California Personal Injury Law Case Notes

GranuFlo Cases Will be Transferred to the District of Massachusetts

Kristine Meredith — Fri, 29 Mar 2013 13:42:01 -0800

Victims and family members who suffered a loss due to the defective dialysis component, GranuFlo, may have their cases transferred to the District of Massachusetts. A panel of federal judges decided today that all of the GranuFlo cases that have been filed in any federal court will be managed by the Honorable Douglas P. Woodlock for pre-trial purposes. Massachusetts is the headquarters for Fresenius the manufacturer of GranuFlo as well as the location in which dozens of GranuFlo victims have already filed suit. Generally, cases filed in state court will not be subject to the transfer order.

Sudden Cardiac Death During Dialysis

Kristine Meredith — Tue, 12 Mar 2013 13:20:51 -0800

The manufacturer of a component of the hemodialysis treatment known as GranuFlo, investigated over 900 reports of cardiac arrest during or immediately following treatment. According to an internal study by the manufacturer, Fresenius, at least 914 patients suffered sudden cardiac arrest in Fresenius clinics in 2010 alone. Alkalosis, too much sodium bicarbonate in the blood is one explanation for the high rate of dialysis patients have suffered cardiac arrest in recent years. That electrolyte imbalance makes patients six to eight times more likely to suffer cardiac arrest.

The Bumper Car Rider Gets Bumped Again

Kristine Meredith — Fri, 01 Feb 2013 22:26:45 -0800

The assumption of risk bumper car case was discussed here. A doctor seriously injured her hand when she was hit from both the rear and the front. Head on collisions violated the park’s bumper car rules. In that discussion, the intermediate court had refused to extend the “no sports duty rule” to a non-sport recreational activity such as bumper cars – holding the park responsible for the riders injuries.

But recently, the highest court in the state disagreed. In a bad decision for personal injury victims, the California Supreme Court ruled in favor of the amusement park and determined that the bumper car rider had "assumed the risk of injury when she participated in this recreational activity.” Park owners and other sponsors will likely only owe a duty if they fail to provide routine safety measures. The Court indicated that the “no sports duty rule” may be applied not only to amusement park rides but to “any physical activity not essential to daily life.

Watch out -- many bumps ahead!

San Bruno Trial Halted

Mike Danko — Mon, 14 Jan 2013 15:23:10 -0800

The jury was supposed to be empanelled in February to hear and decide ten families’ test cases against PG&E. But over the last few weeks, while the attorneys argued pre-trial motions, a number of those families’ cases settled. Today, the judge ruled that the four cases that are still on for trial (Healy, O’Neill, Chea, and Kim) are not a sufficient representative sample of the more than 100 lawsuits that remain. So he ordered the trial date off calendar.

About a quarter of the more than 100 cases filed against PG&E have now settled. Many of the settlements have come in the last couple of months. With the trial date off calendar, all the lawyers are to return to court on January 23 to provide the court with a plan for proceeding. The plan is to include a way of possibly settling all families’ claims without the need for any trial at all.

Certainly, PG&E has settled more cases recently. Is that because PG&E has decided settling the cases was the right thing to do for the victims of the explosion? Or was it simply because trial was right around the corner?

We’ll know more about that in the next few weeks.

Related coverage from Joshua Melvin at the San Mateo County Times.

Do Pedestrians Always Have the Right-of-Way?

Kristine Meredith — Thu, 20 Dec 2012 12:12:12 -0800

That's a trick question. While many of us have been taught that pedestrians have the right-of-way, that's not always true. A pedestrian must also exercise reasonable care. Such care includes obeying traffic signals, using crosswalks, and not darting into the street. Also, a pedestrian may waive her right -of-way. For example, if she motions to a driver to proceed, then the driver may rely upon such "waiver" (pun intended) and proceed.

When a pedestrian is struck by a driver and suffers personal injury, if necessary, a jury will decide whether the pedestrian had the right-of-way and acted reasonably.

San Bruno Judge Makes More Rulings As Trial Approaches

Mike Danko — Tue, 20 Nov 2012 17:22:08 -0800

With the January 2 trial date fast approaching, today’s case management conference before Judge Dylina lasted most of the day.

Punitive Damages Claim Won’t Be Split Off

PG&E asked the court to split off the issue of whether PG&E should pay punitive damages and save that issue for a second trial later next year. The judge denied PG&E's request. He agreed with the plaintiffs' lawyers that the issue of punitive damages should be presented along with all the other issues involved in the case to the jury that is empaneled in January. Nothing should be carved out from that trial and reserved for later.

Should the Judge Speak Personally to PG&E’s CEO about Settling the Cases?

The judge noted that PG&E’s chairman of the board, Tony Earley, has stated publicly that it is PG&E’s desire to settle the cases before trial. Yet, settlement discussions seem to have stalled. The judge noted that PG&E has not been complying with his order that requires PG&E to make a response to any plaintiff’s settlement demand 5 days before the settlement conference takes place. Instead, PG&E seems to be waiting until the day of the settlement conference to state its settlement position. Eighty percent of the cases remain unsettled.

The Settlement Judges have reported back to him that they are experiencing some frustration with the process. The judge is considering inviting Mr. Earley to appear in court, so that he can hear first-hand the judge’s thoughts on the importance of the cases and the seriousness of the punitive damages claims against PG&E. PG&E’s lawyers objected to Mr. Earley appearing in court, saying that they have already explained things to the CEO. The judge is going to mull over whether he will ask Mr. Earley to appear in court.

Too Many Motions in Limine

The judge will hear arguments on December 21 concerning what evidence should be kept out of the January trial. Hearings on such arguments are routine before every trial. In this case, however, thousands of pages of briefs have been filed. The volume of the briefing is overwhelming as, according to the judge, perhaps unnecessary. The lawyers are to meet and attempt to trim down the issues to be argued on December 21.

Lawyers Return to Court

Next Case Management Conference: December 11.

San Bruno Judge Refuses to Throw Out Victims' Claim for Punitive Damages

Mike Danko — Tue, 30 Oct 2012 17:13:46 -0800

Today Judge Dylina denied PG&E’s request to throw out of court the victims’ claims for punitive damages. Instead, he is leaving the question of whether PG&E should pay punitive damages to the jury.

PG&E argued that the punitive damages issue was getting in the way of settlement negotiations. PG&E says it has done nothing deserving of punishment. (Of course, lawyers for the victims disagree.) Throw out of court the victims' claims for punitive damages now, PG&E argued, and the victims might well view PG&E’s settlement offers as being more attractive than they have to date.

The judge agreed that a ruling on the punitive damages issue might help the parties get more realistic in their settlement discussions. But instead of telling plaintiffs that he was throwing their claims out, he told PG&E that he was leaving them in. The judge ruled that it's up to the jury to decide whether PG&E's conduct -- in particular its failure to test and replace segment 180 -- shows that PG&E "consciously disregarded" the safety of the public. If the jury decides that it does, then it would be justified in assessing punitive damages.

Let’s see if PG&E gets the message.

Other news from the two-day hearing:

Yesterday the judge threw out PG&E's claim that the victims were somehow responsible for the fire. He found that there simply was no evidence to support it. PG&E will not be allowed to blame the victims at trial.
The judge ruled that PG&E's installation of the faulty gas line constituted a “taking” of plaintiffs’ property. This ruling clears the way for at least certain plaintiffs to recover against PG&E for the diminution in the market value of their property that PG&E’s conduct caused.
PG&E has asked the court to “bifurcate” the issue of punitive damages. That is, PG&E has asked that a trial first be held on the issue of how much money should be awarded to compensate the victims for their actual losses. Then, once all the victims’ cases have been tried by that jury, a second jury be empaneled to decide the issue of punitive damages. The judge set November 20 as the date to hear arguments on that request. But the judge made it clear that he was unlikely to "bifurcate" the trial in this fashion, as he had already considered and rejected this idea at the outset of the case.

Judge Appointed in Pradaxa Lawsuits

Mike Danko — Wed, 10 Oct 2012 18:48:28 -0800

More than 100 federal lawsuits have been filed across the country as a result of consumers being killed or injured by the side-effects of the anti-coagulant Pradaxa, manufactured by the German company Boehringer Ingelheim.

Those suits have now been consolidated in a "Multi-District Litigation" proceeding, and they have all been sent to a judge in East Saint Louis, Illinois, for handling. That judge, the Honorable David Herndon, is the same judge who is overseeing the thousands of cases filed by those injured by Yaz and Yasmin birth control pills.

The judge has appointed Pradaxa lawyer A.J. De Bartolomeo of Girard Gibbs in San Francisco to the plaintiffs' steering committee. She will be responsible for helping direct the efforts of all the lawyers working on the case for the various Pradaxa plaintiffs. She currently serves on the Yaz Plaintiffs' Steering Committee as well.

San Bruno Gas Explosion: Punitive Damages Hearing Postponed

Mike Danko — Sun, 07 Oct 2012 13:25:46 -0800

Judge Dylina has postponed argument on whether the victims' claims for punitive damages against PG&E should be thrown out of court. Arguments will now be heard on October 29 instead of October 15.

The judge also postponed to December 21 arguments on what evidence, if any, will be excluded from trial.

The trial date of January 2 remains unchanged.

Isabella and El Camino: How Many More Accidents Before Caltrans Gets It?

Mike Danko — Mon, 01 Oct 2012 16:44:54 -0800

Two years ago Chris Chandler was killed by a southbound motorist as he tried to cross El Camino at Isabella in Atherton. After investigating the design of the crosswalk, we filed suit against Caltrans on behalf of Chris' family. We've been arguing in court that the crosswalk is dangerous and that Caltrans should either fix it or remove it before someone else is killed or injured. We've now been litigating the case for a year and half. But Caltrans denies that there is any problem with its crosswalk, and refuses to do anything to make the intersection safe. We're waiting for the court to give us a trial date. Maybe Caltrans will listen to a jury.

This past Sunday, two years to the day that Chris was killed, two pedestrians were struck by a southbound SUV as they tried to cross El Camino at the same intersection in the same crosswalk. Both were seriously injured.

What will it take before Caltrans gets it? Caltrans has known for years that marked crosswalks like the one at Isabella and El Camino are more dangerous than crosswalks with no markings at all. It's Caltrans job to make its roadways relatively safe for pedestrians. Yet, it does nothing to fix the dangerous situation it created.

El Camino is busy. More than 20,000 vehicles per day pass through the intersection at Isabella. If Caltrans is going to paint a crosswalk there, it needs to install devices to warn and slow traffic, or install raised islands in the middle of the roadway where pedestrians can take refuge, or both. Simply painting lines in the road and hoping for the best is inviting disaster. Such a crosswalk provides a false sense of security for pedestrians, inviting them to cross in an area where it is unsafe to do so.

That's been proven in study after study. Here's just one study by the US Department of Transportation, published in 2005. It concludes that, for busy roads such as El Camino at Isabella:

Having a marked crosswalk alone (without other substantial improvements) was associated with a higher pedestrian crash rate (after controlling for other site factors) compared to an unmarked crosswalk. Raised medians provided significantly lower pedestrian crash rates on multilane roads, compared to roads with no raised median."

Study - Safety Effects of Marked Versus Unmarked - 2005

PG&E's Lawyer Denies PG&E Ever Lost Its Way

Mike Danko — Sat, 29 Sep 2012 17:50:33 -0800

PG&E's new $10 million media campaign features Tony Earley, PG&E's CEO, saying that in recent years, PG&E had "lost its way." (Cue the music and the video of cute little kids.)

That, I suppose, is what passes among PG&E's top management as an apology.

Seems that Earley forgot to run his sound bite by PG&E's lawyers. After all, it's the lawyers who run the show at PG&E and they seem to disagree with this "we lost our way" nonsense.

According to Jaxon Van Derbeken at the Chronicle, at this week's hearings, CPUC staff accused that

PG&E's pipeline integrity management program, record keeping and emergency response the night of the blast violated the law. In particular, the company was accused by regulators of failing to test the San Bruno line in recent years even after it twice boosted gas pressures above legal levels."

In response, rather than repeating Earley's "we lost our way" mantra, PG&E's lawyer denied everything. The lawyer, Joseph Malkin (pictured) claimed that PG&E's practice of spiking the pressure in its gas lines was legal, that it posed no danger to the pipeline and that it had nothing to do with the blast.

According to Van Derbeken, PG&E's lawyer said that

PG&E's only responsibility in the blast was unwittingly installing and operating a defective pipe [in 1956]."

Far cry from Earley's "we lost our way" stuff.

Recovery for Injuries to Pets

Kristine Meredith — Fri, 28 Sep 2012 14:09:00 -0800

May a pet owner recover for emotional distress when another intentionally injures his pet? It depends. While in other states pet owners may recover for emotional distress, up until last month California courts only allowed juries to award economic damages to a pet owner and refused to award an owner for his emotional distress including pain and suffering related to his pet's physical injuries. But recently, the Court determined that an owner can recover under a theory of trespass.

Under the law of trespass, dogs are considered personal property and trespass to personal property allows recovery for intentional interference of personal property causing injury including emotional distress. In the recent case the jury awarded the dog owners about $2800 for the amount of the veterinarian bills and an additional $50,000 for emotional distress to the dog owners. This decision stated: “the affection of a master for his dog is a very real thing and . . . the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal.”

Pradaxa Patients Bleed to Death

Mike Danko — Thu, 27 Sep 2012 19:18:45 -0800

Atrial fibrillation is a type of irregular heartbeat that can cause blood clots, heart attacks and strokes. For years, doctors have prescribed blood-thinners like Coumadin, also known as warfarin, to those who suffer from atrial fibrillation. The blood thinners prevent the clots from forming, and so prevent the heart attacks and strokes.

A few years ago a new drug came on the market, Pradaxa. Manufactured and marketed by Boehringer Ingelheim, a German company, Pradaxa has been a huge money maker, accounting for $1 billion in sales in 2011 alone.

Like Coumadin or warfarin, Pradaxa works to prevent strokes and heart attacks, though at least one study found that Pradaxa isn't as good as Coumadin. Only problem is that if someone taking the drug starts to bleed, the bleeding can’t be stopped. Unlike warfarin or Coumadin, there is no antidote (called “reversing agent”) to stop the drug’s blood-thinning effects. A patient who cuts himself or, perhaps falls and begins to bleed internally, may get himself to the hospital, but there often is nothing the doctors can do except make the patient comfortable as he bleeds to death in the ER.

Pradaxa supporters agree that an antidote would be “desirable.” But as one researcher noted, “when prescribing a drug with side effects that include life–threatening hemorrhage, reversal is not ‘desirable,’ it is essential.”

Generic name: dabigatran
Manufacturer: Boehringer Ingelheim
Sales: Approximately $1 Billion per year
Side Effect: Fatal Hemorrhage

San Bruno Explosion: Two Years Later

Mike Danko — Sun, 09 Sep 2012 08:16:00 -0800

Hundreds of PG&E’s victims still haven’t been compensated for what they’ve been through. PG&E admits it caused the explosion, but it still hasn’t settled their claims.

Once the lawsuits started, some thought PG&E would want to “settle quick.” Those folks were wrong. The fact of the matter is that PG&E has paid settlements on very few cases – perhaps one out of ten.

What about the hundreds of cases that PG&E won’t settle? The victims are supposed to be able to take PG&E to trial and have a jury decide. That’s why, after all, we have courthouses. But for the people of San Bruno, getting to trial has been a struggle.

There was going to be a trial this past July. The trial was going to include only a very small number of the families who were affected by the explosion. The hope was that after the jury rendered its verdicts for a few of the families, PG&E would see the writing on the wall and settle the remaining cases. Additional trials might not be necessary.

Unfortunately, that first trial was postponed. Then it was postponed again. And again. Now it won’t start until January, 2013.

Some frequently asked questions:

Who are the families who will be included in the first trial set for January?

As of now, the families are:

Locon
Ruigomez
Tafralis
Vasquez
Barr
Healy
O’Neill
Kim
Magoolaghan
Chea

How did those particular families get picked?

Months ago, the judge allowed PG&E to pick some families, and then allowed the plaintiffs’ attorneys to pick some. Then, just before one of the previous trial dates, PG&E decided it didn’t like some of the cases it had picked. The judge dropped those families from the list and stuck others in their place. That’s one of the reasons why the current list looks different from the one here.

Can PG&E still decide to pay settlements?

Sure. PG&E can decide to pay anytime. But people with experience dealing with PG&E aren’t holding their breath. Instead, they are counting on trial. It’s just a question of when that trial will happen.

Many victims still struggle with post traumatic stress. Some have lost their jobs. Why is PG&E spending $10 million on public relations when they still haven’t compensated these folks?

Watch what PG&E spokesman Joe Molica says and decide for yourself.

Trial Against PG&E Postponed. (Again.)

Mike Danko — Fri, 17 Aug 2012 11:44:12 -0800

Trial was set to begin October 9. But because an important witness became ill and could not attend his deposition, everyone expected that the date would have to slip a couple of weeks.

But today, Judge Dylina ruled that trial will not begin until January 2, 2013. That’s a disappointment for the plaintiffs, who had originally been told that trial would begin July 2. Then July 23. Then, they were told they would need to wait until October 9 for their day in court. Now, it’s next year.

The judge cited a number of reasons for pushing the trial out to next year, including the budget crisis that is affecting the courts generally.

The new schedule:

Argument on whether plaintiffs’ punitive damages claims should be thrown out: October 15
Arguments on what evidence, if any, should be excluded from trial: November 30
Trial to begin with lawyers only: January 2
Jury selection to start: January 3
Opening statements to start: January 14

Bad Karma: This Car is Toast

Mike Danko — Fri, 10 Aug 2012 18:50:19 -0800

The Fisker Karma, a $100,000 hybrid, has been recalled twice for a possible fire hazard posed by its lithium-ion battery. When Fisker recalled the car the second time, back in June, it played down the risk. Fisker reported to the press:

To date, Fisker has not received any verified complaints, warranty claims or any other reports related to this condition, but Fisker is taking this action out of an abundance of caution,

Not sure Fisker's claim that it hadn't received any reports of actual Karma fires was entirely true. Fisker was told in May that one of its cars caught fire and burned down its owner's garage in Texas. In fact, that owner ended up suing Fisker.

Well, today, another Fisker Karma caught fire in a parking lot in Woodside California. (See photo at right.) Fortunately, the parking lot was only a hundred yards or so from the fire department.

Looks as though Fisker still hasn't got this problem fixed. In the meantime, Karma owners would be well advised to park their cars on the street.

Gas Leak Fuels Victims' PTSD

Kristine Meredith — Thu, 02 Aug 2012 16:32:27 -0800

Today's gas leak at the intersection of Glenview and Earl Avenue served as a frightful reminder to the Crestmoor residents of the September 2010 San Bruno explosion. For many residents the sight of fire engines and the call to evacuate will rekindle flashbacks and distressing dreams of the event. There's no doubt that this gas leak will exacerbate many San Bruno residents’ Post Traumatic Stress Disorder (PTSD).

Even PG&E’s psychological experts agree that many Bruno residents now suffer from PTSD. Psychiatrists rely upon the DSM IV for the diagnostic features of PTSD. Those who suffer from PTSD may have personally experienced the explosion and suffered from the threat of death or physical injury to self or the threat of death or injury to a family member or other close associate.

The PTSD victim's response involves intense fear, helplessness, horror, and agitated behavioror. The symptoms include persistent re-experiencing of the traumatic event; often referred to as flashbacks. The victim also may show a persistent avoidance of stimuli associated with the trauma such as fire engines or loud noises that sound like the roar of the uncontrolled gas fire. Other symptoms include a general numbing resulting in feelings of detachment or estrangement; and an inability to feel emotions such as intimacy or tenderness.

Another common symptom of PTSD is a sense of a foreshortened future: not expecting to have a career, marriage, children or even a normal life span.

Although today's gas leak is a sad reminder of the tragedy nearly two years ago, it also confirms the intensity of emotional distress the residents have suffered. Not all residents know that their symptoms amount to PTSD. But victims should not delay contacting an attorney. The two year anniversary of the event – September 9, 2012 is also the deadline for filing a claim for any damages (physical, emotional, or property related) against PG&E.

Freight Carrier's Responsibility for the Negligence of the Truck Driver

Kristine Meredith — Tue, 31 Jul 2012 16:04:18 -0800

Freight carriers have an obligation to the public to not create unnecessary dangers on the roads. They can't dodge those responsibiities by hiring an independant driver who has no assets or insurance and then, when there is an accident, claim it was the driver's fault and not theirs.

Under the law, the freight carrier's safety obligations are "non-delegable." That means the carrier can't pass the obligations off to a driver. A freight carrier can thus be held vicariously liable for the negligence of the truck driver, even though the truck driver isn't one of its emplyess.

Three requirements must be satisfied to show a nondelegable duty in a trucking case:

A carrier must be involved;
The carrier must be providing transportation or service by a commercial motor vehicle weighing at least 10,001 pounds;
The activity that lead to the accident must involve possible danger such as motor vehicles on public highways.

Requirements 2 and 3 are factual questions that are usually easy to meet.

So, who is a carrier? A carrier is a person or company providing motor vehicle transportation for compensation. The transportation includes services related to the movement of property, including arranging for the transport , as well as, receipt, and delivery. "Carrier" often includes a freight broker who puts shippers in touch with truck operators and who may also have some responsibility for the load.

With Trial Approaching, PG&E Launches $10 Million Ad Campaign

Mike Danko — Wed, 18 Jul 2012 11:09:28 -0800

PG&E says that its first priority is safety. PG&E says its next priority is compensating the victims of the San Bruno fire.

But are those really PG&E's priorities?

PG&E has just launched a multimedia advertising campaign designed to make itself look good. According to the San Francisco Chronicle, the campaign will cost $10 million.

It might appear that, with the trial approaching, PG&E's first priority is repairing its public image. Otherwise, why wouldn't PG&E spend the $10 million on badly needed safety upgrades instead? Or on compensating those victims who, to this day, have received nothing from PG&E for the explosion PG&E admits it caused?

PG&E told the Chronicle that it is running the PR campaign because customers want it.

[Customers] want to hear what we are doing, about the work we are doing every day about safety and reliability . . .[they want to know about] what we are doing to make our pipelines safe and reliable."

Maybe PG&E could have just tucked a flyer in with next month's utility bill. That might have cost a little less than $10 million.

San Bruno Explosion Trial Date Moved

Mike Danko — Fri, 13 Jul 2012 20:02:37 -0800

Though PG&E previously admitted liability for the explosion and stated that it was "committed" to fully compensating its victims, PG&E has asked the court to throw certain of plaintiffs' claims out of court. In particular, PG&E has asked the court to throw out all the plaintiffs' claim for punitive damages, and to throw out certain plaintiffs' claims for emotional distress. The court will hear will hear PG&E's arguments on September 4.

Trial will now begin October 9. On that date, the judge will decide what evidence should be excluded from trial. Jury selection will begin on the next day, October 10, and is likely to take a least a week. Opening statements will begin as soon as a jury has been selected.