THE MAGAZINE FOR NORTHERN CALIFORNIA PL AINTIFFS’ ATTORNEYS
Health-care arbitration
The Magazine for Northern California Plaintiffs’ Attorneys
Arbitration clauses and heirsof-a-decedent’s standing in
health-care wrongful death cases
— W. David Corrick
The Magazine for
Northern California Plaintiffs’ Attorneys
Course and scope
of employment
The Magazine for Northern California Plaintiffs’ Attorneys
May 2013 issue
A look at the different tests for
this critical issue
Reproduction in whole or
in part without express
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The Magazine for Northern California Plaintiffs’ Attorneys
Three boys
— Andje M. Medina
When “America’s finest” are maimed and killed by defective military
equipment, we need to hold the manufacturer responsible
Copyright 2013 by
Neubauer & Associates, Inc.
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Plaintiff | May 2013 | plaintiffmagazine.com
Features
Departments
7 Three boys
Trial Practice and Procedure
“Support your troops” includes holding accountable
those who design and manufacture defective equipment
that maims and kills America’s finest.
TOM BRANDI
A look at the different tests for this critical issue.
ANDJE M. MEDINA
AND
WILLIAM L. VEEN
26 Guitar logic in mediation:
Mediation Matters
14 The Web’s Do-It-Yourself culture
Understand the DIY client who wants to be more
involved in the legal process, and use that understanding
to better market your firm on the Web.
TANISHA SHAFER
22
16 Course and scope of employment
Cowboy chords vs. jazz
If your case valuation doesn’t match the insurer’s
settlement model, perhaps you’ve let them place it
in the wrong category.
JEFFREY KRIVIS
Profile: Ellen Lake
Employment-rights specialist makes her mark in public
service law and the appellate bar.
STEPHEN ELLISON
28 Arbitration: Don’t mix cucumbers with
zucchinis or you may end up in Lodi
Arbitration clauses: Where do non-signatory heirs of a
decedent stand in wrongful death cases? It depends.
W. DAVID CORRICK
36 Hey! You better not hurt man’s best friend
Suing for emotional damages: When a dog is more
than chattel.
40 Appellate Reports and cases in brief
Compton v. American Management Services, Inc. —
Challenging arbitration agreements as unconscionable
because they are not sufficiently bilateral.
JEFFREY ISAAC EHRLICH
44 With case-management software, it’s all
Back Story
relative
Your life revolves around your cases. So should your
case-management software.
MILES B. COOPER
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Correction
ON THE COVER:
A helicopter prepares to land, Stocktrek Images, www.thinkstockphotos.com
U.S. Soldier, istockphoto, www.thinkstockphotos.com
German Shepherd in bandages, istockphoto, www.thinkstockphotos.com
Vol. 7 No. 5
MAY 2013
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Plaintiff | May 2013 | plaintiffmagazine.com
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Three boys
“Support your troops” includes holding accountable
those who design and manufacture defective
equipment that maims and kills America’s finest
BY TOM BRANDI
As high school students in early
post-9/11 America, three young boys took
different paths but all ended up helping
their fellow Americans.
Dave (names have been changed)
chose the military and became one of the
youngest ever in Special Forces and put
his life on the line in war. Steve and Nick
went to school and worked summers putting their lives on the line fighting forest
fires. All three were young men of incredible potential. But their families never
saw them grow into the wonderful men
their potential foretold because all three
died in transport helicopters.
This is a tale of pursuing two cases
against manufacturers and maintenance
facilities with two very different results.
Fighting nature
The forest-fire fighters, Steve and
Nick, were in the wilderness in California
for eight straight days under brutal conditions, working long hours attempting
to stop wildfires engulfing them on all
sides, when word came they were moving
out because of worsening weather conditions. They gathered at the exit point
waiting as the helicopter ferried out two
prior crews.
Finally their turn came, and along
with several other weary firefighters they
entered the helicopter, strapped themselves in, and began to relax for the first
time in over a week. They were headed
to some much needed rest, food and
showers – a brief respite from their
ordeal.
“Support Your Troops”
Dave was in an elite unit in a war
zone. They helicoptered from their base
to another location looking for some bad
guys, who were not there. They spent the
night, and the following day took off in a
convoy of three helicopters to return to
their base. As Dave and the others
entered the relative safety of the helicopter, they were no doubt reassured they
were flying in one of the best machines
that those who contract with the military
can supply. After all, doing your best for
our military and supplying them with the
best equipment is an essential part of
“Support Your Troops.”
Steve and Nick’s helicopter had
recently been remodeled, with the finest
craftsmanship and inspected by top flight
maintenance personnel. At least that is
what they likely thought.
Dave and his buddies were flying in
a helicopter originally built for the Shah
of Iran and remodeled by the manufacturers for the U.S. Army, with all of the
latest bells and whistles. At least that is
what they likely thought.
Crash
As Steve and Nick took off, they
barely made it to a few hundred feet as
the helicopter lost power, fought to maintain altitude and crashed into a fiery ball,
consuming its occupants.
An hour or so into Dave’s flight they
encountered some rain and snow, but it
was nothing the helicopter had not
plaintiffmagazine.com | May 2013 | Plaintiff
7
Three Boys, continued from Previous Page
encountered before and was well within
the envelope of safety. Suddenly an
engine lost power and the pilots fought
to keep the helicopter in the air. It ultimately crashed, killing eight occupants
including Dave and severely injuring
14 others. There was no enemy activity
in the area.
The families of these young men
asked us to find out why their sons died
and to hold accountable those responsible. Thus began a journey that revealed
overloaded aircraft, charges of misrepresented weights, missing documents, computer problems, thousands of pages of
discovery, numerous depositions, and a
corporate policy that claimed to “support
the troops” while using legal shields to
avoid responsibility and shift the burden
to the American people.
8
Plaintiff | May 2013 | plaintiffmagazine.com
In our aviation work we look to the
human components, the aircraft, and the
environment to reveal the causes of the
incident. Pilot conduct is examined, as
well as the work by maintenance personnel, as we seek to rule in or out human
error. We also look to the helicopter to
see if there was a defect in manufacture
leading to a failure that caused or contributed to the incident. And we look to
the environment, e.g., weather, terrain,
air traffic controllers’ improper routing,
etc., to see if any of these factors led to
the deaths.
Loss of engine power
Both of these cases involved loss of
engine power with factually different
causes, and legally different results.
Factual investigation and discovery
revealed Steve and Nick’s helicopter lost
power due to a combination of being
overloaded and the presence of contamination in the fuel control units reducing
fuel flow to the engines, leading to a
power loss. It was generally recognized
the overweight condition of the aircraft
had a crucial effect on the ability of the
aircraft to sustain flight under reduced
fuel flow conditions. The parties disputed
the reasons for the aircraft being overweight, whether people mistakenly
reported the improper weight or intentionally concealed it. Similarly, evidence
showed a different size filter would have
removed virtually all of the contamination; a fuel filter in use in other aircraft,
but for unexplained reasons, not in use
here.
See Three Boys, Page 10
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Three Boys, continued from Page 8
When the NTSB investigates a crash,
the family and its representatives are
generally not allowed to inspect the aircraft or have input into the investigation
while the representatives of the owner
and manufacturers actively participate.
For Steve and Nick, during the investigation, one of the parties took possession
of the fuel control units and essential
component parts were allegedly lost during shipment to the NTSB laboratory.
Ultimately the facts were revealed
and this case settled, providing the families of Steve and Nick the reasons why
their sons were lost to them.
A dispute over cause
In Dave’s case, there was a dispute
over the facts surrounding the cause of
the crash. The manufacturers denied any
defects and insisted the plane crashed
due to pilot error or the effect of weather, two reasons that allow them to escape
liability and shift the burden of the
deaths and injuries to the U.S. government. The families contended the rainfall was not unusual, the two other helicopters in the convoy experienced the
same weather without any negative
effects, and that the real cause was a
known computer glitch that led to an
engine shutdown.
Dave’s helicopter was not originally
made in the U.S., nor was it made for the
U.S. Army, but was assembled under a
manufacturer’s license with parts from a
foreign company. When the Shah of Iran
could not take delivery because he was no
longer living in Iran, it was later reconfigured and sold to the U.S. Army. Later
the manufacturer approached the U.S.
Army with the recommendation to use
newly devised technology, and the Army
agreed. There was no record that the
Army insisted on any specific design or
provided written specifications, but rather
left the details to the manufacturer. In
fact one essential computer-part manufacturer contract document provided:
Specific implementations used to
describe the functional requirements
throughout this document are for
informational understanding only.
Actual implementations used to meet
these requirements will be at the discretion of the designer unless specifically stated otherwise.
During discovery numerous Army
personnel repeatedly testified that the
Army had no involvement in the design
of the critical computer part that ultimately failed.
Immunity
We believe that members of the
Armed Forces are entitled to the same
protections as any other citizen, but trying to hold manufacturers accountable
for injuries to service personnel is
fraught with peril.
In this case, despite the fact there
was no military combat activity, the
defense brought a motion for summary
judgment based on the combat activities’
doctrine which provides immunity to the
government for negligence in combat
activities. This motion was denied.
Several other motions were filed and
ultimately the defense motion for summary judgment based on the Military
Contractor Defense. To invoke the
defense successfully, the contractor must
establish three elements: “(1) the United
States approved reasonably precise specifications; (2) the equipment conformed
to those specifications; and (3) the supplier warned the United States about the
dangers in the use of the equipment that
were known to the supplier but not to the
United States.” (See Boyle v. United
Technologies Corporation (1988) 487 U.S.
500, 512.) The motion for summary
judgment was successful despite the
See Three Boys, Page 12
10
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Three Boys, continued from Page 10
absence in the record of facts demonstrating the manufacturer built what the
government designed, which is what we
believe is the extent of this judicially created immunity. The end result is that the
families of eight young men will never
have their day in Court while manufacturers who provided a defective product
from which they profited handsomely
escape accountability.
I believe “Support your troops”
includes providing them with appropriate equipment to do their jobs. I believe
that “Support your troops” includes
holding accountable those who design
and manufacture defective equipment
that takes the lives of America’s finest.
Dave and the seven others who were
killed agreed, by signing up to defend
our nation, to be placed in harm’s way.
They did not agree to sacrifice their lives
so that a manufacturer could profit while
supplying defective equipment and then
escape responsibility for its defective
products.
Our firm and countless other lawyers
will continue to try to protect the men
and women who serve us and ensure they
have the same opportunity and right to
hold accountable manufacturers who
injure, regardless of whether they are soldiers or citizens. Signing up to serve and
protect America should not mean eliminating your right to hold accountable
those who defectively manufacture items
necessary to protect our service personnel. If a contractor truly built what the
government told them to, with precision,
and provided suitable warnings, and the
government overruled them and insisted
on what was later a defective product,
then the contractor has a meritorious
position. But supporting our troops
should not mean allowing a company to
blame the government for what is the
company’s fault, allowing the company to
seek escape from responsibility. All of us
owe our service men and women more
than words, including providing safe
products and a system to hold accountable those who fail in their duty to do so.
Thomas J. Brandi represents people in consumer class
actions, injury and wrongful
death including aviation,
dangerous roads, defective
drugs, and unsafe products.
He has 17 verdicts from
Brandi
$1 million to $1 billion,
has tried cases to verdict in
15 California Counties, and has received
many other honors. www.brandilaw.com.
12
Plaintiff | May 2013 | plaintiffmagazine.com
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ERIK L. PETERSON
JAMES BOSTWICK
Bostwick & Peterson LLP has successfully represented catastrophically injured
personal-injury victims in California and Hawaii for over 40 years.
We are pleased to report these recent settlements:
$11,000,000 neonatal injury settlement
$10,700,000 record birth injury settlement
$8,000,000 neonatal injury settlement
$7,100,000 birth injury settlement
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The majority of our cases are referred to us by attorneys and we gladly pay referral fees.
For more information, please visit our website:
www.bostwickfirm.com
415.421.8300
Fax: 415.421.8301
Four Embarcadero Center, Suite 750, San Francisco, CA 94111
The Web’s Do-It-Yourself
culture and the law
“Branded networks” such as LegalZoom,
Rocketlawyer and Avvo serve clients who want
to be more involved in the legal process
BY TANISHA SHAFER
The DIY (“Do It Yourself ”) culture is
growing. Web sites like Etsy, Pinterest,
LifeHacker, and GreenUpgrader are
great examples of how people are taking
a proactive approach in how they spend
– or do not spend – their money and
time. For example, in the context of
products, someone from the DIY culture
would use cardboard, fabric, ribbon, and
push pins to create his own pinboard
instead of buying a pinboard.
In the context of services, someone
from the DIY culture would figure out
how to file his own taxes instead of hiring an accountant; or, he would use a
“branded network” like LegalZoom to
draft a contract.
This DIY culture tends to make
more fully informed decisions on products and services by researching their
options before making their consumer
decision. Sometimes they purchase partial services (or supplies to make a product) and with these “toolkits” do the rest
themselves. Other times, they forego purchases altogether. Instead, they make a
product or perform a service entirely on
their own with guidance offered by free
or inexpensive resources.
DIY and the legal industry
The DIY culture effect is trickling
into the legal industry. In corporate and
IP law, clients want a greater role in
determining how their money is spent in
attorney fees and costs. The innovative
firm has already implemented comprehensive operation management plans
with transparent audit systems to show
clients that their money is being spent on
value added work. In the spirit of DIY,
these plans also give clients a chance to
carry out some of the work themselves
when possible.
14
Plaintiff | May 2013 | plaintiffmagazine.com
Personal injury, employment law and
labor law are not exempt from the DIY
culture effect. With branded networks like
RocketLawyer budding, many different
types of lawyers, including personal injury,
employment and labor law lawyers, can
operate a virtual law practice that meets
the needs of the DIY culture clients. These
clients welcome being able to perform
some of the work. The clients are involved
and guided through gathering information, documents, and filling out forms.
RocketLawyer’s appeal is apparent
by taking one look at its Web site. The
site’s layout is inviting, easy-on-the-eyes
with pleasing colors, clean font, and easy
to understand language. Aside from the
user-friendly interface, it claims affordable services and provides an assortment
of attorneys to appeal to a variety of
clients.
sites, and is also developing a growing
database of legal content – including
legal answers from attorneys with high
Avvo scores.
What’s an Avvo score? When a lawyer
decides to “claim” his or her Avvo profile, that lawyer is automatically assigned
an initial Avvo score. Scores can be
improved in several ways, most notably
by posting content – substantive, lengthy,
and in your practice area.
Avvo makes its money by helping
lawyers market on the Web, and they provide a wealth of Web-marketing material.
For example, if you’re looking to improve
your search results placement in local
searches through search engine optimization, Avvo has slides posted on
SlideShare for its recent webinar
“Everything Lawyers Need to Know
About Google + and Local Search.”
Active role for the DIY culture
Be transparent
Whether a lawyer is a part of a
nationally branded network, operates an
independent virtual law practice, or is a
part of a more traditional law firm, there
are steps the lawyer can take to be more
DIY-culture friendly.
It is a given that the DIY culture
likes to gather information on how to
make and do things on their own. They
also tend to figure out their life and legal
situations on their own by reading blogs,
articles and other content on a given subject. To reach this DIY market, a first
step then is to post legal content to the
Web. Consider using a Word Press blog
to post your content, or becoming part of
a branded network such as Avvo.com.
Avvo is a DIY-oriented Web site for
lawyers. Avvo allows attorneys to answer
legal questions, publish articles, and post
video content. The DIY culture may be
particularly drawn to Avvo because it
provides verified endorsements from
attorneys, clients, and third-party Web
Regardless of your Web marketing
approach, one step every lawyer can take
to be more appealing to the DIY crowd is
to make the legal process more transparent
for clients. The DIY culture likes to understand processes and be a part of them.
Allow the DIY clients to see the steps that
need to be taken to reach their goal, and
let the DIY clients play a greater role.
Tanisha Shafer, a former
SFTLA Trial Advocacy
Fellow, received her J.D.
from Santa Clara Law in
May 2011. Tanisha served
as a senior editor on the
Santa Clara Law Review
and as an associate editor on
Shafer
the Santa Clara Computer
& High Technology Journal. She is a
member of the SFTLA, the Black Law
Students Association, and the John M.
Langston Bar Association. She graduated
from UC Berkeley with a major in Linguistics
and emphasis on Sociology.
Submit your latest verdict to www.JuryVerdictAlert.com
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plaintiffmagazine.com | May 2013 | Plaintiff
15
Trial Practice and Procedure
Course and scope
of employment
A look at the different tests for this critical issue
BY ANDJE M. MEDINA
AND WILLIAM L. VEEN
The Veen Firm, PC
In every personal injury case,
whether the plaintiff or defendant was
acting in the course and scope of
employment is a critical issue. A plaintiff
found in the course of employment for
Worker’s Compensation coverage may
maximize the pool of available benefits
and resources. Conversely, a plaintiff
found not in the course may pursue a
civil action against her employer and
avoid being barred by the Workers’
Compensation exclusive remedy rule.
And whether an individual defendant was
in the course and scope can determine
whether the defendant’s employer is also
a responsible party. Analyzing all course
and scope issues is necessary to ensure
you have left no stone unturned.
“Course and Scope”
Many seasoned attorneys do not
realize there are two different course
of employment tests: one for finding
Workers’ Compensation benefits (and precluding suit against an employer pursuant
to the exclusivity rule), and another for
finding respondeat superior liability against
the employer of the civil defendant.
Presumption of Workers’
Compensation coverage to
plaintiffs on the job
The test for establishing course of
employment for Workers’ Compensation
coverage is much less restrictive than the
test for finding an employer liable for
respondeat superior based on the negligence of an employee. (Hartline v.
Kaiser Foundation Hospitals (2005) 132
Cal.App.4th 458 (reviewed denied Nov.
30, 2005).) There is a presumption of
coverage for plaintiffs injured on the job.
16
Plaintiff | May 2013 | plaintiffmagazine.com
Presumption and respondeat
superior liability
An employee can suffer a compensable injury under Workers’ Compensation,
yet his employer can escape liability for
respondeat superior liability in many factual
settings. (Munyon v. Ole’s Inc. (1982) 136
Cal.App.3d 697.) How can this be the
case? Shouldn’t the course and scope of
employment analysis be the same across
the board?
Historically there have been great
differences between the two tests.
However, recent cases have expanded
the circumstances when courts will find
respondeat superior liability. So the rule is –
be creative.
First analysis: Determine if
client is covered by Workers’
Compensation
In a civil case, do not assume that
someone has already completed the
course and scope analysis for Workers’
Compensation benefits. Even if the case
has been evaluated by another attorney
or an employer – ask your client basic
questions to identify whether these
benefits are available. These questions
will also identify exclusive remedy
arguments you may face if suing an
employer.
Consider a situation where your
client was severely injured and needs
major medical treatment. The third
party that injured your client only has a
15/30 policy. Your client was walking
home from work when she was injured.
She has been told by non-lawyer friends
that she is not entitled to Workers’
Compensation benefits because she had
left work. Your client does not know
about the “work errand exception.” She
does not realize the mail she was carrying for deposit at the post office makes
her eligible for comp benefits. Your duty
is not just to recover the small auto
policy in the civil case, but also to ask
questions to help your client identify
potential Workers’ Compensation benefits that may be available.
Included on page 18 you will find
10 basic questions to get you started on
your analysis of whether Workers’
Compensation coverage is available.
Each question will elicit a series of followup questions, but these broad topics
should get you started on the right track.
Following the questionnaire you will find
an “attorney key” to guide you through
the relevant cases for your analysis. Use
the cases to find additional benefits or to
identify potential Workers’ Compensation
exclusivity pitfalls.
Second Analysis: Respondeat
superior
Do not assume that a defendant will
be forthright about course and scope
issues or that a defendant has the knowledge to identify them. It is up to you to
ask the right questions to uncover liability against the defendant’s employer.
As a matter of policy, it is considered
fair to allocate the costs of doing business a loss resulting from a risk that
arises in the context of the employment enterprise.
(Jeewarat v. Warner Bros. Entertainment
(2009) 177 Cal.App.4th 427, 434.)
Attorneys who establish a course and
scope argument against a negligent
defendant increase the pool of collectability. In cases where your defendant is
underinsured, finding a viable course
and scope argument can be the saving
grace for your client.
Included also on page 18 are seven
basic questions to get you started identifying course and scope arguments.
Following the questions is an attorney
key. Use the key to help craft your
arguments.
See Course & Scope, Page 18
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plaintiffmagazine.com | May 2013 | Plaintiff
17
Course & Scope, continued from Page 16
Client Questionnaire for Course & Scope
1. Were you on your work premises or near your work premises when you
were injured?
2. Were you running an errand for your employer at the time of the incident?
3. Were you commuting at the time of your injury and does your employer
reimburse you for your commute?
4. Were you on a business trip at the time you were injured?
5. Did fatigue contribute to your injury following an unusually extended
work shift?
6. Were you making or receiving a work call, text or e-mail at the time of
the incident?
7. Were you injured on living premises provided by your employer?
8. Were you injured in a vehicle your employer requires you to use?
9. Were you injured by a hazard you encountered due to your employment,
even if you had not yet made it to work?
10. Were you traveling between two work locations?
Attorney Key to the Questionnaire
1. Work Premises and Adjacent Premises – the employment relationship
is said to begin when the employee enters the employer’s premises, even if
he or she has not yet clocked in or reached the ultimate work location (i.e.
employee parking lot). (Lewis v. Workers’ Compensation Appeals Bd.
(1975) 15 Cal.3d 559.)
2. Work Errand – if the employee is on a special mission for the employer
he is covered by Workers’ Compensation. (Hinojosa v Workmen’s
Compensation Appeals Board (1972) 8 Cal.3d 150.)
3. Paid Commute – where the employment contract provides for payment
for both the employee’s travel expenses and travel time, commuting
becomes part of the workday and is covered by Workers’ Compensation.
(Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, citing Kobe v.
Industrial Acc. Commission (1950) 35 Cal.2d 33.)
Discovery Questions for Defendant
1. Were you driving a vehicle that you also used at any time for your
employment?
2. Were you on a business trip or running a work errand?
3. Had you made or received any work calls, e-mails or text messages
while driving?
4. Were you commuting at the time of the incident and are you paid for
your commute?
5. Do you have a designated work location or are you a traveling salesman?
6. Did fatigue or preoccupation with work contribute to the incident following an unusually extended work shift?
7. Were you exposed to a hazard at work that contributed to the accident?
Attorney Key to Defendant Questions
1. Required Vehicle – a defendant who used his personal vehicle for work
purposes could subject his employer to tort liability when driving home
from work. (Lobo v. Tanco (2010) 182 Cal.App.4th 297.)
2. Special Errand – a defendant who injured someone while driving home
from a work conference exposed his employer to tort liability. (Jeewarat et
al. v. Warner Bros. Entertainment, Inc. (2009) 177 Cal.App.4th 427.)
18
Plaintiff | May 2013 | plaintiffmagazine.com
4. Business Trip – an employee is considered in the course and scope the
entire time he or she is on a sales trip. (California Cas. Indem. Exchange v.
Industrial Acc. Commission of Cal. (1936) 5 Cal.2d 185.)
5. Overworked Employee – an employee who is overworked and fatigued and
falls asleep while driving causing himself injury is entitled to Workers’
Compensation benefits if there is a causal nexus between the employers’ work
demands and the injury. (DePew v. Crocodile Enterprises (1998) 63 Cal.App.4th
480, see also Johnson v. Stratlaw, Inc. (1990) 224 Cal.App.3d 1156.)
6. Working Electronically – an employee making a work-related phone call
while driving on a vacation day may expose the employer to tort liability.
(Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055.) Because
finding Workers’ Compensation coverage for injured workers is much less
restrictive than the test for finding respondeat superior liability, an argument
can be made that electronic work can also bring a worker within comp
coverage.
7. Bunkhouse Rule – if the employment contract contemplates or the work
requires the employee to live on the employer’s premises, the employee is
performing services incidental to the employment during the time he is on the
premises. (Aubin v. Kaiser Steel Corp. (1960) 185 Cal.App.2d 658.)
8. Required Vehicle – where the employee is required to use his personal
vehicle for work and sustains injury in that vehicle after making a single
work call that day, Workers’ Compensation coverage was available.
(Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803.)
9. Special Hazard – where a special hazard is encountered during a commute that is incidental to the employment injuries caused by that hazard are
covered by Workers’ Compensation. (Parks v. Workers’ Comp. Appeals Bd.
(1983) 33 Cal.3d 585.)
10. Dual Purpose Locations – when the employee’s home serves dual purposes and the home is considered a second jobsite, Workers’ Compensation coverage may apply. There must be a requirement that work be done at home,
beyond mere convenience to the employee. (Bramall v. Workers’ Comp.
Appeals Bd. (4th Dist. 1978) 78 Cal.App.3d 151.)
3. Mobile Office – an employee who made a work-related phone call
while driving exposed his employer to tort liability. (Miller v. American
Greetings Corp. (2008) 161 Cal.App.4th 1055.)
4. Paid Commute – when an employee’s travel time is considered part of
the workday and he is paid for his commute, the doctrine of respondeat
superior applies to that commute. (Hinman v. Westinghouse Elec. Co.
(1970) 2 Cal.3d 956.)
5. Traveling Salesman – salesman’s employer was liable to third parties
from the time the salesman left his home to see clients outside the office.
(Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236.)
6. Overworked Employee – an employee who is overworked and fatigued
and falls asleep while driving, causing an accident may expose his employer to tort liability, but there must be a causal nexus between the employers’
work demands and the injury. (DePew v. Crocodile Enterprises (1998) 63
Cal.App.4th 480.)
7. Risks Created By Employer – an employee who left work ill after being
exposed to pesticide at work exposed her employer to liability when she
injured another in a car accident while on her way home. (Bussard v.
Minimed, Inc. (2003) 105 Cal.App.4th 798.)
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Course & Scope, continued from Page 18
Because Verdicts are News
Essential Online Verdict Reports
Remember the rule – be creative
The test for determining whether
Workers’ Compensation benefits are
available is much less restrictive than the
test for finding respondeat superior liability.
If you have a case that establishes respon-
deat superior liability, you can use it to
make an argument that Workers’
Compensation benefits should extend to
your client.
However, the reverse is not necessarily true. A case supporting the extension
of Workers’ Compensation benefits will
not necessarily support an argument for
respondeat superior liability. Workers’
Compensation decisions are only persuasive, not controlling precedent, in tort
actions. (Anderson v. Pacific Gas & Elec. Co.
(1993) 14 Cal.App.4th 254, 259.)
Nevertheless, the Supreme Court in
the Hinman decision recognized at footnote 3 that both tort and Workers’
Compensation cases can be cited interchangeably. (Hinman, supra, 2 Cal.3d
956, 962 footnote 3.) So remember the
rule – be creative.
Your verdicts will get the attention they deserve
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Northern and Southern California. Each case summary will include a link to the full verdict report
on our new Web site: www.juryverdictalert.com.
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Unlike traditional weekly or monthly verdict reporters, we will send a verdict alert as soon
as practical. It’s a 24-hour news cycle. Why should verdicts be any different? Starting today,
promptly report your verdicts to us — it’s not news a week after it happens. Reporting forms
are on the Web site: www.juryverdictalert.com. You can also submit older verdicts to be
included in our online database but not announced with an alert.
Andje Morovich
Medina joined The Veen
Firm in 2010 and works
on the Label Trial Team.
Her practice focuses on catastrophic personal injury
cases, including product liaMedina
bility, premises liability,
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William Veen founded
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sole practitioner in 1975,
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and consumers. He is a
member of the American
Board of Trial Advocates and honored as the
Trial Lawyer of the Year by the San Francisco
Trial Lawyers Association in 2003.
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Verdicts & Arbitration Awards
What about settlements? Today, we’re only
reporting jury verdicts, bench verdicts and
binding arbitration awards. With the heavy toll
the state budget has taken on the trial courts,
trials are becoming rarer and each case that
makes it to trial is therefore more newsworthy.
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20
Plaintiff | May 2013 | plaintiffmagazine.com
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Southern California
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760.721.2500
415.431.1117
From the publisher of Plaintiff
Richard Neubauer, Publisher
Jean Booth, Editor
Profile: Ellen Lake
Employment rights specialist makes her mark in civil
rights, public service law and the appellate bar
BY STEPHEN ELLISON
While Ellen Lake certainly is pleased
to have followed her father and grandfather in the law profession, she is even
more proud to have carved her own path
in an area of law far different from the
pursuits of her forebears and one that
has brought her success, reward and
overall joy.
Almost her entire career, spanning
more than 40 years, has been dedicated
to public service law, from working as a
staff attorney for the Legal Aid Society,
the United Farm Workers and the ACLU
to being chief counsel for the
Agricultural Labor Relations Board and
running her own private practice specializing in workers’ rights. It’s a far cry from
the tedious business and corporate law
she witnessed in her father’s practice.
“I was a civil rights worker in the
South during the ’60s, and I spent two
more summers in Alabama founding and
working on a weekly civil rights newspaper,” Lake recalled. “Those experiences got
me to see law as a tool for social change.
“Nothing about the sort of law my
father practiced was ever attractive to
me,” she added, “but I am proud to be
the third generation of lawyers in our
family, and I’ve produced a daughter
who’s going to be the fourth
generation.”
Lake’s extensive civil rights work –
including helping with voter registration
in the Mississippi Freedom Summer of
1964 and starting the Southern Courier
newspaper in Alabama soon thereafter –
translated well to public service law. It certainly was her domain, as those who have
worked with her would readily testify.
“I’ve long admired Ellen for her passionate commitment to justice and her
keen intellect,” said colleague Jean
Hyams of Oakland-based Levy Vinick
Burrell Hyams. “She’s not much of a self22
Plaintiff | May 2013 | plaintiffmagazine.com
promoter, but
those of us in
the employment rights’
community
recognize her
contribution
to our work as
immense. She
has handled
the appeals in
a large number of key
employment
Lake
cases.”
Indeed, during the latter part of her
career, Lake has done mostly appellate
work, helping people with labor and
employment disputes, oftentimes taking
cases to the California’s highest court
and even the U.S. Supreme Court. It was
a conscious choice of hers, when she
became pregnant with her first child, to
shift most of her practice to the appellate
arena so that she would be able to continue a regular practice out of her home.
“I was looking for a way to change my
practice so that it would be less demanding with no more overhead,” she said,
“because I didn’t want to be away from
my kid 25 hours a day.”
East Coast transplant
Lake’s desire to be at home, close to
her children, perhaps had much to do
with her own upbringing. She was raised
in a small, suburban town in New York
state, an only child to her lawyer-father
and a mother who worked out of the
home as a freelance magazine writer.
They were a close-knit family, sharing
political beliefs and other world views,
she said.
“The only thing that wasn’t great,”
Lake recalled, “is that we lived in a
kind of stifling town called Harrison,
where being a smart, tall girl was a real
disadvantage, especially in high school.
But in terms of the family setting, my
parents couldn’t have been more supportive.”
When it came time to go to college,
Lake left the small town behind and went
to Harvard, where she worked on the editorial staff of the Harvard Crimson newspaper and graduated with honors. It was
there she also met the man who would be
her first husband, a pre-med student whom
she followed to Cleveland and Case
Western Reserve University. Lake attended
the law school there and graduated at the
top of her class.
The couple then packed up and
moved to the Bay Area. While her husband entered a requested West Coast
internship at Stanford, Lake was “very
lucky” to land a clerkship with Associate
Justice Raymond L. Sullivan of the
California Supreme Court. About a year
later, the marriage dissolved, and Lake
was on her own in San Francisco.
From there, her career checked off a
veritable laundry list of legal work in
public service and labor organizations:
the Legal Aid Society of Alameda County,
where she represented indigent clients in
civil and administrative cases; the United
Farm Workers of California, where she
represented the union in civil and criminal litigation; the ACLU of Northern
California, where she was the director of
women’s rights; and the Agricultural
Labor Relations Board, where she started
as a staff attorney and eventually became
chief of litigation.
“I had several great cases arising out
of my period working for the farm workers union,” Lake said. “It was a neverending source of interesting litigation. I
had cases in which the farm workers had
a boycott against Gallo wines – a lot of
agricultural employers brought a suit on
behalf of liquor stores around the state to
See Profile, Page 24
Profile, continued from Page 22
join the UFW’s picketing in front of the
stores, and that produced a very good
First Amendment decision by the
California Supreme Court.”
Then, in 1981, Lake started her
own practice, opening an office in San
Francisco. It was tough at first, she said,
because she didn’t really know how to
attract clients nor was she very good at
screening clients and figuring out which
ones to represent. “That’s another advantage of appellate work,” she said. “By the
time you get to the appeal, a lot has shaken out at the trial level, and if you’re representing an appellant, you can look and
see if there are issues to be raised.”
Through the courts
One ongoing case in which Lake is
the lead appellate attorney is Gentry v.
Superior Court (2007) 42 Cal.4th 443. It
involves referrals of Fair Employment
and Housing Act cases to arbitration and
the validity of a class-action waiver, where
an employee is required to waive his or
her right to bring a class-action in arbitration. Lake won the case in the 4th
District Court of Appeal, but she said it
is threatened by recent decisions in the
U.S. Supreme Court.
Another of Lake’s cases out of the
4th District that went to the state
Supreme Court helped define the continuing violation doctrine under FEHA. In
Richards v. CH2M Hill (2001) 26 Cal.4th
798, she represented a disabled engineer
who sued her employer claiming failure
to accommodate. Lake said she and her
client challenged whether evidence about
incidents that occurred before the oneyear statute of limitations for FEHA can
be brought in and be made the basis of
liability if they are linked to a series of
other events that occurred within the
statute of limitations. “Another victory,”
she said.
Lake believes the most difficult part
of her job is overcoming a right-leaning
U.S. Supreme Court. Attorneys can win
things at the state level and think they
are supported by an independent state
ground, she said, and then suddenly an
employer counselor argues that a decision handed down by the U.S. Supreme
Court, only purported to interpret federal law, actually has an impact on that
state claim.
“Unless Obama has another
appointment to the U.S. Supreme Court
to replace one of the conservative five,
we’re going to be fighting these battles
for years – and they’re hard to win,” she
said. “The best arguments don’t get a fair
hearing from them.”
Winding down?
While the road ahead may look
rough, Lake has no immediate plans to
retire, though she knows when the time
comes to close down her practice for
good, she’ll still need something to keep
her busy. She’s already involved in a
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24
Plaintiff | May 2013 | plaintiffmagazine.com
number of professional organizations,
including the California Employment
Lawyers Association and the California
Academy of Appellate Lawyers, for which
she serves on the membership board. She
also served the community as a member
of the Oakland Citizens Police Review
Board, which held hearings, subpoenaed
evidence and witnesses, made recommendations about findings and proposed
penalties, which the city manager either
approved or disapproved, she said.
It is that type of community service
that Lake sees herself pursuing after her
law career. “I keep looking for different
organizations and causes that I might get
involved with,” she said. “I’m always
drawn to stories about the hard lives of
children in underdeveloped countries.
For example, there was a story in the
New York Times a while ago about a
father in Afghanistan who sold his sixyear-old daughter in order to pay off a
debt – to get medical care for his family.
I don’t know what can be done, but it just
made me want to jump on a plane and
do something.”
For now, Lake said she will continue
doing the type of work that gives her
purpose, fulfillment and happiness, and
hopefully helps the people she’s representing to achieve their goals. It’s that
approach, she believes, all aspiring
lawyers should consider. “The secret to
being happy is practicing law – or whatever you do – in a way that you believe in
what you’re doing,” she said. “So many
lawyers are hired guns and don’t believe
in what they’re doing or are sucked in by
the need to support an expensive
lifestyle. I believe in every one of my
clients, and that makes the work pure joy.
“Find what you’re passionate about
in the law and pursue that despite whatever limitations or hardships it might
create in terms of not being the richest
lawyer on the block,” she continued.
“Otherwise you’ll be miserable and either
quit lawyering or push ahead over the
years and then look back at the end and
say, ‘What the hell did I accomplish?’ ”
Stephen Ellison is a freelance writer
based in San Jose. Contact him at
ssjellison@aol.com
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Mediation Matters
Guitar logic in mediation:
Cowboy chords vs. jazz
Learning from the guitar how to value your case
BY JEFFREY KRIVIS
Consider the guitar fretboard for a moment.
It is a complex maze of horizontal, vertical and
perpendicular dimensions to achieve sounds that
stretch across a plank of wood up to 25 inches
long. Its beauty lies in the ability of the player to
form similar sounds anywhere on the board. It is
Krivis
intricate and elegant at the same time. Most
average guitarists (myself included) tend to play simple cowboy
chords learned around the campfire or listening to ’60s folk music.
We don’t have the patience or time needed to study and comprehend the complexities of the instrument. Others prefer jazz where
guitarists like Joe Pass or Wes Montgomery can play a similar sound
up and down the neck of the guitar with slight changes in pitch that
creates unexpected ear candy.
When it comes to evaluating a litigated case, most parties to
a lawsuit play cowboy chords. They are fairly predictable, easy to
understand and repetitive. This is because cowboy chords can be
clearly demonstrated and categorized so that just about anyone
can learn and play them.
Now consider how institutional parties in litigation have
defined market values of cases in strict categories depending on
a host of factors that have been vetted by actuarial specialists
with complex software programs. This provides a reasonable
sense of predictability when evaluating damages and allows for
appropriate pricing of insurance products. The process is similar to the approach used by polling specialist Nate Silver on his
Five Thirty Eight Blog in the New York Times to predict the 2012
Obama landslide presidential victory when all other polling
favored a different outcome. Convincingly, Silver used this
approach to consistently predict with accuracy the last several
presidential races based on accumulating data from all the polls
and coming up with median numbers.
The models used by Silver are nothing new to economics
and are similar to risk management as it applies to evaluating
potential outcomes in litigated cases. The key is to include all
biased elements of polling data and find a common median.
This is somewhat counter-intuitive in that being overly inclusive
actually provides a more accurate prediction of the outcome. To
understand this, Silver considers information from all polling
sources, no matter how biased, when integrating the data into
his values. Based on the accumulation of this data, Silver predicts outcomes that are surprisingly accurate.
Cowboy chords
The same approach holds true in litigated cases. Insurers
and many corporations have unvarnished data that provide
26
Plaintiff | May 2013 | plaintiffmagazine.com
them with settlement values based on historical criteria that is
based on certain categories of disputes, including the dispute
you have brought to mediation. They know their marketplace
and accept information from all sources. This allows them to
quickly categorize a case and use simple economics to determine relative value. This categorization, in essence, removes
the human element from the evaluation, using only objective
criteria to reach a fair market value. While it might sound cold
and calculated, it is notably successful for companies on a
macro level to handle repetitive streams of disputes this way. In
fact, it’s a huge profit center that would not work if each case
were subjectively evaluated. The transaction costs alone would
be staggering. The ability to categorize cases has allowed negotiators to play cowboy chords and sound like they are making
music.
Consumer attorneys also play cowboy chords, at least most
of the time. That is why many cases settle for consistent market
values. However, when a consumer attorney decides to value
their case higher than the market permits, that attorney is playing jazz while their adversary is still playing cowboy chords. The
decision to play the guitar up and down the neck like Joe Pass to
try to create more value on a case is based partly on the ability
to go to trial and partly on subjective experience. Often this subjective experience is based on gut value as opposed to strict
polling data. Other times it’s based on supreme confidence in
your case. You know you have an aggrieved client, and the client
deserves much more than the company is willing to offer. You
conclude that the other side just doesn’t get it, and you’re prepared to take the case to the limit if the other side doesn’t get
on your value train. This mindset is hugely successful when the
shadows of the courthouse hang over the heads of the parties
because the music of risk is playing to the ears of the decision
makers. Indeed in a small portion of the cases in the civil justice
system, this approach creates tremendous financial opportunities for clients. The primary impediment to this approach is that
only a tiny percentage of cases ever get through the justice system to the courthouse steps. This reality of the system puts pressure on the parties to navigate a settlement into the category
that tends to follow statistical formulas.
Learn how your adversary has categorized the case
Against this backdrop, parties have two basic options when
trying to get more value on a case.
Learn from the mediator whether the marketplace value is
within striking distance of your own criteria for settlement. If
your value isn’t in the range of the usual and customary fair market value for the category of case you brought to the table, and
the shadow of the courthouse is far off in the sunset, your choices
Submit your latest verdict to www.JuryVerdictAlert.com
may be limited. Knowing how the other
side has categorized the dispute will give
you a clear pathway toward settlement,
but not necessarily at a financial level
your gut desires. At minimum, you will
give your client a definitive option of
waiting until the case is closer to trial or
accepting a sum that fits within the range
of similar disputes. Ignoring the category
your adversary has used can result in
falling over the fiscal cliff of resolution
with no way to turn back.
Use the mediator to identify
what additional information
is needed
Another option to consider is to discover from the mediator what it would
take for the other side to re-categorize
the case i.e., increase the reserves to
more closely match your value. This usually involves some additional information
about risk, such as the filing of a classcertification motion in a wage-and-hour
case, or a report from a respected neurosurgeon in a brain injury case. That type
of information often allows parties to
attempt to hear the music of the case as
more jazz oriented than cowboy chord
driven.
A few examples
In a misclassification case involving
managers at a retail store, the mediator
asked the plaintiffs to simply explain how
they spend their day from the moment
they entered the store until they clocked
out. For the next 20 minutes the plaintiffs told a narrative that demonstrated
unequivocally that more than 50 percent
of their time was spent on non-exempt
functions such as stocking shelves, cleaning floors and selling goods. This extemporaneous explanation from credible
parties was the first time the employer
actually heard how the evidence might be
presented in court, and it enlightened
them more then the deposition summaries they received. This straight-forward and obvious moment led the
employer to request an adjournment of
the mediation, with the acknowledgment
that they needed to discuss case values
with management and adjust their financial reserves on the case. The employer
then requested a second session of mediation where the case settled for a value
higher than the reserve put on the case
based on the garden variety category it
was placed in. Note that a suggestion for
a second session is code for “We hear
you’re playing different chords than us,
and we are open to learning your tune.”
A similar thing happened in a
wrongful death action where it was discovered at the mediation that the decedent was making significantly more
money than the defense had learned
through discovery, which clearly
increased the potential verdict value.
Once again, the category of the case had
to be reset, and the parties were able to
have the mediator negotiate a mutually
acceptable “recommendation” that could
be taken back to higher levels for final
approval.
Conclusion
To summarize, when you arrive at a
settlement meeting, the other side desperately needs to put your case (and
you!) into an existing category because
the bureaucratic cost of inventing a new
category for every new case is impossible
for the system to handle. That is why so
many big value cases don’t settle until the
eve of trial, when institutional decision
makers have had an opportunity to
redefine the category and increase or
lower the value.
Naturally you can always refuse to
be categorized, or to spend the time
through mediation learning how the
other side has categorized your case. You
can insist that it’s unfair that companies
judge cases like this, that the categories
available are too constricting and that
what you are trying to sell is too unique
to be categorized. If you make this
choice, the odds are you will be categorized anyway. Participating in the process
is an important way to gather intelligence about how and why your case has
been valued, and it gives you a chance to
make decisions on whether to make the
case a long-term project or short-term
gain. Getting upset when the other side
is playing cowboy chords and you’re playing jazz is not productive. You will likely
be mis-categorized, which is far worse
than being categorized.
Jeffrey Krivis has mediated complex
dispute issues in Northern and Southern
California for 20 years. He teaches at
Pepperdine Law School/Straus Institute
for Dispute Resolution and has been
named one of the Top Neutrals in the state by
the Daily Journal. Visit his Web site:
www.firstmediation.com.
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— A California attorney
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plaintiffmagazine.com | May 2013 | Plaintiff
27
Employment Rights
You shouldn’t have to work for them, but when you do...
LAW OFFICES OF
RUTGER HEYMANN
Don’t mix cucumbers with zucchinis
or you may end up in Lodi
Health-care arbitration clauses and the non-signatory
heirs of a decedent in medical-negligence cases
BY W. DAVID CORRICK
Most, if not all, first-year law students have had the dubious pleasure of
enduring the acerbic comments and psychological terror inflicted by law school
professors, if for no other reason than “it
has always been done this way.”
On the last day of class before first
semester exams, my Torts professor
walked into the classroom and nonchalantly wrote a seven-digit number on
the board. He then began his usual lecture laced with a heavy dose of his
“good-natured” Socratic questioning.
As with every class prior, most of the
student answers were met with belittling sarcasm and a fine demonstration
of the professor’s “wittiness.” With only
a minute or two left before class would
be adjourned, one of my more inquisitive classmates asked the professor
about the seven-digit number. (Perhaps
he was worried it would resurface as a
“trick question” on the test.) The professor lit up, and with a sadistic grin on
his face said, “Oh, that? That’s the
phone number for Western Truck
Driving School. Some of you may need
it after you get your exam results.”
Pretty hysterical stuff; at least he sure
thought so.
In a bold break from tradition, my
Civil Procedure professor was a very
kind-hearted gentleman, who treated his
students with courtesy and patience. But,
for some reason he never revealed to us,
he had a marked dislike for the City of
Lodi. Whenever he would make differentiations between similar legal concepts,
he would always analogize the concepts
as cucumbers and zucchinis; similar in
size, color, and shape, yet distinctly different. Mixing zucchinis with cucumbers,
28
Plaintiff | May 2013 | plaintiffmagazine.com
he would say, could lead our analysis of a
legal issue into the dreaded realm of
“Lodi.”
Enforceability of an arbitration
clause
This article briefly addresses the narrow question as to the enforceability of
an arbitration clause within a health-care
provision contract to the non-signatory
heirs of a decedent whose death is
alleged to have been caused by professional medical malfeasance.1 Historically,
there has been confusion and inconsistency among California courts on this
issue, which often turns on picayune factual distinctions. The decisions are so
incongruous and disjointed, California
Supreme Court Justice Carlos Moreno
was led to remark, “A survey of the cases
does not reveal a simple conflict, but
rather a more complex taxonomy under
varied factual circumstances.” (Ruiz v.
Podolosky (2010) 50 Cal.4th 838, 845.)
The modest goal of this article is to point
out the “zucchinis and section 1345(f)(1)
as:
Any person who undertakes to
arrange for the provision of healthcare cucumbers” when analyzing this
issue and to assist the reader in avoiding that long and treacherous road
into “Lodi.”
Types of contracts for healthcare provision
There are two basic types of healthcare provision contracts in California:
(1) health-care service plan contracts;
and, (2) medical services contracts.
Arbitration clauses in these contracts
are regulated by separated statutory
schemes.2 The distinction between the
two is straightforward.
• Health-care service plans
Health-care service plans are defined
at California Health and Safety Code
services to subscribers or enrollees, or
to pay for or to reimburse any part of
the cost for those services, in return for
a prepaid or periodic charge paid
by or on behalf of the subscribers or
enrollees.3
The administration of health-care
service plans is regulated by the KnoxKeene Health Care Service Plan Act of
1975 (“Knox-Keene”).4 Knox-Keene
applies to every health maintenance
organization (“HMO”) that operates in
California, unless the HMO is federally
regulated under the Employee
Retirement Income Securities Act
(“ERISA”). The California Department of
Managed Health Care oversees KnoxKeene compliance.5
• Medical services contract
There are many California healthcare providers not subject to Knox-Keene
or ERISA regulation, e.g., sole practitioners and private acute care hospitals. A
health-care provision contract between
those providers and the patient constitutes a medical services contract.
Validity of arbitration clauses
Before analyzing the enforceability
of an arbitration clause in a health-care
provision contract to non-signatory heirs,
it is necessary to determine whether the
arbitration clause was even enforceable as
to the decedent at the time of death.
There are three primary reasons an arbitration clause may be deemed unenforceable secondary to invalidity: (1) lack of
statutory compliance; (2) agreement not
entered into “knowingly and voluntarily”;
and, (3) the agreement is no longer
viable or binding.
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• Arbitration clause not code compliant
An arbitration clause that does not
comply with statutory requirements is
unenforceable ab initio. (See, Rosenfield v.
Superior Court (1983) 143 Cal.App.3d
198, 200) (holding arbitration clause in
a health-care services contract unenforceable where the clause failed to conform to statutory requirements under
Code Civ. Proc., § 1295).
Statutory requirements for medical
services contract arbitration clauses
An arbitration clause in a medical
services contract must comply with
California Code of Civil Procedure section 1295(a)-(b), which mandates:
(a) Any contract for medical services
which contains a provision for arbitration of any dispute as to professional negligence of a health care
provider shall have such provision as
the first article of the contract and
shall be expressed in the following
language:
“It is understood that any dispute as
to medical malpractice, that is as to
whether any medical services rendered under this contract were
unnecessary or unauthorized or were
improperly, negligently or incompetently rendered, will be determined
by submission to arbitration as provided by California law, and not by a
lawsuit or resort to court process
except as California law provides for
judicial review of arbitration proceedings. Both parties to this contract, by
entering into it, are giving up their
constitutional right to have any such
dispute decided in a court of law
before a jury, and instead are accepting the use of arbitration.
(b) Moreover, pursuant to Code of
Civil Procedure section 1295(b),
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29
Lodi, continued from Previous Page
immediately before the signature line
of the individual contracting for medical services, the following must appear
in bold red type in font no smaller
than 10-point:
NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO
HAVE ANY ISSUE OF MEDICAL
MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU
ARE GIVING UP YOUR RIGHT TO
A JURY OR COURT TRIAL. SEE
ARTICLE 1 OF THIS CONTRACT.
Statutory requirements for health-care
service plan arbitration clauses
Any arbitration clause set forth in a
health-care service plan contract must
be drafted in conformity with the
requirements of Health and Safety
Code section 1363.1, which provides:
Any health-care service plan that
includes terms that require binding
arbitration to settle disputes and that
restrict, or provide for a waiver of, the
right to a jury trial shall include, in
clear and understandable language, a
disclosure that meets all of the following conditions:
(a) The disclosure shall clearly state
whether the plan uses binding arbitration to settle disputes, including specifically whether the plan uses binding
arbitration to settle claims of medical
malpractice.
(b) The disclosure shall appear as a
separate article in the agreement
issued to the employer group or
individual subscriber and shall be
prominently displayed on the enrollment form signed by each subscriber
or enrollee.
(c) The disclosure shall clearly state
whether the subscriber or enrollee is
waiving his or her right to a jury trial
for medical malpractice, other disputes
relating to the delivery of service
under the plan, or both, and shall be
substantially expressed in the wording
provided in subdivision (a) of section
1295 of the Code of Civil Procedure.
(d) In any contract or enrollment
agreement for a health care service
plan, the disclosure required by this
section shall be displayed immediately
before the signature line provided for
the representative of the group contracting with a health care service plan
and immediately before the signature
line provided for the individual
enrolling in the health-care service
plan.
Health-care service plan contracts
are specifically excluded from having to
comply with Code of Civil Procedure sections 1295(a)-(b), if: (1) the plan contract
complies with Health and Safety Code
section 1363(a)(10), or otherwise has a
procedure to notify prospective subscribers that the plan’s contractual agreement contains a binding arbitration
clause; and, (2) the plan’s contract is
drafted in accordance with Health and
Safety Code section 1373(h). (Code Civ.
Proc., § 1295(f).)
• Signatory’s consent to arbitrate is not
made “knowingly and voluntarily”
One of the legislative purposes in
enacting Knox-Keene is to ensure that
subscribers and enrollees to health care
service plans “are educated and informed
of the benefits and services available in
order to enable a rational consumer
choice in the market place.” (Health &
Saf. Code, § 1342(b).) (See e.g., Hailey v.
California Physicians’ Service (2007) 158
Cal.App.4th 452, 472-473 (holding summary judgment in favor of health-care
service provider improper where subscriber raised a triable issue of fact as to
whether provider engaged in bad faith.)
A medical care services contract is not
actually formed unless the parties signing
the contract act voluntarily and with
awareness as to the nature of the document, and have turned their attention, or
should have turned their intention, to its
provisions. (Ramirez v. Superior Court
(1980) 103 Cal.App.3d 746, 756, fn. 3).
(See also, Engalla v. Kaiser Permanente
Medical Group (1997) 15 Cal.4th 951,
973-981 (arbitration agreement rescindable if fraudulently obtained).) Further, if
the signatory dies within 30 days of signing a medical services contract, the signatory cannot be deemed to have willingly
and knowingly given up the right to a
jury trial, because of a “cooling off ” period set forth in Code of Civil Procedure
section 1295(c). (Rodriguez v. Superior
Court (2009) 176 Cal.App.4th 1461,
1468-1472.)
• Contract no longer viable
A valid health-care provision contract may, in essence, expire when the
patient/health-care provider relationship
ends. In Cochran v. Rubens (1996) 42
Cal.App.4th 481, the plaintiff ’s primary
care physician (“PCP”) referred her to a
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31
Lodi, continued from Previous Page
specialist. At the time she saw the specialist, she signed a medical services contract
that contained an arbitration clause.
Three years later, the plaintiff ’s PCP
again referred her to the same specialist,
whom she had not seen since her initial
office visit. She did not sign a medical
services contract the second time she saw
the specialist. The plaintiff subsequently
sued the specialist based on his care and
treatment of her during their second
encounter. The court found the medical
services contract from three years prior
was extinguished and non-binding
because after the first office visit there
was no indication of an anticipated ongoing patient-physician relationship.
(Cochran, supra, at 488.) (But see,
Regelsperger v. Siller (2007) 40 Cal.4th
574, 576-579 (finding no need to analyze
the parties’ “anticipation” with respect to
an on-going relationship because arbitration clause included a provision stating
contract was intended to bind the parties
for health care services then and in the
future).)6
Scope of arbitration clauses
An arbitration agreement is not
enforceable beyond the scope specifically
delineated in the health-care provision
contract. In other words, even if valid, an
arbitration agreement is not binding
beyond its own terms. The arbitration
provisions must be carefully read to
deduce who the contract is intended to
bind, as well as the causes of action it is
intended to cover. In almost all cases, the
arbitration clause will be as comprehensive as possible, but its ostensible scope
should still be meticulously reviewed.
Non-signatory heirs of
signatory decedent
Assuming the arbitration agreement
in a health-care provision contract seems
to have been binding upon the decedent
at the time of death, and the clause purports to bind non-signatory heirs in
wrongful death actions occasioned by
medical negligence, there is still room for
valid argument that the clause is not
enforceable against non-signatory heirs.
As noted, supra, the case law on this issue
does not serve as a model of clarity or
uniformity.
• Arbitration clause not binding on nonsignatory heirs
Rhodes v. California Hospital Medical
Center (1978) 76 Cal.App.3d 606:
Plaintiffs filed a wrongful death action
against the defendant hospital, alleging
that the hospital’s negligence led to the
death of their wife and mother. The
court held that the decedent’s arbitration
agreements were not binding on her
heirs because they were not signatories to
the contract. The appellate court
observed that “[n]either Mr. Rhodes nor
the son have ever contracted to forego
their rights to have their causes of action
determined by a jury in a normal judicial
proceeding.” (Rhodes, supra, at 609
(Emphasis in the original.))
Weeks v. Crow (1980) 113 Cal.App.3d
350: Expectant mother signed a medical
services contract that included an arbitration agreement. Her baby died two weeks
after birth, and she and her husband
filed a wrongful death claim in state
court. Since the contract omitted any reference to the unborn child, the appellate
court held the parents were not contractually obligated to arbitrate their wrongful death claim. (Weeks, supra, at 353.)
Baker v. Birnbaum (1988) 202
Cal.App.3d 288: A non-signatory
spouse’s loss of consortium was adjudicated outside the purview of the applicable
arbitration agreement his wife executed.
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The court held the husband’s claim was
not subject to the arbitration agreement
because the policy favoring arbitration
does not extend to those who have not
authorized anyone to act for them in executing a medical services contract. (Baker,
supra, at 292.)
Buckner v. Tamarin (2002) 98
Cal.App.4th 140: Adult children of decedent who had executed a medical services contract were not required to arbitrate
their wrongful death claim because they
were not parties to the contract. The
court noted that only under three circumstances may a non-signatory be
bound to the terms of medical services
contract: (1) an agency relationship
exists; 2) a spousal relationship exists;
and, 3) a parent binds a minor child.
(Buckner, supra, at 142-43.)
• Arbitration clause binding on
non-signatory heirs
Hawkins v. Superior Court (1979) 89
Cal.App.3d 413: A widow’s wrongful
death claim for the loss of her husband
due to alleged medical malpractice was
subject to mandatory binding arbitration
because she was also a member of her
late husband’s health-care service plan.
(Hawkins, supra, at 419.)
Herbert v. Superior Court (1985) 169
Cal.App.3d 718: Decedent left a wife, five
minor children and three adult children
as his heirs when he passed away. At the
time of his death, the decedent’s wife
and his minor children were Kaiser
health-plan members insured under the
same contract as the decedent. The decedent’s three adult children were not
Kaiser enrollees. The heirs filed a wrongful death suit against Kaiser in state
court. The heirs also asserted causes of
action for fraud and negligent infliction
of emotional distress (“NIED”). The
appellate court quickly concluded that as
Kaiser members under the same service
contract as the decedent, the decedent’s
wife and minor children were bound to
the terms of the arbitration agreement.
As to the three adult children, the appellate court inferred a legislative intent
that a patient who signs a contract for
medical services which contains an arbitration agreement has the capacity to
bind his or her heirs to that agreement.7
The court reasoned, “Decedents are able
to bind their heirs through wills and
other testamentary dispositions so the
concept is not new or illogical.” (Herbert
at 725.8)
Pietrelli v. Peacock (1993) 13
Cal.App.4th 943: Plaintiff ’s mother and
Dr. Peacock executed a medical services
contract containing an arbitration clause
more than a year before the plaintiff was
born. Almost eight years after he was
born, plaintiff filed a medical malpractice
lawsuit against the doctor for injuries he
sustained at or around the time of his
birth. The arbitration clause in the medical services contract purported to be
applicable to any dispute between the
doctor and the mother, as well as persons
“born or unborn,” over whom the mother
had authority to bind to the agreement.
Citing the “strong public policy” in support of arbitration, the authority of a parent to bind a minor to the terms of a
medical services contract, and the plain
language of the arbitration clause, the
appellate court held that the contract was
binding on the plaintiff. (Pietrelli, at 948.9)
Wilson v. Kaiser Foundation Hospitals
(1983) 141 Cal.App.3d 891: An infant
sustained prenatal injuries, and later
sought to bring a claim against his mother’s obstetrician. Prior to his birth, the
infant’s mother had signed a health-plan
services contract, which included an
arbitration clause. Under the terms of
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Lodi, continued from Previous Page
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Plaintiff | May 2013 | plaintiffmagazine.com
the contract, any children subsequently
born to the mother would automatically
become plan members at birth. As a plan
member, the appellate court ruled the
minor plaintiff was bound to the arbitration clause. (Wilson, supra, at 899.)
• Ruiz v. Podolosky: An Otiose
“Reconciliation” Exercise
In Ruiz v. Podolosky (2010) 50 Cal.4th
838, California Supreme Court sought to
establish consistency and resolve the
issue regarding the enforceability of
arbitration clauses to a decedent’s nonsignatory heirs in wrongful death cases
premised on alleged medical malpractice. In the end, the Court issued a very
narrow holding which only applies to
one type of case.
The decedent in Ruiz sought treatment for a broken hip from the defendant.
At that time, he and defendant executed a
medical services contract which provided
for the arbitration of all malpractice
claims. The contract further stated it was
the intention of the parties that the arbitration agreement “bind all parties whose
claims may arise out of or relate to treatment or service provided by the physician
including any spouse or heirs of the
patient and any children…” Mr. Ruiz died
eight days after he signed the contract.
After Mr. Ruiz passed away, his
widow and his four adult children filed a
wrongful death claim against the defendant doctor in state court. Counsel for
the defendant filed a petition to compel
arbitration against the heirs. The trial
court ruled the adult children were not
subject to the arbitration agreement
because they had never personally consented to arbitration. The appellate
court affirmed. The Supreme Court
granted review.
In its written opinion, the Court discussed the split of case authority.10 As the
contract at issue was a medical services
contract, the Court correctly relied heavily on its reading and interpretation of
Code of Civil Procedure section 1295.11
The Court observed that the legislative
intent behind the enactment section
129512 was to reduce health-care costs by
promoting the arbitration of grievances.
Noting the definition of “professional
negligence” set forth in section 1295(g)
includes negligent acts or omissions
resulting in wrongful death, the Court
stated, “[W]e are persuaded that section
1295 construed in light of its purpose, is
designed to permit patients who sign
arbitration agreements to bind their
heirs in wrongful death actions.” (Ruiz,
supra, at 849.)
In the end, though, the Court’s
holding completely failed to reconcile
the case law, holding only that: “[A]ll
wrongful death claimants are bound by
arbitration agreements entered into pursuant to section 1295, at least when, as
here, the language of the agreement
manifests an intent to bind these
claimants.” (Id. at 841. [Emphasis
added].) The Court’s ruling was limited
to binding wrongful death claimants who
have a statutory “special relationship”
with the decedent. (Id. at fn. 5.) In short,
the Court’s holding is limited to properly
worded arbitration clauses set forth in
medical services contracts.
It is imperative to note that the
holding in Ruiz is subject to challenge.
Code of Civil Procedure section 1295(c)
provides for a 30-day “cooling off ” period after a patient signs a medical services
contract, during which time the patient
may rescind the contract by written
notice. If the patient dies before the 30day period expires, any agreement to
arbitrate is unenforceable. (Rodriguez v.
Superior Court (2009) 176 Cal.App.4th
1461, 1468-1472.) In this case, Mr. Ruiz
died eight days after signing the contract. However, the Ruiz family never
challenged the validity of the instrument
under a Rodriguez analysis until the case
went before the Supreme Court.
Consequently, the Court declined to
consider the argument. (Id. at fn. 6.13)
• Ruiz holding limited to its narrow
application
So far, the narrow holding in Ruiz
has not been expanded. In Bush v.
Horizon West (2012) 205 Cal.App.4th 924,
a non-signatory daughter of a skilled
nursing facility (“SNF”) patient filed a
state court action on her own behalf
alleging NIED due to witnessing her
mother’s allegedly abusive treatment at
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the SNF. Counsel for the SNF argued
Ruiz was controlling and the daughter’s
claim had to be arbitrated in accordance
with the arbitration agreement executed
on behalf of her mother when she
entered the SNF. The appellate court
found that since the complaint was not
one for wrongful death secondary to
medical malpractice, but rather for NIED
predicated on abuse of an elder, Ruiz did
not apply. The court stated, “Nothing in
section 1295 or the arbitration agreement
here compels the conclusion that…Ruiz
applies to a case like this, where neither
medical malpractice nor wrongful death
is at issue.” (Bush at 931.14)
Depending on facts and nature
of case arbitration
Even if one can defeat enforceability
of an arbitration provision, it does not
mean one should do so. There are a host
of advantages to arbitration, including:
(1) no continuances due to courtroom
unavailability; (2) typically less rigid evidentiary standards; (3) higher likelihood
of recovery; (4) more relaxed atmosphere; and, (5) heightened flexibility.
Also, if you are permitted to engage a
party arbitrator, you will have an additional advocate for your position. Finally,
there is no direct law stating MICRA
applies in medical negligence actions
subject to mandatory arbitration. If the
health-care provision contract does not
specifically state MICRA applies, there is
room to argue it does not. (See, Nogueiro
v. Kaiser Foundation Hospitals (1988) 203
Cal.App.3d 1192, 1194 (noting that
application of MICRA limit of $250,000
award for general damages where arbitration agreement does not specifically
state its application is unsettled area of
law); Morris v. Zuckerman (1968) 69
Cal.2d 686, 691 (holding as “well established” that unless specifically required to
act in conformity with rules of law, arbitrators are permitted to apply broad
principles of justice and equity in reaching decisions).)
Conclusion
Aside from the narrow, non-unanimous,
and suspect holding in Ruiz, the law
pertaining to the enforceability of arbitration clauses in medical provision contracts
to non-signatory heirs remains open. This
is by no means intended to serve as a comprehensive treatise on the issue. However,
it is hoped the information contained in
this article will provide a useful skeletal
framework for analyzing the issue when it
arises in the reader’s practice.
W. David Corrick has
been practicing medicallegal law for over 18 years.
He has represented defendants and plaintiffs in malpractice and elder abuse
cases. He has defended indiCorrick
vidual practitioners and
entities, including Sutter
Health, Catholic Healthcare West, the
University of California-Davis Medical
Center, and The Permanente Medical Group.
He is also a former California State Deputy
Attorney General where he worked in the
Health Quality Enforcement section, which is
charged with pursuing professional discipline
against health-care providers who have
engaged in actionable misconduct. He now
works on behalf of health-care professionals
charged with practice act violations. He is the
proud father of an extraordinary and talented
daughter, who is a recent California
Polytechnic State University-San Luis Obispo
graduate.
Endnotes
To see the article, complete with
endnotes, please go to the magazine’s
Web site: www.plaintiffmagazine.com.
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When a dog is
more than chattel
Appellate court clarifies that when someone willfully
harms a pet, the owners can sue for emotional distress
BY DONNA BADER
Although man may claim he is the
most evolved of any species on earth, no
one can honestly question the unique
bond that has developed over the centuries between humans and their pets,
especially dogs. We celebrate their birthdays, buy them funny little outfits, give
them endless amounts of treats, and
invite them into our beds. Sometimes
they are just pets, but other times, pets
occupy a place so special in their owners’
hearts that even another human being
has trouble competing. So, what happens
when our little furry friends are intentionally injured, as Romeo experienced,
in the case of Plotnik v. Meihaus (August
31, 2012) Cal.App.4th 1590?
Summary of the case
After the Plotniks moved into their
new home in Laguna Niguel in 2001,
they immediately started to experience
problems with their neighbors, the
Meihauses. The Plotniks built a 6-foot
fence and were sued by the Meihauses.
The lawsuit was settled but it included
mutual restraining orders. Despite this
agreement, the Plotniks continued to
experience problems with their neighbors although they tried to ignore them.
The events culminated in an
exchange when Mr. Plotnik went to
inspect the other side of his fence, which
was located in the Meihauses’ backyard.
At that time, his little 12 lb. miniPinchser, Romeo, slipped the gate and
ran onto the Meihaus property. Mr.
Plotnik tried to retrieve his dog without
going onto his neighbors’ property, but
as he ran to the front of the properties,
he heard his dog squeal and watched as
Romeo flew through the gate, rolled
36
Plaintiff | May 2013 | plaintiffmagazine.com
head over paws down a steep slope and
slammed sideways into a tree. Romeo
tried to walk, but his hip was dislocated
due to being struck by Mr. Meihaus with
a baseball bat. Hours later, Mr. Plotnik
had another confrontation with his
neighbor’s adult sons, who threatened
both him and the dog.
A lawsuit was filed and litigated by
attorney Jon Mitchell Jackson of Jackson
& Wilson, alleging various negligence
and intentional conduct theories, including intentional infliction of emotional
distress, breach of contract, trespass to
chattel, assault, and negligence. The only
special damages were about $2,800 for
Romeo’s surgery and another $300 for a
pet stroller used to walk Romeo around
the neighborhood in the months that followed. Neither David nor Joyce Plotnik
incurred any medical bills because of this
incident.
The trial begins
At the beginning of the trial, the
potential jurors were informed, “David
and Joyce Plotnik allege John Meihaus,
Jr., breached a written settlement agreement by harassing, vexing and annoying
them. This wrongful conduct includes
John Meihaus, Jr., harming their dog.”
That was initially all that the potential
jurors were told about the injuries to the
Plotniks’ dog.
The trial court asked the potential
jurors whether anyone had a pet and
most replied they did. The jurors talked
about the injuries their dogs had suffered, some of which resulted in the pet
being put down. One juror described
having spent over $12,000 on her dog.
Then this exchange followed:
The Court: Okay. All right. And you
love this child a lot.
Prospective Juror: It is my daughter.
The plaintiffs’ attorney then asked,
“And does everybody here, based upon
the statement of the case that Judge Fell
read to you, do you feel comfortable with
being able to serve on a jury in a case
involving alleged harm to a dog, alleging
harassment between neighbors, things
like that?” Later, the plaintiffs’ attorney
noted, “This case is about allegations of
the plaintiffs’ dog being struck by a baseball bat by one of the defendants.”
One juror spoke about not giving a
second thought to paying for her pet’s
medical bills, “No second-guessing,
either. We were going to max out a credit
card. We would spend our entire savings.
Like, it is a defenseless animal. They
can’t fight for themselves, so you need to
do it.” She finished by again referring to
her pet as her “baby.”
Another juror said she was brought
up to believe animals were different than
people; however, “[n]ow that I have kids
I don’t feel that way anymore. I’m kind
of like you. I would make sure that my
basset hound is taken care of.”
When it was indicated that the dog
in question was about 15 inches high, the
prospective juror gasped, “That is just
too little of a dog. It is not justifiable,
not in any way.”
Another juror said, “I have issues
with animals. My – one of our neighbors
poisoned our dog when I was in high
school.” She did not believe she could be
fair and impartial. Her past experience
was “pretty traumatic. We walked outside
to water the dog and found our dog dead
. . . it was a dog we had since I was just a
little kid.”
Of course, not all of the prospective
jurors felt the same way. Others
expressed an opinion as to viewing dogs
Submit your latest verdict to www.JuryVerdictAlert.com
or pets as “animals,” for which they had
financial limits on medical expenses.
Others had bad experiences with harassment and bullying behavior. It seems so
commonplace that one would expect
such misbehavior as part of being alive.
Jury verdict
The special verdict form included a
space for emotional distress damages.
There was no objection that such damages were not proper, even under a theory of trespass to chattel.
The jury awarded the Plotniks over
$431,159 in damages. The trial court
awarded the Plotniks attorney’s fees of
$93,780, plus $5,821 in costs, but
reduced the damages by $80,000, keeping intact an award of emotional distress
for injuries to the dog Romeo. The
defendants filed an appeal.
Kevin Kearney
Expert Witness
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The appeal
I am an appellate attorney, and at
this stage of my career and life I try to
pick appeals that are of interest to me.
As much as trial attorneys try to find
themes in their cases, so do appellate
attorneys. It starts from the moment the
potential client walks through the door
and begins to talk about their case. My
mind shifts into gear, and I try to imagine appearing before three justices at oral
argument. Can I convey a strong passion
in my client’s case? If I can’t, I don’t
want to take the case and hope the
clients can find someone else who has
more zeal for it.
Agreeing to handle Plotnik v. Meihaus
was really a no-brainer for me. I love
dogs! And the picture of an angry neighbor using a baseball bat on a 12-lb. miniPinscher, sending him flying through the
air into a tree, was too much for me. It
didn’t matter whether the dog was on his
property or not. And the picture of the
dog Romeo struggling to walk on his
front paws because his hip was dislocated; again, it was hard to imagine.
In their appeal, the Meihauses
sought to chip away at the damage
award, stating, “[t]his case is about the
role of our Superior Courts policing
socially polite behavior between two
plaintiffmagazine.com | May 2013 | Plaintiff
37
Best Friend, continued from Previous Page
neighboring families.” (Appellants’
Opening Brief, (AOB) pg. 1.) Appellants
argued the dog trespassed on their prop-
38
Plaintiff | May 2013 | plaintiffmagazine.com
erty and Mr. Meihaus was merely defending himself. He apparently was so concerned that he left the scene and went
into the backyard to obtain a baseball
bat, “guiding” the dog back to his property, before going off to music practice.
(AOB, pg. 21.)
The Meihauses argued California
does not permit pet owners to recover
emotional damages for injury to an animal, relying on McMahon v. Craig (2009)
176 Cal.App.4th 222, a case involving
negligence by a veterinarian. That case
was decided by the same panel hearing
the Plotnik appeal.
While the law supports damages for
interference with personal property or a
trespass to chattel (Intel Corp. v. Hamadi
(2003) 30 Cal.4th 1342), no case provided for damages for emotional distress.
The Plotniks distinguished McMahon v.
Craig, supra, because that case involved
negligence and not the intentional
behavior that was involved in their case.
They argued McMahon applied to malpractice claims and “was never intended
to give a tacit approval to beating a
party’s dog with no potential for damages. It makes little sense that a defendant could destroy a piece of furniture or
a car, incurring liability for damages,
but family pets are exempt and can be
destroyed or maimed without recourse.”
(Respondents’ Brief, pg. 38.)
The Meihauses added insult to
injury by arguing, [that] not only did
Meihaus act in self-defense, but the
Plotniks committed a criminal act by not
controlling their dog. (Appellants’ Reply
Brief, pg. 12-13.)
The Court of Appeal issued its opinion in Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, confirming the right of
pet owners to recover for mental suffering
caused by a tortfeasor’s intentional act
that either injures or kills the pet. It
rejected the argument that Meihaus acted
in self-defense, opining that this presented a factual issue for the jury to
decide.
While agreeing McMahon v. Craig,
supra, supported reversal of the negligence count, the Court could find no
case that prohibited recovery of damages
for emotional distress. It noted there
were criminal penalties for intentionally
maiming or wounding a dog, pursuant to
Submit your latest verdict to www.JuryVerdictAlert.com
Penal Code section 597(a), as well as
punitive damages if a tortfeasor injures
an animal through willful or gross negligence. The court stated:
We believe good cause exists to allow
the recovery of damages for emotional
distress under the circumstances of this
case. In the early case of Johnson v.
McConnell, supra, 80 Cal.545, the court
noted ‘while it has been said that
[dogs] have nearly always been held to
be entitled to less regard and protection than more harmless domestic animals, it is equally true that there are no
other domestic animals to which the
owner or his family can become more
strongly attached, or the loss of which
will be more keenly felt.’
(Id. at p. 1607.) Believing there was a
duplication of damages not addressed by
the trial court’s remittitur, the Court of
Appeal modified the damages for an
award of $59,950 in favor of David
Plotnik, and $100,209.53 in favor of
Joyce Plotnik, along with the attorney’s
fees of $93,780.
The Meihauses filed a Petition for
Review, noting other states have denied
such emotional damages. Of course,
there is always another side to the story
and other states have confirmed the
same type of award that the Plotniks
achieved. The Petition for Review was
denied by the California Supreme Court
December 12, 2012, and Plotnik v.
Meihaus stands – much to the celebration
of pet owners – as valid
law.
Donna Bader, a certified appellate specialist,
has practiced for over 35
years in Orange County.
For their work on this case,
Bader
she and trial attorney Jon
Mitchell Jackson were
receipients of a 2013 CLAY Award for litigation by California Lawyer magazine. Bader
is the author of An Appeal to Reason:
204 Strategic Tools to Help You
Win Your Appeal at Trial, which was
written to help trial attorneys protect their
cases before they reach the appellate stage.
www.AnAppealtoReason.com.
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plaintiffmagazine.com | May 2013 | Plaintiff
39
Appellate Reports
and cases in brief
Recent cases of interest to members of the plaintiffs’ bar
BY JEFFREY ISAAC EHRLICH
Collins v. Navistar, Inc.
(2013) __ Cal.App.4th __ (3rd Dist.)
Who needs to know about this case?
Lawyers handling products-liability cases
where third-party criminal conduct is an
issue.
Why it’s important: Holds that in a
products-liability case, the fact that a third
party’s criminal conduct created the risk of
harm, did not require the plaintiff to prove
that the defendant should have been able
to anticipate that particular criminal conduct. In other words, the same standard of
foreseeability for strict products liability
applies to the risk of harm, regardless of
the source of the risk. The court also rejects
the use of premises-liability principles governing the effect of criminal conduct by
third parties in strict products-liability cases.
Synopsis: Plaintiff was injured while
driving a Navistar tractor trailer on I-5,
when a teenager threw a 2.5 lb chunk of
concrete off an overpass, striking the truck
in the windshield. Plaintiffs argued that the
truck’s windshield was defective, and should
have either been raked more steeply to
deflect road objects, or made of a more
penetration-resistant material. At trial, the
trial court gave jury instructions based on
CACI negligence instructions that dealt
with superseding cause. In particular, the
instruction informed the jury that Navistar
was not liable if it proved (1) that the criminal conduct by the teen happened after
Navistar’s conduct; and (2) that Navistar
did not know and could not have reasonably foreseen that another person would be
likely to take advantage of the situation created by Navistar’s conduct to commit this
type of act.” The court also gave a modified
version of CACI 411, a negligence instruction, which told the jury that every person
has a right to expect that every other person will use reasonable care and will not
violate the law, unless he or she knows or
should know that the person will not use
reasonable care or will violate the law.
The special verdict form asked the
jury whether Navistar could have known
or reasonably foreseen that a person
would be likely to take advantage of
Navistar’s conduct to commit this type of
act. The jury answered “no” and did not
reach any other questions on the form.
On appeal, Collins argued that the
criminality of the rock throwing did not
require a different standard of foreseeability than if the rock had been cast negligently or by an act of nature. Navistar
contended that product manufacturers
need not anticipate third-party criminality
when designing their products. The court
held that, based on settled case law, that
the same standard of foreseeability for
strict products liability applies to the risk
of the harm, regardless of the source of
the risk. Hence, “So long as the road hazard is reasonably foreseeable, the manufacturer must take steps to address common risks caused by negligent drivers,
debris thrown into roads by acts of nature,
and even third-party criminal acts.” The
court further explained, “In the case of a
rock hitting a windshield, liability for a
defective design does not depend on
whether the projectile falls from a rock
outcropping, passing gravel truck, or the
hands of a juvenile delinquent. A windshield is not any less defective because it is
pierced by an intentionally, rather than an
unintentionally, thrown rock.”
The court agreed that “manufacturers
need not foresee the unforeseeable.” But
to prove a risk was unforeseeable, a manufacturer must show that the intervening
act – produced harm of a kind and degree
so far beyond the risk the original tortfeasor should have foreseen that the law
deems it unfair to hold him or her
responsible.
The court was also critical of the use
of premises-liability concepts concerning
the effect of third-party criminal conduct
in strict products-liability cases. The court
explained that the involvement of criminal conduct is relevant in a premisesliability case because a landlord has – the
duty to take reasonable steps to secure
common areas against foreseeable criminal acts of third parties that are likely to
occur in the absence of such precautionary
measures. By contrast, in this case it made
little sense to ask whether a product’s
design invited criminal behavior against
the product’s user. “Here, the jury was
asked the nonsensical question of whether
Navistar’s design allowed Daniel to take
advantage of the windshield rake. The evidence showed Daniel engaged in reckless,
juvenile behavior by throwing rocks and
concrete at random vehicles – not to take
advantage of the possibly insufficient
slope of Navistar truck windshields.
Compton v. American
Management Services, Inc.
(2013) __ Cal.App.4th __ (2d Dist., Div. 8)
Who needs to know about this case?
Lawyers challenging arbitration agreements as unconscionable because they are
not sufficiently bilateral.
Why it’s important: First case to
address whether the California rule that
arbitration agreements that are not sufficiently bilateral are unconscionable and
will not be enforced survives the U.S.
Supreme Court’s Concepcion decision.
Holds, in a 2-1 decision, that Concepcion
did not abrogate the rule.
Synopsis: Compton sued her
employer, AMS, in a class action alleging
violations of various labor laws, including
overtime, minimum wage, and rest and
meal breaks. The trial court compelled
arbitration of her claim based on an
agreement she signed when she was hired
at AMS. Treating her appeal as a writ petition, the appellate court held that the
Supreme Court’s decision in AT&T
Mobility v. Concepcion (2011) 131 S.Ct.
1740, did not abrogate California’s rule
that arbitration agreements that are not
sufficiently bilateral – that is, that do not
apply equally to both sides, and therefore
allow the stronger party to litigate the
claims that are important to it in court,
while relegating the weaker party’s claims
to arbitration, are unconscionable and
need not be enforced.
Short(er) takes
Class actions, FRCP 23 Comcast Corp.
v. Behrend (2013) __ US __ (U.S.
Supreme).
Plaintiffs sued Comcast in an antitrust class action, based on the way
Comcast “clustered” its cable television
operations within a particular region, by
swapping their systems outside the region
for competitors’ systems within the region.
The district court certified the class, and
the Third Circuit affirmed. Reversed. A
party seeking class certification must satisfy Rule 23’s requirements with evidentiary
proof. The court’s analysis of whether the
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41
Appellate, continued from Previous Page
strapping.” Trial court orders are presumed
valid, and must be complied with until they
are reversed on appeal. The court also
rejected the argument that the doctrine
should not be applied where the appellant
has violated the order of a trial court in
another jurisdiction, instead of California.
The court held that under the full-faith and
credit clause in Article IV, section 1 of the
U.S. Constitution, judicial proceedings in
other states are entitled to the same treatment in every court in the U.S.
Public entities; respondeat superior;
negligent supervision; civil rights violations: Perry v. County of Fresno (2013) __
Cal.App.4th __ (5th Dist.)
Perry was injured in an auto accident
involving a vehicle owned by Alejandro
Vital and driven by his stepson. Vital was
employed as a correctional officer for
Fresno County. After Perry sued him and
his stepson, Vital accessed the County’s
computer system to obtain information
about various jail inmates, and then wrote
fake letters purportedly from the inmates to
Perry and to various third parties, all in an
attempt to try to frighten Perry into dropping the lawsuit. Perry sued the County for
state-law tort and federal civil rights violations. The trial court dismissed some of
Perry’s claims on demurrer, and the balance
on summary judgment. Affirmed.
Under the respondeat superior doctrine, an employer is liable for the torts of
its employees committed within the scope
of the employment. An employee’s willful,
malicious and even criminal torts may fall
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within the scope of his or her employment,
even though the employer did not authorize the employee to commit crimes or
intentional torts. But before such liability
will be imposed on the employer there
must be a connection between the employee’s intentional tort and the employee’s
work. An employer is not strictly liable for
all actions of its employees during working
hours. Rather, there must be a causal nexus
between the tort and the employee’s work ,
i.e., the tort (the letters) must be engendered by or arise from the work. The court
held that element was missing in this case.
If the employee acts out of personal malice
unconnected with the employment, the
employee is not acting within the scope of
employment. The mere fact that an
employee has an opportunity to abuse facilities or authority necessary to the performance of that employee’s duties does not render the employer vicariously liable. A tort
will not be considered engendered by the
employment unless its motivating emotions
were fairly attributable to work-related
events or conditions. An employee who
abuses job-created authority over others for
purely personal reasons is not acting within
the scope of employment. Since Vital’s dispute with Perry had no connection to Vital’s
employment, and his letter-writing scheme
had no connection to Vital’s employment,
the requisite causal nexus was missing.
Code of Civil Procedure section
998; statutory offers to compromise;
joint offers; wrongful death claims:
McDaniel v. Asuncion (2013) __
Cal.App.4th __ (5th Dist.)
Plaintiffs Amy Jo and Melissa
McDaniel were the surviving wife and
daughter of decedent Steven McDaniel,
who was killed in an auto accident.
Plaintiffs filed a wrongful death claim,
against several defendants, including
Asuncion. Before trial Ascunsion made a
$100,000 section 998 demand on the
plaintiffs. Plaintiffs rejected it and went to
trial against Ascuncion and another
defendant. They won a $3.3 million verdict on their claim against the other
defendant, but the jury returned a defense
verdict for Ascunsion. The trial court later
awarded him expert-witness fees as costs
based on the plaintiffs’ rejection of his
998 offer. Affirmed.
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The plaintiffs argued that the 998
offer was invalid because it was a single
offer made to two plaintiffs. While such
offers may be invalid in some cases, they
are not invalid in a wrongful death context, which is a single cause of action held
by all the heirs, and which must be rendered in a single lump sum. There is no
difficulty in comparing the unitary verdict
to the joint offer to determine that the
defendant achieved a more favorable outcome than what was offered before trial.
Fourth amendment, reasonable
search and seizure; drug sniffing dogs;
curtilage. Florida v. Jardines (2013) __ U.S.
__ (U.S. Supreme).
Miami-Dade police received a tip that
Jardines was cultivating marijuana in his
home. Because no activity could be
observed from outside, a detective
approached the home accompanied by a
drug-sniffing dog and his handler. When
they reached the house’s porch, the dog
alerted. Based on the alert, the police
obtained a warrant to search Jardines’s
house, and found marijuana plants. The
state trial court suppressed the evidence,
the appellate court reversed, and the
Florida Supreme Court held that the
search violated the fourth amendment.
Affirmed.
When the government obtains information by physically intruding on persons, houses, papers or effects, a search
within the meaning of the Fourth amendment has occurred. The Fourth amendJeffrey 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
Ehrlich
certified appellate specialist
by the California Board of
Legal Specialization, and a member of the
CAALA Board of Governors. His practice
emphasizes appellate support for the Southern
California trial bar and insurance bad-faith
litigation. He is the editor-in-chief of the
CAALA Advocate magazine and a contributing
author of the Rutter Group’s Insurance
Litigation practice guide.
ment not only protects the home itself,
but the area immediately surrounding and
associated with the house – the curtilage.
The front porch of the house is part of the
curtilage. A police officer may approach a
home without a warrant in the hopes of
speaking with its occupants, because this
is no more than any private citizen might
INDEX
requirements are satisfied may frequently
overlap with the merits of the plaintiff ’s
underlying claim. The lower courts erred
in refusing to entertain arguments against
the plaintiff ’s damages model that bore
on the issue of class certification because
they would also be relevant to the merits
determination. Rule 23 must be satisfied,
even if that requires an inquiry into the
merits of the claim.
Disentitlement doctrine; dismissal
of appeal; contempt: Stoltenberg v. Ampton
Investments, Inc. (2013) _ Cal.App.4th __
(2d Dist., Div. 5.)
Stoltenberg obtained an $8.5 million
judgment in California against Ampton
Investments (“Ampton”). Ampton filed a
timely appeal, but did not post a bond to
stay enforcement of the judgment.
Stoltenberg registered the judgment in
New York, and propounded discovery
there on Ampton. Ampton refused to
comply, and was held in contempt by the
New York trial court. Ampton continued
to refuse to comply. Based on the contempt finding, Stoltenberg moved to dismiss Ampton’s appeal under the disentitlement doctrine. That doctrine allows an
appellate court to dismiss a party’s appeal
if that party fails to cooperate with a lower
court’s order. Based on that doctrine, the
appellate court dismissed Ampton’s
appeal. In doing so, it rejected the arguments that the doctrine should not be
applied because the New York trial court’s
orders were invalid and on appeal. The
court stated, “This is the worst kind of boot-
do. But the scope of the license is limited
not only to a particular area, but also to a
specific purpose, and there is no customary invitation to enter the curtilage simply
to conduct a search. (Opinion by Scalia,
joined by Thomas, Ginsburg, Sotomayer,
and Kagan. Alito filed a dissent, which was
joined by Roberts, Kennedy, and Breyer.)
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FINANCIAL SERVICES
California Attorney Lending . . . . . . . . . . . . . . . . . . . .39
CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
EPS Settlements Group . . . . . . . . . . . . . . . . . . . . . . .41
Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . . .1
Pensions Annuities and Settlements LLP . . . . . . . . . .25
Power Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . .20
ATTORNEYS – ACCEPTING REFERRALS
Berschler, Arnold . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Bostwick & Peterson . . . . . . . . . . . . . . . . . . . . . . . . .13
Bradley, John F - Collections Law . . . . . . . . . . . . . . .38
Cheong Denove Rowell & Bennett . . . . . . . . . . . . . . . .4
Cook Collection Attorneys, PLC . . . . . . . . . . . . . .32,33
Heymann, Rutger . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Kazan McClain Lyons Greenwood & Harley . . . . . . . . .9
Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .19
Michels & Watkins . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Panish Shea & Boyle . . . . . . . . . . . . . . . . . . . . . . . . . .2
Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . .5
Rouda Feder Tietjem McGuinn . . . . . .Inside Front Cover
Scarlett Law Group . . . . . . . . . . . . . . . . . . . .Back Cover
ATTORNEYS – APPEALS
Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
Jay-Allen Eisen Law Corporation . . . . . . . . . . . . . . . .12
COURT REPORTERS
Jan Brown & Associates . . . . . . . . . . . . . . . . . . . . . .37
Pulone & Stromberg, Inc. . . . . . . . . . . . . . . . . . . . . . .42
EXPERT WITNESSES – MEDICAL
American Medical Forensic Specialists . . . . . . . . . . . .34
Graboff, Steven, M.D. . . . . . . . . . . . . . . . . . . . . . . . .31
GRAPHICS/PRESENTATIONS/VIDEO
VaheandVache.com . . . . . . . . . . . . . . . . . . . . . . . . . . .3
INSURANCE
Lawyers Mutual Insurance Company . . . . . . . . . . . . .17
LEGAL MARKETING
Berbay Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Walker Advertising . . . . . . . . . . . . . . .Inside Back Cover
LEGAL RESEARCH AND TRAINING
Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
TransMedia, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
MEDICAL SERVICES
Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .11
ORGANIZATIONS
CAOC PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
plaintiffmagazine.com | May 2013 | Plaintiff
43
Back Story
With case-management
software, it’s all relative
Your life revolves around your cases.
So should your case-management software
BY MILES B. COOPER
The receptionist buzzed. “A Mr. D____ is calling
about a referral.” I ran my mental rolodex. Like
many people, I’m terrible with names. But I
remember details. Once things click, I remember
you went to UCLA, you rowed in college, and you
Cooper
had a case involving the Dodgers. My mind is
relational. But I need a jumpstart on the relationships.
Relational databases and case-management
software
How does this lead into case-management software? Because
the software is relational. It is referred to as case-centric software
(or matter-centric, where a “matter” is what we know as a case).
The software is built so you can click on a case, see who is associated with it (opposing counsel, judge, assistants, experts, clients,
defendants), click to access their contact information, and easily
find deadlines and associated events. Every entry revolves around
the case. You can also associate contacts with multiple cases. When
you click on an opposing counsel’s contact card you can see all the
cases he has had against your firm.
Most lawyers use Outlook. Outlook does a great job of housing e-mails, contact information and calendars. But Outlook is not
relational. You cannot create a case in Outlook and relate people,
events, deadlines and communications.
What software is best for us?
That’s like asking what car is best for you. Firms’ needs differ.
The less intrusive and more user-friendly, the better. Software that
operates in Outlook (this means the interface lives within Outlook,
not that it synchs with Outlook) is best. People are already familiar
with the program, so adding extra tabs, rather than a new program,
improves the chances people will use it. Other considerations:
entries that are readable. Can you use it on the road from a laptop?
Does the data synch with your smartphone? How large is the software company, how long have they been around, and will they give
you references? Answering these questions will prevent you from
selecting the wrong provider.
Two products that meet these rigorous demands are Legal
Tracks and Aderant Total Office. They’re good, but nothing will be
perfect. Unless you plan to commission your own software build
(i.e. buy Larry Ellison’s next America’s Cup boat for him), perfection will be hard to find. (Note: There are several server-based
solutions, such as Amicus Attorney, Abacus, and Prolaw. Cloudbased systems are also becoming more popular. These include
Clio, Rocketmatter, Mycase, and FirmCentral.)
How do software rollouts fail?
Why would you want case-management software?
In theory, it becomes a central case clearinghouse. It can be a
powerful marketing and communications tool. If you group your
contacts, you can select specific groups (let’s say all lawyers) to
receive e-mails or mailers. And with a calendaring plugin like
CompuLaw, trial deadlines – down to specific county or district
local rules – can be included.
There are two major causes for failure in software rollouts.
The first is when leadership spends the money but does not get
behind the project. The second is related – staff revolt. Staff does
not want to change and continues to do things the old way. Staff
revolt stems from a lack of training and floor support. Floor support is where trainers spend a day or two around the office, checking in with users, and help them adjust to the new program.
If you invest the time up front, case-management software can
become a tremendous weapon. It will improve your case management abilities. It makes you better at tracking data – including
referral sources. And it reduces 2:00 a.m., “when is that due?”
ulcerations.
Why wouldn’t you want the software?
Outro
Sounds pretty cool. Before you set this down and schedule an
install, recognize that like anything else, you get out what you put
in. You cannot simply pick some software and have it set up that
day. Most case-management software is infinitely customizable (frequently more a burden than a blessing). Rolling it out usually has
significant implications on how your firm handles workflow.
Ironically, the firms who could most benefit from case-management software are frequently the ones whose implementation
efforts fail. The more people in the firm, the more ways different
lawyers handle their caseloads, the harder it is to find a set-up that
works for everyone. Implementing the software is expensive and
time-consuming. You don’t want case-management software if your
firm is unwilling to take the time to customize it, roll it out, and
embrace it. For solos, this can be done quickly. With several lawyers
or teams, the project can be involved.
44
Plaintiff | May 2013 | plaintiffmagazine.com
Back to our caller. As the receptionist put the phone call
through, I opened his tab in our case-management software. He
had been opposing counsel on several cases against us. I saw that I
had made a note after meeting him at an MCLE. It included the
fact that his children both rowed and that he had an interesting
case up on appeal last year. I picked up the phone. “It has been a
while. You ever get a ruling on that appeal we talked about at the
MCLE last year?”
Miles B. Cooper is a partner at Rouda Feder Tietjen & McGuinn
in San Francisco. He represents people with catastrophic injury and death
claims. In addition to preparing his own cases, he associates in as trial
counsel and consults on trial matters. He has served as lead counsel, cocounsel, second seat and schlepper over his career and is a member of the
American Board of Trial Advocates. Cooper’s focus beyond litigation
includes trial presentation technology.
Submit your latest verdict to www.JuryVerdictAlert.com
A partner you can rely on.
Where you refer catastrophic cases may be the single most important
decision you make for your client. Whether it’s cases involving traumatic
brain injury, spinal-cord injury and other catastrophic personal injury
and wrongful-death cases, the Scarlett Law Group will achieve results
that will improve your clients’ quality of life.
Randall H. Scarlett, Esq.
We are pleased to pay referral fees
in accordance with State Bar rules.
Recent successes include:
$49.1 million collectible, non-punitive, singleplaintiff verdict on behalf of a brain injured
individual involved in a cross centerline big-rig
trucking accident
$26 million verdict on behalf of an 8-month-old
child who was rendered permanently brain injured
and a spastic quadriplegic when doctors failed to
diagnose H-Flu meningitis.
$22.8 million collectible, non-punitive single-plaintiff
verdict on behalf of a 49-year-old woman who was
struck by a tour bus making an illegal left hand turn.
$10.6 million collectible, single-plaintiff verdict on
behalf of a 38-year-old man who suffered a traumatic
brain injury following a collision with farm machinery
unloading grapes on a rural highway.
536 Pacific Ave., San Francisco, CA 94133
www.scarlettlawgroup.com
(800) 262-7576