expect from the jury.

Witnesses to establish non-economic damages

When putting on evidence of noneconomic damages in a wrongful death trial, identify witnesses other than your client who can verbalize the loss that your client has endured. Spend time during discovery identifying who such witnesses could be. It could be a parent, a sibling, a best friend, a boss or a coworker. Work with your client to identify such possible witnesses and then interview them so you can decide which are the best witnesses and then properly disclose them during discovery. Testimony coming from such non-party witnesses is very effective because it comes from someone who does not have a stake in the outcome and who has seen firsthand the impact that the wrongful death has had on your client.

Photos and videos

Photographs are very powerful tools in presenting non-economic damages.

You want to identify the best photos you can find to put your client’s loss in

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perspective. For example, look for photos where your client and the decedent are extremely happy like a wedding photo, birthday party, vacation, etc.

Then contrast that with explaining how your client’s life has been devastated by the loss. As we all know, a photograph can speak a thousand words.

In some cases, there may be family videos which are helpful for the jury to really understand your client’s loss. This is especially true in wrongful-death cases.

Try to have the video last no more than 10 to 15 minutes and show it only once so that you don’t “overbake the cake.”

This will have the most impact with the jury because after talking about the loss your client has suffered during trial, the video will give the jury a better feel for the magnitude of the loss firsthand.

Arguing non-economic damages

By the time you get to closing argument, you should have set the stage in voir dire for the jury to understand that their award of non-economic damages must equal and match the harm your client has suffered. You should tell the jury that before they can decide how much money to award in non-economic

Non-economic continues

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Non-economic — continued

T

damages, they must first consider the level of harm that your client has suffered in the past and will continue to suffer in the future. Go over the harm in detail before you ask for money. While the award must not exceed the amount of the harm, it should not be less than the harm either. Especially in wrongful-death cases don’t be shy about acknowledging that you are asking for a lot of money from the very beginning. The reason?

Because your client’s harm is so significant and the award must equal and match the harm. Address the common human reaction that “it’s just too much money for one person”, by telling the jury that if that’s the case, “then it is just it’s too much harm for one person too.”

But your client doesn’t have a choice on the level of harm they will endure, that’s established and out of the jury’s control.

Rather, what the jury does control is to make sure that their award equals and matches the harm. Again, nothing more and nothing less should be expected from the jury.

Closing argument is also the time to remind the jury of your discussion during voir dire that there are factors they must consider in rendering their non-economic award, and that there are things that they must not consider.

First, the stuff they must consider is contained in the jury instruction regarding wrongful death as follows: 1. The loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support; 2. The loss of the enjoyment of sexual relations; 3. The loss of decedent’s training and guidance.

(CACI 3921) Don’t gloss over this instruction. As to the first factor, break these down and talk to the jury about each one separately. Make a list of each as you talk about it: •Love •Companionship •Comfort •Care •Assistance 16 — The Advocate Magazine

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•Protection •Affection •Society •Moral support Once you’ve gone over what the jury must consider, turn your focus to talk about what they must not consider. When you get to this part of the closing, slow down, draw particular attention to it, and tell them that this is one of the most important things you will talk about in your closing. Why? Because you’re about to diffuse the reasons why most jurors are reluctant to give money for non-economic damages. Be honest with the jury and tell them that you understand human nature, and it’s easy to want to consider such other factors like, “Who is going to pay for these damages? How can the defendant afford to pay these damages?

When will it get paid? How much will get paid? or How will awarding such damages make the plaintiff better? etc.”

Nowhere in the instructions are these factors listed as things for the jury to consider. I tell the jury that if they let these inappropriate factors affect their verdict, it poisons their deliberations and leads to a dishonest verdict. You should tell the jurors that the lawyers and the judge will deal with such issues post-trial (so they know that someone will address those issues), but remind them that it’s not part of their job to consider such non-factors and it would be unfair and improper to inject them into the deliberations. Rather, their deliberations should be pristine, fair and simply follow the law. Show them the following jury instructions to drive your point home: Do not allow anything that happens outside this courtroom to affect your decision.

(CACI 100) You must not let bias, sympathy, prejudice, or public opinion influence your decision.

(CACI 5000) …And, I repeat, your verdict must be based only on the evidence that you hear or see in this courtroom. Do not let bias, sympathy, prejudice, or public opinion influence your verdict.

(CACI 100)

You must not consider whether any of the parties in this case has insurance.

The presence or absence of insurance is totally irrelevant. You must decide this case based only on the law and the evidence.

(CACI 105 & 5001) Notably, the instruction of not letting “bias, sympathy, prejudice or public opinion” influence the verdict is repeated. Because you know the defense will argue the issue of sympathy, hit it head on in your closing. Tell the jury that sympathy is not what you’re looking for and, frankly, sympathy is inadequate. Instead, what you want is justice and what’s fair.

That simply means that the award for non-economic damages must equal and match the harm. Not a penny more and not a penny less. You’re asking the jury to conduct a “fair & square” deliberation that considers all of the appropriate factors under the law.

If the defense urges the jury to consider other inappropriate factors such as the ones mentioned above (or others) in their argument, point out in rebuttal that they are trying to get a dishonest and compromised verdict. That is not “speaking the truth” which is what a verdict should do. The goal is to get the jury to really feel the loss your client has endured so they can translate that into a just and fair verdict on damages. A verdict that will make the defendant not just take responsibility, but take full responsibility.

Ricardo Echeverria is a trial attorney with Shernoff Bidart Echeverria Bentley, LLP, where he handles both insurance badfaith and catastrophic personal-injury cases.

He was named the 2010 CAALA Trial Lawyer of the Year, the 2011 Jennifer Brooks Lawyer of the Year by the Western San Bernardino County Bar Association, and a 2012 Outstanding Trial Lawyer by the Consumer Attorneys of San Diego. Mr. Echeverria was also a finalist for the CAOC Consumer Attorney of the Year Award in both 2007 and 2009. He currently sits on the CAALA Executive Committee and is also a member of ABOTA.

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Carney Shegerian

The jury and the award: Convincing 12 strangers To win an employment case, the jury must like your client and you must present the client’s story clearly Proving damages in employment cases is different – and arguably easier – than doing the same in the average personal-injury case. Most anyone, minus the super-wealthy, depend on their jobs and careers as the gateway to feeding themselves, housing their children, schooling, medical and health care, social activities and the list goes on and on.

Perhaps more painful for the average worker wrongfully terminated from a job is the embarrassment, loss of esteem, personal satisfaction and disassociation from their family of co-workers – a second area of huge damages not present in all personal injury cases.

The 12 members of a jury sit through weeks of arguments, testimony and evidence to determine what the “real” story of a case is. The jury’s job for those weeks is to listen to attorneys argue for the fate of their clients. For those weeks, the jury is the gatekeeper that determines whether the plaintiff goes home with nothing or goes home with a multi-million dollar verdict.

While the facts of each case determine the legal standard, the jury determines how much money – if any − is going home with the plaintiff. In a jury trial, the fact finders are the 12 men and women who have been randomly selected to determine the fate of a stranger.

Jurors sit through weeks listening to both sides present their arguments. The facts are just the facts. But what lawyers must do is to present those facts in the best way to tell our clients’ stories.

Punitive damages

In 2011, U.S. Department of Justice released a special report stating 18 — The Advocate Magazine

APRIL 2014

13 percent of civil cases with punitive damages had a punitive award of $1 million or more. (Punitive Damage Award in State Courts, 2005, Thomas Cohen J.D., Ph.D, Kyle Harbacek, U.S. Department of Justice, Office of Justice Program, Bureau of Justice Statistics, March 2011.)

The jury has unique freedom in the legal system. There are no standards for the jury to award money for pain and suffering. (On Juries and Damages Awards: The Decision Making Process, Edith Greene, Law and Contemporary Problems, Vol.52 No:4, 226.) Since there is no set standard for pain and suffering to award money, the jury has freedom to determine how much emotional pain is worth. The jury can award punitive damages for however much they determine the defendant should be deterred or punished.

California law states punitive damages are awarded when “the defendant has been guilty of oppression, fraud, or malice.” (Code Civ. Proc., § 3294, subd.(a).) The conduct must be so despicable that it subjected the plaintiff to cruel and unjust hardship; intentional; or willful conduct with a conscious disregard of others. Punitive damages are designed to deter and punish defendants for the specific conduct that they caused the plaintiff.

However, punitive damages have guidelines that the court must follow.

The jury can award any amount, but it must satisfy the constitutional issue of due process.

In BMW of North America Inc. v. Gore (1996) 517 US 559, a jury awarded the plaintiff $400 for his compensatory damages but awarded $2 million in

punitive damages. On appeal, the U.S. Supreme Court found the amount of punitive damages was “grossly excessive” because the 500 to 1 ratio of punitive damages to compensatory damages violated due process. The actual damages to the plaintiff were only $400 but the defendant was punished for over 500 times that amount. The Supreme Court found that the jury was punishing the defendant for other conduct outside of what had occurred to that particular plaintiff.

From Gore, there are guideposts to determine if a punitive damage award conforms with due process: the degree of reprehensibility of defendant’s conducts; the disparity between the actual harm (the compensatory) and the punitive award; and the comparable civil penalties and the punitive award. The punitive award is typically a 10:1 ratio of punitive damages to actual damages.

Following Gore, seven-figure punitive damage awards have been upheld by the courts. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 [$1 million in punitive damages upheld]; Roby v. McKesson Corporation (2009) 47 Cal.4th 686 [punitive damages reduced to $1.9 million]; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128 [$6.9 million in punitive damages upheld]; and Morgan v. New York Life Ins. (6th Cir. 2009) 559 F.3d 425 [upholding $6 million in compensatory and $6 million in punitive damages for discrimination claims].)

Numerous post-Gore and State Farm cases have upheld large ratios of punitive damages to compensatory damages.

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Bullock v. Phillip Morris (2011) 198 Cal.App.4th 543, rev. den. November 30, 2011 [upholding 16:1 ratio]; Bronakowski v. Lindhurst (Ark. Ct. App. 2009) 324 S.W.3d 719 [upholding 42:1 ratio]; Saunders v. Branch Banking and Trust Co. of Va. (4th Cir. 2008) 526 F.3d 142 [upholding 80:1 ratio]; Kemp v. American Tel. & Tel. Co. (11th Cir. 2004) 393 F.3d 1354 [upholding 2,000:1 ratio]; Abner v.

Kansas City Southern R. Co. (5th Cir. 2008) 513 F.3d 154 [upholding 125,000:1 ratio]; EEOC v. Federal Express Corp. (4th Cir. 2008) 513 F.3d 360 [upholding 12.5:1 ratio]; Hamlin v. Hampton Lumber Mills Inc. (Or. 2011) 246 P.3d 1121 [upholding 22:1 ratio]; Romanski v. Detroit Entertainment, LLC (6th Cir. 2005) 428 F.3d 629 [upholding 2,150:1 ratio]; Rodriguez v. Caribbean Forms Manufacturer

20 — The Advocate Magazine

APRIL 2014

(1st Cir. 2005) 399 F.3d 52 [upholding 199,999:1 ratio]; Goff v. Elmo Greer & Sons Const. Co., Inc. (Tenn. 2009) 297 S.W.3d 175 [upholding 151:1 ratio]; State v. Carpenter (Alaska 2007) 171 P.3d 41 [upholding 30:1 ratio]; Myers v. Workmen’s Auto Ins. Co. (Idaho 2004) 95 P.3d 97 [upholding 408:1 ratio]; Lincoln v. Case (5th Cir. 2003) 340 F.3d 283 [upholding 110:1 ratio].

The defendant’s wealth is a factor when determining punitive damages. If a defendant is extremely wealthy, such as a Fortune 500 company, there is a different price to deter them than a college graduate with student loan debts.

Pain and suffering

In employment cases, the plaintiff recovers their lost past and future wages

and benefits. Additionally, the plaintiff is entitled to be compensated for all of their past emotional suffering and damages due to the wrongful termination, discrimination or harassment that they suffered.

We as lawyers have the task to turn a person’s pain and suffering into an identifiable number. How do you put a number on the sleepless nights, feelings of hopelessness, and countless tears?

The emotional distress can be a significant amount of the final award.

Stockett v. Assoc. of Cal. Water Agencies Joint Powers (2004) 34 Cal.4th 441, 502 [reinstating $4.5 million compensatory damages award in retaliatory wrongful discharge case]; Passantino v. Johnson & Johnson (9th Cir. 2000) 212 F.3d 493

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The Advocate Magazine — 21

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O

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Our Verdicts & Settlements Mid Seven Figures (arm amputation)

Low Seven Figures (back surger y)

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Low Seven Figures (traumatic brain injur y)

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[upholding $3.1 million compensatory damages award in retaliation lawsuit]; Kelley v. Airborne Freight Corp. (1st Cir. 1998) 140 F.3d 335 [upholding $4 million in compensatory damages on federal and state age discrimination claims]; Hemmings v. Tidyman’s, Inc. (9th Cir. 2002) 285 F.3d 1174 [upholding $1.93 million and $2.2 million awards in two discrimination cases]; Hope v. Cal. Youth Authority (2005) 134 Cal.App.4th 577, 587 [upholding $1,917,104 million compensatory damages award as not “shock{ing} the conscience”.]

It all begins with who is on your jury.

Knowing to whom you are presenting the facts is one of the first things that happens in a trial. The jury can make or break years of legal work. Twelve individuals of various backgrounds stand between a win and a loss.

Voir dire

“Research indicates that juries make decisions based more firmly on their values, beliefs, and experiences than on the case facts.” (The Art of Forensic Psychology, Katherine Ramsland, http:// www.crimelibrary.com/criminal_mind/ forensics/forensic_psychology/12.html.)

This is why it is so important to know who is on the jury.

The jury you choose needs to like your client. You need to make the jurors like your client and want to help your client. It does not matter if the facts of the case are clearly in your favor if the jurors do not like your client. Once inside the jury room, they decide the fate of your client. The jury should feel a connection with your client. Most importantly, they should feel like they want to help out your client.

All of our decisions in life are based off of our past experiences and beliefs.

While a juror may see the facts clearly for one side or another, if the attorney presenting the case comes off as rude or egotistical the juror may not vote in your favor because of the attorney, not the facts.

The facts may be more complex than the average person would have knowledge. It is extremely important to be clear and effective when communicating 24 — The Advocate Magazine

APRIL 2014

to the jury. They are randomly selected and picked up from their everyday lives.

They are then thrown into the legal system with the task of deciding somebody else’s fate.

The experts

One tool that is useful to aid the jury in understanding your case is the expert witness. Expert witnesses have specialized knowledge beyond that of an average individual and their testimony aids the jury in understanding the facts and law of the case.

Experts can be a great tool because the experts can make a complex subject understandable to the jury. It is important to know when an expert should be retained by you in order to aid the jury.

The case should appear clear and understandable to the jury in order for them to vote in your client’s favor. The final decision should be effortless for them to see; that clearly the weight of the evidence and facts lie in your client’s favor. If there are subjects that will become confusing or need clarification, an expert witness can be a great asset for litigation and trial.

Two types of expert witnesses exist: retained experts and non-retained experts. A retained expert is a witness whose purpose is for “forming and expressing opinion in anticipation of the litigation or in preparation for the trial of the action.” (Easterby v. Clark (2009) 171 Cal.App.4th, 772, citing Schrieber v.

Estate of Kiser (1999) 22 Cal.4th 31, 36.)

Retained experts help each side explain to the jury the expert’s own opinion on a certain aspect of the case. A common example of a retained expert is the economist. An economist can help the jury determine the amount of award owed to the plaintiff. In employment cases, the jury may not know how much money to give for a wrongful termination case. How can 12 people of varying backgrounds determine how much money to give someone who has been wrongfully terminated? How much money should they give for lost wages? Future wages?

Retirement? Benefits?

That is where the economist comes in. Determining how much money a

person has lost since being terminated is easy; the calculation would be simply adding up the time since termination until the present day. But how much money should be given for future wages?

The economist can testify to any tests done in preparation for litigation. Future lost wages are determined by how much longer the employee would have continued working but for the wrongful termination. This allows a credible witness to give the jury information about the real damages that have occurred to the plaintiff. It is easy to see lost past wages, but lost future wages are harder to grasp without an expert economist to testify.

For employment cases, damages can become more complicated if the plaintiff goes back to work. The plaintiff has to mitigate their damages, their injury, by seeking substantially similar employment. This is another reason why expert witnesses are important. The economic expert can aid the jury in determining how much money should be deducted, if any, from an award based on plaintiff ’s new employment.

Always remember that while the expert can testify about what they think damages should be, the jury does not have to take their testimony as truth. The jury will ultimately decide what amount of damages should be awarded, even if an expert economist is on the stand.

Non-retained experts

Non-retained experts are witnesses to the case as well but they can only testify to form their opinion based on their perception. (Evid. Code, § 800.)

The California Supreme Court in Schreiber v. Estate of Kiser, stated that a typical non-retained expert is like a treating physician. The treating physician is an expert because medical knowledge is a specialty, but the treating physician did not see the client or witness in preparation of trial.

Summary

Once both sides have presented their case to the judge and jury, your client’s fate is left in the hands of

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12 strangers. All of your legal arguments do not hold any weight if the jury did not understand the facts clearly in favor of your client. If you leave the jury with the impression of someone who has clearly been wronged, and who is likable to the jury, then the jury will feel like they want to help out your client.

If your client’s story comes off as brash or harsh to jurors, they become less sympathetic and less likely to want to help your client. It is simple human nature that if you like someone, you are more willing to believe that what they are saying is the truth. For trial, that means if the jury likes your client the jury will be more willing to go out of its way to award larger damages. The human factor comes into play no matter how much evidence you present or how many credible expert witnesses you can bring into the courtroom. The plaintiff attorney’s job is to make the story clear for the jury to understand; to make it easy for the jurors to sympathize and ultimately help your client. The amount of damages comes down to how well you can make a jury empathize with a total stranger for a few weeks.

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He was nominated for California’s Top Labor and Employment Lawyer award for 2009.

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Joseph M. Barrett

Joseph M. Barrett

Joseph M. Barrett Associate Editor

Brain storm: How to recognize a traumatic brain injury Insight into brain function before and after trauma More and more often today we are confronted with traumatic brain injury (TBI) cases, and the decision “to take or not to take” is not easy. Just this last week I had two TBI cases presented to me. One involved a man who was rearended in a car crash, his seatback failed, and he was vaulted out the back window of his sports car, hitting his head on the way, out into a street. Very violent, but although he does not remember doing 28 — The Advocate Magazine

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it, apparently he got up and found the presence of mind to snap a couple pictures of the defendant’s license plate before that driver left the scene. He had an altered state of consciousness noted by witnesses, but he never fully “blacked out.” Tests taken in ER were negative, and within hours he was released home.

That potential plaintiff says he’s not the same person now, and he complains

of a different personality, trouble remembering things, and many other scary differences in his brain functioning, or so he believes.

The other case I evaluated involved a young man who was beaten by a bouncer outside a nightclub and who definitely was knocked out, but who also was cleared by the tests in ER, CT scan and x-rays, and sent home. He finds small

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differences in himself and how he behaves that scare him, and he is convinced that he has a traumatic brain injury.

TBI cases are very difficult to screen, and once accepted are also a challenge to present. Generally, jurors remain very cynical about such cases. There is not surgery to fix such problems. More important than that, there is usually an absence of “proof ” aside from the neuropsychological testing you may have done, showing diminished brain functioning. The defense will find a neuropsychologist themselves to say your expert and plaintiff are wrong, and that the problems they claim are really just an invention of their minds. Too often, these cases seem like a whiplash case on steroids. That said, they are often very good cases. Assessing the ones that are credible, that are “true,” is the challenge.

Here is a framework for doing so that you may find helpful.

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The most amazing and complex organ

First you need to know about the brain, the most amazing organ in the world. Inside are 100 billion nerve cells.

It weighs about three pounds. I’ve heard experts describe the texture as similar to thick Jello. One measly little piece of brain tissue, as tiny as a teensy weensy piece of sand, contains 100,000 neurons, two million axons, or fibers, along which the signals flow, and a billion connections. These neurons “talk” to each other across a tiny gap called a synapse, through which signals pass from cell to cell.

Brain cells live longer than any cell in your body. Each neuron will have 5,000 to 10,000 synapses, or connections.

This amounts quickly to numbers we cannot comprehend. Five hundred to 1,000 trillion synapses, or connections, exist within everyone’s brain.

The brain sends electrochemical pulses through these connections, making us have the ability to think, move,

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feel, remember, be motivated, be creative, laugh, cry, and plan. It receives information from the world outside ourselves through our amazing five senses of sight, sound, smell, touch and taste, and is the repository for our souls. The brain processes these things constantly, even while we sleep, and is constantly evolving and changing.

The brain regulates how our organs work, how our entire body functions, and adapts constantly; whether it be to injuries, to illnesses, to stress, to weather, so we can “live our lives.” It is the brain which tells us how to breathe, regulates our heart rate, and runs the entire body.

So much of this is simply ignored and taken for granted. We have thick skulls, but inside those skulls is this vulnerable, complex organ.

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Mild traumatic brain injuries So how does the brain get hurt?

When are injuries to the brain probable?

The injury we often are confronted with is called a “mild traumatic brain injury (MTBI).”

A traumatic brain injury occurs when an external force from a violent blow or jolt to the head occurs and causes physiological disruption. An object penetrating the skull, like a bullet or a shattered piece of the skull, can also cause TBI. Bruising on the brain, torn tissues and axons within the brain, or other changes leading to pressure on the delicate brain tissues or loss of blood or oxygen within the brain can also cause TBI. A good working definition of the criteria for an MTBI is found with the U.S.

Government’s Center for Disease Control: Any period of observed or selfreported: • Transient confusion, disorientation, or impaired consciousness; • Dysfunction of memory around the time of injury; or • Loss of consciousness of 30 minutes or less.

The classic symptoms of a traumatic brain injury (TBI) are: • Vomiting • Lethargy • Headache • Confusion • Paralysis • Coma

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• Loss of consciousness • Dilated pupils • Vision changes (blurred vision or seeing double, not able to tolerate bright lights, loss of eye movement, blindness) • Cerebrospinal fluid (CSF) coming out of ears or nose • Dizziness and balance problems • Breathing problems • Slow pulse • Slow breathing rate, with an increase in blood pressure • Ringing in the ears or changes in hearing • Cognitive difficulties • Inappropriate emotional responses • Speech difficulties (slurred speech, inability to understand and/or articulate words) • Difficulty swallowing

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• Body numbness or tingling • Droopy eyelid or facial weakness • Loss of bowel control or bladder control

The nervous system

More understanding of the brain function is helpful. The nervous system is divided into two separate systems, the central nervous system and the peripheral nerve system. Each controls different functions throughout the body. The central nervous system (CNS) is basically the brain itself and the attached spinal cord which controls our limbs and movements.

The peripheral nervous system (PNS) contains all the branches of nerves that go from the brain (cranial nerves) and the spinal cord. The PNS includes what we call the autonomic nervous system, which keeps us alive by regulating our

breathing, our heart rate, our digestion of foods and metabolism of those chemicals throughout the body, and the secretion of hormones.

The skull

The brain is protected by the skull.

The skull is made of eight bones actually, which most people don’t think of. There are actually different plates of the skull which form together as we grow after birth. These bones include the frontal, parietal (2), temporal (2), sphenoid, occipital and ethmoid bones. The face has another 14 bones that form the bone structure protecting the brain from the front. Inside the skull on its base, there are three different areas, the anterior fossa, middle fossa, and posterior fossa.

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The brain itself is divided into various areas. The brain is composed of three parts: the brainstem, the cerebellum, and the cerebrum. The cerebrum is the biggest part of the brain and contains both the right and left hemispheres. It controls what we call “executive functions” and other higher level functions like interpreting what we see, hear, feel, understanding those sensory inputs, acting on them, and the cerebrum also regulates fine motor movements. The cerebellum sits under the cerebrum and it coordinates our voluntary movements, our balance, in a larger sense, eye movements, and coordination.

The brainstem connects the spinal cord to the cerebrum and the cerebellum, and handles the autonomic functions, balance and movement, sleep, sneezing, swallowing, coughing, vomiting, digestion, and sleeping.

Looking at the cerebrum itself, it is that part of the brain we commonly see that has a folded appearance called the cortex. That’s where most of those 100 billion nerve cells, or neurons, are located, firing their electrochemical signals, keeping our spirit alive. These cells are the gray-brownish color and the part of the brain we call gray matter. Beneath that cortex is the white matter, or the axons that connect the neurons and form the pathways for the brain operations.

The brain has two hemispheres, the right and the left, which are joined by a bundle of fibers called the corpus callosum, which allows these two hemispheres to interface in their functionality. Each hemisphere controls the opposite side of the body. Generally speaking, it is the left hemisphere that controls our speech, comprehension, math and writing, while the right hemisphere controls in a general sense creative stuff, music, art, and sports stuff.

Inside the brain itself, the cerebral hemispheres have distinct areas, and fall

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into four lobes, the frontal, the parietal, the temporal and occipital.

The frontal lobe is said to control: • Personality, behavior and emotions • Judgment, planning, and problem solving • Speech, speaking and writing • Body movement • Intelligence, concentration and selfawareness The parietal lobe is said to control: • Interpretation of language and words • Sense of touch, pain and temperature • Interpretation of signals from vision, hearing, motor, sensory and memory • Spatial and visual perception The occipital lobe is said to control: • Interpretation of visual input (color, light, movements) Finally, the temporal lobe is said to control: • Understanding language • Memory • Hearing • Sequencing and organization

Memory

Memory itself is a function of the brain that is three-fold, short-term, longterm and skill memory. Short-term memory (working memory) happens in

the prefrontal cortex, keeps information for brief periods, and is very limited, used to allow us to follow commands, read, and carry out decisions. Long-term memory is processed in the hippocampus of the temporal lobe, and is unlimited. Skill memory, processed in the cerebellum, stores things we “know how to do,” hit a curveball, tie a shoe, use a typewriter.

Analyzing the TBI victim

With this understanding, we can start analyzing the TBI victim by listening to them describe what is different following an incident, some of which we may be able to observe. Each affected area of the brain will have changes that are controlled by the injured region. In a whiplash-type injury, for example, where the brain is bruised by the inner surface of the skull, frontal lobe damage may exist, and the person injured will complain of things like attention problems and changes in personality, for example.

If the brain was bounced back and forth and the back of the brain, or occipital lobe, is injured, the complaints could be trouble with vision, or trouble thinking clearly when reading things, or acting on visual stimuli, as examples.

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It is important to always remember that if the brain injury is classified as “mild”, this relates to the time period of loss of consciousness or altered state of consciousness, and not to its effects, which can be permanent and devastating.

Mild brain injuries will often heal and neurologists commonly point out that most TBI injuries resolve.

It is only perhaps 15 percent of those TBI victims whose symptomology, classically referred to as “Post-Concussion Syndrome,” (PCS) never resolves. These are the folks we must key on to discern and explain their brain injury as lawyers.

It takes time, and again, most neurologists seem to say 18 to 24 months, to see if the PCS issues reflected in complaints with headaches, vision and balance problems, emotional lability or memory problems, go away.

Once the brain injury persists more than two years, the victim isn’t going to recover much, according to most studies.

They can “rewire” their brains a bit through cognitive rehabilitation and using compensatory strategies to get through life as safely and productively as the brain will allow post-injury, but recovery is limited at that point. There is no pill, no surgery, no healing power known at that point.

How to present a traumatic brain injury

The practical advice I use as a lawyer in TBI cases is not terribly complicated. First, the incident which injured the person better make the average person believe it was enough of a jolt or impact to “scramble those eggs.”

If the damage to the car was minor, it’s hard to credibly advocate that a TBI exists, whether it is real or not. A lawyer needs to seek justice for what a jury will find credible, and sometimes that means punting the TBI claim even where your gut tells you it may exist, because it may strain credibility. You need to believe it yourself before advocating for the injury.

And it needs to be an injury-producing event that the average cynical person (i.e., a juror) would believe if you’re going to go down that road with the

plaintiff in medical management and diagnostic evaluation.

Beyond being convinced by the mechanism of injury and forces involved to the head, which must exist, the next level of scrutiny should be taking an inventory of TBI symptoms from the client, testing them in discussions over time and then cross-referencing their veracity, where possible, with family members, people in the plaintiff ’s life, what we call “collateral sources.”

If at that point it seems legitimate to consider, then you should look at what your plaintiff told doctors from the start.

Did they complain of any altered state of consciousness (or affirmatively deny it)?

Talk with any witnesses from the scene.

Their description of violence (or lack of same), movements of vehicles or forces observed on the head and neck in the injury-producing incident, description of how your client reacted, spoke, carried themselves at the scene will be key. A truly brain-injured person will usually manifest symptoms right away, generally speaking.

A jury wants to know that there was tremendous violence, observable problems, and that people around the plaintiff have seen and can verify the TBI claim.

People are very cynical about TBI cases, and the claim must be backed by the incident and witnesses to the extent possible.

It is true that ambulance records and ER records tend to miss most MTBI claims. The reality is, unless there is gross trauma observed, the acceleration/ deceleration forces that can cause whiplash, and in some cases MTBI, don’t show up in the first hour any more than the usual concussive signs: headaches, neck pain, etc.

It is great when the records give you the foundation for a TBI injury, but if they don’t, yet the incident was sufficiently violent and the PCS symptoms persist and are documented by doctors in the weeks and months following the incident, then a TBI claim may still be viable and provable. Most neurologists, psychiatrists and neuropsychologists agree that a valid TBI injury can exist without documented concussion and proof of brain injury in the early records, because the signs and

symptoms are commonly missed by early responders.

Diffuse axonal shear is a common brain injury finding, as contrasted to focal brain trauma that is observable from images showing brain hematoma or other gross injury findings. When a tremendous energy force goes through the brain (in a collision, for example) doctors have found from autopsies on brains that a ripping or shearing of the connective tissues within the brain can occur. Once this happens (often not observable in most imaging techniques) a serious TBI can exist. These injuries are very subtle and can best be proven through merging the various methods of medical evaluation, including neuropsychological evaluation, brain imaging studies and neurological assessment.

Conclusion

Knowledge of the brain – how it is built, what it does and how it is injured – is critical for any lawyer fighting for justice in a TBI case. Presentation of the TBI case requires good expert witnesses, conveying the violence of the incident to the plaintiff ’s brain, and teaching the jury about how TBI is provable and the consequences of the injury.

The survivor of TBI walks away, or is carried away, a different person with a different mind and a changed soul. The challenge for the trial lawyer is to communicate that difference and quantify it for the jury.

Joseph M. Barrett is President-Elect of CAALA. He is a senior trial lawyer with Kabateck Brown Kellner LLP. His practice focuses on catastrophic injury and death cases, typically involving negligence, product liability, governmental liability, civil rights, and other impact litigation.

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About this Issue

Spencer Lucas

Spencer Lucas

Making complex regional pain syndrome simple for a jury A start-to-finish strategy for proving the chronic pain and resultant damages of CRPS When God was testing the faith of Job, the worst punishment was physical pain….

He lost his lands and property, his family – but it was not until physical pain was inflicted that Job broke. (Job 16:6).

A case dealing with chronic pain can be difficult to prove due to the subjective nature of pain itself. This is especially true for Complex Regional Pain Syndrome cases (“CRPS”). CRPS, formerly known as Reflex Sympathetic Distrophy Syndrome (“RSD”), is an incurable chronic pain condition that is often debilitating. For trial lawyers and their clients, this disorder is especially troubling because of the controversy surrounding its diagnosis and treatment. As its very name implies, the disorder is “complex” in nature, is routinely misdiagnosed, and as such, is difficult to explain and prove to a jury.

Take a recent case that had a mixed diagnosis: Some doctors thought it was CRPS, while some did not. In the end, what mattered was our client had severe pain that would likely afflict him for the rest of his life. This was something the jury understood, whether we called it CRPS or not. The primary purpose of this article is to explain the basics of CRPS, highlight some of the challenges in dealing with a CRPS case, and discuss some useful strategies from a recent trial.

CRPS – What is it?

CRPS is a chronic pain condition most often affecting one of the limbs (arms, legs, hands, or feet), in which the pain is out of proportion to the injury.

There are two designations of CRPS: Type I and II. Type I, which this article will focus on, is a result of trauma. Type II stems from a specific injury to a nerve.

Some researchers have said CRPS is potentially the worst chronic pain disorder a human being could endure. Doctors 40 — The Advocate Magazine

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describe the severe cases of CRPS as being higher on the pain scale than childbirth and amputation. How-ever, over the years, pain management practitioners were overzealous in diagnosing chronic pain patients with CRPS. In the early 1990s, “RSD” cases were popping up everywhere, perhaps in part due to the unclear diagnostic criteria at the time. Now, after the hype has calmed and thorough research has flushed out a more clear understanding of the disorder, CRPS cases can and should command the same attention as other severe injuries such as brain and spinal cord injuries.

To begin with, CRPS arises typically after an injury or trauma to the affected limb. For example, a seemingly simple fracture to the ankle eventually causing a severe pain disorder in that limb. The most frightening aspect of the disease is that it often initially begins in an arm or a leg and often spreads throughout the body. In fact, according to the National Institute of Health, 92 percent of patients state that they have experienced a spread, and 35 percent of patients report symptoms in their whole body.

CRPS is characterized by prolonged or excessive pain and mild or dramatic changes in skin color, temperature, and/or swelling in the affected area.

These signs can be subtle in nature, or

dramatic, depending on the severity of the CRPS. CRPS symptoms vary in severity and duration. The key symptom is prolonged pain that may be constant and, in some people, extremely uncomfortable or severe. The pain may feel like a burning or “pins and needles” sensation, or as if someone is squeezing the affected limb.

The pain may spread to include the entire arm or leg, even though the precipitating injury might have been only to a finger or toe. Pain can sometimes even travel to the opposite extremity.

There is often increased sensitivity in the affected area, such that even light touch or contact is painful (called allodynia).

People with CRPS also experience constant or intermittent changes in temperature, skin color, and swelling of the affected limb. An affected arm or leg may feel warmer or cooler compared to the opposite limb. The skin on the affected limb may change color, becoming blotchy, blue, purple, pale, or red. As discussed in more detail below, due to the complexity of the disorder, CRPS cases are often overlooked, misdiagnosed, and not properly worked up.

Vetting a CRPS case

As trial lawyers, we appreciate that many of our clients do not have the type of medical treatment and insurance required to get a complete medical workup and diagnosis. Often, an injury like a brain bleed or spinal fracture might go misdiagnosed. With a disorder such as CRPS, this is truly one of the injuries that often require an attorney’s eye and attention to appreciate the client’s dilemma.

The following are a few points to consider when interviewing a client to determine if he or she potentially has CRPS:

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• An injury causing pain which is out of proportion to injury, • Changes in skin texture on the affected area; it may appear shiny and thin, • Abnormal sweating pattern in the affected area or surrounding areas,

• Changes in nail and hair growth patterns, • Stiffness in affected joints, • Problems coordinating muscle movement, with decreased ability to move the affected body part, and,

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• Abnormal movement in the affected limb (most often fixed abnormal posture, or tremors of the affected limb).

For a full CRPS potential case checklist, please contact the author.

What causes CRPS?

Doctors aren’t sure what causes some individuals to develop CRPS while others with similar trauma do not. In more than 90 percent of cases, the condition is triggered by a clear history of trauma or injury. The most common triggers are fractures, sprains/strains, soft tissue injury (such as burns, cuts, or bruises), limb immobilization (such as being in a cast), or surgical or medical procedures (such as needlestick). CRPS is essentially an abnormal neurological response that magnifies the effects of the injury. Some doctors explain that CRPS functions in the way that an allergy does. Some people respond excessively to a trigger that causes no problem for other people.

CRPS diagnosis and prognosis

There is no single diagnostic test to confirm or rule out CRPS. In 1994, the International Association for the Study of Pain (IASP) came up with an agreed upon “diagnostic criteria” which most practitioners now use. A diagnosis is made based on the patient’s symptoms and signs that match the description of CRPS. For this reason, oftentimes physicians seeing the same patient may have different opinions as to the diagnosis of CRPS. With respect to prognosis, research exists that there is no cure for CRPS, while other research suggests that in a majority of cases the disorder may improve over time. The prognosis is highly dependent upon the individual’s particular situation and severity of symptoms. Research suggests that early treatment is helpful in limiting the spread of the disorder, and that younger people typically have better outcomes than older people. The sad reality is that CRPS is difficult to treat and many times patients are faced with a lifetime of unrelenting pain.

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How to deal with conflicting CRPS diagnoses Given the complexity of CRPS, and its somewhat subjective diagnostic criteria, frequently there will be conflicting

diagnoses in a CRPS case. In a recent trial, we had a client that was diagnosed by our Pain Management expert and CRPS expert as having “CRPS.” However, the treating doctors never diagnosed CRPS and, in fact, a Kaiser physi-

cian opined in deposition the patient did not have the disorder. The question for us going into the trial was “how the heck do we deal with these conflicting opinions about the diagnosis?”

After conducting a focus group on this issue, it became clear that the jury did not care so much about the technical diagnosis of CRPS. What they focused on was simply the “pain.” The jury understood “pain is pain” no matter what you call it. No doctor in the case disputed that our client was in chronic pain. The only dispute was what medical name they decided to give the condition. After the focus group, we made the decision to theme the case as a “chronic pain case” instead of a “CRPS” case. While, our pain-management expert still testified he believed our client had CRPS, we chose not to call our highly regarded “CRPS expert” to trial. This approach allowed us to argue CRPS without putting all of our eggs in that basket.

In that trial, the disagreement among the experts (and treaters) about the CRPS diagnosis could have proved fatal to the case. The jury potentially could have believed the relatively inexperienced Kaiser doctor, who did not understand the nuanced CRPS findings in my client. If we put all of our stock in convincing the jury about CRPS, it would have been an uphill battle all the way.

Instead we focused on what everyone agreed – that the plaintiff had severe chronic pain.

The diagnosis of pain is simple, and the treating doctors and plaintiff ’s experts all agreed that the pain was chronic and had no end in sight. This simplification of the theme of the case proved effective and the jury returned a substantial million verdict for our client.

Voir dire tips in a pain trial

Let’s face it, the most important part of the trial is picking a good jury. In a chronic pain case (whether CRPS or otherwise), the biggest component of your case can and should be non-economic damages. The biggest dilemma we face as plaintiff ’s trial lawyers in this context is 44 — The Advocate Magazine

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getting a fair jury that can give substantial awards for pain and suffering. Many jurors say, “Sure, I can be fair,” in an attempt to avoid the dialogue about their true underlying bias. The reality is that many of these jurors are of the mindset that money won’t make the pain go away, so why give the money? It is therefore critical that you expose in jury selection how jurors really feel about giving many millions of dollars to compensate for pain.

While we often think of jury selection as jury “de-selection,” it is important to embrace the concept of inclusion. Get the panel talking in an inclusive fashion about their hesitancy about awarding money for pain to maximize the number of cause challenges. There are many ways to go about doing this, but in my experience, a jury questionnaire can greatly

assist in this process. (Contact the author for a sample questionnaire.) Whether a questionnaire is allowed or not, determine who the worst jurors are in terms of their bias against monetary damages for pain. Begin the discussion with the juror who seems the most vocal against awarding pain damages. Engage them in an inviting manner. For example, “Mr. Limbaugh, you said that it is your belief that you cannot award monetary damages for pain, tell us about that.” Of course, this potential juror will wax poetically on his deeply held beliefs that compensation for lost wages and past medical expenses are fine, but money for pain is an outrage. Follow up with him and validate his feelings. Get him to admit that you will have an uphill battle, or that you are starting off just a step behind if it

were a race. Lock him down for the cause challenge in as nice a way as you can.

Once you have your first cause challenge locked, move on to the next worst juror who has reservations about monetary damages for pain. Get them talking and use the same approach. Tell them you will be asking for millions of dollars just to compensate for the pain alone.

Once your top “haters” are caused out, you will want to see which other jurors are now willing to share their feelings on this issue now that they have seen others open up about it. What happens during this process is that jurors realize it is socially acceptable to share these antilawsuit, anti-damages feelings, especially while you are encouraging them to do so and making them feel accepted as a result.

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The next step is to get people who seemed to be decent jurors on first glance (whether on the questionnaire or initial responses in group discussion) into the discussion and flush out any reservations about giving millions of dollars for pain. The goal here is to really bait these people you may be unclear about to see if they will admit to you that they are a little unsure if they could give a substantial award on the issue of pain. After starting with the most anti-pain damages jurors and hopefully locking down your cause challenges, open it up to the group, in a nice way, and say something like “does anyone else feel the way Mr. Limbaugh and Mr. Reilly do, that maybe monetary damages for pain don’t really do a whole lot of good?”

Inevitably, people will start raising hands that you didn’t have pegged previously as tort reformers or low givers for non-economic pain damages. Once three or four people out of your panel start sharing their common beliefs, it becomes much easier for those that are reluctant to share their true feelings to raise their hands and admit that they have some feelings against pain and suffering damages.

Experts: Get the dream team

Due to the somewhat subjective nature of the diagnosis, in many cases the patient does not exhibit all of the typical symptoms mentioned above. It is not unusual for defense examiners to

find no temperature changes, edema, or abnormal skin texture, while the other physicians observe such findings. Often times, your client may have shown signs of edema and temperature changes in one visit, but no signs in another. For this reason it is important that your team have a cohesive strategy to effectively handle cross examination, and for you to have a clear plan of attack for the defense expert.

First, you need the best CRPS expert you can find to diagnose the disorder.

Typically this is a rheumatologist. The reality is if your client’s diagnosis is sketchy, you want to know up front so you can manage your case appropriately.

Each client situation is different depending on the underlying trauma and the severity of what may appear to be CRPS symptoms, and the expert you choose is also case-dependent. Thankfully, there are several CRPS experts in Southern California who are highly regarded in the field. (Contact information regarding CRPS experts is avialable from the author.)

Second, a rehabilitation expert may be appropriate to assess your client’s potential for recovery and to assist with a life-care plan. Many times, the “CRPS expert” may contribute a great deal to the care plan, but having a Board Certified rehabilitation specialist exclusively focus on the potential outcome and future care needs is tremendously helpful.

Third, an orthopedic specialist will be required to discuss the nature of the underlying trauma. In our trial, our first witness was the orthopedic expert who conducted a physical examination of the patient in front of the jury showing the impaired right foot. He described the initial foot and ankle fractures, and pointed out to the jury the skin changes, the swelling, and the redness which are all signs consistent with CRPS. Likewise, the orthopedic expert is useful in describing the first criteria to CRPS – that the complaint of pain is out of proportion to the initial injury.

Fourth, a psychiatrist or psychologist will be necessary to evaluate your client’s

mental health situation and future prognosis. When dealing with any chronic pain situation, the psychological aspect becomes paramount. The psychiatrist is also the best expert to explain how the pain signals affect the brain, and how the quality of life will be greatly diminished.

As a psychiatrist explained in our recent chronic pain trial, “this patient will endure the rest of his life in pain. Every day for the rest of his life he will have that nerve pain which is a feeling like his leg is on fire. Because of all of this he will be at an increased risk for suicide. We know from the research that patients like this have a higher risk of suicide because they just can’t deal with the pain.”

This expert should testify toward the end of your case-in-chief. This will allow your expert to read and rely upon the trial transcript of your damages witnesses (friends, family, etc.). The psych testimony will then put into perspective from a medical standpoint how the pain is affecting your client’s mental health.

Finally, you will need a life-care planning expert to put together the recommendations of all of the physicians involved to care for your client for the rest of his or her life. The plaintiff ’s “minimum life care plan” should include all the future therapies, procedures, surgeries, medications, and assistance to give your client the best chance at having some quality of life in the future.

Dealing with the defense “expert”

In CRPS cases, the defense will likely hire a Physical Medicine & Rehabilitation/Pain Management expert or rheumatologist with experience treating CRPS. This expert will say your client (1) does not have CRPS, and (2) is exaggerating. These doctors will be armed with surveillance footage of your client doing certain activities which they claim are inconsistent with the claims of debilitating pain. When your client has a 100 percent slam dunk CRPS/chronic pain case, the defense will still hire someone to come in and say your client will get better over time. It is up to you to expose the fraud that the defense will try to perpetrate on the jury.

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Start with the Defense Medical Examination. The “expert” will likely spend less than 15 minutes with your client, while your Dream Team will have spent hours during their thorough evalu-

ations. Record the session and have it transcribed. Break down how much time was actually spent doing the physical examination portion. It is likely to be less than ten minutes. Make sure that your

Review your transcripts over coffee!

client is cooperative throughout the examination. Use this as a point during cross exam, that your client was agreeable and did everything that the doctor asked.

Use the statistics. It is imperative to fully research your client’s medical history, complaints of pain, and statistics as they relate to the severity of your client’s CRPS/ chronic pain. Come prepared to the deposition with a list of statistics and force the doctor to agree with your points. For example, “you would agree doctor that CRPS is higher on the McGill pain scale than childbirth, correct?” Or, “You would agree Doctor that there is no cure for CRPS, right?”

Prior to the deposition of the defense expert, create a list of concessions that he or she will be forced to agree with. This goes beyond generic statistics and should be focused on your client’s medical history, course of treatment, ongoing complaints of pain, and future limitations. Even when there is a differential diagnosis, it is helpful to get concessions that your client was active and healthy prior to the incident, whereas now they are disabled.

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APRIL 2014

At the end of the day, pain is pain.

It doesn’t matter what you call it. What matters is how severe the pain is, how long it will last, and how it interferes with your client’s life.

CRPS is essentially a nerve-pain disorder. Jurors understand what nerve pain is. Experts sometimes describe it as an “electrical shock” kind of pain with burning sensation. Persuasive testimony from friends, family, and co-workers to describe your client’s everyday life and the pain they endure will hold a lot of weight in the eyes of the jury. Highlight the physical activities that your client enjoyed prior to their injury that they can no longer perform. The simpler you make your theme, the easier it will stick in the minds of the jurors.

Spencer Lucas is a trial lawyer at Panish Shea & Boyle and specializes in trying complex catastrophic personal injury, products liability and wrongful death cases.

He has extensive experience in cases involving traumatic brain injuries, spinal cord injuries, and chronic pain.

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David Rudorfer

Brian Panish

Fighting sub rosa corruption Tools to use against an ambush at trial by defendant’s corrupted evidence To avoid being ambushed in trial it is necessary to aggressively pursue surveillance evidence (aka “sub rosa”) from the beginning to the end of every personal-injury case. The reason is that the classic use of sub rosa to expose an allegedly dishonest plaintiff has evolved into a corrupt practice of using advanced video editing technology to make a truly injured plaintiff appear to be not injured, or less injured.

Especially with catastrophic-injury cases, the defense industry’s regular use of sub rosa now involves editing and manipulating video to create a false or inaccurate appearance of the plaintiff being less injured. For example, it has become common for the defense to hire a private investigator to engage in hundreds of hours of secret sub rosa video over many days, weeks or even months, in hopes of recording the plaintiff doing some activity inconsistent with their claimed injuries or deficits. The investigator then takes the hundreds of hours of sub rosa video and edits it down to a few clips which are only a minute or a few seconds long. The videos are also edited to make it appear that the plaintiff is engaging in activities in an order or time frame that is highly distorted and inaccurate. In short, the sub rosa evidence is drastically edited to be taken out of context which creates a false impression of plaintiff ’s medical condition or need for future treatment. These are now typical defense sub rosa tactics.

The much more devious use of sub rosa evidence involves video that is manipulated. We have experienced in various recent trials that the defense has attempted to introduce video sub rosa of the plaintiff which was digitally sped up to make it appear that the plaintiff was walking faster than she claimed she could. Similarly, we have seen the video titled, angled or skewed to impact on the appearance of the video such as to make 50 — The Advocate Magazine

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it appear that the plaintiff is walking up a hill when they were on a flat surface.

These fraudulent attempts at creating alleged impeachment evidence by manipulating sub rosa video are unfortunately becoming more and more common.

Regardless of whether the sub rosa evidence is being taken out of context or being manipulated, this corruption cannot be tolerated. There are various tools of discovery or statutes which can be useful in the fight against the improper use of sub rosa. Also, objections on the grounds of foundation, authentication and/or the doctrine of completeness can pose significant problems for a defense attorney trying to use improperly edited sub rosa video. If you diligently fight to discover sub rosa evidence from beginning to end, you will often be able to either keep the evidence out of trial, minimize the harm it can cause, or in some cases use it to your advantage. The purpose of this article is to provide guidance to the plaintiff attorney on how to expose the sub rosa corruption, and use it to your advantage.

Sub rosa of the plaintiff is subject to discovery

California has long held that photographs and films of surveillance are subject to discovery and, further, that such evidence is not protected by the attorneyclient or work-product privilege. (Suezaki v. Superior Court (1962) 58 Cal.2d 166.)

The Suezaki case remains the leading authority in California on this topic. The California Judicial Council has confirmed this position recognizing the discoverability of sub rosa evidence as reflecting in Judicial Council Form Interrogatory 13 series. Form Interrogatory 13.1 specifically requires the responding party to identify the name, address and telephone number of the individual conducting surveillance; the time, date, and place of surveillance; and the name, address and telephone

number of each person who has the original or copy of any surveillance photograph, film or videotape. Moreover, Form Interrogatory 13.2 requires the responding party to identify information for any written surveillance reports including the title, date, name of author, and identification of the person who has the original or copy.

Thus, you can easily begin aggressively conducting discovery of sub rosa evidence by serving form interrogatories that includes the 13 series. Every single piece of evidence requested by Form Interrogatory 13.1 and 13.2 is critical to successfully cross examine the defense private investigator and uncover the full extent of surveillance or any potential improper editing.

In addition to form interrogatories, it is necessary to also serve special interrogatories under Code of Civil Procedure sections 2030.010-2030.410, as well as inspection demands/requests for production under sections 2031.010-2031.320 seeking all forms of sub rosa evidence. In short, request the details of all aspects of the sub rosa by special interrogatories and all reports, documents, videotapes, bills, notes or correspondence should be the subject of requests for production.

If the defendant is an entity rather than individual, serve a person most qualified deposition notice under section 2025.230 with subject areas on sub rosa.

Otherwise, simply notice the depositions of the individual investigators under sections 2025.010-2025.620 once you obtain information on their identities.

Be careful to evaluate the defendant’s responses to requests for sub rosa evidence for any objections. If they are asserting objections, you must meet and confer for amended responses without the objections. If they refuse, you know they have sub rosa and you must file a motion to compel which asserts the law

Sub Rosa continues

ce

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and arguments in this article to avoid being ambushed at trial.

It is important to note that sub rosa evidence is unique because it can be created literally at any time up to and throughout trial. For this reason, you cannot rely on discovery responses early in the case. It is necessary to serve supplemental discovery requests under Code of Civil Procedure section 2030.070 for all prior interrogatories or supplemental discovery requests under section 2031.050 for all prior requests for production as you approach the close of discovery.

Again, be sure to keep a close eye for responses to the supplemental discovery that include newly asserted objections to prior discovery requests for sub rosa evidence. If such objections are asserted, you know they have sub rosa and you must file the motion to compel this evidence or you are risking being ambushed at trial. Please contact author for sample sub rosa discovery and motion to compel.

Sub rosa evidence is not protected by the attorney-client privilege or attorney-work-product doctrine

Defendants will often object to requests for sub rosa evidence on grounds of attorney-client privilege or attorneywork-product doctrine. Both of these objections are misplaced and without merit. The California Supreme Court, in Suezaki, specifically addressed and dismissed both these objections.

The Suezaki Court explained that surveillance evidence does not constitute a confidential communication for purposes of the attorney-client privilege and further, that transmission of the evidence to the attorney, even where the parties intend the matter to be confidential, “cannot create the privilege if none, in fact, exists.” (Suezaki, 58 Cal.2d at pp.175-177.) Suezaki further stated that the films plaintiff sought were “not a graphic representation of the defendants, their activities, their mental impressions, anything within their knowledge, or of anything owned by them” but instead were the “representations of the plaintiffs, not of the defendants.” (Ibid.)

Thus, attorney-client privilege objections

to discovery requests for sub rosa evidence are without merit.

The absolute work-product protection of any writing reflecting an attorney’s impressions, conclusions, opinions or legal research theories afforded under Code of Civil Procedure section 2018.030(a) was deemed to not apply to sub rosa of a plaintiff. (Ibid.) Similarly, defense counsel cannot establish that sub rosa evidence is exempt from discovery based on the qualified work-product protection under section 2018.030(b). The party seeking discovery must show that there is good cause for the production of the evidence being sought, while the party claiming the statutory protection has the burden to prove that it applies and must do more than merely state that they want something protected. (See Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 66.) The Suezaki Court determined that the work-product objection was without merit because good cause indeed existed for the production of the sub rosa evidence in order to (1) protect against surprise; and (2) prepare for an examination of the person who performed the surveillance. (Id. at p.171.) Thus, neither objection should preclude discovery of sub rosa evidence.

Good cause exists for sub rosa discovery to prevent trial by ambush

As noted by the Suezaki Court, in addition to good cause existing for the discovery of sub rosa evidence in order to prepare the attorney to cross examine the investigator who did the sub rosa, good cause also exists for the production of sub rosa evidence to avoid trial by ambush and unfair surprise. In California, pretrial discovery procedures are designed to eliminate the need for guesswork about the other side’s evidence, with all doubts about discoverability resolved in favor of disclosure. (See Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113.) Courts have construed the discovery statutes broadly, so as to uphold the right to discovery wherever possible. (See Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377-378.)

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Moreover, even where the discovery statutes require a showing of “good cause” to obtain discovery, the term is liberally construed to permit, rather than to prevent, discovery wherever possible.

(Id. at 377-378.) As noted in Norton v.

Superior Court 24 Cal.App.4th 1750, courts are to be broad-minded in considering relevancy and provide the party seeking discovery substantial leeway.

Errors should be made in favor of granting discovery rather than in denying it.

(Id. at 1761-2.) These laws of discovery are meant to preclude trial by ambush and unfair surprise in trial. (See Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 587; Campain v. Safeway Stores, Inc. (1972) 29 Cal.App.3d 362, 366.) It is clear that California follows a liberal standard of discovery and favors a finding of good cause for the discovery of sub rosa evidence to avoid trial by ambush as well as to encourage settlements.

Indeed, the visual and extremely powerful impact sub rosa can have on a jury further establishes good cause for its discovery. Lastly, good cause exists for the discovery of sub rosa evidence in order to establish foundation and authentication under Evidence Code sections 402-3, 1400-1402 and prevent improper video editing as set forth below.

The deposition of the sub rosa investigator

If you aggressively pursue sub rosa evidence as explained, you will identify the private investigator hired by the defense to conduct sub rosa on the plaintiff and get the chance to take the private investigator’s deposition. The secretive strategies used by these investigators are nothing short of shocking. They stalk the plaintiff at home or at work while concealed within a van or car.

They place miniature video cameras in grocery carts or suitcases to follow the plaintiff around public places. They even use cameras in their belts or clothes.

Jurors generally don’t like these secretive methods of surveillance so get the details. Check all documentation or billing relating to the sub rosa to confirm all dates and times of sub rosa conducted to get the true context. Most importantly, get the details of the chain of custody of every piece of original video and how the final product was created. Establish if editing or manipulation was done and how.

If the video sub rosa is harmful to your case, you must attempt to keep it 56 — The Advocate Magazine

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out with the trial strategies addressed below. However, if the video sub rosa is helpful for the plaintiff ’s case because it accurately reflects the plaintiff ’s injuries or ongoing medical condition, or because it shows nothing helpful or harmful, the evidence can be used to your advantage. Confirm with investigator that he is an expert in exposing frauds or people faking injuries. Confirm that the investigator spent extensive amounts of time secretly videotaping the plaintiff and never saw the plaintiff engaged in activities that were inconsistent with the claimed injuries. Thus, get the defense sub rosa expert to confirm that he is an expert in detecting fraud and the plaintiff did not engage in any activities reflecting fraud. Such admissions can be very useful in combating the malingering or exaggeration defenses.

On the other hand, if they attempt to deny these questions when the sub rosa evidence clearly confirms the plaintiff ’s severe injuries, they look ridiculous and biased.

Trial strategies for dealing with sub rosa

Even if you have aggressively pursued sub rosa evidence throughout the discovery period, you must continue to aggressively pursue sub rosa evidence in trial.

First, be sure to file motions in limine to preclude sub rosa evidence not produced in discovery in response to the multitude of plaintiff ’s requests made during the discovery period. If the defendant confirmed there was no sub rosa evidence in discovery responses, they should be precluded from springing it on

the plaintiff in trial by surprise. Assert Evidence Code section 352 because trial by ambush is prohibited and it would be extremely prejudicial to the plaintiff to introduce evidence at trial that should have been disclosed during discovery.

Second, serve notices to appear and produce at trial pursuant to Code of Civil Procedure section 1987 (c) all forms of sub rosa evidence. Be specific in the requests and remember that section 1987(c) requests must be served no later than 20 days prior to trial. It is critical to serve section 1987(c) requests because it is common for the defense to engage in sub rosa during expert discovery or over the days leading up to, or during, trial. If objections are asserted, you must be ready to file a motion to compel at the final status conference or days leading up

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SP

ACC 58 — The Advocate Magazine

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to trial on an ex parte basis. The motion should include arguments of foundation, authentication and the rule of completeness under Evidence Code sections 356, 402-3, 1400.

60 — The Advocate Magazine

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Third, be careful to notice if the defense inserts witnesses onto the trial witness list who are investigators. If you see investigators on the witness list, or individuals not previously identified,

immediately ask the judge for an opportunity to depose these witnesses during trial because you were precluded the opportunity during the discovery period. Your chances of success are much higher if you had been previously requesting the identity of any sub rosa investigators from the beginning of discovery.

Fourth, if it appears that the defense is going to introduce sub rosa evidence which you have not had a chance to evaluate and you are about to be ambushed in trial, you must take immediate action.

If you are about to be ambushed in trial and the sub rosa is about to come into evidence, do not hesitate to object on grounds of foundation, authentication and the rule of completeness under Evidence Code sections 356, 402-3, 1400-1401 and specifically request an Evidence Code section 402 hearing and/or section 403 hearing for the determination of foundational and other preliminary facts where authenticity is disputed.

The analysis at the sections 402/403 hearing is as follows: • Evidence Code section 403(a)(3) provides that “the proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: The preliminary fact is the authenticity of a writing”; • Sub rosa video is a form of “writing” as defined by Evidence Code section 250; • Authentication of a “writing” is required before it may be received in evidence under Evidence Code section 1401; • Evidence Code section 1400 provides that authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.

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Thus, in order to authenticate sub rosa evidence the defense must introduce evidence to prove it is what they claim it to be. The defense must meet this burden when you assert sections 402 and 403.

The problem for the defense is that they cannot satisfy their burden, or even if they could meet their burden, they normally do not want to even try. This is especially true if there are hundreds of hours of sub rosa that have been edited down or if any sub rosa has in fact been taken out of context or manipulated. If the defense tries to produce any portion of the sub rosa videos, consider asserting Evidence Code section 356, aka the rule of completeness , which states that if part of a “writing” is given in evidence, the whole on the same subject may be inquired into. Thus, if the defense seeks to show the jury a very small portion

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of many hours of sub rosa, the doctrine of completeness would require showing the remaining portions of the video to put it in complete context. This forces the defense to produce all of the hundreds of hours of sub rosa evidence in order to show a few edited video clips that are usually minutes or seconds long.

If you go through this process the judge will usually lean in favor of limiting or excluding the sub rosa evidence for lacking foundation and authentication or because it would cause too much prejudice and undue delay under Evidence Code § 352.

At a minimum, using these strategies should give you an opportunity to know what you are up against, avoid trial by ambush and help you either keep the sub rosa evidence out of the trial or use it to your advantage.

Brian Panish is a partner at Panish, Shea & Boyle in Los Angeles. He specializes in trying catastrophic injury and wrongful death cases on behalf of plaintiffs. He is a member of the Inner Circle of Advocates, and is a fellow of the American Board of Trial Attorneys (ABOTA) and American College of Trial Lawyers. Mr. Panish received his law degree, with honors, from Southwestern Law School, and received an Honorary Doctor of Laws degree from Southwestern in 2011. He received his B.S. from California State University Fresno where he was named Scholar Athlete, was the recipient of the Athletic Directors Award and was named an outstanding alumnus at the school’s Centennial Celebration in 2010.

David Rudorfer is an associate with Panish, Shea & Boyle in Los Angeles. He specializes in litigating catastrophic injury or wrongful death cases on behalf of plaintiffs. www.psblaw.com.

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Victor George

Damages: Spinal cord and peripheral nerve injuries A guide to the high-risk business of trying spinal-injury cases Absent death itself, an injury to the spinal cord and peripheral nerve is one of the most serious injuries an individual can endure. The spinal cord and the brain together make up the central nervous system. The central nervous system controls and coordinates all motor control movements throughout the human body. The spinal cord is also responsible for informing the brain of sensory functions that an individual physically feels; for example, whether a cup of coffee is too hot or that the prick of a splinter was painful. It is worth noting that although the spinal cord and peripheral nerves assist the brain in controlling both motor functions and sensory functions, such functions are not mutually exclusive.

The spinal cord

The brain and the spinal cord together comprise the central component of the nervous system. The spinal cord is a long thin tubular tissue which extends from the brain of a human body and varies in length.

The spinal cord can also be viewed as being split into spinal nerve segments ranging from the vertebrae’s C1 to L5. Overall, there are 33 spinal-cord nerve segments in the human spinal cord. The spinal cord’s major functions are to transmit signals and sensory information between the brain and the body. Each spinal nerve serves a specific function in the sensory and motor functions of the human body. For example, the C5 and C6 are responsible for movement and sensory of the shoulder and arm, while the L2,

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L3, and L4 are responsible for movement and sensory of the leg, while C1-C6 is responsible for movement and sensory of the neck.

The peripheral nerves In addition to the brain and spinal cord, there are also a number of nerves

which assist in controlling and coordinating all movements of the human body.

One such set of nerves are the peripheral nerves. The peripheral nerves are 43 pairs of motor and sensory nerves which are outside of an individual’s brain and spinal cord. Peripheral nervous systems are just outside of the bony protection of the skull and spinal column. Branching from the spinal cord and the brain, these nerves leave the bony protection and travel throughout the body. Several of the peripheral nerves are well known, such as the sciatic nerve (a primary nerve of the leg), the ulnar nerve (forearm and hand), and the brachial plexus (a network of nerves which serve as a hub for the entire upper limbs, C5-C8, including the ulnar nerve and radial nerve). The peripheral nervous system is responsible for connecting the spinal cord and brain with the limbs in the human body. The peripheral nervous system contains two types of cells – one type of cell transmitting information regarding motor sensory and control functions and the other type of cell transmitting information regarding sensory functions.

A common analogy used to illustrate the spinal cord and peripheral nerves is to imagine a tree. Now, I’m not talking about a (bare) tree lying in the dead winter of New York City. I’m talking about a delicate yet robust tree with extensive/spanning roots that run through the trunk out to its branches, and all parts are just as vital for survival and adaptation. A tree’s water supply starts as its root moves up the trunk and extends through branches to the leaves and nutrients return along the same path but in retrograde. If there is damage to the trunk (spinal cord) of the tree, damage can be extensive and include several different areas of the tree. In comparison, damage to a branch (a peripheral nerve) is more localized in its effect.

Damages

Motor and sensory functions are often overlooked in the everyday life of most individuals. However, due to the

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Notable spinal-injury verdicts from California jury reporters Settlement of $50 million: On April 8, 2006, plaintiffs Carol Daniel (41 years old) and Stacy Neria (34 years old) were jogging in the bicycle lane on Pacific Coast Highway in Dana Point, California. Both women were seriously injured. Ms. Daniel’s neck and pelvis were broken and her right leg nearly severed. Specifically, Ms. Daniels suffered a traumatic injury to her C-5 spinal cord which resulted in her becoming a quadriplegic. Both women sued the city for unsafe road conditions alleging that the bike lane was too wide causing motorists to mistake it for a driving lane. Plaintiffs also noted that after the accident, the city of Dana Point added concrete barriers to protect joggers from motorists. Both plaintiffs claimed $20 million for pain and suffering, $5 million for loss of consortium on behalf of their husbands, and a combined life-care plan of $36 million. In November 2007, prior to trial, the parties mediated and settled for the city’s insurance policy limits of $50 million. (Carol Daniel and Stacy Neria v. The City of Dana Point, Case No. 06CC10395) (2007) (Orange County Sup. Ct., California.)

Verdict of $48,493,140: Plaintiff (30 years old) worked as an assistant signalman for Union Pacific Railroad Company. Plaintiff and a group of individuals were assigned to do a job in Tucson, Arizona. The location where these individuals were assigned had extreme temperatures between 100 and 120 degrees. These individuals were not allowed to leave the jobsite for food or hydration products during the work day.

A co-employee picked up plaintiff and drove to Wal-Mart to pick up Pedialyte to be used at the jobsite. After leaving Wal-Mart and due to his inattentiveness, the co-employee caused the vehicle to rollover. Plaintiff was seat-belted at the time but sustained a traumatic injury to his spinal cord at C4 and was rendered a quadriplegic. Plaintiff filed suit against his employer alleging that the co-employee was operating under the course and scope of his employment. Plaintiff claimed unspecified past and future earnings, past and future medical rehabilitation, and past and future pain/mental suffering. Following a two-day jury deliberation, plaintiff was awarded $48,493,140 ($61,892 past lost earnings; $1,863,185 future lost earnings; $798,000 past medical/rehabilitation and related

expenses; $10,070,062 future medical/rehabilitation and related expenses; $2.5 million past physical pain/mental suffering; $33.2 million future physical pain/mental suffering.) (Doi vs. Union Pacific Railroad Company, Case No. KC051273) (2008) (Los Angeles Sup. Ct., California.)

Settlement of $10 million: On June 9, 2007, plaintiff (26 years old) was riding home on his motorcycle when he hit a disabled vehicle on the freeway. Plaintiff was an off-duty sheriff. Upon impact with the disabled vehicle, plaintiff was thrown from his motorcycle and suffered a traumatic injury to his spinal cord, rendering plaintiff a paraplegic and wheelchair bound. This disabled vehicle was operated by a 19-year-old individual who was intoxicated. The driver of this disabled vehicle, however, did not have insurance. Following an investigation, it was revealed that the intoxicated minor was served alcohol at a pool hall. Plaintiff’s attorney filed suit against the pool hall for selling alcohol to an obviously intoxicated minor. Plaintiff claimed $866,209.42 for necessary and reasonable medical expenses such as hospitalization, surgery and physical therapy. Plaintiff also claimed $2,777,313 and his life-care plan totaled $2,543,731. Prior to trial, the parties mediated and settled with the pool hall for $10 million.

(John Doe v. Jim Roe and Unnamed Pool Hall) (2010) (Los Angeles Sup. Ct., California) Settlement of $5 million: On June 26, 2008, plaintiff (45 years old) was working at defendant’s warehouse to replace skylights on the roof.

Plaintiff inadvertently tripped and fell through a non-weight-bearing skylight on the roof of defendant’s facility. Plaintiff suffered a traumatic injury to his spinal cord which resulted in the paralysis of his right leg as well as dysfunction of the bladder and other injuries. Plaintiff brought suit alleging that defendant failed to properly comply with OSHA regulations and that defendant failed to comply with the skylight manufacturer’s warnings regarding safety issues. Prior to trial, the parties settled for $5 million. (Reyes v. Allied West Paper Company, Case No. DS-903618) (2011) (San Bernardino Sup. Ct., California).

Editor’s note: These cases are a representative sampling, and not from any one plaintiff attorney.

essential role these functions play in every individual’s life, old or young, rich or poor, an injury to the spinal cord and/or peripheral nerves is a devastating event. Such an injury can cause complete or partial paralysis of the muscles below the damaged site. Moreover, such an injury can also cause complete or partial loss of sensory functions distal to the damaged site. In addition, an individual may experience day-to-day difficulties with the loss of bowel movement and bladder control.

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Spinal-cord injuries occur when damage is caused to the vertebrae, ligament, or disks of the spinal column. Peripheral nerve damage can also be from trauma, cancer or infections. Severe injuries are typically created when a traumatic blow dislocates, fractures, or crushes one or more of the C1 to L5 vertebrae. Traumatic blows which cause dislocation and fractures commonly occur as a result of automobile accidents, sporting accidents, and physical (violent) altercations. In fact, according to the Mayo Clinic, automobile

accidents are the leading cause of such injuries, accounting for more than 40 percent of new spinal cord injuries each year.

Notably, patients who have sustained severe spinal cord injuries include former actor Christopher Reeve and former NFL player Kevin Everett. On May 27, 1995, Mr. Reeve fell while horse-riding and sustained a cervical spine injury. On September 9, 2007, former NFL tight-end Kevin Everett of the Buffalo Bills sustained a fracture and dislocation of his

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cervical spine while attempting a tackle during a kickoff return.

Unfortunately, traumatic injuries to the spinal cord and peripheral nerves are currently not treatable with modern medicine and often result in long-term paralysis.

The spinal cord and peripheral nerves are essential for functions in everyday life from walking, eating, using the restroom and practically every other activity. As a result, an attorney filing suit based on spinal cord and peripheral nerve injuries should seek damages to adequately compensate plaintiffs for such an insurmountable loss. An attorney should seek damages including but not limited to the following: • Past and future impairment of ability to enjoy life • Loss of past and future earnings (Actual wages lost, loss of pre-injury existing vocational skill, loss of capacity to earn wages, loss of profits of engaging in business) • Necessary and reasonable medical expenses (Past medical expenses and anticipated future medical expenses) • Pain and suffering for physical injuries • Pain and suffering likely to occur in the future • Mental anguish and distress (shock, humiliation, anxiety, depression, etc.)

• Loss of sexual functions

• Harm from prolonged inactivity (pressure sores) (37 Am. Jur. Proof of Facts 2d 291 (2013.))

Expert witnesses / exemplars

High costs to (hopefully) prevail Fully litigated spinal-cord cases are exceptionally expensive to prosecute through trial. In a recent vehicle rollover/ single plaintiff / paraplegic litigation that settled during voir dire, out-of-pocket costs totaled over $600,000. Plaintiff designated 15 expert witnesses. Of the $600,000 advanced, that amount included over $526,000 in expert witness/ exemplar fees. Obviously, spinal-cord injury cases cannot be taken lightly based on the high-cost outlay necessary expert witnesses required to level the playing field against the defendant/automaker, etc.

In the above-mentioned case, the plaintiff was traveling at a very high rate of speed in a 2007 Chevrolet Tahoe when he lost control; the Tahoe flipped over and the B Pillar fractured plaintiff ’s neck in a roof crush resulting in paralysis.

Beyond experts, the case required purchasing two exemplars of Chevy Tahoes that were “substantially similar” to the one involved in the actual accident. $92,000 was expended to purchase two matching Chevy Tahoes and to do all

Damages continues

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the necessary exemplar/rollover testing/ videotaping analysis, etc., of same.

Of plaintiff ’s 15 designated expert witnesses, the following list consists of the expertise of 13 of those experts and the monetary expenditure paid to each.

Those experts were: (1) an accident reconstructionist ($71,000); (2) a Ph.D. regarding vehicle and structural crashworthiness, crash and laboratory testing and computer simulation ($81,000); (3) a Ph.D. in the area of motor-vehicle safety, crashworthiness that lead to rollovers and occupant protection systems of vehicles ($61,000); (4) a Ph.D. in biomedical engineering, addressing how the accident relates to the causation of the injuries ($28,000); (5) a clinical neuropsychologist regarding the psychological and psychiatric effects on plaintiff ($14,000); (6) automotive tires’ expert addressing warnings related to modification of original automotive equipment ($30,000); (7) expert in safety engineering and forensic analysis regarding vehicle dynamics, vehicle handling, stability, and rollover propensity ($70,000); (8) human-factors expert addressing human perception and behavioral expectations while driving ($11,000); (9) an M.D. in physical medicine and rehabilitation plans ($10,000); (10) life-care planner (described below) ($32,000); (11) vocational rehabilitationist regarding plaintiff ’s disabilities and the prognosis of both future vocation and limitations to same ($13,000); (12) medical-record reviewer (to do just that) and to prepare a lengthy chronological timeline of medical efforts for plaintiff ($9,000); (13) economist to present the lost economic damages of plaintiff ($9,000).

Life-care planner The amount of damages sought in spinal-cord and peripheral-nerve-injury cases are often substantial. Due to the large nature of damages sought, an expert witness who has professional experience as a life-care planner is crucial in spinal-cord and peripheral-nerve injury cases. Such an expert will have a key role in justifying to the jury the substantial

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amount of damages sought. Following an examination of the plaintiff and the plaintiff ’s injury, the life-care planner will need to review the plaintiff ’s medical treatment, home-health support, educational training, vocational training, rehabilitation services, personal equipment, and many other things needed for the plaintiff to properly cope with such a severe injury. After a thorough review, a life-care planner should prepare a comprehensive document which details the future needs of the plaintiff. A thorough plan of this nature is paramount to establishing plaintiff ’s needs and maximizing future damages. In addition, a life-care planner will assist plaintiff in moving forward in life by having a specific plan, routine, and outlook set forth.

This will allow plaintiff to be better prepared for the future regarding plaintiff ’s medical treatment, education, vocation, rehabilitation, etc. In sum, a life-care planner is one of the most important expert witnesses a plaintiff ’s attorney can retain in spinal cord and peripheral nerve injury cases.

Conclusion

It is clear that damages that occur arising from a traumatic injury to the spinal cord and/or peripheral nerves are substantial and life altering. An attorney representing an individual for such an injury must be sure to plead and seek the extensive range of damages available to adequately compensate for such a devastating and debilitating injury.

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His many jury trial verdicts include both personal injury and employment law trials.

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Videotaping of expert witnesses Videotaping the testimony of both your own experts and defendants’ experts can be key to a trial victory

By Thomas M. Dempsey If a picture is “worth a thousand words,” a video would increase that value by a factor of 10.

Videotaping of witnesses has become more comDempsey monplace and every deposition notice which goes out to an opponent should include a reference to section 2025.220(a)(5) of the Code of Civil Procedure, which states “A videotape of this deposition will be taken and may be used in lieu of live testimony at trial.” While you don’t always decide to actually do the videotaping, or even use it, you have advised the other side of your intent in the event you determine it is going to be of value in prosecuting your case. The rationale of timely giving this information as part of this notice or in response to receiving a notice of deposition is important, because I have actually had challenges to videotaping of depositions, especially depositions of experts.

I have made it my practice to videotape the depositions of all of my treating and percipient medical witnesses in any case where that testimony is vital to 76 — The Advocate Magazine

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successfully prosecuting the action. The vagaries of medical practice, trial dates, trial locations, etc., make it more imperative now than ever to videotape the deposition. It is relatively inexpensive to videotape a deposition, and almost all court-reporting firms now provide this as an additional service. This practice ensures that you have the necessary medical testimony at trial, arbitration or mediation, and it is inexpensive insurance that you are able to present the requisite testimony. (Code Civ. Proc., § 2025.220(a)(6).)

I have found that medical people are very responsive to a request to have their deposition videotaped, especially when they are your expert, in that there is minimal inconvenience and it could eliminate a court appearance. Be sure to timely advise your medical expert that the deposition will be videotaped and make sure they are comfortable with and agreeable to it. Review the anticipated procedure and be sure you follow all of the requirements set forth in Code of Civil Procedure section 2025.340.

Preparation for taping

As part of the preparation for videotaping your own medical witnesses, make

sure that the deposition is taken at his or her office or another comfortable facility, preferably one at his or her suggestion. I go to the facility myself in anticipation of the deposition to be certain it is suitable for making an “appropriate” videotape, including the proper background, staging, and sufficient room that the witness does not appear cramped or uncomfortable.

Try to ensure, as much as possible, that the witness is appropriately dressed and understands the value of his or her appearance in the same manner as if the witness is testifying at trial. This takes some thought, in that you want to create the right impression of this person to the jury. Depending on how well you know the witness and how cooperative and/or interested the witness is in the outcome of the case, you may go over the attire that is most advisable. A suit or sport coat with a shirt and tie or a conservative dress or slacks is usually preferred. Under certain circumstances however, having the witness appear in green scrubs or white medical attire can create an impression that this is a

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“hands on” type of physician rather than someone who simply testifies as an expert.

Having the client’s/patient’s file organized and indexed is also important for videotaped expert depositions.

Scrambling to find a document, and giving the appearance of disorganization will not engender confidence in the quality of the expert’s testimony, not to mention the care and treatment provided to your clients. Ensuring that key documents, which you will want to show during a deposition, are readily available is also of importance.

Tips for success

Get to the deposition early and talk to the videographer to make sure he or she is capable of accomplishing what you wish to do. Being able to quickly zoom in on documents, diagrams, models, etc., is extremely important in having a smooth deposition with information that flows easily and understandably for the jury.

Be sure that the videographer understands the importance of the deposition and the videotaping of same, in the same way you impart this goal to a court reporter.

Be sure your expert has the diagrams, graphics, and models that are necessary to illustrate his or her testimony more understandably. You may be required to procure the items yourself and review them with the physicians before deposition testimony. Also, be sure the witness is comfortable with drawing and explaining his or her testimony.

Sometimes you are fortunate enough to have someone who is a “teacher” type who enjoys explaining the testimony. If not, your questions need to be sufficiently specific to properly illustrate and make understandable to the jury the witness’s testimony. Include in your questions the expert’s qualifications and foundation of the opinions and observations.

injury: what to look for; what is the appropriate treatment, etc. One method I have used is to reiterate that part of the witness’s obligation as a treater is to help restore your client to a pre-injury condition. Part of that restoration involves having adequate finances available to pay for the requisite care and treatment, and that his or her testimony is necessary to achieve this.

As a motivator, you should explain that the videotape will preclude testimony at trial, unless, of course, the other side subpoenas your expert. Explain that the latter will be very unlikely if the expert’s opinions and observations are strong, understandable, and illustrative.

Be aware during the deposition of your own conduct. This includes your voice, your objections, your demeanor, etc. If anyone is going to be a jerk during the deposition, make sure it’s the other side and not you.

The reluctant witness

What do you do with a reluctant witness who does not want to be videotaped and refuses to testify at trial? There is no absolute answer to this question and your powers of persuasion necessarily come into play. Once you reach the physician, which is often difficult, explain the significance of the testimony and its value to your client. Also stress the witness’s ability to inform the public about this kind of

Benefits of taping

The benefit of the videotaping of your own experts is multi-faceted. Aside from the value of ensuring that you have testimony to present at time of trial,

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Videotaping — continued often the deposition is not taken by the defense trial lawyer or the senior attorney handling the case. A junior defense lawyer may simply attend with a “checklist” of questions for taking the deposition, and who will go through the inquiry without understanding or evaluating the answers; not doing adequate follow-up questions; not being familiar with the medical records; not being familiar with the injury; not being familiar with care and treatment, etc.

If you use the deposition at trial, the other side is “stuck” with the testimony unless they wish to subpoena the medical provider to trial. Even if this is done, the “content” of your medical provider’s testimony has already been embedded in the mind of the jury and the follow-up will be less valuable.

Because today we are so accustomed to viewing things on screens and monitors, be it televisions, computers, cell phones, etc., I feel videotaped testimony is given authenticity and believability to a greater extent than even live testimony.

Additionally, a videotape is susceptible to “playbacks” if that becomes desirable in light of a jury question. Another benefit of a videotaped deposition is the ability to show it to other experts, rather than just giving them a stack of depositions and asking them to read and review same. Experts are often reluctant to do a document-intensive review, but are willing to pop a CD into a player and watch it during a break, dinner, etc. This more desirable method can result in a greater assurance that the information will actually be reviewed and evaluated.

Finally, cost is a significant factor. If your opponent takes the deposition, your expert’s fee is paid by them, and all you are paying for is the copy of the deposition and the video. This is much cheaper than having the individual appear at trial, even when only a halfday is required. Even if you are taking your own expert’s deposition and paying for his or her time, it is usually more economical than having this individual appear at trial, especially if the trial

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appearance includes travel time and a second preparation for trial; the initial preparation having already been done for the deposition.

Effect on opponent’s experts

Videotaping your opponent’s experts is also of great value. Deposition is a time when he or she may not be as prepared as he or she would be for trial, and all those issues that arose with your expert can also be present with theirs.

Often times, defense medical witnesses have testified so repeatedly and are so familiar with the same type of injury and the defense attorney that they take shortcuts, or do not prepare at all. Their failure to review portions of records, inadequate understanding of facts, lack of memory of your client, unfamiliarity with literature, etc., can all be to your benefit.

Again, often the individual defending the deposition of your opponent’s medical witness will not be the trial lawyer or senior attorney. Your opponent will simply send an associate attorney to “sit in” and stay under cover. Many of the things you would use as surprise questions at trial, so as not to educate the opposing expert as to your theory of the case, or the failure of his or her analysis and foundations for his or her opinions will be sprung on the witness at deposition. Often the facial expressions are priceless. A defense expert’s

demeanor, dress, attitude and facial expressions are all part of the presentation, and may be quite different than they would be at trial. The expert may not be aware that the videotape can be used at trial for impeachment, and therefore spends less time preparing for deposition than he or she would for trial.

In taking the deposition of percipient witnesses, who are affiliated with the defense, the videotaping of the depositions can be even more important. Using segments of these videotapes during your case-in-chief can be very valuable in setting up answers to defenses which will be later presented, and/or telling a complete story of what had transpired up to the time of the incident or injury. This is especially true in medical negligence cases. Laying a good foundation through video segments before your expert testifies on standard of care makes the opinion much more acceptable, believable and understandable.

Often, percipient witnesses in a medical-negligence case have moved out of the area where the incident or injury occurred and thus beyond subpoena range. Rather than having their depositions read to the jury, it is much more acceptable and believable to show their live testimony by videotape.

The defendant’s deposition in a medicalnegligence case is extremely important to

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Videotaping — continued videotape. My usual practice is to have the defendant appear as one of the first witnesses at trial. Having the ability to impeach the defendant immediately with deposition testimony that is visual, as well as showing the reporter’s transcript on the screen, can make for a very effective cross-examination.

When a series of medical depositions are to be taken and videotaped in a given case, it is advisable to use the same reporting service and videographer. This familiarity engenders a sense of camaraderie and loyalty and allows you the opportunity to inquire of the individuals as to how they evaluated the deponent’s testimony.

Remember that these are members of the public, and while you have hired them, they are usually willing to express honest opinions as far as evaluating the testimony at which they were present.

The familiarity with the subject matter also can prevent or limit the number of interruptions during the testimony for pronunciation, spelling of words, and names, etc. I have often been in situations where hearing the uninterrupted response was critical to my case, but the critical response was either not picked up by the reporter because it was simply an aside, or wasn’t taken down verbatim by the reporter and did not become part of the official transcript. Videotaping the aside or mumbled words make them part of the case. Be sure you are clear with the videographer as to when you go off the record, and that when you’re not off the record everything is to be recorded.

Thomas M. Dempsey is a sole practitioner in Brentwood, CA, where he specializes in personal injury and complex litigation, with emphasis on spinal cord and traumatic brain injuries resulting from medical negligence, products liability and premises liability. He is a past president of Consumer Attorneys of Los Angeles. CAALA honored him in 1994 with the Ted Horn Memorial award, and he has twice been its Trial Lawyer of the Year nominee. He is a member of ABOTA, the United States Supreme Court Bar, and the Board of Governors for Consumer Attorneys of California.

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William M. Karns

Experts: Who you need and who you don’t Going light on experts can cost you at trial; going heavy can cost you, too Karnscan be Choosing the William correct M. experts the key to winning many cases and determining damages. Following is a guide to determine which experts can be useful in a variety of cases.

Premises liability

As it relates to premises liability, both dangerous condition and notice are almost always at issue. Both can be established and/or buttressed through expert testimony.

Experts in human factors and safety experts can explain how a condition is dangerous to people. For example, a human-factors expert can explain how a seemingly inconsequential half-inch rise in that piece of concrete is a tripping hazard and dangerous, or how uneven risers in a flight of stairs can cause a fall.

Experts in human factors can also give opinions on perception and reaction which is crucial in situations where comparative fault is at issue. For example, in

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low-lighting cases a human-factors expert can use foot-candle readings to explain how a dangerous condition could not be seen by a plaintiff because of inadequate lighting.

Be it actual or constructive, the issue of notice is almost always a point of contention in premises-liability cases. Many times we must show constructive notice.

In other words, we must show that through the use of reasonable inspections, the defendant should have known of the dangerous condition and fixed it.

Of course, this poses the question: what constitutes reasonable inspection? That likely depends on the type of property/ business involved. As such, experts should be specifically tailored to the type of business of the defendant. If the defendant is a grocery store, then hire an expert with extensive experience in the grocery-store business to testify about reasonable inspections/practices of a grocery store. If the defendant is an

apartment building, hire an expert who has managed apartment buildings. Be cautious of experts who market themselves in a wide variety of fields. Their real world experience will be limited, making them good targets for cross examination on foundation.

Experts are not always required to prove a condition was dangerous, or that the defendant had actual or constructive notice of the condition. Many times the defendant (employees, PMK, etc.) will admit the condition that caused injury was dangerous. This almost always occurs in slip-and-fall cases. Nearly everyone will testify the milk in the aisle, oil on the ground, or water on the stairs was dangerous and could cause someone to slip and fall. Explore the issues of dangerous condition and perception/reaction in the depositions of the defendant (employees and PMK). The testimony will often amount to admissions on a dangerous

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condition and your client’s inability to perceive it, thereby eliminating comparative fault. If the defendant admits there is a dangerous condition, hiring an expert to say the same thing is unnecessary. There is no need to pay an expert thousands of dollars to do inspections, coefficient of friction testing, etc. when defendant has admitted that spilled milk in a store aisle can cause people to slip and fall.

Code violations can make a bad premises case a good one, and a good premises case a great one. Approximately every two years cities, counties and municipalities will adopt the most recent Uniform Building Code through an

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incorporating statute/adopting ordinance. Determining the applicable dates of the adopting ordinance and applying that to building construction can be done by code experts. Code violations should be explored in every premises case.

Medical malpractice Experts are not only necessary in medical-malpractice cases, they are required by law. Only an expert physician can testify as to the standard of care of a physician. In choosing your standard-ofcare expert a good rule of thumb is to retain an expert who practices in the same field as the defendant. If you allege the defendant orthopedist fell below the standard of care in performing an orthopedic surgery, you should retain an orthopedic surgeon. Otherwise your expert’s opinions may be inadmissible as lacking foundation.

Additional medical experts are sometimes required to establish causation in medical-malpractice cases. There can be egregious standard of care violations with no causal link to damages. Failure to diagnose cancer is a good example of this.

Take the dermatologist who fails to biopsy and diagnose an obvious skin cancer for years and years. This may sound like a good case, but you must address the question: So what? If the treatment course and life expectancy would be the same with an earlier diagnosis (when the diagnosis would have been made if the standard of care was followed) then there are no damages. In other words, the delay in diagnosis did not cause any damages.

Causation and standard of care in medical malpractice will often involve completely different medical experts.

Take the above example of the failure to diagnose skin cancer. Whether the dermatologist fell below the standard of care should be addressed by a fellow dermatologist. However, a dermatologist is not qualified to give opinions on causation; i.e., the treatment course and life expectancy relating to a specific cancer diagnosis, and hypothetical earlier diagnosis. This would fall under the purview of an oncologist.

Auto The most common experts in auto cases are accident reconstructionists and biomechanical engineers. Accident reconstructionists can explain how the collision occurred by analyzing damage to vehicles, crash test data/dynamics, road markings (gouge marks, tread marks), police reports, other sources of physical evidence, and deposition testimony.

Accident reconstructions can show who was at fault for a collision (who ran the red light, etc.), and the forces involved in the collision. The forces involved in the collision are essential to the biomechanical analysis. Biomechanical engineers explain how the forces of a collision (derived by an accident reconstruction) can cause injury to the occupants in a car.

An expert in biomechanics can explain to a jury how a rear end collision can cause neck and back injuries even in a lowimpact collision How quickly a driver reacts and sees things in the few seconds of a collision is often important in determining negligence and eradicating comparative fault.

An expert in human factors can explain how quickly a driver can perceive and react to a particular condition. For example, the defendant bus driver had plenty of time to perceive and avoid the impact.

Or the plaintiff could not perceive and react to the defendant’s car running the red light in time to avoid the collision.

Accident reconstructionists are generally aware of perception and reaction times of drivers and can testify on such issues.

Their qualifications in the area of human factors however, may certainly be challenged. If the case is big with issues of perception and reaction, hiring a human factors expert along with an accident reconstructionist is recommended.

Auto: Minor Impact Soft Tissue (MIST)

Perhaps in no other case are we more financially limited in expert expenditures than in minor-impact soft-tissue auto cases. Expenditures on experts can quickly overtake the actual value of the case, potentially leaving your client with nothing.

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It is often not economically feasible to retain either a biomechanial engineer or an accident reconstructionist on a MIST case. Going to trial with only your treating physician (orthopedist, chiropractor) is generally your only option.

Some insurance carriers will defend MIST cases with a slew of experts including radiologists, accident reconstructionists, and biomechanical engineers in addition to orthopedists. Many of these areas of testimony can be addressed by a treating physician. For example, every orthopedist is trained in radiology and can offer expert opinions in that area.

Retaining a biomechanical engineer where the value of the case warrants it is

recommended. If not, consider using your orthopedist. Despite popular belief, orthopedists are trained in biomechanics.

Orthopedists are specifically trained and have extensive knowledge in what types of forces cause injury. What types of forces cause injury is biomechanics at its very core. The problem orthopedists have in giving an opinion on biomec hanics only has to do with the actual term “biomechanics.” That word is not used in orthopedic residency. The concepts of the forces that cause injury certainly are. Before expert discovery, sit down with your client’s orthopedist and explain that “biomechanics” simply refers to what types of forces cause certain

injuries. With this understanding, an orthopedist will feel much more comfortable offering opinions on biomechanics.

Orthopedists are not going to be familiar with the most recent data and studies relating to biomechanics. This can be problematic. But they can always fall back on their real-world experience, their own study if you will, of treating thousands of patients that do get hurt in car accidents. Although it’s not very scientific, it can be powerful with a jury.

Damages

Damages experts will span a range of issues including the nature and extent of injuries, past and future medical

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expenses, lost earnings/earning capacity, causation and general damages.

Your client’s treating physician(s) will serve as one of your experts in virtually every personal-injury case. Treating physicians can explain to a jury your client’s injuries including causation and prognosis. Some physicians have experience serving as experts in litigation.

Others do not. Either way, it is extremely important to meet with your client’s treating physician before designation and certainly before their depositions for thorough preparation.

On injury cases where your client has permanent physical injury, chronic pain, and/or neurocognitive deficits, much of the economic damage will come from future medical care. Your job as the plaintiff ’s lawyer is perhaps best described as identification and matching.

You must identify which client will require future medical care and match the general type of care with the appropriate experts in developing a future medical-care plan (commonly referred to as a life-care plan). Identifying the client is relatively simple. If the injury perma-

nently affects your client’s activities of daily living, your client will need a lifecare plan. Certified life-care planners are experts in this field and are knowledgeable as to the costs of such future medical care. They are instrumental in developing a life-care plan.

Life-care plans do not end with the life-care planner. Life-care plans should be buttressed with the expertise of medical doctors who can work with your lifecare planner to develop the plan. The

type of medical doctor needed will depend on the injury. If your client’s activities of daily living are affected by chronic pain, you should retain a pain management specialist to work with your life-care planner. If your client’s injury is physical in nature, with motor deficits such as spinal cord injury, brain injury, etc., retain a physiatrist (physical medicine and rehabilitation) to work with your life-care planner. Traumatic brain injury will likely involve neurocognitive deficits, in addition to physical deficits, necessitating future care. Consider retaining neurologists and neuropsychologists to address the neurocognitive issues in a life-care plan.

Generally, forensic economists and vocational rehabilitationists provide the expert testimony in the areas of lost earnings and loss of earning capacity.

Economists can review past earnings records, along with nationally reported statistical data, to calculate your client’s lost earnings and loss of earning capacity.

Experts in vocational rehabilitation, who actually examine and test your client, can explain to a jury how your client’s injury

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prevents them from working. They can also show how your client’s condition prevents him or her from entering the workforce in the same field or a new field. Lost earnings and earning capacity can, and at times must, involve expert testimony. However, do not ignore the importance of testimony from co-workers and supervisors who worked day in and day out with your client. This testimony is free and powerful.

It seems the defense is designating radiologists on every case involving injury to the spine. Generally these experts will review the radiology films (x-ray/MRI) and testify there is no evidence of injury or acute injury on the films. Most of these radiologists are routinely used by the defense and subject to impeachment for obvious bias. Even so, 2011 the testimony can be very damaging to your case. It is also often the last testimony heard by the jury. If the value of the case warrants the expense, and assuming the defense designates a radiologist, consider retaining your own radiologist and designating them as a supplemental expert for rebuttal purposes. 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.

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Patrick K. Gunning

Seeking punitive damages against drivers distracted by hand-held electronic devices Distracted drivers’ cases can adopt the legal principles providing for punitive damages against drunk drivers The images are ones familiar to our television screens – a public-service announcement showing a tragic accident, a wrecked vehicle, an impaired driver lamenting the one mistake that forever changed their life and hurt or killed others. Ten or fifteen years ago, the subject of that advertisement would have been obvious – drunk driving and its tragic, all-too-frequently fatal consequences.

Today, however, such a message is equally likely to be directed at a more recent, still-growing epidemic on America’s roads – driving while distracted by electronic devices. Like drunk driving, distracted driving results in severe physical and mental impairment in drivers and results in thousands of preventable crashes, deaths, and injuries.

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Just as advocacy groups have successfully adopted the language, symbolism, and media message of prominent anti-drunk-driving campaigns to address the rapid rise in fatal and injury-producing crashes from calling, texting, and other electronics-related distractions, attorneys representing clients who have been injured or killed as a result of these distracted drivers can adopt the legal principles providing for punitive damages against drunk drivers to apply to those who are knowingly distracted by electronic devices and cause injury.

Rise of electronic device use

As the use of smartphones and other electronic devices has come to dominate more of our social and professional lives

with family, friends, and employers expecting to be in contact 24/7, the use of this technology while driving has dramatically increased. In January 2012 the number of smartphone users eclipsed 100 million for the first time, according to the market research group, ComScore, Inc. Studies conducted by the Center for Disease Control show that more than two-thirds of adult drivers in the U.S. report talking on their cell phone while driving, and nearly one-third of U.S. adult drivers sent or read a text or email while driving in a 30-day period.

(Naumann, Rebecca B. et al. Mobile Device Use While Driving — United States and Seven European Countries, 2011.

Morbidity and Mortality Weekly Report (March 15, 2013) Center for Disease

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Control and Prevention.) The number of smartphone users had increased by more than 50 percent to approximately 152 million. (ComScore Report – November 2013 Smartphone Subscriber Market Share (January 6, 2014) <http:// www.comscore.com/Insights/Press_Releases/ 2014/1/comScore_Reports_November_ 2013_US_Smartphone_Subscriber_Market_ Share>.) These increasing trends in cellular phone use and in particular text messaging, email, and Internet use, show no signs of slowing for the foreseeable future.

Dangers of electronics use while driving

Empirical studies by the National Highway Traffic and Safety Agency (“NHTSA”) and other agencies have demonstrated that distraction by electronic devices presents severe mental and physical impairment. According to the Federal Motor Carrier Safety Administration, a texting driver is 23.4 times more likely to be involved in a “safety critical event.” (Olson, Rebecca, et al. Federal Motor Carrier Safety Administration, “Driver Distraction in Commercial Vehicle Operations.” p. 146, <http://www.distraction.gov/download/ research-pdf/Driver-DistractionCommercial-Vehicle-Operations.pdf>.) A driver dialing a cell phone is 5.93 times more likely to be involved in a “safety critical event.” (Id. at 148.) A driver using or reaching for any other electronic device is 6.72 times more likely to be involved in a “safety critical event.” (Ibid.)

The FMCSA study found that these distractions take a driver’s eyes off the road for substantial, hazardous periods of time including, for example, an average of 4.6 seconds while texting. (Id. at p. 150.)

This is enough time for a driver to travel the length of a football field at 55 mph without looking at the road The hazards of this conduct are borne out by inevitably tragic results – more than 995 people were killed and 24,000 people were injured in accidents involving cell-phone distraction in 2009 in the United States. (National Highway and Traffic Safety Agency. Traffic Safety Facts. “Research Note – Driver Electronic Device Use in 2009.” p. 1

<http://www.distraction.gov/download/ research-pdf/Driver-Electronic-DeviceUse-2009.pdf>.)

Punitive damages for drunk driving For 34 years, California has recognized that the conduct of knowingly driving while intoxicated is conduct that can rise to a level of culpability so severe that punitive damages – to make an example of those driving under the influence – can be awarded. In this context, drunk driving amounts to “malice” – “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294.) Conscious disregard occurs when a defendant “display[s] a conscious and callous indifference to, or disregard of, probable harm.”

(Seimon v. Southern Pac. Trans. Co. (1977) 67 Cal.App.3d 600, 607.)

The California Supreme Court found that such “malice” could include driving while intoxicated in Taylor v.

Superior Court (1979) 24 Cal.3d 890, 89697. The Taylor Court was faced with allegations that a driver, knowing they would later have to drive, became intoxicated and drove drunk, causing an accident and serious injuries. The Court held that such conduct could give rise to punitive damages, stating “[o]ne who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.” The Court found that no specific facts, such as prior drunk driving crashes, were necessary to show knowledge of the probable dangerous consequences of this conduct, noting “[t]here is a very commonly understood risk which attends every motor vehicle driver who is intoxicated.” While the Taylor Court was careful to note that “ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages,” it left open the door for “the circumstances in a particular case [to]

disclose similar wilful or wanton behavior in other forms.”

In determining that driving while intoxicated warranted punitive damages as a matter of public policy, the Taylor Court relied on two other key factors.

First, the California Legislature’s acknowledgement of the societal harm caused by, and the hazards involved in, the conduct. Second, government studies of the empirically dangerous nature of the conduct and the resulting deaths and injuries to significant numbers of motorists were taken into account to show the need for deterrence.

After Taylor was decided, punitive damages law in California was altered to include an additional requirement of “despicable” conduct in addition to “conscious disregard” to establish malice.

(Civ. Code, § 3294, subd. (a).) Conduct is “despicable” when it is so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (Ibid.) “Such conduct has been described as “[having] the character of outrage frequently associated with crime.”

(Scott v. Phoenix Sch., Inc. (2009) 175 Cal.App.4th 702, 715.) While no California appellate court has re-examined the issue of whether drunk driving, as a matter of law, meets the definition of “despicable” required to establish malice, the horrific consequences of drunk driving, as well as the fact that as a criminal

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act it naturally carries the outrage associated with crime, suggest that such conduct is despicable.

Applying Taylor to electronic device use Just as the framework for education and advertising campaigns to deter distracted driving involving electronic devices mirrors those used to combat drunk driving, so too can the legal framework for using punitive damages to deter this type of distracted driving mirror the punitive damages rationale of Taylor for drunk driving.

Distilled to its essence, Taylor’s analysis of the factors causing drunk driving rises to the level of conscious disregard and includes three factors that can be applicable to other types of conduct: (1) “a vehicle capable of great force and speed,” (2) “sharply impaired physical and mental faculties,” (3) “a very commonly understood risk” of the injurious consequences of the conduct.

First, since both types of conduct involve automobiles, the force and speed element in Taylor is likewise present in distracted driving cases.

Second, as set forth above, NHTSA and other government agencies have

established through substantial scientific research that distracted driving involving electronics is extremely unsafe. Other organizations examining the impairment caused by distracted driving involving electronic devices have found that this impairment equals or exceeds that of a person with a blood alcohol content (“BAC”) of 0.08 percent. In one such study, when intoxicated drivers and drivers using cell phones were compared, researchers found that “impairments associated with using a cell phone while driving can be as profound as those associated with driving while drunk.”

(Strayer, D. L., Drews, F. A., and Crouch, D. L. A comparison of the cell phone driver and the drunk driver. Human Factors: The Journal of the Human Factors and Ergonomics Society, 2006 (Summer), 381-391; University of Utah.)

In another study performed by Car and Driver magazine, both younger and older drivers were evaluated for reaction times and stopping distances in actual vehicles both when texting while driving and while having a BAC of 0.08 percent.

This study found that texting drivers, both young and old, exhibited slowed reaction times and increased stopping

distances equal to or worse than the intoxicated drivers. (Austin, Michael.

Car and Driver Magazine, Texting While Driving: How Dangerous Is It? p. 2 <http://www.caranddriver.com/features/ texting-while-driving-how-dangerous-isit-the-results-page-2>.)

Third, as in the drunk-driving context, legislative prohibitions on driving while using electronic devices make clear that the risks of such distracted driving are commonly understood by society like the risks of drunk driving present in Taylor. The State of California has banned the operation of a non-handsfree cellular phone while driving (Veh. Code, § 23123a), the use of laptop computers and other devices with electronic displays while driving (Veh.Code § 27602), as well as the reading of any emails or other electronic messages, including text messages, while driving (Veh. Code, § 23123.5). In enacting these bans, and criminalizing this conduct, the Legislature found “[t]here is growing public concern regarding the safety implications of the widespread practice of using hand-held wireless telephones while operating motor vehicles.” (2006 Cal. Legis. Serv. Ch. 290 (S.B. 1613).)

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The Legislature has further recognized that “[i]t is difficult to imagine, however, an argument in favor of allowing the driver of a high-speed, multi-ton, steeland-glass vehicle to engage in an activity as strongly distracting as text-messaging” and “[t]he danger inherent in such activity is manifest.” (Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 28 (2007-2008 Reg. Sess.) as amended August 4, 2008, p. 2, par. 6.)

Finally, like drunk driving, a jury could conclude that driving while distracted by electronic devices, depending upon the facts of the case, constitutes “despicable” conduct. Like drunk driving, it carries with it “the character of outrage frequently associated with crime” as it is also an illegal act that places the lives of other motorists and the public at great risk.

The same factors that led the Taylor Court to conclude that punitive damages were warranted for drunk driving, including the empirical and legislative recognition of the tragic, fatal consequences of that conduct, offer a strong basis for California courts to apply the principles of Taylor to cases involving distracted driving and electronic device use.

Liability of employers In addition to pursuing punitive damages against a driver distracted by electronic devices while causing an accident, a simple extension of existing California law allows such claims to be pursued against a driver’s employer.

As with any case for punitive damages against a corporate employer, a plaintiff must prove that an employer, through its officers, directors, or “managing agents”: (1) had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others, (2) authorized or ratified the wrongful conduct for which the damages are awarded, or (3) was personally guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd.(b).)

Employers are intimately involved in the proliferation of smartphones, laptop computers, tablets, and other electronic devices among employees, as well as establishing when, where and how those devices are to be used in an employee’s performance of their duties. In an age where employees are increasingly under pressure by employers to be available by phone, email, and other electronic

means throughout the work day and beyond, and under pressure to perform more work on electronic devices, an employer’s actions in encouraging, incentivizing, or requiring employees to use their electronic devices during the work day while driving potentially give rise to authorization, ratification, or independent malice.

An employer’s own actions in promoting electronic device use while driving, whether explicitly or (more likely) implicitly, could very well constitute independent malice on the part of an employer. Under well-established principles of California punitive damages law, an employer’s actions in creating an environment that encourages or tolerates wrongful conduct, can support a finding of independent malice. (See, e.g., Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1159 [employer conduct creating environment which enabled sexual harassment was independent malice].) An employer could also potentially “ratify” an employee causing a collision while engaging in distracted driving using electronic device use where an employer (1) has actual knowledge of the employee’s wrongful

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conduct, (2) fails to investigate or discipline the employee once the misconduct becomes known, or (3) fails to intercede in a known pattern of workplace misconduct. (See College Hosp., Inc. v. Super. Ct. (Crowell) (1994) 8 Cal.4th 704, 725-726; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 168.)

Real-world application

This remains an emerging area of law and one that will doubtlessly increase in importance as the use of electronic devices such as smartphones, tablets, laptops, and other emerging innovations such as Google Glass proliferate even more throughout our day-to-day life and work. To date, no California appellate case has addressed whether using electronic devices while driving is a basis for punitive damages. Nonetheless, applying the existing case law, statutes, and arguments set forth in this article, plaintiffs have found success at the trial court level in pursuing punitive damages against distracted drivers and their employers.

In 2013, our firm resolved a case involving punitive damages liability for distracted driving while using electronic

devices by a California sales representative and his employer, a Fortune 50 company. In that case, the defendant driver was allegedly distracted by a companyissued electronic device during a collision where the defendant driver inexplicably veered off a roadway, striking and killing a pedestrian in broad daylight without ever seeing them. The plaintiffs explored the employer defendant’s liability for its independent acts in requiring and incentivizing full-time electronic device use by its employees, and its acts in ratifying the employee’s distracted driving conduct by failing to adequately investigate once electronic device use was implicated.

Based on the analogy to drunk-driving precedent set forth in this article, the corporate defendant’s motion to strike punitive damages was denied, a motion for summary adjudication of punitive damages was denied, and the case was settled for a confidential amount before trial.

Conclusion

punitive damages against both the driver and, if applicable, the driver’s employer, should be fully explored. Employers profit from cultivating an “always on” culture among employees and requiring constant access to electronic devices, including while driving. When dangerous, distracted driving, equivalent to drunk driving in the level of impairment it creates, is promoted for profit at the expense of the safety of others on our roadways, attorneys seeking justice for their clients can and should push to apply the law of punitive damages to deter such conduct and fully compensate those injured as a result.

Patrick K. Gunning is an associate at Panish Shea & Boyle, LLP in Los Angeles, California. A graduate of UCLA School of Law and Gonzaga University, Mr. Gunning is licensed in California and has practiced for three years exclusively representing plaintiffs in personal injury, wrongful death, and products liability cases.

When representing a client who is the victim of a collision that involves a defendant driving while distracted by an electronic device, the potential for

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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief

Appellate Reports and cases in brief Cases of interest to members of the plaintiffs’ bar Gulliver Schools v. Snay

(2014 Fla. App.) __ So.3d __ , 2014 WL 769030 (Fla. Ct. App, Third Dist.)

Who needs to know about this case: Lawyers and clients who enter into settlement agreements containing confidentiality agreements.

Why it’s important: A cautionary tale. Plaintiff forfeits proceeds of agediscrimination claim because his daughter disclosed the existence of the settlement on Facebook. Shows why plaintiffs should be wary of agreeing to keep “the existence” of a settlement confidential, and what can happen if this promise is breached.

Synopsis: Patrick Snay filed an age-discrimination lawsuit against his employer, the Gulliver School. The parties negotiated a settlement, which provided that Gulliver would make three payments to Snay: (1) $10,000 for backpay; (2) $80,000 in damages, and (3) $60,000 in attorney’s fees. The settle-

THE

ment agreement contained a detailed confidentiality agreement, which provided that both the existence and terms of the settlement were strictly confidential, and that if Snay or his wife directly or indirectly disclosed “any information” about the existence or terms of the agreement to anyone, other than their lawyers or other professionals, then the $80,000 payment would be forfeited.

Moments after signing the agreement, Snay told his adult daughter, who had been a student at Gulliver, and who was aware of the lawsuit, that the case had been settled and that he was pleased with the outcome. Four days later, she posted the following on her Facebook account: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The post went out to 1,200 of Snay’s daughter’s Facebook friends.

Roughly a week later, Gulliver notified Snay’s counsel that it would not

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tender the $80,000 portion of the settlement because of Snay’s breach of the confidentiality agreement. Snay moved to compel enforcement of the settlement agreement in the trial court. The trial court found that neither Snay’s comments to his daughter, nor her Facebook posts constituted a breach of the confidentiality agreement. Reversed.

The Court of Appeal held that the plain terms of the agreement prohibited Snay and his wife from directly or indirectly disclosing any information about the existence or terms of the settlement to anyone, other than their lawyers or other professionals. In the court’s view, Snay’s disclosure to his daughter that he had settled the case violated the agreement. The court explained: “The fact that Snay testified that he knew he needed to tell his daughter something did not excuse this breach. There is no evidence that he made this need known to the school or to his or its attorneys so that the parties might hammer out a mutually

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acceptable course of action in the agreement. Rather, before the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do. His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”

Moral of the story: Be careful about the terms of any confidentiality provision in a settlement agreement, and once the agreement is in place, make sure your clients understand their obligations under it, and scrupulously adhere to those obligations.

Ennabe v. Manosa (2014) __ Cal.4th __ (Cal. Supreme).

Who needs to know about this case: Lawyers handling cases with alcoholrelated injuries when the alcohol was served at a private party.

Why it’s important: Holds that statute providing exceptions to tort immunity to persons who sell or furnish alcohol that results in injuries is not limited to commercial enterprises; and that a host who collects money at a private party can be held potentially liable for the “sale” of alcohol to an obviously intoxicated minor.

Synopsis: In a trio of cases decided between 1971 and 1978, the California Supreme Court reversed decades of previous law and recognized, for the first time, that sellers or furnishers of alcoholic beverages could be liable for injuries proximately caused by those who imbibed. In 1978 the Legislature abrogated those cases, largely reinstating the prior common-law rule that the consumption of alcohol, not the service of alcohol, is the proximate cause of any resulting injury. (Bus. & Prof.Code, § 25602, subd. (c); Civ.Code, § 1714, subd. (b).) The Legislature’s action in essence created civil immunity for sellers and furnishers of alcohol in most situations.

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The Legislature also enacted Business & Professions Code section 25602.1, which created some narrow exceptions to this broad immunity. In addition to permitting liability in some circumstances for the provision of alcohol (i.e., the sale, furnishing or giving away of alcoholic beverages) by those licensed to sell alcohol (or who are required to be licensed), section 25602.1 also states that “any other person” who sells alcoholic beverages (or causes them to be sold) to an obviously intoxicated minor loses his or her civil immunity and can be liable for resulting injuries or death. Liability of such “other person[s]” is limited to those who sell alcohol; civil immunity is still the rule for nonlicensees who merely furnish or give drinks away.

In April 2007, Jessica Manosa, a minor, hosted a party at a vacant rental house owned by her parents, without their consent. The party was publicized by word of mouth, telephone, and text messaging. Forty to sixty people attended. She personally provided $60 for the purchase of rum, tequila, and beer, and also provided cups and cranberry juice, but nothing else. Two of her friends also contributed money for the initial purchase of alcohol. She asked one of her friends to charge people he didn’t know some money to get into the party. He charged uninvited guests $3 to $5 per person. Once inside, guests could help themselves to the alcohol. Ultimately, approximately $60 was collected from the guests at the door, and used to purchase more alcohol.

One of the guests who was charged admission, Thomas Garcia, was intoxicated when he arrived and drank more at the party. Because he was rowdy, aggressive and obnoxious, he was asked to leave. An invited guest, Ennabe, and some other guests escorted Garcia out and to his car. One of Garcia’s friends spat on Ennabe, who chased him into the street. Garcia, who was at this time driving away, ran over Ennabe, fatally injuring him.

Ennabe’s parents filed a wrongfuldeath action against Manosa and her parents. The defendants moved for

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summary judgment, which the trial court granted, and the Court of Appeal affirmed. Reversed.

The Supreme Court accepted the plaintiffs’ argument that, by charging an entrance fee, Manosa had “sold” alcohol to party guests and was thus not entitled to civil immunity. The Court held that Business & Professions Code section 25602.1 was not limited to commercial enterprises. The Court held that the final category within that statute, referring to “any other person” within the category of persons who sell or provide alcohol, includes private persons and ostensible social hosts who, for whatever reason, charge money for alcoholic drinks.

The Court also held that the collection of money as the guests entered the party was sufficient to constitute a “sale” within the meaning of the statute. The Court examined various authorities and concluded that a “sale” could include a cover charge to a party where alcohol was available. “Because she sold Garcia alcoholic beverages at her party, section 25602.1 permits ‘a cause of action [to] be brought [against her] by or on behalf of any person who has suffered injury or death.’” The Court declined to read a financial profit or commercial gain requirement into the phrase “sells, or causes to be sold,” as used in section 25602.1.

The Court framed its holding in these terms: “In sum, we conclude that if, as indicated by plaintiff ’s evidence in opposition to the summary judgment motion, defendant Manosa charged an entrance fee to her party which enabled party guests to drink the alcoholic beverages she provided, she sold such beverages (or caused them to be sold) within the meaning of section 23025, and can be liable for Ennabe’s death under 25602.l’s exception to immunity for persons who sell alcoholic beverages to obviously intoxicated minors.”

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Aguilar won a $2.3 million jury verdict against Gostischef arising from a January 2004 auto accident. Gostischef

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requesting discovery of the policy limit.

Farmers did not respond. Aguilar made two additional requests to Farmers to learn the policy limits, indicating that he needed the information to evaluate whether to make a policy-limits demand.

Farmers never responded. In October 2004, Farmers offered to pay its $100,000 policy limit. Aguilar’s counsel advised Farmers that it could be held liable for the entire judgment because it had rejected the three prior attempts to settle within policy limits. In April 2005, Aguilar made a § 998 offer of $700,000.

Farmers responded by offering the $100,000 policy limit.

After the judgment was entered in Aguilar’s favor, he sought costs of $1.6 million. The costs were so high because they included prejudgment interest from the time that Farmers rejected Aguilar’s § 998 offer. Farmers sought to tax costs, arguing that the offer was not reasonable in light of the $100,000 policy limit. The trial court awarded the full costs, rejecting Farmers’ argument. Affirmed.

A valid § 998 offer must be made in good faith. To be made in good faith, there must be a reasonable prospect that the offer will be accepted. Whether the offer is reasonable depends on the information available to the parties at the time the offer is served.

Here, Aguilar made known to Farmers in the early months of the suit that he was interested in discussing settlement within policy limits, but Farmers made no reply. It was accordingly not unreasonable for Aguilar to believe, at the time he made the offer, that Farmers might be liable for a judgment in excess of policy limits.

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

Trial lawyers: Be proud that you are a special interest group From thefor public opinion over patient safety and MICRA, you’re on the right side In the coming battle Executive Director

AMA or the U.S. Chamber. It’s a label One of the most negative terms in you should embrace and take pride in, today’s never-ending political dialogue is Stuart Zanville not hide from. “special interest group.”

CAALA Their constituents are insurance As trial lawyers, you know this firstcompanies, hospitals and physicians. hand. You are constantly attacked by They represent rich and powerful busithose who oppose consumers because nesses and corporations. you are guilty of the cardinal sin of being Yours are children, the elderly, a “special interest group.” Your values homemakers, the poor and the ordinary and beliefs are dismissively rejected people who have been harmed through because, after all, you are nothing more no fault of their own and have nowhere than a “special interest group.”

Stuart Zanville else to turn. Doesn’t sound like a fair This makes me mad, and it should CAALA fight does it? make you mad too.

Of course, that’s where you step in.

Does anyone really know the definiTrial lawyers protect people from unsafe tion of a “special interest group?” I do. It’s products, unsafe medicine and unfair any group that you aren’t a part of. business practices. You level the playing Actually, that’s a cynical answer. A better field and make it a fair fight. definition is that special interest groups are That’s why it’s so shocking, and yes communities with shared beliefs and values frustrating, that you are attacked for who attempt to influence public policy. standing up for your constituents, those You truly can’tStuart countZanville the number of Attorneys Association of Los Angeles who have no one else to stand up for organizations that Consumer advocate on behalf of them. various beliefs and attitudes. They range from The American Civil Liberties Union The Troy and Alana Pack Patient to the John Birch Society; from the U.S. Safety Act Chamber of Commerce to Common Cause and from the National Rifle For the next several months, you will Association to People for the Ethical be engaged in a public opinion battle Treatment of Animals. that represents everything you do and National organizations like the believe in. It will be a battle to get

By Stuart Zanville American MedicalConsumer Association, National California Attorneys Association of Los Angeles voters to pass the Troy Association of Manufacturers, the and Alana Pack Patient Safety Act, a Pharmaceutical Research and November ballot initiative that will proManufacturers of America, and the U.S. tect patients from poor performing docChamber of Commerce literally spend tors, drunk or drugged doctors and prebillions of dollars in their attempts to scription drug abuse. The initiative will influence public policy on behalf of their also ensure that patients injured by preconstituents. ventable medical mistakes are fairly comIn California, the deceitfully named pensated and can hold negligent doctors Californians Allied for Patient Protection and providers accountable.

(CAPP) and the Civil Justice Association The well-funded groups advocating of California (CJAC) fight every day against this measure are hard at work to against consumers and what you do. convince the public that they should reject the initiative and its protections.

Leveling the playing field Why? Their bottom-line answer: If you accept the literal definition, “Because trial lawyers are a special intertrial lawyers are a special interest group. est group!” They have the audacity to say But you are a special interest group with that protecting the public will only enrich quite a different constituency than the trial lawyers.

From the Executive Director

From the Executive Director

Tell that to the incredulous parents who learn for the first time that the life of their infant child lost to medical negligence is worth less than $250,000, an amount that hasn’t changed in 38 years.

The upcoming ballot initiative fight is being characterized by some as a defining moment for trial lawyers. I believe instead that it is a defining moment for kids like Troy and Alana Pack who were killed by a doctor-shopping prescription drug addict while walking down a Bay Area sidewalk. It’s a defining moment for babies like 6-week-old Mia Chavez who died when doctors failed to diagnose and treat her for whooping cough or for Annette Ramirez who underwent an elective procedure and ended up losing her arms and legs due to infection after her colon was perforated during the surgery.

The ballot fight will be a tough one because those opposing it have vast sums of money and a strong incentive to keep the status quo and protect at all costs the interests of their constituents.

For reasons I truly can’t fathom, some of the public and the media actually believe it’s more important to protect the bottom line of institutions than the best interests of patients.

The untold number of ordinary people who would have been protected by the ballot measure’s changes are not organized and don’t have the ability to write million-dollar checks to pass the measure. But they do have their stories.

Each of you reading this column can talk about the people you represent and stand up for every day. Between now and November; use every means at your disposal to tell their stories. Make sure that everyone you come in contact with knows that your group of constituents is indeed special and that their only interest is to be treated fairly when they have been harmed or hurt.

In today’s high tech world smartphones and tablet computers have become the eyes and ears of the people. Thankfully, trial lawyers are still their voice.

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Sacramento Update

By Nancy Peverini CAOC Legislative Director Let the legislating begin The 2014 legislative year has begun. More than 2,000 bills were introduced in the past six weeks (bringing the total number to more than 4,500 bills this two-year session), including bills to limit punitive damages, to impose a “government standards defense,” and to create a one-sided “frivolous claims” statute, among others. Consumer Attorneys of California is tracking more than 200 of the new bills and will be reviewing each for its impact on you and your clients. Legislative committee hearings began in March, and will be reaching a crushing crescendo in April and May. We would like to thank the members who sent legislative suggestions this past year. As a result, we are pleased to announce our legislative priorities for 2014.

First and foremost, CAOC will prioritize its efforts on court funding and patient safety. Among the most important actions the Legislature can take this year is to restore the $1.1 billion in General Fund cuts that have been made to the justice system’s budget over the past six years. The Chief Justice has unveiled a three-year plan that calls for restoring $472 million in permanent cuts since 2007, most of that for trial courts. CAOC advocates, led by CEO and Chief Lobbyist Nancy Drabble, have begun meetings with all key legislators and we have asked every legislator to place the judiciary at the top of the spending priority list in upcoming budget discussions.

MICRA and patient safety reform remains a top priority. CAOC is heartened that Senate President Pro Tem Darrell Steinberg (D-Sacramento) is working to find consensus on a legislative solution for the patient safety issue. Steinberg has introduced a bill, SB 1429, that would address part of the problem by developing a legislative solution “to issues surrounding medical malpractice injury compensation.” If that legislative effort fails to make progress, CAOC and a coalition of patient safety advocates have agreed to take the issue to the voters.

Further, CAOC is sponsoring three bills in 2014: • AB 2059 (Muratsuchi) will update Evidence Code section 1158, which allows patients to request copies of their medical records. Section 1158 was enacted in 1968, before electronic records were in use. CAOC is meeting with medical providers and others in an effort to amend the statute so it reflects the use of electronic health records, contains a reasonable cost for such records, and puts some teeth into its enforcement.

• SB 1188 (Jackson) co-sponsored by Consumer Federation of California, will ensure the Consumer Legal Remedies Act (CLRA) will continue to protect California consumers. One of California’s most important consumer-protection statutes since it was passed in 1970; the CLRA has provided a remedy against merchants who employ unfair or deceptive business practices. This bill will preserve the original intent of the CLRA by clarifying that the existence of a safety risk or hazard is not required to prove “materiality” under the act.

• AB 1659 (Chau) is a placeholder for discussions between CAOC and the California Defense Counsel on a wide variety of civil-procedure issues.

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Aside from its sponsored bills, CAOC is also strongly supporting a package of bills to improve the rights of residents of Residential Care Facilities for the Elderly (RCFE). Among those bills is AB 2171 (Wieckowski) which would create an RCFE Residents’ Bill of Rights with protections similar to those already enjoyed by nursing home residents.

CAOC has a long history of supporting legislation aimed at assisting seniors and the disabled, and we strongly believe these vulnerable populations need the full protection of the civil justice system.

Washington Update

By Linda Lipsen CEO, American Association for Justice Fighting forced arbitration We continue to make headway in our fight to end forced arbitration.

Previously, we announced that Senators Lindsey Graham [R-SC] and Jack Reed [D-RI] are co-sponsoring S. 1099, the SCRA Rights Protection Act of 2014. This legislation would guarantee that our military service members can enforce the financial and civil protections already granted to them by the Service member Civil Relief Act (SCRA), which was enacted in 2003 to ensure our service members could devote their entire energy to the defense needs of our country.

Now there is a House companion bill, H.R. 4068, introduced just a few days ago by Rep. Walter Jones (R-NC-03).

This legislation will help reverse the disastrous effects of several recent Supreme Court decisions on the issue of forced arbitration by: • Making forced arbitration clauses involving SCRA-related protections unenforceable against service members; • Requiring service members to submit to arbitration only after a dispute has arisen and if the service member voluntarily elects arbitration as an alternative dispute resolution mechanism; and • Preserving service members’ rights to bring class actions for violations of SCRA. Our efforts in Washington, D.C., to preserve a balanced civil justice system mean that you can concentrate on helping people seek justice and accountability. We are proud of our advocacy for you and your clients and tremendously thankful for your support as we continue this work.

New from CMS The Centers for Medicare & Medicaid Services (CMS) recently completed its analysis as required under the SMART Act regarding what the claim threshold should be for reporting and reimbursing Medicare Secondary Payer (MSP) claims. CMS has raised the threshold for cases involving physical trauma to $1,000.

Previously, CMS had set the threshold at $300, but supporters of the SMART Act, the American Association for Justice (AAJ) included, believe that CMS was actually losing money collecting reimbursements from small dollar settlements.

Going forward, the new threshold means that claims with total settlement value of $1000 or less do not need to be reported or reimbursed. While we recognize that this new threshold likely does not impact that many of your cases, we do believe it will free up time and resources for the government’s MSP contractor to focus on its remaining caseload, therefore improving overall efficiency.

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From the President Casey Johnson

Orange County Trial Lawyers Association

Taking our message to Sacramento Disneyland is not always the happiest place on earth On December 24, 1998, Luan Dawson, a Microsoft Computer Programmer who was a lead team member on the Word 2000 Project, and his wife, Lieu Vuong, took a holiday trip from Washington State to Disneyland with their six-year-old son and eightyear-old grandson. While waiting in line at the “Happiest Place on Earth” for the sailing ship Columbia, Luan and Lieu were struck by a metal cleat that ripped from the ship. The impact caused fatal traumatic brain injuries to Luan Dawson and severe facial injuries to Lieu Vuong, as their young son and grandson watched on in horror.

Failure to communicate

Investigation revealed that the incident was caused by a series of completely preventable errors and deficiencies. The ride was being staffed by employees who had not been properly trained on the sailing ship Columbia. At the time of the incident, the Columbia was docking to pick up a new group of passengers. As the ship approached the dock, it was moving too quickly to safely stop.

Nevertheless, due to the failure of the ride operators to communicate (including the “captain” of the ship), a ride operator threw a mooring line around a metal cleat on the ship with the intent of bringing the ship to a stop next to the dock. As the ship continued to move, it caused the mooring line to pull, straining the bolts holding the cleat onto the ship. The bolts eventually gave way, causing the cleat to snap off of the ship and into the unsuspecting crowd.

Compounded errors

Pre-incident damage to the bolts holding the cleat indicated that the ship was routinely moored improperly while still moving. Additionally, the cleat on the ship had been attached to wood that was discovered to have been rotted.

Furthermore, Disneyland was using an improper rope to dock the Columbia.

At the time of the incident, nylon rope was in use for the mooring line, instead of the originally used “hemp” rope. The nylon rope provided greater elasticity and breaking strength which contributed to the cleat being launched into the line of waiting riders during the incident.

Following the incident, the park employees cleaned up the scene before investigators arrived. Additionally, Disneyland was criticized for waiting to contact the Anaheim Police Department regarding the incident, and then, once officers were contacted and arrived at the theme park, they were kept in a waiting room. It took officers more than four and a half hours to actually reach the scene of the incident to begin the investigation.

Disneyland’s handling of the Columbia incident sparked a national debate over the safety of our nation’s theme parks. Here in California, the Columbia incident led to legislative changes aimed at ultimately increasing the safety of consumers and making it easier to determine “what went wrong?” following such a disaster. Among the changes made in California were the adoption of independent state inspections of theme park rides, mandatory reporting of serious injuries at theme parks and preservation of accident scenes for investigators following incidents.

Along with increasing consumer safety, these changes seek to ensure thorough investigations of theme park incidents resulting in an increased likelihood of holding those negligent fully accountable.

In today’s bitterly bipartisan political environment, legislative changes are usually enacted in response to an avoidable tragedy instead of being enacted before a tragedy occurs in the first place. In some cases well-funded special interests are able to block needed changes, even after catastrophic consequences come to light.

Because of the growing efforts to strip away consumer protections and consumer rights, it is more important than

ever that our legislators hear our and our clients’ stories. Insofar as there can be certainties in politics− no legislator is going to introduce or advance legislation or funding of programs, unless they are hearing about the need from their constituents.

Opportunity for change

Fortunately for consumer attorneys in California, an annual opportunity already exists to ensure that consumers’ voices are being heard. On May 6, 2014, Consumer Attorneys of California will host their annual Justice Day in Sacramento which provides attendees with the opportunities to meet with legislators to discuss issues facing California consumers. The focus of this year’s meetings will again be on restoring muchneeded funding to California’s courts.

While legislative changes to secure consumer protections in specific areas remain important, the ultimate impact of any such protections is diluted, if not completely eroded away if consumers are denied the opportunity to have their matter timely heard in Court. Without access to courts, accountability will be denied.

I strongly encourage everyone reading this column to attend Justice Day. There is strength in numbers. For more than five years, OCTLA has sent one of the largest contingencies to Justice Day, and we plan on continuing that tradition this year.

Another tradition that OCTLA is excited to continue is our reception the night before Justice Day. This year, OCTLA’s reception falls on the evening of May 5, so please join us for a Cinco de Mayo celebration at Vallejo’s (located at 1100 “O” Street in Sacramento).

Due to the Cinco de Mayo holiday, space will be limited, so please RSVP to janet@octla.org. Register online to attend Justice Day at www.caoc.org. See you in Sacramento!

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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.

Thomas Connection Adams CAALA Center

Bonnie Fong

Maximilian Lee

Law Offices of Thomas G. Adams

Law Offices of Scott A. Miller

Law Offices of David S. Lin

Bahareh Aghajani

Christopher Gansen

Adam Murray

Attorney at Law

Gansen Law Group, P.C.

Inner City Law Center

Fahad Ali

Christopher Garcia

Anthony Nguyen

Attorney at Law

Loyola Law School

Shegerian & Associates

Joanna Allen

Adam Gardner

Jonathan Nielsen

Rice & Bloomfield

Inner City Law Center

Nielsen, Peterson & Nielsen LLP

Tina Arshakyan

Michael Goldsmith

Tanner Nielsen

Arshakyan Law Firm, P.C.

Goldsmith & Hull A.P.C.

Nielsen, Peterson & Nielsen

Gabriel Avina

Marcy Gribin

Paul Overett

Law Offices of Gabriel H. Avina

Inner City Law Center

Overett Group

Javier Beltran

Marcia Guzman

John Perlstein

Inner City Law Center

Loyola Law School

Law Office Of John J. Perlstein

Ron Betty

Shant Hagopian

Kirt Peterson

Attorney at Law

Kitsinian Law Firm

Nielsen, Peterson & Nielsen LLP

Melissa Bleak

Erik Harper

Sonia Pflaster

Carpenter, Zuckerman & Rowley, LLP

Inner City Law Center

Law Offices of Stephen L. Belgum

Julianna Braho

Amos Hartston

Brynna Popka

Southwestern Law School

Inner City Law Center

University of La Verne

Maria Theresa Calimag

Dimitri Hurt

Dianne Prado

Law Office of Domingo and Domingo

Law Office of Jackie Kruger

Inner City Law Center

Eric Chun

Amy Ifurung

Luz Razook

Law Offices of Eric Chun & Assoc., P.C.

Ahmadian Luper Dagher

Hafif & Associates, LLP

Sam Cleaver

Jennifer Jiao

Patricia Rosman

Law Offices of G. Samuel Cleaver

Law Offices of Stephen L. Belgum

Attorney at Law

Thomas Corhiran

Yoon Kim

Tyler Ross

Corrales Law Group

Lederer & Nojima LLP

Geragos & Geragos, APC

Natasha Covarrubias

Gregory Kirakosian

Jennifer Ryu

Loyola Law School

Geragos & Geragos, APC

Loyola Law School

Christopher Dickson

Elizabeth Kugler

Carla Sanchez

Ritter Law

Inner City Law Center

Mesriani Law Group, APLC

Harrison Flanagan

Jacob Larsen

Brett Shegda

The Law Offices of Neustadt and Berriz

Perona, Langer, Beck, Serbin, Mendoza & Harrison

Law Offices of Brent W. Caldwell

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Stephen Simoni

Andrew Stashefsky

Deborah Torosi

Simoni Consumer Class Action Law Offices

Attorney at Law

Attorney at Law

Heidi Sinavsky

Jonathan Terkeurst

Albert Villaneda

Brayton Purcell LLP

Western State University College of Law

Loyola Law School

Marcus Spiegel

Rodney Tolentino

Angelica Weber

Law Offices of Ben Yeroushalmi

Law Offices of Weber & Weber

Allred, Maroko & Goldberg

CAALA Resource Center New CAALA Affiliate Vendors Our Affiliate Vendors are an excellent resource to help improve your practice. They provide goods or services specifically for plaintiff trial lawyers.

Please support our Affiliate Vendors by contacting them for your business needs and projects.

Fuller and Associates Certified Legal Nurse Consultants 465 Stony Point Road, Suite 216 Santa Rosa, CA 95401-9059 Contact: Dorothea Fuller (707) 331-9360 E-mail: dgf0815@att.net

RBZ, LLP 11766 Wilshire Blvd., Ninth Floor Los Angeles, CA 90025 Contact: David Roberts (310) 478-4148 E-mail: lpierce@rbz.com

CATEGORY: Investigations | Jury & Trial Consultants | Practice Management Medical-Legal consulting services with risk-free guarantee: Case screening for merit, medical record review, develop reports and chronologies, and many more services.

CATEGORY: Accounting | Banking/Financial Services RBZ is a premier Los Angeles-based public accounting firm that is the largest provider of specialized consulting, tax, and accounting services to small and mid-sized law firms throughout California.

Key Health Group, Inc. 30699 Russell Ranch Rd., Suite 175 Westlake Village, CA 91362 Contact: Del Sabzerou (818) 575-5300 E-mail: dsabzerou@keyhealth.net CATEGORY: Pre-Settlement Funding Key Health is the nationwide leader in providing unique financial solutions to healthcare facilities and healthcare providers. Through their Lien Solutions Program, they fund quality medical care on a lien/letter of protection basis for patients who have been injured as a result of a motor vehicle accident or other type of personal injury accident.

SBA Loan Group, LLC 3 Harbor View Ave. Norwalk, CT 6854 Contact: Jarret Prussin (860) 922-3030 E-mail: jarret@sbaloangroup.com CATEGORY: Banking/Financial Services Largest provider of SBA Loans to law firms in the United States.

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Calendar

Consumer Attorneys

April 23, 2014 Working Damages Into All Parts of the Case 5:00pm - 6:00pm Registration 6:00pm - 8:30pm Program CAALA Conference Center Downtown Los Angeles

ASSOCIATION OF LOS ANGELES

CAALA Consumer Attorneys Association of Los Angeles

Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm Apr. 5, May 1

800 West Sixth Street,#700 Los Angeles, CA 90017 (213) 487-1212 www.caala.org

Advertiser’s Index

ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .84 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 Hanger, Bob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .30 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .52 Rubin, Charles “Skip” . . . . . . . . . . . . . . . . . . . . . . . . .26 Sepassi & Tarighati, LLP . . . . . . . . . . . . . . . . . . . . . . .13 Announcements and Career Opportunities CAALA Affiliate Vendors . . . . . . . . . . . . . . . . . . . . . . .81 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .87 CAALA VEGAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61 Mahacek, Jim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Attorneys - Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Banifsheh, Danesh & Javid, PC . . . . . . . . . . . . . . .22-23 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 CaseyGerry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94,95 Dolan Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .33 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . .44 Kabateck Brown Kellner LLP . . . . . . . . . . . . . . . . . . . .53 Kamanski Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .72 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .49 Law Offices of Marc I. Zussman . . . . . . . . . . . . . . .107 Law Office of Michels & Lew . . . . . .Inside Back Cover Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .17 Manly & Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 McGonigle, Timothy . . . . . . . . . . . . . . . . . . . . . . . . . .21

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Attorneys - Accepting Referrals (cont.)

McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .43 Nemecek & Cole . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Randolph & Associates . . . . . . . . . . . . . . . . . . . . . . . .97 Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Shegerian & Associates . . . . . . . . . . . . . . . . . . . . . . .29 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . .69 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Court Reporters Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .48 Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . .38 Haiby, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Expert Witnesses – Medical American Medical Forensic Specialists . . . . . . . . . . .31 Forensic Autopsy Services . . . . . . . . . . . . . . . . . . . . .91 Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . .73 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . .67 Expert Witnesses – Technical & Damages Boster Kobayashi . . . . . . . . . . . . . . . . . . . . . . . . . . . .63 Forensis Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .89 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82 EPS Settlements Group . . . . . . . . . . . . . . . . . . . . . . . .90 Farber, Patrick (Struct. Settlemts.) . . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .35 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Summit Structured Settlements . . . . . . . . . . . . . . . . . .74 Valdez Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 Zea, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100

Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm Apr. 17, May 15 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Apr. 17, May 15 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm Apr. 15, May 13

Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Courtroom Presentations . . . . . . . . . . . . . . . . . . . . . . .58 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . .7 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Legal Graphics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 MotionLit Video Group . . . . . . . . . . . . . . . . . . . . . . . .82 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79 Information Service Providers West, A Thomson Reuters Business . . . . . . . . . . . . . . .71 Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . .41 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .19 Matloff Company . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Investigators Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Nutris Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 PJ West & Associates . . . . . . . . . . . . . . . . . . . . . . . . .99 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Legal Support Services ABC Virtual Offices . . . . . . . . . . . . . . . . . . . . . . . . . .84 USA Express Legal & Investigative Services . . . . . . .78 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .75 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .42 North Valley Eye Medical Group . . . . . . . . . . . . . . .99 Total Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Software HiPerSoft Corporation . . . . . . . . . . . . . . . . . . . . . . . .27 Verdict Reports Jury Verdict Alert . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83

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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.

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Visit our website for more info:

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From the President Geoffrey Wells

Consumer Attorneys Association of Los Angeles

Trust your instincts and you’ll make a difference Outcomes are not always the way they appear Most everyone has heard the story of George Bailey in the movie, It’s a Wonderful Life. The story recounts George Bailey’s life after he became distraught when a bank deposit went missing. He decided that his life wasn’t worth living and he wanted to kill himself.

Thereafter, he got a chance to see what would have happened to the people in his town and the people he loved the most if he had never lived. The result was devastating and reflected how we touch people’s lives in ways that we don’t always appreciate.

Last month my son, Garrett, who is a freshman in college at Stevens Institute of Technology in Hoboken, New Jersey, sent me an e-mail with a Youtube link.

As many of you might know who have teenage boys, they are not big on conversation and handle most remarks with one word or sometimes even less with an abbreviation with things like “K.” In this e-mail, all Garrett wrote as to the link attachment was “watch this.” I did. The story is so powerful and meaningful that I thought it would be a good idea to share with you and in some ways, it is similar to the story of George Bailey but with a twist.

A cautionary tale

It is the story of a 12-year-old boy who was a drug dealer in Racine, Wisconsin. By the age of 15, according to the story, he had been arrested 15 times for drug-related offenses. Many people thought he was a lost cause. Around the age of 14, he was incarcerated for approximately one year. He states that during this incarceration, he started to reflect on his life and spent many hours of the day alone and crying. He began writing letters to his family and decided that he needed to change his life and 108 — The Advocate Magazine

APRIL 2014

become dedicated to what he wanted to do in this world.

When he got out of incarceration, he tried to do everything he could to show his family and especially his mother, Maddie Claybrook that he was on the right track. He got a job at Burger King and wore the uniform and all that went with it. His old drug-dealer friends would come by the restaurant and laugh at him.

They would make fun of him and call him out and try to get him to leave. He refused to be influenced by that crowd and stayed the course working and improving his life.

About a year later, a search warrant was issued by the Racine Police Department for his home. The police had information that there were drugs in the house. The boy, now 16 years old, was home asleep when the police arrived.

They came in and he was placed in a chair in the living room and handcuffed.

He was told by the police officer that there were drugs coming out of this house and that they were going to find them. He started crying and lost it and said he wasn’t involved and that he wasn’t in the drug culture anymore.

The police searched the whole house and found nothing. Eventually the search went out to the garage and they located 15 grams of crack cocaine. The police officer confronted him with the drugs.

He told the officer that he wasn’t involved, that it wasn’t his and that he had nothing to do with it. The police officer, Rick Geller, with the City of Racine Police Department, states that if the young boy had been charged that night, he would have been looking at a minimum of 10 years in prison. He took photos of the individuals at the house, he took photos of the house, and then he called his supervisor. He told his supervisor

what he had found and what the boy had stated. The supervisor told him that he had more than enough evidence to charge him right now with the drug offense. Interestingly, Officer Geller told his supervisor that he did not believe that the kid had any idea the drugs were in the garage and that he thought it would be a huge mistake to charge this kid. The supervisor told Officer Geller that if he thought it would be a huge mistake, then don’t do it. Officer Geller came back into the living room, uncuffed the boy and told him, “I hope I am not making a mistake.”

Ten years later, Officer Geller and that boy, now known as Caron Butler, were reunited for the first time at an NBA charity event. Caron Butler had gone on to be a star in the NBA, and has been named as Role Model of the Year by the Connecticut Chamber of Commerce for all his charity work and leadership.

It is one of the most incredible stories I have ever read. Sometimes in our lives as civil lawyers, we have to make judgment calls, and I know we all worry about making a mistake. Sometimes you have to use your gut instincts and go with what you think is right. And, maybe, just maybe, you might end up helping a young man who goes on to become another Caron Butler.

I know we have a lot of young or new aspiring plaintiffs’ trial lawyers who are out there right now, waiting at the gate to make their statement about their client and their cause. Trust your instincts about whether or not to go to trial on your case.

Sometimes you will win and sometimes you will not, but your client will always be grateful that you stood up for them and fought for their rights!

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