Dangerous Product Case Opinion Limits the Rights of Californians

The California Court of Appeals for the Fourth Appellate District recently handed down a decision in the case of Gonzalez v. Southern California Gas Company that can only be described as questionable at best and destructive to the rule of law at worst.

A young girl died after her car hit a gas meter that was along the side of the road and not properly covered as required by federal law—a law that was created due to the foreseeability of accidents like this one. The jury ruled in her favor, but the Court of Appeals decided to reverse the verdict, leaving her family without justice. What makes it worse is that the Court decided NOT to publish their opinion for official review and authority—an indication that the justices may have realized that their ruling was unsupported by existing case law.

Our San Diego injury lawyer website recently wrote a brief article detailing the events of this defective products lawsuit and why this is important to everyone to read and understand. The Court decided not to provide the public with protections that previous courts and Congress had intended gas companies to install. Please read our article on this outrageous tort reform opinion for the full story.

The California Court of Appeals Recently Handed Down a Horrible Tort Reform Opinion Affecting All Californians Injured by Dangerous Products. Here is How this Court Ruling Will Limit Your Legal Rights.

Recently, our office heard about an unfair decision involving a fellow San Diego dangerous products lawyer that was handed down by the Fourth Appellate District of the California Court of Appeals in the case of Gonzalez v. Southern California Gas Company. It involved a 17-year old girl who was killed when her car veered off the road and struck a Southern California Gas Company (SCG) unprotected gas meter which was located 11 feet, 4 inches from the curb along the road. Upon impact, the gas meter exploded and caused a fire that engulfed her vehicle. Although she was able to escape the burning vehicle, she later died from burn injuries which engulfed 80 percent of her body’s surface.

Prior to the accident when the gas line was first installed, SCG was required by federal law to protect the gas line from foreseeable collisions. The tragic part of this incident is that had SCG protected the gas line as it was legally required to do so, the girl would have only suffered a cut lip. The case went to trial and the jury found that SCG had a duty to protect the victim by coving the gas line and that it’s failure to do so was a substantial factor in causing the girl’s death.

SCG predictably appealed this decision to the Court of Appeals in California. But in a shocking turn of events, the Court decided to overturn the family’s wrongful death verdict and stated that SCG did not owe a duty to protect the gas line. The court wrongfully stated that this type of collision was “not foreseeable,” therefore, the jury verdict was disregarded and SCG was not held liable.

What the Appellate Court did was wrong, and even worse, their decision runs afoul of previous California decisions. There are three separate cases that this Court decided to distinguish its’ opinion from, including the Californai Supreme Court opinion in Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d, 49 (1983).

Most cases of this magnitude are published so courts and attorneys can cite to it. Case precedent is important because the public needs to know what the law is, and how courts interpret the law. However, in shocking fashion, this Court decided NOT to publish their opinion for others to see. It would be one thing for the Court to publish their opinion to the public and allow it to stand up to public scrutiny and review, but the Court (for whatever reason) decided a case that contradicts prior case precedent should not be published. My opinion is that the judges knew that their decision was wrong and without basis and they did not publish their ruling in hopes that it would not be challenged.

So why should this Appellate Court opinion matter to you? For starters, it proves that the Courts do not always do the right thing. Judges are humans too, so sometimes they do not always come to the right decision. This is why it is important that you hire an attorney that is willing to fight and speak out when a Court makes bad decisions.

Fortunately, the trial attorneys for the victim’s family is appealing the Court of Appeals ruling to the Supreme Court. We hope that the Supreme Court accepts their appeal and overturns this poor ruling.

What Good Do Personal Injury Lawyers Do For Society?

Unfortunately, personal injury attorneys have a bad reputation with most people. Many see our role in the legal profession as greedy and vindictive people who chase ambulances in order to make money at the expense of our clients and society.

Not only is the stereotype false, but many people overlook all the good things that injury lawyers do. We are dedicated to our work and we are motivated by ensuring our client’s rights are represented so that they receive the compensation they deserve.

Our San Diego accident attorneys certainly do not fall under this poor stereotype. We recently wrote an article about the stereotypes about our profession, why they are not true, and why injury attorneys benefit the public.

Hot Topics in Personal Injury Law

As a nationally recognized personal injury attorney, I receive a number of lawyer newsletters from law offices around California and the United States.  I received one recently from Dallas personal injury lawyer Jeff Rasansky which had an article in it entitled, “Advocates or Ambulance Chasers.”  It really struck me with it’s honesty and truth about the good that injury lawyers do…and the negative public opinion they commonly face.

It’s no secret that personal injury attorneys have a bad reputation in our society.  We have all heard the various stereotypes and jokes about our profession.  These stereotypes are not only false, but they are damaging to our legal system and society.  The legal system is what people should turn to in their time of need.  It is their last avenue for appeal and redress when private parties and the government will not act responsible for their negligent acts.  And truth be told, the vast majority of personal injury lawyers are doing the right thing.  People that are involved in a car accident, motorcycle accidents, or injured by a defective product turn to lawyers every day because they know that an attorney will represent their rights, and not those of an insurance company.

So where do these negative stereotypes come from?  The first source that comes to mind is the media.  TV shows, the news, and movies very often show lawyers in the worst light possible: as greedy and vindictive.  Also, some of the attorney advertisements by real life personal injury lawyers make it seem that attorneys are money hungry and that they convince people that they need an attorney.  However, most injury attorneys do not look at potential clients as dollar signs.  These money hungry attorneys are the minority.

Not only do injury lawyers help their clients in their time of need, but their work ensures that people live in a safe environment.  Corporations and people are mindful of what can happen to them if they decide not to behave in a reasonable manner.  Also, you have attorneys to thank for the various safety laws and regulations that we have.  These laws were enacted in response to negligent behavior, and these laws provide a standard which intends to keep the public healthy and safe.  

I can see why people think the way they do about personal injury attorneys since negative stereotypes are all around them.  While, it is true that “one bad apple spoils the entire bunch,”  you always hear about the immoral attorney who stole their client’s money on the news, but you NEVER hear about any of the positive things personal injury lawyers do for their clients.  

It also does not help that corporations and insurance companies also attempt to paint injury law firms in a bad light too.  However, it takes a lot of hard work and dedication to be an accident attorney.  In America, there are several ways to make a living and make money–people don’t have to be lawyers to make a lot of money.  In fact, many people chose to become personal injury lawyers because they want to help people.  Besides, corporations and insurance companies paint us in this bad light because we threaten them with lawsuits if they do not follow the law and when their insureds are careless and negligent.

There may be a time in your life when you are faced with a situation that will require you to hire an accident attorney.  You should not be just another number or case in your attorney’s file cabinet.You are an individual with your own worries and hopes about your injury claim.  

Hot Coffee the Movie Shows the Ill Effect of Tort Reform

Remember the McDonald’s coffee case? A woman orders a cup of hot coffee. She puts the cup in between her legs as she drives. Then, the coffee spills, and she gets third-degree burns on very private areas on her body. Cha-ching!

Though, that is not exactly the whole story. Susan Saladoff, director of the documentary film Hot Coffee, which premieres on HBO tonight at 6 p.m. PST, shows viewers what really happened in the infamous “McDonald’s hot coffee” lawsuit. The movie looks at what actually happened to Stella Liebeck, why the case got so much media attention, who funded the effort, and who really profited from spilling hot coffee.

Hot Coffee is a “call to action.” It asks the question, What happens when access to court is so lopsided that the average person cannot gain access? And who really pays the price, the negligent party or taxpayers?

In the four cases the film documents, Saladoff shows how Americans are surrendering their Constitutional rights in all sorts of ways without even knowing it and how they are being screwed by the system –not taking advantage of it.

If you or someone you love has been injured or killed because of a defective product or negligent person, you are entitled to damages. The California personal injury attorneys will protect your Constitutional rights and get the money you deserve.

Tort Reform Hypocrite Settles Slip and Fall Lawsuit

As reported by the Wall Street Journal’s Law Blog, former Supreme Court nominee, strict constructionist judge, and tort-reform advocate Robert Bork settled his lawsuit against the Yale Club after he fell while attempting to step onto the dais to speak.

The settlement terms were undisclosed, so little is known about the lawsuit other than those pleadings filed with the Court. However, a review of the complaint filed by Judge Bork’s attorneys at Gibson, Dunn & Crutcher–who are typically defense counsel and presumably represented Bork because of his high profile–reveals two absolute truths about the case: (1) Regardless of whether the Yale Club was liable for Judge Bork’s injuries, Judge Bork was seriously injured and required significant medical care to address his injuries; and (2) Judge Bork’s lawsuit embodies many of the tactics and strategies that Judge Bork decried in his tort reform efforts.

San Diego Consumers Protected By Defeat of Tort Reform Class Action Legislation

Earlier today, the California Assembly rejected AB 1505 by failing to pass it out of the Assembly Judiciary Committee.

The bill received so little support that when Van Tran (R-Costa Mesa) moved the bill, it did not receive a second and therefore failed without a vote.

The Civil Justice Association of California (CJAC) continues to press the meat of AB 1505 through a costly initiative process.

Assemblymember Nicole Parra (D-Hanford) stated, in bringing the bill, that it would do nothing to prevent legitimate class actions from being brought. However, she hoped that it would prevent lawyers from gaining large verdicts and plaintiff class membes seeing little compensation as a result. She further stated that AB 1505 attempted to align state with federal law.

However, according to the Consumer Attorneys of California (CAOC), AB 1505 would undermine the civil justice system by preventing an ordinary citizens’ right to bring a class action lawsuit in California. Among the provisions of AB 1505 that CAOC objected to:

1. The bill would have required each individual class member to prove their individual claim and extent of damages. Most importantly, it would have required trial evidence on both the plaintiff and defense side to be “substantially the same”.
2. The bill would have given the defendant the right to bypass class counsel to communicate directly with class members to make a settlement offer directly to the defense. This would have bypassed and destroyed the attorney-client relationship. It would have also allowed the defendant to make low ball offers and use threats to force class members to disregard their counsel’s advice.
3. The bill would also have stayed discovery of the merits of the case until the class was certified. This provision ignores the fact that the discovery process allows plaintiffs the ability to prove the existence of a broader class by being able to identify potential class members.

Our office is pleased by the defeat of this bill. Tort Reform supporters fail to recognize the need for class action attorneys to represent the rights of numerous consumers who have been wronged by the illegal acts of large companies. The importance of class action attorneys has been heightened in recent decades due to the reluctance of the government to enforce its’ own laws, leaving it to class action attorneys as “private attorney generals.”

If there is an objection to class action attorneys being paid for their services, it should be that we–as taxpayers–have already paid the government to do the job through our taxes and they have failed to do so.

California Judges Corrected on Application of Controversial Collateral Source Exception

California judges recently received better guidance for how and when to apply a controversial exception to the collateral source rule, a rule that permits California injury victims to recover the full amount of medical bills incurred following an accident even if paid by a source other than the person who caused the accident (a “collateral source”).

The clarification recently came through the editing of citations in the California Judicial Council Judges Benchbook, a reference source for judges hearing California personal injury cases. The edit makes it clear that defendants are not entitled to a post-trial reduction hearing. Rather defendants must meet a specific exception to the collateral source rule for the trial court to consider holding a post-trial reduction hearing.

Nevada May Lift Medical Malpractice Damages Cap; Should California Do the Same?

Well, it looks like the Nevada Medical Malpractice Reform Law may not see its’ fifth birthday–or at least its’ damage cap provision may not. Nevada legislators are considering overturning or raising the $350,000 cap for “pain and suffering” damages arising from medical malpractice.

The reason? Recent scandalous, unethical, and dangerous behavior by doctors in the state have led legislators to realize that damage caps hurt consumers while protecting negligent doctors.

We’ve taken a look at these developments and what it might mean for California’s MICRA damage cap of $250,000.

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Resources: https://en.wikipedia.org/wiki/Medical_Injury_Compensation_Reform_Act

One of Tort Reform’s Biggest Lies Disproved….Again

We’ve written twice now about Oklahoma’s current tort reform efforts led by Republican Senate President Pro Tem Tom Glenn Coffee (R–Oklahoma City), a former medical malpractice defense lawyer.

One of the big myths leading the Oklahoma tort reform movement and tort reform, in general, is that without tort reform, doctors will flee to other jurisdictions with tort reform. The argument goes that with tort reform, medical malpractice insurance rates go down and attract doctors–while high insurance rates drive doctors away.

The problem is that the data does not support the myth. That is the case again in Oklahoma. According to this Edmond, OK news story, the number of Oklahoma doctors is increasing even while the tort reform movement is claiming they are fleeing. In addition, the doctor-owned medical malpractice insurance carrier, Physicians Liability Insurance Company, is in the best financial shape in its three-decade-long existence. The company is posting record profits and will be the clear winner if the Oklahoma tort reform bill passes limiting injured medical patient’s right to be compensated for injuries caused by their professionally negligent doctors.

Like any political issue, it is always important to look and investigate the real data underlying the tort reform movement. Is there a real reason to substantially limit injury victim’s right to justice? If so, what is the purported benefit? And, last, is that benefit worth the cost? In almost all cases, the answer to these tort reform questions is “No”.

If you or any of your loved ones have been injured or killed due to medical malpractice, contact San Diego medical malpractice lawyer and the San Diego personal injury attorneys.

Oklahoma Tort Reform Measure Revisited

Clayton Hasbrook, an Oklahoma City personal injury lawyer with the law firm Hasbrook & Hasbrook, recently cited our blog and our post about the Oklahoma Tort Reform bill.

Given that he represents the very people this bill will affect, Clayton has some strong opinions about the bill.

Oklahoma Tort Reform: An Unfounded and Misguided Attack on Injury Accident Victims

About a month ago, we wrote about the emerging and ongoing efforts by Oklahoma Republican legislators and former medical malpractice defense attorney and Oklahoma Senate President Pro Tem Glenn Coffee (R-Oklahoma City) to initiate a new batch of tort reform measures. In our post, we argued that the Oklahoma tort reform plan does not go far enough because it does not require doctors to take substantive positions regarding their own negligence.

However, the Oklahoma tort reform measure keeps growing additional reform measures–all of which hurt Oklahomans and are being sold to the public as a way to prevent “greedy plaintiffs’ lawyers” from profiting from “frivolous lawsuits”. Never mind the fact that the job of barring frivolous plaintiffs from recovering is the role of the insurance defense lawyer and judge, not the Oklahoma legislature.

The most recent Oklahoma tort reform attacks include special class action rules for lawsuits brought against tobacco companies, a cap on non-economic damages (also known as “pain and suffering”) at $300,000, expert certification before a lawsuit can proceed, and requiring consumers to “opt in” rather than “opt out” of class action litigation.

One of the more egregious tort reform measures interferes with an injury accident victim’s ability to find a lawyer by placing compensation restrictions on that attorney. Contingency fees, meaning fees which are only collected upon a successful completion of litigation, are capped at 33 percent of the first $1 million dollars recovered under the proposed measure. For higher awards, the contingency fee award is limited at 20 percent.

While some may not appreciate the effect the contingency fee cap would have on the civil justice system, I can personally tell you that the proposed cap would make it nearly impossible, if not completely impossible for some people with legitimate injury accident claims to find an attorney. A contingency fee arrangement allows someone who cannot afford to hire an attorney at $300 or $400 per hour (rates normally charged by insurance defense counsel, and paid by insurance companies to defend lawsuits) to hire an attorney. A contingency fee spreads the risk of failure from the client alone to both the client and his attorney. The rate charged reflects the anticipated value of services provided to the client (as well as the risk of failure) relative to the anticipated value of the case. It is not unusual for lawyers in simple, straightforward claims to charge less than 33%. Similarly, it is not unusual for lawyers in far riskier cases to charge as much as 40-50% for their fees. The fluctuation in the rate reflects the additional risk that the attorney might not ultimately be paid for his time.

What happens if the rate is artificially capped? Injury accident victims in riskier cases might not be able to find an attorney on a contingency fee basis because the anticipated risk calls for a fee that is higher than the capped rate set by the legislature. In those cases, lawyers might decline a contingency fee relationship and propose an hourly fee arrangement that most injury accident victims simply cannot afford.

Meanwhile, like all tort reform measures, the Oklahoma tort reform bill does not place any additional restrictions or requirements upon insurance companies or insurance defense counsel regarding their fees. Insurance companies can still pay however much they decide is appropriate to hire the best legal defense team they can. This is simply not fair and Oklahomans bear the sole cost of this unfairness.

If you live in Oklahoma, write to your governor and legislator and inform them that you do not support the Oklahoma tort reform bill.

Oklahoma Tort Reform: An Unfounded and Misguided Attack on Injury Accident Victims

About a month ago, we wrote about the emerging and ongoing efforts by Oklahoma Republican legislators and former medical malpractice defense attorney and Oklahoma Senate President Pro Tem Glenn Coffee (R-Oklahoma City) to initiate a new batch of tort reform measures. In our post, we argued that the Oklahoma tort reform plan does not go far enough because it does not require doctors to take substantive positions regarding their own negligence.

However, the Oklahoma tort reform measure keeps growing additional reform measures–all of which hurt Oklahomans and are being sold to the public as a way to prevent “greedy plaintiffs’ lawyers” from profiting from “frivolous lawsuits”. Never mind the fact that the job of barring frivolous plaintiffs from recovering is the role of the insurance defense lawyer and judge, not the Oklahoma legislature.

The most recent Oklahoma tort reform attacks include special class action rules for lawsuits brought against tobacco companies, a cap on non-economic damages (also known as “pain and suffering”) at $300,000, expert certification before a lawsuit can proceed, and requiring consumers to “opt in” rather than “opt out” of class action litigation.

One of the more egregious tort reform measures interferes with an injury accident victim’s ability to find a lawyer by placing compensation restrictions on that attorney. Contingency fees, meaning fees which are only collected upon a successful completion of litigation, are capped at 33 percent of the first $1 million dollars recovered under the proposed measure. For higher awards, the contingency fee award is limited at 20 percent.

Will Schwarzenegger and GOP Hurt Californians With Tort Reform?

We’ve written about the misguided instrument known as tort reform that is intended to help protect society from runaway litigation costs, but really only helps irresponsible companies and people from having to pay for the full extent of the damage they cause for others.

California is no stranger to tort reform measures, such as MICRA, which has been a boon to insurance companies in reducing their risks while still permitting them to charge exorbitant rates to doctors to protect them from medical malpractice claims. Now, in an effort to solve the California budget shortfall, Governor Schwarzenegger and the Republicans in the legislature are trying to force tort reform measures into law.

The most destructive of these measures is the implementation of a damages cap on pain and suffering. Damage caps are arbitrary and, in my opinion, illegally remove authority from jurors to determine appropriate damages in a civil case. The arbitrariness of damage caps is made even worse when the cap is set at a ridiculously low level–$250,000 as proposed by the Governor.

The Governor’s attempt to balance the budget on the backs of the injured is misplaced and unfair.

The Arbitrary and Unfair Impact of Tort Reform

Earlier today, my friend and New York medical malpractice attorney, Gerry Oginski posted on Facebook to a New York medical malpractice verdict against a podiatrist. The verdict was noteworthy in that the jury awarded $3,000,000 for the victim’s pain and suffering ($1.5 million for past pain and suffering and $1.5 million for future pain and suffering).

This sparked a discussion amongst several lawyers from throughout the country about how inequitable tort reform laws are to the victim solely because of where they choose to live or receive medical treatment.

In New York, there is no tort reform cap on pain and suffering damages. Therefore, the $3,000,000 verdict, so long as it is supported by evidence, will not be reduced. However, here in California, we have MICRA–California’s tort reform measure which places certain limits and requirements on medical malpractice lawyers and their injured clients. Specifically, the California legislature has placed a cap on pain and suffering at $250,000. It does not matter how badly injured you are, whether you need constant medication to live with moderate pain for the rest of your life, had 2 wrong limbs amputated, etc. California has decided that under NO circumstances is anyone’s pain and suffering worth more than $250,000 when injured by a doctor.

So, let’s assume that we have 2 people who have suffered the same injury and have the same prognosis. The only difference is that one was injured by a New York doctor and the other by a California doctor. The former victim will get compensated $3,000,000 for his pain and suffering while the other will only recover $250,000.

That is just not fair or right.

The tort reform mess gets even worse in other states, such as in Indiana. In the Hoosier State, total damages are capped at $1.25 million for all damages. This is true even if current and future medical treatment exceed $10 million and lost wages are $3 million or more.

This inequality in results, based solely on geographic location where the injury occurred, cannot stand. Tort reform has created this and many other unfair results for injured people, all in the name of saving society from runaway litigation costs–which have been proven time and time again not to exist.

One of these days, the public will hopefully wake up and rescind these unfair tort reform laws. Until then, these unequal results will continue.

The Oklahoma Expert Certification Tort Reform Bill: A Good Idea or Does It Not Go Far Enough?

The Oklahoma legislature is currently considering a tort reform bill that would require people wishing to file a civil lawsuit for professional negligence (medical malpractice, accounting malpractice, legal malpractice, etc.) to obtain and attach an affidavit that the person has consulted with a qualified expert who has reviewed the facts of the case. The bill addresses all professional negligence but there can be no doubt that its’ main goal is to reduce the number of medical malpractice lawsuits by prohibiting lawsuits without expert support.

The affidavit must include a statement that the expert has provided a written opinion to support the allegation of professional negligence. If the affidavit is not filed, the lawsuit may be dismissed.

The bill, House Bill 1570, is similar to a bill vetoed by Oklahoma’s governor last year. Six states, including Georgia, Minnesota, Missouri, Nevada, New York, and Pennsylvania, already require expert certification before filing a professional negligence lawsuit. The cost of having an expert review medical records and provide a written opinion can cost anywhere from $1,000 to $5,000 in most cases. The news story cites an example where an expert charged a medical malpractice victim $12,000 for his pre-litigation expert opinion.

The NewsOK.com news story prompted me to post a provocative tweet on Twitter, which then received several comments from Walter Olson of the legal reform website Overlawyered.com and Chris Davis of the Seattle personal injury law firm, the Davis Law Group.

My original opinion was that the Oklahoma expert certification bill is actually a good tort reform idea because it only requires an injured person to obtain a supporting expert opinion prior to filing suit–something any good and responsible medical malpractice attorney do. To prevail in a claim of medical malpractice, the person alleging the injury must prove that the doctor breached the professional standard of care for their field and that this breach actually caused the injury. To do this, an expert witness in the same field as the defendant doctor must be hired to review the medical records of the injured patient. While the bill places a burden on the injured patient’s right to access to the courts, it merely requires what careful and prudent medical malpractice lawyers already do.

On the other hand, is the Oklahoma legislature ignoring a second equally obvious method of expert certification which would further reduce the waste caused by “frivolous” lawsuits.

In response to my original Twitter post, Chris Davis suggests that the Oklahoma legislature also require defendant doctors obtain expert certification that they did not breach the professional standard of care. In other words, what is good for the goose is good for the gander. Mr. Davis points out, rightly so, that a great deal of time, money, and resources are wasted in litigation fighting “frivolous defenses” created by the defendant to muddy the waters at trial. Remember, the injured patient bears the burden of proof at trial. It is a tried and true defense tactic to “throw mud” at trial–to raise irrelevant but upsetting facts–in the hopes the jury will be so confused that they will find for the defendant doctor. Much of the discovery process is spent trying to eliminate as many of these frivolous defenses as possible.

By eliminating the frivolous defense of claiming that the defendant doctor did not commit malpractice–perhaps along with an attorneys’ fees and cost penalty against the doctor if a jury found that the doctor had indeed committed malpractice–the scope of disputed issues would be greatly eliminated, saving litigation costs and judicial resources.

Perhaps the Oklahoma legislature should be encouraged to go one step further in its’ tort reform efforts.