June 2009 Archives

Governor Schwarzenegger signed Assembly Bill 5 (Evans) into law late Monday afternoon. The bill, which CJAC supports, brings California law regarding discovery into the 21st century by addressing issues related to discovery of electronically stored information.

The bill has an urgency clause and will go into effect immediately. It is a re-do of last legislative session's AB 926 (Evans), which was vetoed by Schwarzenegger despite having no opposition.

In a letter to Schwarzenegger urging him to sign AB 5, CJAC President John H. Sullivan wrote: "Current California law does not expressly address the new and complex issues relating to discovery law and electronically stored information. ... With the amendments dealing with inaccessible information, we are confident the bill is a fair and balanced approach that will work well for plaintiffs, defendants, their lawyers, and judges."

The U.S. 9th Circuit Court of Appeals has ruled that federal regulations requiring municipalities to develop a transition plan to bring their curbs and sidewalks into compliance with the Americans with Disabilities Act is not enforceable through an implied private right of action.

In 1997, John Lonberg, a paraplegic, sued the city of Riverside, alleging violations of the Americans with Disabilities Act.

U.S. District Judge Stephen G. Larson ordered Riverside to come up with a transition plan that met ADA standards. Riverside appealed, saying in effect that Lonberg, as a private party, could not judicially enforce this provision of the ADA. (See this article in the Riverside Press-Enterprise.)

A 2001 U.S. Supreme Court ruling determined that only Congress can create a private right of action, the appellate judges said, and must do so expressly not through judicial implication.

They concluded that the section of the ADA that Lonberg cited in getting Larson's order did not address whether a public entity was obligated to create a plan and that its failure to do so created a private right for such a plan.

The court's ruling agreed with arguments in an amicus brief submitted two years ago in support of the city's position by the Civil Justice Association of California, the California State Association of Counties, and the League of California Cities. Lonberg v. City of Riverside.pdf

Fred J. Hiestand, CJAC General Counsel, argued to the 9th Circuit that:

"Denial of a private right of action in this case does not deprive disabled persons of their right to prosecute municipalities for failing to remove architectural barriers to the accessibility of public facilities. To the contrary, it simply leaves cities free to prepare or not prepare transition plans in response to federal administrative requirements, knowing that local governments can be held directly accountable to disabled persons for conduct that occasions them real harm under the protective provisions of the ADA. But there is no indication that Congress felt a local government's failure to develop a transition plan in and of itself seriously harms disabled individuals and should be enforceable through a private right of action."

Lonberg v. City of Riverside Opinion.pdf

Michael Hlinka, a business columnist for CBC/Radio-Canada, sums up the issue: "It seems to me that class action lawsuits provide the legal business every incentive in the world to sue, to chase big awards ... and collect fat fees in the process."

His example: A $360 million class action lawsuit launched in June 2007 on behalf of a plaintiff and current and former workers in branches of the Canadian Imperial Bank of Commerce. The lawsuit alleged the plaintiff and her fellow workers were required to perform unpaid overtime.

Two years later, the class action was dismissed, after a judge decided that the case did not deserve class action status because each employee's case would have to be evaluated on its own merit.

The case was pursued, Hlinka concluded, because the plaintiffs' lawyers had a lot to gain -- and nothing to lose.

"The rule of thumb, at least in the United States, is that winning lawyers receive 33% of the total award. When you're talking about money like that, the question isn't what someone would say or do to win ... it's what they wouldn't say or do."

Hlinka's solution: The law firms that stood to profit in the class action litigation would have to pay damages to the party being sued in the amount equal to their contingency fee -- the amount they stood to gain if they were successful.

In the United States, there is no set percentage for a contingency fee, though 33% is often the share the lawyer wants. For more questions to ask before hiring a contingency fee lawyer, click here.

Bisphenol A is currently the "toxin du jour," but the chemical has been used safely for about 60 years to make plastic bottles hard and shatter-proof, for the coatings of metal food containers, and even in cell phones and medical devices, wrote the president and founder of the American Council on Science and Health.

In a commentary in Forbes, Elizabeth M. Whelan notes that California's Senate recently passed Senate Bill 797, which would prohibit the use of BPA in any baby bottle or container of infant formula. Chicago recently banned such products from city shelves, and Connecticut Attorney General Richard Blumenthal wants Coca-Cola, Del Monte and other companies investigated for trying to stop anti-BPA legislation. Whelan writes:

"There is no end in sight to the anti-chemical witch hunt against 'toxins' in products. Once BPA is banned, the activists will move onto another scare: Are there trace levels of dioxin in the paper cups your toddler drinks out of? Ban paper cups! Could there be lead in the playground sand box? Close all sandboxes! If in five years the alternative to BPA is shown to cause cancer in rodents -- well, ban that too.

"Finally, underscore the fact that chemicals like BPA, which have been used for decades with no deleterious health consequences, may well be safer than hastily introduced alternatives."

As Kim Stone, CJAC's Vice President - Legislation, notes in letters to California legislators in opposition to the bill, the use of BPA for food contact applications has been and continues to be recognized as safe by both the United States Food and Drug Administration and the European Food Safety Agency.

Prohibitions will likely lead to additional unmerited litigation against manufacturers and users of BPA, Stone wrote. The bill is also unnecessary in light of the Legislative passage of AB 1879, a measure designed to give sound science the lead in evaluating chemical risks in consumer products.

Senate Bill 797 will be heard on June 30 in the Assembly Environmental Safety and Toxic Materials Committee.

"... I am frankly embarrassed by the inundation of billboards and TV ads for personal injury lawyers who have little respect within the profession and seldom if ever set foot in a courtroom."

Those words were written on a blog by a self-described serious personal injury attorney in Atlanta.

In a post published in April, Ken Shigley took to task plaintiffs' lawyers who advertise heavily but lack solid professional track records.

"If you or a loved one has a serious injury or wrongful death case, you would do better throwing a dart at the attorneys section of the phone book than choosing a lawyer on the basis of a billboard or a 30 second TV ad," he wrote. "At least you would have a chance of getting to a decent, honest attorney who would know how to identify a specialist for an appropriate referral, rather than a 'mill' that focuses on volume and accepts low offers rather than doing the hard work of litigation.

"The subtly misleading slogans of the billboard and TV lawyers, e.g., 'one call that's all' and 'all the help the law allows,' and their use of celebrity spokesmen on TV, does a real disservice to members of the public who are drawn into personal injury 'mills' rather than to serious lawyers who would fight for them."

Out of curiosity, Shigley wrote, he ran a search of the names of the top advertising lawyers in metro Atlanta, seeking reported decisions in which they appeared representing a party.

He found minimal reported court decisions and losses. One lawyer who portrays himself as a specialist in trucking litigation has never tried a trucking accident case, nor does anyone in his firm participate in the organizations of trucking trial attorneys.

In California, personal injury lawyers have been airing ads about asbestos exposure, at least one with a "mesothelioma hotline" number to call. A number of web sites also offer to match potential plaintiffs with an attorney in their area. One such site contains the following disclosure: "All attorney listings are a paid attorney advertisement, and do not in any way constitute a referral or endorsement by an approved or authorized lawyer referral service."

There's nothing new about asbestos plaintiffs' lawyers trying to manipulate the legal system. However, there is a new twist, described on the opinion pages of California's statewide legal newspaper, the Daily Journal.

A new generation of asbestos trusts, established to pay claims on behalf of bankrupt manufacturers, tempts plaintiffs' lawyers to seek double recoveries by concealing their clients' trust recoveries from tort defendants, Jacob Cohn and Joseph Arnold wrote in an op-ed published June 22.

Cohn, a member in the Philadelphia office of Cozen O'Connor's Global Insurance Group, and Arnold, an associate in the same office, examine why California's courts should level the playing field by requiring full disclosure by asbestos claimants of their claims to, and recoveries from, asbestos trusts.

Daily Journal - New Generation of Asbestos Trusts Encourages Double-Dipping.pdf

The Los Angeles Film Festival and a movie production company should head off wasteful litigation by moving their discredited movie "Bananas!*" from the "documentary" category to a clearly fictional class in this weekend's festival, CJAC President John H. Sullivan urged Thursday.

A CJAC news release explains that the film purports to document the work of Los Angeles personal injury lawyer Juan J. Dominguez, who led a lawsuit in Los Angeles on behalf of hundreds of Nicaraguan banana plantation workers claiming they were rendered sterile by chemicals Dole Food Company, Inc. used on the crops.

But as the film was being wrapped, Dominguez's heroic story was being unwrapped in the Los Angeles County courtroom of Superior Court Judge Victoria Chaney. Dismissing the case after a long trial, she said that "... if you took all the bad cases I've read and put them together, they don't even come close to what's happened here. ... The actions of the attorneys in Nicaragua and of some of the attorneys in the United States, specifically the Law Offices of Juan Dominguez, have perverted this court's ability to deliver justice to those parties that come before it."

The film has been moved out of competition, according to a release from Swedish filmmaker Fredrik Gertten, and will now screen in a special "case study" screening slot that will center on "what happens when a film is finished and new developments come to light."

The L.A. Film Festival, however, still lists the movie as a documentary.

Sullivan said in the news release, "It's understandable that Gertten as a movie maker is pained by the unexpected publicity his movie is receiving. But as 'one of Sweden's preeminent documentarians and investigative journalists' he should be interested in a sequel that does qualify as a documentary."

Click here to read an earlier post about the case.

Calling it a "step in the right direction," Kim Stone, CJAC's Vice President-Legislation, testified Wednesday in front of the Senate Education Committee in support of a bill that will allow teachers to choose individualized personal training for negotiation, mediation, and conflict resolution.

Assembly Bill 1, authored by Assemblyman William Monning, passed the committee and will now go to the Senate floor.

Ongoing teacher education allows teachers to choose to study appropriate disciplines on their own time in order to enhance their skills and augment the teaching of state-based educational standards, Stone wrote in a letter to the Senate Education Committee.
Assembly Bill 1 - Senate Education Committee.pdf

The Civil Justice Association of California supports the study of dispute resolution as a means toward achieving and maintaining a civil society.

"We believe that allowing teachers to choose ongoing education in the area of conflict resolution may very well help to reduce excessive and unjustified litigation that can drive up expenses to schools," Stone noted in her testimony, which can be viewed below. "Particularly (in) times now of budget pressures it does not make sense for schools to be spending money on litigation that they could be spending educating their students."

She mentioned a January 2008 study by Citizens Against Lawsuit Abuse, entitled "The Fourth R of California's School Districts: Ripped off by Litigation," which noted that three of California's five largest school districts paid $32.8 million in litigation costs in just one year -- 2005.

Will Major League Baseball teams be able to recognize gender-specific holidays, such as Mother's Day? Some teams may decide to forgo promotions that recognize the holiday in light of a lawsuit against the Oakland Athletics.

The A's just lost a $510,000 suit that alleged the club discriminated against men by giving away reversible bucket hats and tote bags only to adult women who attended the game on Mother's Day of 2004, according to The Wall Street Journal's Law Blog.

The plaintiff's lawyer, Alfred Rava, has filed about 40 anti-male discrimination suits in the past, according to the Journal. Aside from the suit against Oakland, the San Diego Padres and the Los Angeles Angels of Anaheim have also been served in recent years for holding similar promotions.

"Perhaps not surprisingly, all three teams have either stopped doing such promotions or have offered the giveaways to everyone rather than just women," the Journal's Chris Herring wrote.

As ESPN columnist Rick Reilly wrote in a column about Rava's suits, "Gee, I wonder what a sue-happy lawyer from San Diego would be doing at an A's-Twins game the very day that they were holding a women-only giveaway?" Reilly asked Rava: "You went to a game on Mother's Day, to a game that was promoting breast cancer awareness, and you felt victimized by not getting a floppy plaid sun hat?"

"Rava insisted it was a fishing hat," Reilly wrote.

Rava, of the The Rava Law Firm in San Diego, and others have cited California's Unruh Civil Rights Act to argue their claims. According to the California State Bar web site, Rava graduated from California Western School of Law in San Diego and was admitted to the bar in 1997.

The California Supreme Court ruled unanimously on Thursday that business which violate the federal Americans with Disabilities Act, even if unintentionally, can be sued for damages.

As Mike McKee reported in The Recorder legal newspaper, Justice Kathryn Mickle Werdegar concluded that the court's decision was a reasonable interpretation of the state Legislature's decision in 1992 to amend the state's Unruh Civil Rights Act to include ADA violations.

She wrote: "A plaintiff who establishes a violation of the ADA, therefore, need not prove intentional discrimination in order to obtain damages under (Civil Code) section 52."

While the ADA provides only injunctive relief whether the harm was intentional or not, Section 52 of the Unruh Act provides for damages of at least $4,000 -- or as much as three times the actual harm.

The case, Munson v. Del Taco, Inc., involved a disabled man who sued Del Taco after complaining that its restaurant near San Bernardino didn't provide disabled parking or handicapped-accessible public toilets. Del Taco later spent $75,000 on renovations, McKee reported.

The Supreme Court in its decision also noted that the state Legislature "was informed -- and may be presumed to have been aware -- that damages under the Unruh Civil Rights Act might be awarded for denial of ADA mandated access without proof of intentional discrimination."

But the Legislature, in approving Senate Bill 1608 during the last legislative session, chose not to include requiring such notice or other proof of intent to discriminate. The bill, which became law January 1, will improve disability access to public locations and reduce predatory lawsuits by lawyers taking advantage of complex access rules.

The court wrote: "Even if we agreed with defendant that adding an intent requirement to the Unruh Civil Rights Act would be warranted to curb abuse, we would not be free to substitute our own judgment for that of the Legislature."

A bill that will shield non-medical Good Samaritans who help out at the scene of an emergency from civil liability will now be considered by the full Senate.

Assembly Bill 83, which CJAC supports, passed 5-0 out of the Senate Judiciary Committee today. The bill was authored by Assemblyman Mike Feuer, chair of the Assembly Judiciary Committee. The bill's principal co-author, Senator John Benoit, also introduced a similar bill, SB 39.

The bill was authored in response to the California Supreme Court decision in December in Van Horn v. Watson, which interpreted California Health and Safety Code Section 1799.102 to mean that no medical person who provides help, or no person who provides medical help, shall be liable for civil damages. Based on this reading of the statute, a non-medical person who provides non-medical help can be sued by the person he or she rescued. It amends Health and Safety Code Section 1799.102 to ensure that it provides liability protections to all people, both medical and laypeople, who help out in good faith at the scene of an emergency.

Click here to read a news release from Assemblyman Feuer's office, which includes a comment from CJAC President John H. Sullivan.

Kim Stone, CJAC's Vice President - Legislation, testified on AB 83 in front of the Senate Judiciary Committee today.

Assembly Bill 83, one of several Good Samaritan bills authored this legislative session, is set for hearing on Tuesday before the Senate Judiciary Committee. It was authored by Assemblyman Mike Feuer, chair of the Assembly Judiciary Committee. The bill's principal co-author, Senator John Benoit, also introduced a similar bill, SB 39.

The bill, which CJAC supports, states that non-medical Good Samaritans who help out in an emergency are exempt from civil liability unless their actions constitute gross negligence or willful or wanton misconduct.

The bill was authored in response to the California Supreme Court decision in December in Van Horn v. Watson, which interpreted California Health and Safety Code Section 1799.102 to mean that no medical person who provides help, or no person who provides medical help, shall be liable for civil damages. Based on this reading of the statute, a non-medical person who provides non-medical help can be sued by the person he or she rescued.

In that case, Lisa Torti moved Alexa Van Horn out of a car, thinking the car would explode and burn her. Alexa Van Horn alleges that the movement caused her subsequent paralysis.

A hypothetical result following this approach: If a potential drowning victim is pulled from the water by one Good Samaritan and given CPR by another -- but is injured during the process -- the saved person can sue the person who got him ashore but not the person who administered CPR. This awkward result has been criticized by The New York Times, Time Magazine, the Los Angeles Times and others.

Senate Bill 797, which would ban the chemical Bisphenol-A (BPA) from uses in baby bottles and formula containers, has passed the state Senate and will now go to the Assembly. The bill is authored by Senators Fran Pavley and Carol Liu.

The bill, which CJAC opposes, is a remake of Senate Bill 1713 (Migden) of the last legislative session. That bill died on the Assembly floor.

The Civil Justice Association of California opposes the bill because it is likely that banning a safe product -- BPA has been approved by the FDA and the European Food Safety Agency -- will lead to additional lawsuits.

This is what happened with silicone breast implants. The makers of the silicone implants had 150 lawsuits in the 30 years prior to an FDA ban, and more than 5,000 a year in each of the four years after the ban. The implants were ultimately determined to be safe -- but not until the company that made them went bankrupt as a result of the lawsuits.

The Civil Justice Association of California is concerned because almost half of the national class action lawsuits regarding BPA originated in California.

With California courts facing closure one day a month to save money, and the state's budget deficit estimated at $24 billion, one court in California was forced to use its resources on a lawsuit by a plaintiff who alleged she was misled by a cereal box.

A U.S. District Court judge in California has tossed a lawsuit filed by a woman who said she had purchased "Cap'n Crunch with Crunchberries" cereal because she believed the crunchberries contained real fruit. The plaintiff brought her claims under California's Unfair Competition Law and Consumer Legal Remedies Act.

As the Lowering the Bar blog so aptly described the case:

"The plaintiff, Janine Sugawara, alleged that she had only recently learned to her dismay that said 'berries' were in fact simply brightly-colored cereal balls, and that although the product did contain some strawberry fruit concentrate, it was not otherwise redeemed by fruit. She sued, on behalf of herself and all similarly situated consumers who also apparently believed that there are fields somewhere in our land thronged by crunchberry bushes.
Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap'n Crunch with Crunchberries in reliance on defendant's fraud."

Judge Morrison C. England, Jr., in dismissing the case, wrote: "In this case, however, it is simply impossible for Plaintiff to file an amended complaint stating a claim based upon these facts. The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense."

The judge noted that the same plaintiffs firm, Hewell Law Firm in San Diego, had filed a similar claim against the packaging of Froot Loops cereal, which was rejected by another California district court. The Hewell Law Firm is headed by Harold Hewell, identified by the State Bar web site as a graduate of the California Western School of Law in San Diego and admitted to the bar in California in 1994.

Meanwhile, California's judicial branch is facing a $495 million shortfall for fiscal year 2009-10, according to the Daily Journal legal newspaper. On top of that, Gov. Arnold Schwarzenegger announced last week additional budget cuts of more than $150 million for the courts.

The Civil Justice Association of California suggests the Legislature enact the following to help state courts deal with budget cuts and matters like the Crunchberry case: Give every judge in the state the option to calendar one case each month for hearing on a set day each month. If the case is not heard on that day, it is dismissed. That set day, explained CJAC President John H. Sullivan, would be the same day as the designated one day-a-month courtroom closures resulting from the budget crisis.

As the California Civil Justice Blog reported May 27, the California Court of Appeal has spoken clearly on the biggest legal challenge to California's landmark Medical Injury Compensation Reform Act in some 20 years. Though unpublished, the opinion in Van Buren v. Evans strongly backs the legality of MICRA's limit of $250,000 on non-economic damages in medical professional liability suits.

But the Fifth Appellate District Court did not rest simply on the fact that MICRA was upheld by the state Supreme Court more than 20 years ago. Instead, the three justices on the Fresno-based court referred to the underlying basis for the Legislature's enactment of the set of laws: The medical malpractice insurance crisis of 1975.

Van Buren is a medical malpractice suit against a surgeon and her medical group by a patient who claimed that medical errors caused him permanent injury. A jury awarded the plaintiff $2.5 million in non-economic damages, which the trial court reduced to $250,000 under MICRA. In addition to contending that the statutorily-mandated reduction denied his client his right to a jury trial, Mr. Van Buren's lawyers said that it violated his right to equal protection under the law.

After citing the Supreme Court's rejection of the jury trial argument in 1987, the Court of Appeal turned to the contention that the Legislature with MICRA treated Mr. Van Buren differently. "The United States Supreme Court has of course recognized that a legislature could not legislate at all if it could not draw classifications and treat one class of persons differently from others." So long as they promote a legitimate state purpose, the court explained, such classifications are legal unless they undermine fundamental personal rights or are drawn upon inherently suspect distinctions, such as race, religion, or heritage.

Mr. Van Buren's attorney argued that the cap deprived his client of equal protection of the laws because the $250,000 in non-economic damages does not have the same purchasing power that $250,000 had in 1975. But the Court of Appeal pointed out: "The statute does not address purchasing power. It addresses the maximum amount of non-economic damages that a plaintiff may recover in an action against a health care provider based on professional negligence. That amount is the same for every plaintiff."

Besides, the court continued, the law simply requires that a classification bear a rational relationship to a conceivable legitimate state purpose. The cap, the Court explained later in its decision, "was to address serious problems for the health care system in California."

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Gordon Ownby is general counsel of the Cooperative of American Physicians, Inc., www.cap-mpt.com, and can be reached at gownby@cap-mpt.com.