Catastrophic/Personal Injury

Transcription

1 Catastrophic/Personal Injury Personal Injury Litigation RMKB s litigators have defended personal injury claims for more than 50 years. During this time, they have developed an excellent reputation for defending clients against alleged motor vehicle negligence, slip and fall claims, work site injuries, premises liability, nursing home abuse, various forms of wrongful death and other catastrophic injury claims. Successfully defending these claims requires active investigation, thorough preparation and skilled negotiation. RMKB lawyers have extensive courtroom and trial experience, which can be not only useful to effectuate very favorable settlements on behalf of clients during mediation or other ADR forums, but are also absolutely critical when plaintiffs demands are unreasonable and a case proceeds to trial. Over the years, RMKB attorneys have also assembled a broad database of consultants and expert witnesses in different engineering and medical fields. Working within the parameters of a well-defined, economically responsible defense is a unique skill ingrained in RMKB s attorneys and staff. Catastrophic Injury Litigation These cases, often presenting multi-million dollar risk, can create exposure beyond policy limits or, in the commercial context where insurance might not apply, create the possibility of a significant financial setback for a client. Such actions typically involve life-altering injuries, e.g. spinal cord and brain trauma, wrongful death or, in the commercial context, large projects that have gone awry. RMKB has developed a team and method to efficiently handle these catastrophic actions from their inception. The firm s long history in litigation, with such practice areas as product liability, premises liability, medical malpractice and construction defect has led to development of seasoned trial lawyers with precise legal expertise, access to top experts and data management techniques that allow for quick organization of a case handling plan. This plan is immediately reviewed with the client and implemented. Staffing levels are determined and reviewed according to need. We prepare realistic budgets and make liability assessments at the start of the case to allow for early decisions whether the action should be tried to verdict or settled at an advantageous point.

2 RMKB s lawyers work closely with our clients to review these litigation plans as discovery changes factual assumptions or liability assessments. At critical stages, the case-handling attorney can convene a round table discussion with catastrophic injury team members not directly involved in the case to review the progress of the action, what needs to be done to fully prepare it, and its likely outcome. Throughout case handling, the firm s appellate lawyers are available to provide insight into the impact of legal precedents or an opinion on a key evidenciary issue. RMKB s attorneys pride themselves on being result-oriented. This approach and their experience in catastrophic cases make a significant difference in the successful handling of the large exposure case with risks that require special management. Representative Experience Attorneys: John A. Koeppel Key Issues: Personal Injury; Wrongful Death Venue: San Francisco County Superior Court Client Type: Defendant Ground Transportation Service Description: Defended a ground transporation service in an action involving a high speed auto accident involving two pedestrians in inclement weather. The case included a wrongful death action and a personal injury action for an individual who suffered a brain injury and disabling, crushing injuries to his legs. Our firm was retained six weeks before trial, after expert disclosure. Review of medical records indicated both pedestrians were under the influence. Working with an accident reconstruction expert and photographic reconstruction expert, the defense visually recreated the scene of the accident under comparable rain conditions. We also unilaterally disclosed and deposed a toxicologist regarding the intoxication issue. The plaintiffs' demand totaled $10,000,000, representing our primary and excess limits. At mediation, our experts narrated the film reconstructing the accident and we highlighted the deposition testimony of our toxicologist. Result: The action eventually settled for approximately 20% of the original demand. Attorneys: James C. Hyde, Julian Pardo de Zela Key Issues: Personal Injury; Privette; General Contractor's Affirmative Conduct Venue: Santa Clara County Superior Court Client Type: Defendant Google Inc. Description: Defended Google Inc. in a personal injury action whereby plaintiff alleged injury arising from the negligent maintenance and repair of an elevator on the owner's premises. Result: Successfully obtained summary judgment on plaintiff's first cause of action for premises liability (negligence), and second cause of action for negligence (under heightened duty of care owed by a common carrier). The trial court found that under the Privette case, Google had not affirmatively contributed to plaintiff's injury, thereby disposing of the first cause of action. The trial court further concluded Google was not operating as a common carrier because the premises was not open to the general public and Google was not receiving a reward for its use.

3 Attorneys: James C. Hyde Key Issues: Negligence, Personal injury Venue: Alameda County Superior Court Client Type: Defendant Software Company Description: The plaintiff, a journeyman electrician, worked for an independent electrical contracting company. The company had been providing on-site electrical services at defendant s Milpitas site for many years. Plaintiff was working with his co-worker and fellow journeyman electrician on replacing a damaged circuit breaker in an energized 3000 amp distribution panel. The plaintiff's partner was using an uninsulated screwdriver that came in contact with a copper bussing resulting in an arc flash explosion that severely injured plaintiff. The plaintiff claimed failure of proper maintenance and negligence. He further claimed that under the multiple employer workplace doctrine he was a statutory employee of defendant and that defendant was negligent per se for violation of various electrical safety orders. Result: The jury returned a defense verdict after four and one-half hours, rejecting both the negligence and employer/negligence per se theories. The plaintiff's settlement demand prior to trial was $7.5 million. The demand was reduced to $4.2 million following the cross-examination of plaintiff's liability expert. The defendant made a $400,000 statutory offer to compromise prior to trial. Attorneys: Devin C. Courteau, John G. Dooling Key Issues: Scaffold; General Contractor; Swing Stage Scaffold Venue: California Superior Court, County of San Francisco Client Type: Defendant General Contractor Description: Defended a general contractor in a lawsuit in which the plaintiff was injured while walking on a sidewalk in a commercial district of San Francisco when she was hit by a wood plank that fell from the canopy of a scaffold 20 feet above. The plank was part of the canopy, but was dislodged when the employees of the sub-contractor that supplied a swing stage scaffold (akin to a window washer's rig) were moving the swing stage from one drop to the next, hitting the plank with one of the swing stage's casters. The plaintiff suffered a fractured clavicle and a T8 burst fracture, and filed suit against the property manager, the scaffolding subcontractor, the swing stage scaffolding subcontractor and our client, seeking damages far in excess of $1 million. Result: The matter settled shortly before trial, with our client contributing less than one-third of the settlement amount. Attorneys: Kevin P. Cody Key Issues: Was the Client's Taping Tool Defective? Was the Tool the Cause of Plaintiff's Injuries? Client Type: Defendant Manufacturer of Drywall Taping Tools Description: Defended a manufacturer of drywall taping tools in a suit in which the plaintiff, a drywall worker, suffered a career-disabling back injury when he slipped and fell while working on a job site. The plaintiff alleged that our client's taping tool was defective in that its poor design allowed excessive amounts of drywall mud to

4 that our client's taping tool was defective in that its poor design allowed excessive amounts of drywall mud to leak from the tool, and caused him to slip and fall, injuring his back which required multiple surgeries to repair. Our client argued that the tool was not defective and that the plaintiff's poor technique in applying the drywall mud allowed excessive mud to drip onto the floor. Result: After settlement negotiations were unsuccessful, the matter was tried to a jury and the jury returned a verdict in favor of our client. Attorneys: Kevin P. Cody Key Issues: Was the Client Negligent in the Maintenance of an Apartment Building he Owned? Venue: Santa Clara County Superior Court Client Type: Defendant Apartment Owner Description: Defended an apartment owner in a matter in which the plaintiff, a very sympathetic minor, claimed that the third degree burns she suffered on both hands and both feet were the result of our client's negligence in the maintenance of his property. Specifically, the plaintiff alleged that our client, rather than buy more water heaters or a water heater with greater capacity, turned the setting on the single water heater that served the apartment complex up to a dangerously high temperature which resulted in her third degree burns when exposed to the water in a bathtub. Our client denied the plaintiff's allegations and maintained that the plaintiff's injuries were solely the result of the plaintiff's mother's neglect in caring for the plaintiff. Result: Our client offered $100,000 to settle. However, due to the plaintiff's $1,000,000 demand the matter was tried, in December just before Christmas, to a jury. The jury returned a verdict in favor of the client. Attorneys: Kevin P. Cody Key Issues: Was the Client Negligent in the Operation of its Extensive Conveyor Belt System? Did the Client Breach a Non-Delegable Duty Owed to Plaintiff? Venue: Santa Clara County Superior Court Client Type: Defendant National Delivery Provider Description: Defended a national delivery provider in a matter in which the plaintiff, a maintenance worker, sued contending that our client was negligent in the operation of its conveyor belt system used to sort packages. As a result, while the plaintiff was cleaning a belt he expected would not be in operation, the belt was activated and the plaintiff's foot was crushed in one of the large rollers that moved the belt. Our client maintained it was not negligent as the system was equipped with warning devices and the plaintiff's injury was solely the result of the plaintiff's employer failing to properly train the plaintiff. Result: After multiple attempts to settle the matter, it was tried to a jury and the jury returned a verdict in favor of our client.

5 Attorneys: Thomas H. Clarke, Jr. Key Issues: Personal Injury; Toxic Tort Venue: Los Angeles County Superior Court Client Type: Defendant Municipallity Description: Currently defending a municipality in a personal injury and property damage matter composed of six coordinated cases involving 1,138 plaintiffs. Our client is one of two defendants accused of being the cause of the alleged harm. The matter involves, among other accusations, contamination of drinking water resources in the Pomona region of Southern California. Result: The matter currently is in litigation. Following extensive motions, the Superior Court dismissed 26 of the plaintiff s 28 courses of action against our client. Recently, the court ruled in favor of our client and dismissed the entire case. The plaintiffs have appealed. Attorneys: Thomas H. Clarke, Jr. Key Issues: Personal Injury Venue: Los Angeles County Superior Court Client Type: Defendant Manufacturer Description: Currently represent one of several dozen defendants accused of contributing to contamination of drinking water aquifiers in the San Gabriel Valley of Southern California in a personal injury and property damage matter that is composed of six conslidated cases involving several thousand plaintiffs. Result: The matter is currently in litigation, and will go to trial in Attorneys: Kevin P. Cody Key Issues: Were the Clients Negligent in Their Supervision of a Construction Project? Was the Clients' Negligence the Cause of Plaintiff's Injuries? Was Plaintiff's Injury the Result of a "Peculiar Risk"? What Were the Extent of Plaintiff's Damages? Venue: Orange County Superior Court Client Type: Defendant Engineering Firm and Contractor Description: The plaintiff sustained life-threatening internal injuries when a water truck went out of control careening down a hill and struck the plaintiff's vehicle broadside. The plaintiff alleged that our clients, a project engineering firm and construction firm, were negligent in instructing the water truck driver to fill up with water at the top of a hill rather than at a location not requiring the heavily-loaded truck to descend a steep hill. The plaintiff also alleged that the reason the hill-top location was selected is that our clients were illegally drawing water without a permit. Our clients argued that the accident was the result of the water truck driver's failure to properly operate the truck and/or the failure of the driver's employers to train him in the operation of the truck. Result: After settling with the truck driver and his employer and after multiple settlement conferences in which the total offer to plaintiff was $2,000,000, the matter was tried to a jury and the jury returned a verdict in favor of the plaintiff. The plaintiff was awareded in excess of $3,000,000.

6 Attorneys: Dennis J. Ward Key Issues: Improper Management Venue: Santa Clara County Superior Court Client Type: Defendant Health Organization Description: The plaintiffs, parents of a 28 year old male, sued a federated organization made up of local and national organizations in voluntary association claiming that improper management of its premises resulted in the drowning of their son. Their son drowned in a Jacuzzi/spa, which had deficient warnings. Result: The case was tried for 14 days, resulting in a defense verdict. Attorneys: Scott W. Bermack Key Issues: pedestrian, parking lot, inadequate lighting, accident, brain injury Venue: NYS Supreme Court, Rockland County Client Type: Shopping Center Owner/Retailer Description: Won a defense verdict on behalf of a Rockland County (NY) shopping center owner blamed for a pedestrian knockdown accident in the parking lot. The pedestrian, who allegedly suffered from a traumatic brain injury in addition to numerous orthopedic injuries, claimed inadequate lighting and traffic control was to blame. After establishing to the satisfaction of the jury that the accident was entirely the fault of the pedestrian, a defense verdict was returned in favor of our client and the driver of the vehicle. Result: Defense verdict following two weeks trial. Attorneys: Tim M. Agajanian, Stephen M. Shaner Key Issues: Transportation; Personal Injury Venue: Los Angeles Superior Court - Central District Client Type: Transportation Company Description: Represented a national transportation company in a personal injury action after an employee struck a dock worker and caused severe injury Result: The matter was amicably resolved on terms favorable to our client Attorneys: Tim M. Agajanian, Pascale Gagnon, Alan J. Hart, Jeff W. Poole Key Issues: Brain Injury, Earning Capacity, Post Concussion Syndrome, PTSD Venue: Los Angeles County, Central District Client Type: Plaster and Paint Contractor Description: Plaintiff was injured when a plank of our client scaffolding inexplicably dislodged and fell on her head while she waited for her car after exiting from the restaurant where she had had dinner. The scaffolding had been erected to the establishment located next door to that where Plaintiff had been and had been left up at the end of the day upon the request of a representative of the owner of the restaurants, i.e., that where work was being performed and that where Plaintiff had been. Plaintiff claimed that she suffered a traumatic brain injury with ongoing and permanent symptoms preventing her to return to her premorbid occupation -- she was a licensed attorney, albeit unemployed since passing the bar, who was studying for her real estate license and

7 planning the opening of a juice bar. She claimed in excess of $5 million in economic damages, including loss of earnings, loss of earning capacity, past and future medical specials. Result: Settled for $650,00 three days before trial. Attorneys: Julian Pardo de Zela Key Issues: Premises Liability; Respondeat Superior; Vehicular Negligence Venue: Santa Clara County Superior Court Description: Defended a ranch owner from a multi-million dollar wrongful death action arising from an alleged employee s collision with a motorcyclist during the purported scope of the worker s employment. Result: Successfully obtained summary judgment for the ranch owner. The court concluded that the worker, even if deemed an employee of the ranch owner, was not operating his vehicle within the scope of his employment, thereby precluding liability under a respondeat superior theory. Attorneys: Stephan A. Barber Key Issues: Valley Fever; cocci fungal spores; coccimeningitis; disseminated cocci; grading; excavation Venue: Madera County Superior Court Client Type: Construction Contractor Description: Plaintiff was an ecologist working for an environmental consulting firm in Berkeley, CA retained by the Madera Irrigation District. Plaintiff's employer contracted with defendant contractor to construct vernal pools at the Madera Ranch in Summer, Vernal pools are temporary habitiats for certain species of animals and were constructed to take the place of habitats that were being destroyed by a water storage project. Plaintiff alleged she was exposed to airborne cocci fungal spores in the soil where the pools were constructed and that defendant was negligent in the manner in which it constructed the pools and how it controlled dust from its grading and excavation activities. Plaintiff claimed that this exposure caused her to contract a very serious case of "Valley Fever" or Coccidioidomycosis. Plaintiff claimed through her physicians that she had disseminated cocci with fungal infections in her lungs and coccimeningitis, that she was disabled from her employment, and that she would need to continue taking antifungal medications indefinitely and have multiple follow up blood tests and lumbar punctures. Result: The jury found in a 10-2 verdict that Clark Bros. was not negligent. Attorneys: John A. Koeppel Key Issues: Personal Injury; Construction Venue: Santa Clara County Superior Court; Unlimited Jurisdiction Client Type: Defendant Manufacturer Description: Defended a manufacturer in a case involving a permanent brain injury to a 40-year old chemical engineer who was working on site, at our client's plant, to install a new food processing line. The plaintiff fell approximately 10 feet to a concrete floor, striking his head. The plaintiffs included the victim, his employer and the employer's workers compensation carrier. The plaintiff also sued the steel fabricator responsible for the construction of the platform. To prepare for the trial, safety, economic and medical experts were retained. In addition, a mediator began to meet with the defendants at regular intervals to monitor the process of discovery,

8 addition, a mediator began to meet with the defendants at regular intervals to monitor the process of discovery, analyze prospective settlement negotiations and ensure the proper scheduling of a trial. Result: Our client paid 20% of a multi-million settlement. Attorneys: Terry Anastassiou, Dennis J. Ward Key Issues: Statutory interpretation, construction defect Venue: California Court of Appeal Client Type: Non-Profit Group Description: Appeal of judgment on jury defense verdict for client in suit by man who drowned in health club hot tub. Issues included detailed statutory and regulatory analysis and causation in context of stipulated negligence per se. Result: Judgment for client affirmed in published decision clarifying applicable regulations. Andres v. Mid-Peninsula YMCA (1998) 64 Cal.App.4th 85 Attorneys: Dennis J. Ward Key Issues: Catastrophic Injury; Negligence Client Type: Individual Description: The plaintiff, a 34 year old, fell over 25 feet striking, in part, his head. The fall was through a roof that had deteriorated because of lack of maintenance. There were four defendants and each defendant blamed each and every other defendant. Medical evidence indicated brain damage, and the plaintiff could no longer work in any position of significance. Result: The case settled eight days into trial. Our client did not pay any monies towards the settlement of $5 million. We obtained indemnity through a contract and an additional insured endorsement. In addition, we obtained reimbursement for our client of in excess of $250,000 in attorney fees and costs. Attorneys: Dennis J. Ward Key Issues: Wrongful Death Venue: San Mateo County Superior Court Client Type: Defendant Commuter Rail Line Description: The decedent was struck by a commuter rail line at a crossing. The decedent s parents sued for wrongful death, alleging among other things that the crossing was dangerous and improperly protected. After limited discovery, we were able to convince the plaintiffs' attorney that (1) the case was not one of liability and (2) client would not pay anything but a nominal amount to resolve. Result: The clients were dismissed in exchange for payment of $3, Had the case not resolved, litigation costs would have been over $125,000 to $150,000. Attorneys: Dennis J. Ward

9 Venue: Santa Clara County Superior Court Client Type: Defendant Individual Description: The plaintiff claimed multiple fractures to her spine (compression fractures), resulting from an automobile accident involving our client. Diagnostic studies confirmed the compression fractures, but the issue was whether the subject accident was the cause. Trial testimony included significant medical evidence. Result: In an interesting trial result, the jury returned a verdict in the amount of $30,000. The settlement offer prior to trial was $150,000, against a demand of $800,000. Attorneys: Dennis J. Ward Key Issues: Personal Injury; Mold Client Type: Defendant Apartment Complex Owner Description: Twenty-seven tenants of the defendant's apartment complex sued for personal injury and other damages resulting from exposure to mold. The medical claims ranged from transitory respiratory problems to allegations that the mold exposure caused asthma and other permanent respiratory conditions. We were able to convince the plaintiffs' attorneys to submit the matter to binding arbitration and to obtain a stipulation waiving punitive damages. Result: After collecting evidence for seven weeks, the arbitration began and settlement discussions were entered into. The case settled for less than the authority given. The client did not pay any money out of pocket toward the settlement. Attorneys: Devin C. Courteau, Kathleen Strickland Key Issues: Fertilizer, Non-Hodgkins Lymphoma, Wrongful Death, Ammonium Nitrate Venue: San Francisco Superior Court Client Type: Defendant Fertilizer Broker Description: The plaintiffs, in a wrongful death suit in which one of the defendants was our client, were the family of a deceased fertilizer worker and claimed the decedent contracted Non-Hodgkin s Lymphoma from exposure to fertilizers, including granular and liquid ammonium nitrate. Result: The plaintiffs' initial demand to all defendants was $2.4 million, with our client being a target defendant. We reached a settlement with the plaintiffs for approximately 15% of the amount initially demanded from our client. Attorneys: Kathleen Strickland Key Issues: Breast Implant; Personal Injury; Wrongful Death; Cancer; Causation; Autoimmune Deficiency Client Type: Defendant Global Technology Manufacturer Description: Worked as national trial counsel with a team of attorneys assembled nationwide to defend a leading technology & medical products manufacturer in pharmaceutical litigation involving silicon gel breast implants. We served as trial counsel and retained and prepared scientific and medical experts as well as assisted in preparing a punitive damage defense for the company.

10 Attorneys: Devin C. Courteau, Kathleen Strickland Key Issues: Mold, Tenants, Trust, Personal Injury, Property Damage Venue: Monterey County Superior Court Client Type: Defendant Property Owner / Landlord Description: The plaintiffs, a family including two young children, alleged they suffered personal injuries and property damage as a result of mold in the apartment they rented from our client. The plaintiff had over 100 photographs showing extensive mold throughout the apartment. Result: Through the investigations of our expert consultants and a private investigator, including locating and interviewing prior tenants, we were able to assemble a large amount of evidence indicating that the mold came about as a result of the living habits of the plaintiffs. We then successfully convinced the plaintiffs' attorney of this fact, and reached a settlement well below our authority and well below nuisance value. Attorneys: Kathleen Strickland Key Issues: Personal Injury Client Type: Defendants Multiple Industry Companies Description: Served as Western Regional trial counsel and manager of all cases west of the Mississippi for a corporate defendant in an Asbestos litigation matter. Represented and continue to represent defendants in cases claiming personal injury from benzene exposure. Attorneys: Kathleen Strickland Key Issues: EPA, Toxic Tort Client Type: Defendant Description: Analyzed the impact of the EPA regulatory case on pending toxic tort cases or threatened toxic tort cases filed arising from 11 separate EPA Superfund sites located throughout the country for a national client. The plaintiffs in these cases were alleging personal injuries and property damage as well as requesting medical monitoring because of air and water contamination from underground plumes and landfills containing chlorinated solvents as well as other contaminants. Attorneys: Kathleen Strickland Key Issues: Personal Injury; Property Damage Venue: Louisiana State Court Client Type: Defendant Description: Defended a client in property damage cases in which 435 plaintiffs sued alleging personal injuries, wrongful death and decline in property value due to groundwater contamination arising from a landfill in Louisiana. The case has been pending for 10 years in Louisiana State Court. We were retained as trial counsel 6 weeks before the trial. Result: The case was dismissed when we disqualified plaintiffs' causation expert.

11 Attorneys: Kathleen Strickland Key Issues: TCE; PCE; Wrongful Death; Property Damage; Personal Injury Client Type: Defendant Corporation Description: Represented a corporate defendant in a mass tort case in Southern California where a large number of plaintiffs sued for personal injury, property damage, wrongful death and requested medical monitoring due to underground TCE, PCE contamination. Allegations of vapor intrusion in homes causing risk of cancer, fear of cancer, decline in property values and request for medical monitoring were filed in seperate lawsuits as well. Attorneys: James C. Hyde, Julian Pardo de Zela Key Issues: Personal Injury; Subcontractor; C.C.P ; C.C.P Venue: San Francisco County Superior Court Client Type: Defendant Subcontractor Description: Defended a subcontractor in a personal injury action whereby the plaintiff alleged catastrophic injury arising from the negligent maintenance and repair of a public intersection. Result: Successfully obtained a dismissal for the subcontractor due to the plaintiff s failure to timely serve the summons and complaint within three years of filing of original complaint. Attorneys: John A. Koeppel Key Issues: Breach of Contract Venue: Judicial Arbitration & Mediation Services Client Type: Defendant Provider of Telephone, Cable Television and High Speed Internet Service Description: Defended a provider of telephone, cable television and high speed internet services in a commercial litigation action involving an alleged breach of contract that provided for the construction of a broad band telecommunications network in the Bay Area. Counsel for the parties met to agree on mediation issues, and then participated in extended negotiations during mediation. Upon failure to resolve the case at mediation, counsel negotiated strict limits to discovery, briefing and arbitration time. This action went to binding arbitration over a two week period. Result: The award was 80% less than the contractor's last settlement demand.