Last week, Toyota, Honda, Nissan and Mazda issued a recall on more than 3 million vehicles because of defective airbags. Auto makers have long denied major issues with airbags. In the 1990′s, Booth & Koskoff handled airbag cases where small children were killed by deployed air bags. It’s shocking that the article below is still relevant, years after it was published. (more…)
News
New Requirement Re: Justifying Privilege Objections
Until recently, when a party in litigation refused to produce certain documents on the grounds of privilege or work product, the opposing party was often left to wonder what exactly was being withheld and whether one or more of the withheld documents might be a “game changer” in the case. Sometimes the responding party would provide a privilege log, describing the responsive documents that it was not providing, but it was never clear whether this was required.
Fortunately, the California legislature has now attempted to remedy that situation. Code of Civil Procedure section 2031.240 has been amended, effective January 1, 2013, to now require that “[i]f an objection [to a request for production] is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” CCP 2031.240(c)(1).
Although the new requirement does not specify exactly what “factual information” is required and does not necessarily require a privilege log in every instance, it is now at least clear that making a blanket objection to a request for production on the grounds of privilege or work product is insufficient. It is fairly clear that the responding party has to make some effort to identify the specific document(s) that are being withheld. That should give the propounding party some basis for determining: (a) what is being withheld, (b) whether the claim of privilege or work product appears, on its face, to be valid and (c) whether a particular document being withheld seems to be important enough in the scheme of things to justify a motion to compel.
Categorized under: practicing personal injury law in california
$5 Million Settlement in Truck/Bicycle Collision Case
On December 16, 2011, a 63-year-old gentleman was riding his bicycle down Figueroa St. in Carson when a large tractor-trailer suddenly made a left turn and collided with him. The bicyclist sustained a major traumatic brain injury.
Shortly thereafter, the injured person’s sister and conservator hired us to pursue a personal injury case against the truck driver and his employer, a medium-sized trucking company. Although the wheels of justice often spin slowly in catastrophic injury cases such as this, and quick settlements are usually bad settlements, our goal was to obtain both a quick and a good recovery for our client, so that he could benefit from the funds before it was too late to do him any good.
We filed and served a lawsuit right away. It soon became apparent that defense counsel were inexperienced and did not appreciate the magnitude of the case or the risk that it posed for the insurance carrier and clients that they represented. In response to interrogatories requesting the amount of liability insurance applicable to this case, defendants responded that they had a single $1 million policy. Our own independent research suggested that there might be more coverage. So we followed up with additional discovery directed at the issue of coverage, including a notice of deposition of the trucking company’s owner. After much hemming and hawing, defendants finally conceded that, in addition to the $1 million policy that they had already identified, there was a $4 million umbrella policy as well.
The next step was to set up the case for either a policy limits settlement or a verdict at trial in excess of policy limits. Here again, defense counsel’s inexperience became apparent when they initially scoffed at the notion that the case was worth anywhere near the policy limits. To remove any doubt about that, we hired several top-notch damages experts and provided defense counsel (long before expert discovery was set to begin) with a life care plan, our economist’s report calculating the present value of the life care plan, a day-in-the-life video and a medical illustration detailing the extent of the plaintiff’s brain injury. We followed this with a CCP 998 offer to compromise for $5 million.
Defense counsel objected to the 998 on the grounds that it was premature because they had not yet had the opportunity to obtain certain information regarding damages. To put that argument to rest, we agreed to depositions of experts and other damages witnesses, as well as several defense medical examinations, on shortened notice.
At this point, defendants’ carrier had an important decision to make. If it rejected or ignored the 998, this would “open up” the policy limits. If we ultimately obtained a verdict at trial in excess of $5 million, the carrier would likely be responsible for the entire award. No insurance adjustor wants to be in a position where he has to tell his boss that the case that they could have settled for $5 million is now going to cost them $10 million.
Although defendants of course had their own take on damages, and their projections of economic damages were clearly going to be much lower than ours, the information that we had provided to them regarding damages (basically a full work-up of the case for trial) made it difficult to avoid the conclusion that a verdict in excess of $5 million was a very real possibility.
In a last ditch effort to avoid this difficult decision, defense counsel requested that we attend a mediation before the expiration of the 998. We declined. Our position was that the case was worth more than the policy limits, and the 998 was merely a necessary step to “open up” the policy. We were kind of hoping they would not pay the 998, so that we could seek the full value of the case at trial. In short, unless the defense wanted to pay more than the policy limits, there was nothing to negotiate.
When the deadline arrived, defendants finally accepted reality and agreed to pay the $5 million policy limits. The settlement was reached less than nine months after the accident.
Our client remains in a skilled nursing facility and is unable to speak or care for himself. However, he now recognizes and responds to his family and caregivers. The settlement has provided him with the funds necessary to pay for all of his future care, including care that goes well beyond what the facility itself provides. This will make his life considerably more comfortable, likely increase his life expectancy and remove any financial burden for his care from his family.
Had we followed the conventional path of getting all our ducks in a row before filing a lawsuit and then waiting until the last couple of months before trial to fully work up damages, the case might still have settled for $5 million, but it would have taken much longer. The plaintiff’s care would have needlessly suffered in the meantime, and his condition likely would have deteriorated.
Five Keys to Success in Dangerous Roadway Cases
The most recent issue of the Advocate, the publication of the Consumer Attorneys Association of Los Angeles, includes an article by Roger Booth entitled, “ Five Keys to Success in Dangerous Roadway Cases.” This article is based on the $4 million verdict that we obtained earlier this year in a dangerous roadway case against the County of San Diego.
Don’t Procrastinate When It Comes to Hiring Experts
The following is an excerpt from a brand new chapter on experts in the latest edition of our Personal Injury Handbook. This excerpt concerns the importance of hiring experts early in litigation.
“It is generally a mistake to wait until the last couple of months before trial to select and retain an expert. There are certainly situations in which the need for a particular expert does not arise until late in the game, but more often than not, delay in securing the right expert is simply a result of procrastination. An expert hired early on can assist in these areas:
Identify strengths and weaknesses. A good expert can help you identify the strengths and weaknesses of your case. You may learn through consultation with an expert that a particular case should not be brought at all. Better to learn that early than late.
Guide discovery. A good expert can also help guide your discovery by giving you a list of information that he or she will need in order to render an opinion. An expert may be able to point you towards industry standards that will provide good material for depositions of defense witnesses.
Resolve damages issues. Getting physicians and other damages experts lined up early will help you identify and resolve difficult damages issues long before the defense has even given much thought to these issues. Having all your ducks in a row on damages early on will be a huge asset in trial preparation and in settlement discussions. You will be able to proceed with the confidence of knowing the real value of your case.”
To order a copy of the Personal Injury Handbook, see the James Publishing website.
L.A. Superior Court Goes Back to the Future
In response to the budget crisis that is impacting all aspects of state government, the Los Angeles Superior Court announced several weeks ago that it will be closing ten courthouses. More recently, the court has quietly announced some major changes to the way it will handle personal injury (“PI”) cases going forward. These changes are expected to go into effect over the next six months.
- All PI cases (including wrongful death and medical malpractice cases) will have to be filed downtown in the Mosk courthouse and will be assigned to one of two master calendar (“MC”) courtrooms. It is anticipated that each MC judge will have some 8,000 cases under his or her jurisdiction.
- A PI case can be transferred to an individual calendar (“IC”) courtroom in a branch courthouse only if a party can show that the case will be too “appearance heavy” to be practically handled in an MC courtroom. Another way to get out of a MC courtroom is for a case to be deemed complex and assigned to a complex litigation judge in Central Civil West.
- When a PI case is filed, a trial date and final status conference date will be automatically assigned. Thereafter, the MC department will exercise little oversight with respect to each case until it comes up for trial. The MC judges will no longer monitor service of complaints and will no longer hold case management conferences.
- When a PI case comes up for trial, it will be assigned to a trial department, which could be either downtown or in a branch courthouse.
- Limited jurisdiction PI cases will be handled by two additional MC judges downtown.
- Court-run ADR programs will be completely discontinued.
- Judges and commissioners in trial courtrooms will “specialize” in only one or two types of cases.
- There will be geographic “hubs” for certain types of cases.
- There will be no court reporters provided by the court for civil cases.
- More courtrooms will be closed.
It is too early to know exactly how this new system will operate, but it’s clear that it will be a major departure from the system that we’ve known for the past 20 years, and it’s likely to be a longterm change. We’ll learn a lot when we start filing lawsuits and getting trial dates assigned. We’ll learn even more when cases start coming up for trial and we see how backed up the trial departments are. Some of us remember the old days, before fast track and IC courtrooms, when it would routinely take almost five years from the date of filing to get a case to trial. Hopefully, the new system, by streamlining the litigation process, will avoid that sort of delay.
If you were thinking about getting into the ADR business, now would probably be a good time to do it. Expect a huge boom in binding arbitrations, mediations and the use of private discovery referees and special masters, as the L.A. Superior Court largely exits the business of monitoring PI cases between filing and trial and completely exits the ADR business.
In large PI cases, I would expect that a recurring issue is going to be whether cases qualify as complex or the more nebulous “too appearance heavy” designation, which would allow a case to be transferred to a complex or IC judge. It remains to be seen how difficult it will be to get cases out of the MC departments downtown.
All of us who handle PI cases for a living will need to adapt our litigation strategies, and our business plans, to the new system. Stay tuned . . .
Personal Injury Handbook Revisited
We have substantially revised our practice guide Personal Injury Handbook (James Publishing). The revised version includes, among other things, a new chapter on experts and substantially revised chapters on discovery, trial and sexual abuse cases. For more information, see the James Publishing website.
Medicare Set Asides – Coming to a Civil Case Near You
For years, I had heard about Medicare Set Asides (“MSA’s”), without really quite understanding what they were or whether I needed to pay any particular attention to them. It seemed that MSA’s were something that workers’ compensation lawyers dealt with and that, at least for the time being, I could safely ignore them. Well, that time of blissful ignorance has come to an end.
An MSA is actually quite simple. You start with the concept that, where a negligent third party has caused a plaintiff to suffer an injury and that plaintiff is a Medicare recipient (or will soon become one), Medicare is considered a “secondary payer” with respect to any medical expenses incurred by the plaintiff. In other words, federal law requires that the negligent third party pay the plaintiff’s medical expenses, as much as possible, without requiring that taxpayer money be spent. This applies to both past medical expenses and future medical expenses caused by the third party’s negligence.
As a result of recent statutes and regulations, there are harsh penalties for parties (including insurance companies) who fail to take appropriate steps to protect Medicare’s interests, i.e., ensure that the third party (not Medicare) pays the medical expenses caused by the subject incident. With respect to past medical expenses, Medicare’s interests are protected by its assertion of a lien against the settlement amount. With respect to future medical costs, Medicare’s interests are typically protected through an MSA.
An MSA is an amount of money that is carved out of a settlement and placed into a separate account to pay for the plaintiff’s future medical care that would otherwise be covered by Medicare. There are private firms (we have used Gould & Lamb, based in Florida) that are in the business of preparing MSA’s. The process is much like preparing a life care plan. The person preparing the MSA (typically a nurse) reviews the plaintiff’s medical records and estimates the type of medical care (and the cost of that care) that the plaintiff will require throughout his lifetime. The next step is to determine how much of that care would be covered by Medicare. Finally, an estimate is made of the plaintiff’s life expectancy. The amount of the MSA then consists of the total of the Medicare-covered medical expenses that are expected to be incurred by the plaintiff over his lifetime.
Once the MSA is set up, it must be administered, typically by a private firm (such as Gould & Lamb). Administration essentially consists of investing the MSA fund, paying for applicable medical care and keeping detailed records of those expenditures. While MSA’s are not technically required in personal injury settlements, the risk of not doing one is that Medicare will take the position that its interests were not adequately protected in connection with the settlement. It could then go after the plaintiff’s entire net settlement funds, or go after the defendant or its insurer, to seek to recover any medical expenses that Medicare has paid that, in its opinion, should have been paid from the settlement funds. That could result in a real disaster if funds that a plaintiff is relying on to pay necessary living expenses are suddenly required to be paid to Medicare.
In cases in which the size of the settlement far exceeds the size of any MSA that would reasonably be required, the MSA can perhaps safely be dealt with after the case settles. However, where there is a concern that the MSA could swallow up most or all of the plaintiff’s net settlement proceeds, it would be prudent to have an MSA prepared before mediation, or other settlement discussions, so that the plaintiff’s attorney can ensure that any settlement is large enough to encompass the MSA, attorney’s fees and litigation costs, and a reasonable net settlement to the plaintiff.
Duty to advise clients of collateral claims
In Nichols v. Keller (1993) 15 Cal.App.4th 1672, the court held that a workers’ compensation attorney has a duty to advise a client of any potential remedies that he has,including a potential third party action arising out of his workplace accident. A recent L.A. Superior Court verdict (read here) illustrates the potential consequences that can befall an attorney who neglects that duty. In this case, the jury found that a workers’ comp attorney had committed malpractice by failing to advise his client of a potential third party toxic tort claim against the manufacturer of chemicals to which the claimant was exposed in her workplace. The jury found the lawyer-defendant liable for $2,187,600 (the value of the unfiled toxic tort case).
This verdict underscores the importance for all of us of advising clients, not just as to the claims for which we have been hired, but any other potential claims that might arise from the circumstances that caused their injuries. In the workers’ comp context, this often means referring the client to a lawyer who specializes in the type of third party matter that might be involved. Even if no viable third party claim is apparent on the surface, it is hazardous to make that assumption or even to have the client sign off on her willingness not to pursue the third party claim, without getting an outside opinion. If, after obtaining that opinion, a decision is made not to pursue the third party claim, then the client should certainly be asked to sign a document confirming his agreement with that course of action, so that there can be no confusion later on.
This principle of course applies outside the workers’ comp context as well, whenever a lawyer takes on a matter where there are potential claims that go beyond the lawyer’s area of expertise. Because specialties in law are not always as well-defined as in medicine, lawyers (unlike doctors) don’t always think about the importance of bringing in outside “specialists,” but this practice is no less important in the legal arena. Moreover, even if one has the expertise to evaluate (and reject) a potential collateral claim that the client might have, it is important to advise the client of the existence of that potential claim and obtained his written consent before deciding not to pursue it.
Personal Injury Handbook favorably reviewed
Our recently-published practice guide, Personal Injury Handbook (James Publishing), received a very favorable review in the Advocate magazine, published by the Consumer Attorneys Association of Los Angeles.
Read more.
