2014 OCTLA Top Guns Product Liability Trial Lawyer of the Year

Wrapping up our finest wishes for a

splendid holiday and prosperous New Year.

JILIO-RYANC O U R T R E P O R T E R S

W W W . J I L I O R Y A N . C O M 8 0 0 . 4 5 4 . 1 2 3 0

THE GAVEL – FALL 2014 1

------------------------------------------------------------------------------------------------------------------OCTLA OFFICERSPresidentCasey R. Johnson 714.434.1424President-ElectTed B. Wacker 949.706.71001st Vice PresidentVincent D. Howard 800.872.59252nd Vice PresidentH. Shaina Colover 949.644.72833rd Vice PresidentGeraldine Ly 714.542.4100SecretaryB. James Pantone 714.835.6990TreasurerJonathan Dwork 714.558.1400ParliamentarianJerry N. Gans 714.838.0654

BOARD OF DIRECTORSMelinda S. Bell 949.276.4127Anthony W. Burton 714.835.6990Brent W. Caldwell 714.625.8914Darren J. Campbell 949.260.4901Cynthia A. Craig 949.636.1854Robert B. Gibson 714.547.8377T. Gabe Houston 949.640.8222Paul E. Lee 949.660.8753Kevin G. Liebeck 949.640.8222H. Gavin Long 949.752.2999Solange E. Ritchie 714.673.6500Sarah C. Serpa 714.241.4444Adina T. Stern 949.459.2111Douglas B. Vanderpool 562.431.6900Janice M. Vinci 949.706.0333Atticus N. Wegman 714.434.1424Immediate Past PresidentScott B. Cooper 949.724.9200Executive DirectorJanet Thornton 949.916.9577EditorSarah C. Serpa 714.241.4444AdvertisingJanet Thornton 949.916.9577Graphic DesignerWilliam Suman Design, Inc. 949.292.7434PrintingInnovative Printing Solutions 888.574.0005------------------------------------------------------------------------------------------------------------------The Gavel is published quarterly at a subscription rate of $50 per year. Periodicals postage paid at Lake Forest,California. Copyright©2014 Orange County Trial Lawyers Association. All rights reserved. Reproduction in whole or in part without written permission is prohibited. POSTMASTER: Send address changes to The Gavel, 23412 Moulton Parkway, #135, Laguna Hills, CA 92653

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ORANGE COUNT Y TRIAL L AWYERS ASSOCIATION

VOLUME 17 NUMBER 4 FALL 2014

CONTENTC O L U M N S

F E A T U R E S

N U T S & B O L T S

I B I D E M

3 Editor’s Commentary: Brain Injury – Coming to Termsby Sarah C. Serpa

4 President’s View: If Not Now, When?by Casey R. Johnson

Cover Story: Stow v. Dodgers – Yes, He Did by Sarah Serpa

4

In-Depth Analysis: Neurological Factors in the Evaluation of Traumatic Brain Injuryby Dr. Arnold Purisch

6

10

30 An Overlooked Secret of Success in Trials is to Just Show Up by Luis Avila 34 Medicare Set Asides The new deal points in liability settlements by Jim Brady38 MCLE Audits on the Rise by Atticus Wegman 42 Judicial Profile - Honorable Linda Marks by Sarah Serpa

22 Verdicts & Settlements26 2014 OCTLA Trial Lawyers of the Year 36 OCTLA New Members 45 OCTLA Tidbits & Announcements 46 Calendar of Events49 Photo Library

4

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IIt’s Fall and football Iseason is here. Talk of Iwho one might select as

the quarterback of one’s fantasy team pervades conversation (as well it should). However, no matter how avid a fan, it is impossible to avoid the reality that football leagues, as well as hockey, soccer, and others, can no longer ignore the elephant in the room: their sport can and does cause brain injuries. As our members well know, mild traumatic brain injuries are tough

cases to pursue. In many of our mild or even moderate traumatic brain injury cases, our jurors do not see what they consider

to be objective evidence such as that we can point to on an MRI. The cases are more subjective in nature and thus, more challenging to prove. This may be in part due to the lack of information about brain injuries available to the public. Indeed, in approving the National Football League’s (“NFL”) settlement for players, Judge Anita Brody commented that cases by retired players would be hard to win at trial. In a vacuum, that may be true for any one case. However, one only needs to look at the other lawsuits and settlements occurring in other sports to recognize that decision makers are starting to better appreciate and understand the nature of brain injury. A recent National Hockey League

(“NHL”) lawsuit alleges that the NHL knew that concussive impacts over a long period of time can cause brain injury but the NHL took no measures to inform or protect the players. This lack of disclosure was also the crux of the NFL’s lawsuit

that settled for $765 million. A recent settlement by the National Collegiate Athletic Association for $70 million will pay for evaluations to diagnose whether current or former college athletes have suffered a brain injury. Although the public at large appears to have ambivalent views about these lawsuits, the one thing they do accomplish, whether they go to trial or settle, is to raise awareness of the risks to the brain inherent in contact sports. They also force these organizations to make changes that are necessary to better care for and protect past, present, and future players. You might have, for example, seen the commercials that the NFL sponsors for youth football are recommending that parents verify that the coach is “heads up” certified, meaning that they are trained in proper techniques to minimize the risks of concussion. In cases like the NFL settlement, they also help to compensate those who took on potentially devastating risks to their health later in life that they were unaware of. For those of us litigating brain injury cases, the more education and awareness these cases bring about, the better.

Guidelines for ManuscriptSubmission

The Gavel accepts unsolicited manuscripts for consideration. Articles are judged on the basis of research, writing, topic, and interest to membership of OCTLA. The Gavel follows a modified versionof the California Style Manual for legal citations. Manuscripts submitted should follow those rules as closely as possible. The Gavel prefers authors to avoid footnotes or endnotes, but such use will not be a basis for declining to publish an article.Authors should submit a copy of the article on disk or via e-mail, preferably in Microsoft Word® format. Please include a photo and briefbiography with all submissions. Email to: [email protected]. The Gavel retains copyright on all articles. The Gavel freely grants permission to others to reprint the article, upon theiragreement to acknowledge the copyright.The editors may make editorial changes toan article, without changing its substance.Submissions to The Gavel are subject toediting. Editorial decisions are based onwriting quality, subject matter, potentialinterest to The Gavel readers, and otherconcerns the Editor may deem relevant inher sole discretion. The views expressed inthe content of The Gavel are those of theauthors, and may not be reflective of theviews or policy of the OCTLA, its board ofdirectors, and/or its membership. The Gavel content shall not be construed as legal advice. The articles,commentary, advertisements, and/or anyother content contained herein are the opinions of the authors, and are not intended to be relied upon as legal advice. The views,positions, interpretations of law and arguments of the authors herein are theirsalone, and no endorsement by the OCTLA,its board of directors, and/or its membershipshould be inferred by virtue of theirpublication in The Gavel.

Brain InjuryComing to Terms

Sarah Serpa, Esq.


Casey R. Johnson, Esq.

Although it has been said before, it is certainly worth repeating. As consumer advocates we have a

unique opportunity to right a nearly 40-year wrong. By taking patient safety to the voters we have a once in a genera-tion chance to make California safer, for everyone. Make no mistake about it – the oppo-sition, led by the insurance industry, has already committed more than $60 million to keep the status quo. They are pulling out all the stops to perpetuate a campaign

of misinformation and fear. You have no doubt seen the commer-cials and heard the radio ads. They all contain the exact same

untrue and misleading facts that led to the passage of MICRA nearly 40 years ago. Are you willing to sit by and let it happen again? As consumer advocates, we are often placed in the unenviable position of giving a voice to the voiceless. In so doing, we are forced to reach into our own wallets to protect consumers and patients from the insurance industry deluge of lies and deceit. Our battle at the ballot box this November is just as important as any battle waged in the courtroom. If we are not successful, Californians who are victims of malpractice will continue to be

If Not Now, When?

denied justice before their case is ever heard. So we must all ask ourselves: Have you given until it hurts? Can you look in the mirror and know that you did ev-erything possible to help ensure Califor-nia is safer for everyone and that victims of malpractice can come closer to full compensation for their losses? Have you emailed or spoken in person with friends, family members and clients about the importance of Prop 46? If not, what are you waiting for? If not now, when? Absentee ballots are being mailed soon, and the election is November 4. As con-sumer advocates, and oftentimes the only voice for the injured, we cannot afford to lose this opportunity. We cannot allow the insurance industry complex to silence

consumers and consumer rights.

Celebrating Our Successes While Prop 46 is certainly the most important issue facing trial lawyers in this generation, OCTLA has a long and proud history of building relationships within the community and of recognizing the accomplishments of our colleagues. This year is no exception as we leap into the Fall season. First, OCTLA’s Bench and Bar Golf Tournament returns to El Niguel Country Club on October 13, 2014. As with last year’s event, this year’s tournament will sell out, so book your foursome now and enjoy Columbus Day out on the golf course. You can register at www.octla.org. I want to personally congratulate the very worthy honorees who will be recognized at this year’s Top Gun Trial Lawyer of the Year Awards and Charity Auction. Brian Brandt (Personal Injury), Sean Burke and Heather Higson (Med-ical Malpractice), Nigel Burns (Elder Abuse), Brian Chase (Product Liability) and Robert Simon (Young Gun) will all be recognized for their outstanding recent results. In addition, OCTLA will be induct-ing Peter Noronha as the fourth member of the OCTLA’s Hall of Fame. Dedicat-ing his entire legal career to representing plaintiffs and giving back to the com-munity in innumerable ways, including serving as a Past President of OCTLA, Peter exemplifies what it means to be a Trial Lawyer and we could not be more excited and honored to induct him to the

OCTLA Hall of Fame on what will be a truly memorable evening.Consistent with OCTLA’s tradition of giv-ing back, this year 100% of the proceeds of the silent and live auction will bene-fit High Hopes Brain Injury Treatment Program, the first non-profit brain injury treatment program in the country, that is based in Orange County. The work that High Hopes does is tremendous and OCT-LA looks forward to a successful evening of fundraising to help ensure the students at High Hopes continue to have affordable access to the most cutting edge therapies available. Mark your calendars now for Novem-ber 22, 2014, at The Montage in Laguna Beach. Seating is limited and the event will sell out. To purchase tickets, become a sponsor, or donate an item for the silent auction, please go to www.octla.org or contact Janet Thornton at (949) 916-9577. The year rounds out with two more fantastic MCLE Programs. On October 23, 2014, Hon. Sherri Honer, Kimberly

Valentine and Yoshi Kubota will present “Discovering Discovery” – providing tried and true discovery plans for all different types of cases, in addition to insight on bringing and defending discov-ery motions. On November 20, 2014, OCTLA will present its annual Judges, Arbitrators and Mediators Evaluation.

This Plaintiffs’ attorney only event pro-vides anyone practicing in Orange County with the most important information they need to know before appearing in Orange County for trial, arbitration or mediation. You can sign up for each of these pro-grams at the new and improved website located at www.octla.org. OCTLA’s year will round out with a holiday luncheon at Original Mike’s in Santa Ana on Friday, December 12, 2014, offering attendees an opportunity to reflect on the year and break bread with judicial officers from the Superior Court, Court of Appeal and Federal District Court. Go to OCTLA’s website to get your tickets. OCTLA has had an incredibly suc-cessful and productive year, but the best is yet to come. I look forward to seeing you at one of our many upcoming events and hope to celebrate a win for all consumers on November 5, 2014 with the passage of Prop 46.on November 5, 2014 with the passage of


“Make no mistake about it – the opposition,

led by the insurance industry, has already committed more than

$60 million to keep the status quo.

”


TIom Girardi knows a thing or two about baseball. He played baseball in college and signed with the Chicago

White Sox before playing second base in the White Sox farm league. Little did he know that years later, he would become the go to attorney for cases involving profes-sional baseball stadium security.

It seems that Mr. Girardi’s job descrip-tion now includes Stadium Security Con-sultant. This is because he now fields calls from owners of stadiums who seek advice on how to better implement security at their sports facilities. For those who think that Mr. Girardi’s recent win against the Dodgers was a fluke, the owners of sports stadiums clearly do not agree. With his large verdict against the Dodgers, Mr. Girardi made it clear that cutting corners on security at these public arenas will not be tolerated and there will be repercussions. Reaching the Boiling Point

On March 31, 2011, at the season opener, the San Francisco Giants played the Los Angeles Dodgers in Los Angeles. During the game, two male Dodgers fans, Mr. Sanchez and Mr. Norwood, harangued and harassed Giants fans in their vicinity including a young couple wearing Giants gear sitting across the aisle from them. The obnoxious behavior progressed throughout the game. No security was nearby. During the 9th inning, Sanchez assaulted the cou-ple by throwing a drink at them. Sanchez then attempted to attack the couple, but left the scene once the crowd intervened. During these events, many bystanders

looked for security in order to intervene, but no security or ushers could be found.

Meanwhile, at the end of the game, Bryan Stow, a 42 year old Giants fan and paramedic, was leaving the game with his friends. He made it to the stadium’s Park-ing Lot #2, where the group was going to call a taxi. It was there that Bryan was attacked from behind, knocked down, and repeatedly kicked in the head by the same two Dodgers fans the couple had endured during the game. The result; a severe brain injury leaving this 42 year old father of two unable to care for himself.

However, as always exists, there were some bad facts for the Plaintiff’s case:

● Two obvious assailants with no assets or ability to fund a judgment;

● The Plaintiff’s blood alcohol was over .20 at the time of the attack; and,

● A witness says that the Plaintiff instigated the beating.

On its face, this is a case many of us who practice personal injury law may have declined.

Enter Tom Girardi

Following this tragedy, the Stows made their way to Girardi & Keese in Los Angeles. Helpfully, years before, Mr. Girardi handled a case against the Dodg-ers wherein an intoxicated Philadelphia fan tumbled over a railing in the Dodg-ers stadium, fracturing the neck of a fan below. During that case, Mr. Girardi’s firm obtained a significant amount of discovery revealing the lack of adequate security at Dodgers Stadium.

That prior case and the current Stow case revealed that under the ownership of

Stow v. Dodgers Yes, He DidStow v. Dodgers Yes, He Did


Frank McCourt, the Dodgers had rid them-selves of the “pricey” $50/hour uniformed police officers and instead opted for $25/hour security guards in “polo” shirts to monitor the foreseeably rowdy crowd at Dodgers Stadium.

During the three years of litigation of the Stow case, Mr. Girardi’s office ob-tained the following evidence to support the Plaintiff’s case:

● Documentation that in an approxi-mately 30 minute time span that same eve-ning, in Parking Lot #2, four other assaults on Giants fans took place;

● An unsolicited and anonymous video tape recording of another violent al-tercation in the same section where Sanchez and Norwood were sitting during the game that day that was not addressed by security;

● Various Documents showing

numerous “gaps” in security in the section where Sanchez and Norwood were sitting and in Parking Lot # 2;

● Statements by a McCourt execu-tive that he would quit his job if uniformed police officers were to be replaced by guards in civilian clothing;

● A website titled “Dodger’s Fights” that publishes videos of various altercations that have occurred at the stadium;

● Documentation that 93 fans had been ejected from the stadium that evening due to unacceptable behavior;

● Evidence of dozens of similar incidents and apathy amongst Dodger security and ushers for the years prior to the Stow attack; and,

● Evidence of local gangs in Los Angeles congregating at Dodger stadium and causing numerous problems.

The Jurors Get It

Armed with these facts and clients whom Mr. Girardi describes as some of the nicest people he’s ever met, he and his colleagues David Lira and Christopher Aumais head off to trial. The trial lasted twenty days. Attorney Dana Fox for the Dodgers did his best to convince the jury that the liability lay with the two individual assailants and with Bryan Stow himself, who had consumed alcohol at the game

and had a high blood/alcohol content at the time of the attacks.

The jury remained deadlocked at 8 to 4 in favor of Mr. Stow for a significant time period. The case hinged upon one juror, a probate attorney, who eventually changed her mind. The final count was 9 to 3.

Mr. Girardi reports that the life care plan damages were determined by the jury to be approximately an average between the opposing plans. Adding lost wages and

“Mr. Girardi says that if he could give one piece of advice to attorneys who try cases, it would be

to admit to the bad facts early on and do not try

to hide from those facts. He says that jurors are smarter than we think

and they will see through any attempts by the attorneys to ignore detrimental facts.

”


non-economic damages of $5 million, the jury awarded Mr. Stow $18 million. Unan-imously, the jury found no fault on Stow.

Lessons for Plaintiffs Bar

Mr. Girardi says that if he could give one piece of advice to attorneys who try cases, it would be to admit to the bad facts early on and do not try to hide from those facts. He says that jurors are smarter than we think and they will see through any at-tempts by the attorneys to ignore detrimen-tal facts. In this case, he owned up to Mr. Stow’s blood alcohol content and it paid off. The jurors understood that Mr. Stow, although drinking alcoholic beverages with his friends at a baseball game, did not attempt to drive and did not start a fight.

Mr. Girardi also credits this win in part to the significant preparation by his office to determine the jurors’ attitudes toward the Dodgers and its owners. He stressed that their research revealed that there is a very high regard for Magic Johnson and the O’Malleys, both former owners of the Dodgers. He thus made it very clear to the jury that the security problems were created by Frank Mc-Court, and not the other prior owners.

It was a hard fought and uphill battle, but a battle that could be won. It is a reminder to our members (and to the defense bar) that despite some bad facts and despite the size and popularity of the defendant, with a little luck and a lot of preparation, justice can be served. ----------------------------------------------------------------- By Sarah Serpa -----------------------------------------------------------------

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TIhe evaluation of traumatic brain injury requires knowledge of which regions of the brain are most sus-ceptible to being damaged and what

types of neuropsychological impairments are associated with damage to these spe-cific regions of the brain. The existence of such a neuropsychological profile supports the presence of a traumatic brain injury. This article will discuss the biomechan-ical factors resulting in injury to specific regions of the brain and their relationship to the cognitive, emotional and behavioral changes following such damage. Two types of traumatic brain injury will be discussed, the most common type being the acceleration-deceleration injury and

the other being the crush injury. The focus will be upon moderate and severe traumat-ic brain injuries, not concussion and mild traumatic brain injuries.

Acceleration-Deceleration Injuries

The most common presentation of acceleration/deceleration injury is an abrupt slowing in a head-on high-speed motor vehicle collision resulting in strik-ing the head against a steering wheel or dashboard. In this scenario, the head is propelled backward and then forward (ac-celeration) only to come to a sudden stop (deceleration) when striking a stationary and unyielding object.

Significant acceleration/deceleration typically produces damage through three different mechanisms. One of these is referred to as the coup-contrecoup inju-ry. The coup refers to injury to the brain immediately underlying the point of impact to the head or skull. The brain is far less dense than the skull (some describe it as being the consistency of toothpaste or Jell-O) and when force is applied to the skull, the less dense brain matter is set in rapid motion striking the skull at the point opposite from the impact, which is referred to as the contrecoup injury. The presence of a coup-contrecoup injury signifies that the impact was of sufficient force to set the brain in violent motion and cause two points of bruising.

A second mechanism of injury of the acceleration/deceleration type would be rotational forces. Rotational forces are created when the head is struck at an angle

Neuropsychological Factors in the Evaluation of Traumatic Brain Injury

Dr. Arnold Purisch


causing the brain to twist away from the point of impact. In doing so, the fibers and blood vessels of the brain can be stretched, often torqued to the point of damage. The brain fibers that are stretched are the white matter axons and when stretched to the point of breaking, this is referred to as shearing and is associated with a diffuse axonal injury.

A third mechanism of injury following acceleration/deceleration injury is again the result of the brain being set in violent motion. In doing so, it can become abraded by the sharp and bony protuberances on the inside of the skull cap (referred to as the calvarium) that houses the brain. These bony protuberances are primarily found in the anterior calvarium, the region housing the inferior frontal lobes and the anterior tips of the temporal lobes. As such, it is not unusual with abrupt and significant move-ment of the brain to suffer damage to these specific regions of the brain.

Thus, if force applied to the skull is of sufficient severity to set the brain in energetic motion, damage can occur to the brain at the point of impact (coup) and the point opposite the impact (contrecoup). It can also result in diffuse axonal shearing and damage to the inferior frontal lobes and anterior temporal lobes. Blunt trauma that also results in a depressed skull frac-ture can cause direct damage to the point in which the skull is violated if, in fact, the bony fragments lacerate the underlying brain tissue.

Specific mechanisms of injury create individual differences depending upon the point of impact to the head. The local-ization of coup-contrecoup damage to the brain and laceration at the point of a depressed skull fracture can vary from one person to the next. Still, most traumatic brain injury patients display similarities in the regions of the brain that are injured through rotational acceleration and abrad-ing against the rough and sharp edges of the anterior calvarium. Rotational accel-eration creates diffuse axonal injury or damage throughout the white matter of the

brain, the severity of injury differing as a result of the magnitude of the torque. The extent of damage to the inferior frontal and anterior temporal lobes of the brain also depends upon the force of movement to the brain.

Thus, most traumatic brain injury patients display damage to the white mat-ter, inferior frontal and anterior temporal regions of the brain. The neuropsycho-logical profiles – the pattern and severity of impairment in behavior, cognition, emotion, and personality – are, therefore, predictable, often differing only in degree.

A high degree of correspondence to this expected pattern of neuropsychological impairments provides a more reliable in-dicator that the impairments and resulting disabilities are the result of the traumatic brain injury versus other factors, e.g., psychiatric, exaggeration, etc.

The neuropsychological profile of a patient with a significant acceleration-de-

celeration injury relates to impairment of the functions mediated by the fronto-temporal and white matter regions of the brain. The inferior frontal and anterior temporal lobes are involved with executive functions such as self-control and regula-tion of cognition, behavior and emotions. Cognition is impaired due to faulty control and regulation of thought processes and is manifested in losing one’s train of thought, distractibility and faulty multitasking. Disinhibition expresses itself through poorly regulated behavior and emotions. The individual often displays impulsive or excessive behavior. Social behavior can be inappropriate, coarse, rude or overly aggressive and sexual. Emotions can be labile, easily triggered and just as quickly return to baseline.

In more severe cases, the damage often includes adjacent dorsolateral and basal regions of the frontal lobe. Dorsolat-eral damage results in impaired judgment, reasoning, problem solving, planning and cognitive flexibility. Damage to the basal region results in diminished drive and mo-tivation, which can be reflected in a state of apathy. In the most severe injuries, all three regions are damaged and demonstrate the combined effects of impaired executive functioning (e.g. planning, reasoning and flexibility of thought and behavior), disin-hibition (e.g., impulsivity, lack of restraint, distractibility) and apathy (e.g., passivity, lack of drive, diminished motivation).

The whitish tint of the brain is due to the covering of the axons (fibers that transmit impulses from one neuron to another) with a sheath of lipid (fatty) substance that serves to insulate the axons and speed the transmission of neuronal impulses. The axons can be thought of as the wires or roadways of the brain. Axo-nal, or white matter, damage, therefore, interferes with the ability of one part of the brain to communicate with other parts of the brain. The cognitive, behavioral and emotional outcomes of this communication process become short-circuited, rerouted or delayed. Ultimately, the brain functions

“Knowledge of the neuropsychological

impairments related to the regions of the

brain most susceptible to damage provides a template to evaluate

whether the problems that manifest after

such an injury can be reasonably attributed

to the injury in question.

”


CT scan indicated that he suffered no more than a mild traumatic brain inju-ry and, given B.L.’s age carried with it a very positive prognosis for recovery. However, his continued confusion resulted in precautionary hospital admission for observation. Unexpectedly, B.L.’s confu-sion persisted and resulted in a follow-up CT scan the next day, which demonstrated interval evolution of small hematomas (internal bleeding) in both frontal lobes and a contusion (bruising) of the right tem-poral lobe. He remained hospitalized for another several days to monitor his status. Within another two days, his confusion began to lift. A final CT scan before discharge indicated that the hematomas were decreasing in size and his mental state was considered within normal limits. When seen by a neurologist a week after discharge, he had many symptoms of a resolving post-concussional syndrome but a very good recovery was expected.

Unfortunately, the anticipated recov-ery did not occur and when I evaluated

him two years later, he was still struggling in many areas of his life. He had main-tained his school grades but now required twice the time and effort dedicated to his studies than he had needed before his injury. He used to be popular but now found himself to be socially isolated. He could be impulsive and was prone to fits of anger, especially directed toward family members, who he felt were stifling him by being overly protective. He became progressively depressed due to his situation and demonstrated very little insight into his own behavior, tending to blame others for his plight.

My neuropsychological evaluation demonstrated that all scores fell within the normal range and a brain MRI was inter-preted as being negative. Defense experts ascribed his ongoing problems to various factors such as depression, exaggeration, adolescent adjustment issues and family dysfunction.

However, his presentation could not so easily be dismissed as being due to factors

in a far less efficient manner, resulting in problems maintaining train of thought and gathering thoughts. Thought processes can become sluggish and require deliberate effort that can result in mental fatigue.

The Case of B.L.The correlation of injury to specific

regions of the brain to expected neuropsy-chological deficits in cases of traumatic brain injury plays a significant role in forensic neuropsychological analysis. This is demonstrated in the case of B.L. B.L. was 16 years old when he was struck by a car in an intersection. Although there was no documented loss of consciousness, he was amnestic to the event, which is consistent with paramedic and emergen-cy room records describing him as being confused. His altered mental state resulted in a Glasgow Coma Scale (GCS) rating of 14, in the range of a mild traumatic brain injury. A CT scan was negative, indicat-ing the absence of obvious damage to the brain. The GCS of 14 and the negative



other than a residual brain injury. First, the neuropsychological profile demon-strated relative cognitive impairments in functions of the right side of the brain, i.e., visual memory, visuospatial perception and speed of performance of the left hand. While all of these test results were within the normal range, they were no better than average compared to population norms. On the other hand, his verbal memory, language capacities and right-sided motor functioning (all mediated by the left side of the brain) were consistently within the high-average to superior range. Academic testing also revealed only average perfor-mance on tests of mathematics compared to reading and spelling, a pattern that can be found with right hemisphere dysfunc-tion. As such, he demonstrated residual problems with the right side of the brain compared to his own baseline but could not be judged to be obviously impaired compared to general population norms. Defense experts simply pointed to his overall normal range performances and

concluded that he should not have any problems functioning from a cognitive perspective and that no future limitations should be expected from an academic or vocational perspective.

Neuropsychological testing focuses upon sensorimotor and cognitive functions but does not directly measure personality and behavioral changes. Thus, neuropsy-chological test results can be insensitive to lesions of the brain resulting primarily in personality and behavioral changes, such

as the anterior tips of the temporal lobes and the lower regions of the frontal lobes. B.L. demonstrated diminished insight, poor emotional regulation, impulsivity and inappropriate social skills common to individuals with frontal lobe dysfunction, particularly with greater focus in the right side of the brain. As such, the neuropsy-chological profile - test results associated with dysfunction to the right side of the brain and behavioral changes associated with frontal and right hemisphere impair-ments - correlated well with the facts of the injury and it was probable that his com-plaints were primarily causes by his prior traumatic brain injury. If so, over two years post-injury, it was likely that there would be long-term residuals and that the positive prognosis offered by the defense experts was simply not correct.

The plaintiff attorney was advised to pursue additional neurodiagnostic tests. Another MRI was ordered and this one demonstrated mild inferior bifrontal damage, consistent with expectations given B.L.’s neuropsychological function-ing. This correlation made it much more probable that the interpretation of the second MRI was valid despite the earlier MRI interpretation of negative findings. Furthermore, the correspondence between B.L.’s neuropsychological functioning and the neurodiagnostic test findings greatly strengthened the plaintiff’s case.

Crush Injuries

Another form of blunt head trauma is the crush injury. Unlike the accelera-tion-deceleration injury, the head does not get propelled into motion but remains sta-tionery and is itself struck by a moving ob-ject. Examples of such a scenario are be-ing hit by a falling object, such as a beam falling from a height at a construction site, or being kicked in the head during an assault. With a very powerful blow to the side the head, the brain may be propelled into motion before rapidly decelerating upon hitting the calvarium and any of the three mechanisms associated with acceler-

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ation traumatic brain injuries often results in a blind spot for many evaluators in recognizing the presence of a damage re-sulting from a crushing impact. In essence, if the signs and symptoms emanating from blunt trauma do not reflect diffuse axonal damage or frontotemporal damage, the likelihood of a traumatic brain injury is rejected. Any focal signs or symptoms resulting from the focal contusing are considered to result from other factors. A tangible injury, with legitimate disability, can be incorrectly dismissed.

The chronic neuropsychological pro-file of acceleration-deceleration injuries include impairment of executive func-tioning due to frontotemporal damage and slowing and loss of train of thought due to diffuse axonal damage, as already discussed. The chronic neuropsycho-logical profile of a crush injury, on the other hand, is often limited to the type of impairments associated with damage to a specific region of the brain. The acute neuropsychological profile that follows

immediately after an acceleration/decel-eration injury consists of a significant alteration of consciousness, with loss of consciousness present in most cases or, at the least, a protracted period of significant confusion and disorientation. The acute neuropsychological profile of a crush injury, on the other hand, may lack any significant alteration of consciousness; only rarely is there protracted confusion and disorientation or more than a brief loss of consciousness. (One exception to this observation is when the vertical force is sufficiently powerful to result in an accordion-like effect in which the brain is pushed downward with enough momen-tum to damage or literally crush the brain stem, the region of the brain responsible for arousal and alertness.) Indeed, there have been cases of individuals presenting to an emergency room with sharp objects such as a knife penetrating into their brain who are fully conscious, oriented and alert. Crush injuries, therefore, can often be underappreciated due to the dictum

ation-deceleration may result in damage. However, in many crush injuries, the force is either not powerful enough to result in violent propulsion of the brain or the blow is delivered in the vertical plane, i.e., from the top down. In such instances, the major site of damage is typically confined to the region of the brain underlying the point of impact to the skull. The brain does not rotate, so there is no axonal shearing and the white matter is not diffusely injured (but might be injured focally underlying the point of impact). The brain does not significantly abrade upon the rough sur-faces of the anterior calvarium and there is no primary damage to the frontotemporal region (unless the point of impact is in this region). A contrecoup injury does not occur as there is no hard calvarium surface for the brain to strike.

Consequently, the damage to the brain in a crush injury can be quite limited, the result of focal contusing underlying the point of impact. Unfortunately, the much greater prevalence of acceleration-deceler-

state was not more than mildly impaired acutely following the injury; any abnor-malities reasonably being attributed to some extent to his state of intoxication. He had a normal CT scan of brain. His relatively intact ability to communicate during the interview and testing was not consistent with his multiple complaints and functional disability. As such, his problems could arguably be attributed to his emotional distress and/or exaggeration, as was opined by defense experts.

On the other hand, neuropsycholog-ical testing revealed a pattern of impair-ment consistent with dysfunction of the left side of the brain. There was nothing in H.I.’s history that would have raised suspicion that such impairments were pre-existing. He was reevaluated more than a year and a half after the initial evalua-tion. During this period, his functioning had fluctuated but, overall, his complaints remained fairly consistent, contrary to expectations given the recovery curve following a traumatic brain injury. Again, opinions connecting his continued problems to a psychiatric cause and/or to exaggeration are not unreasonable. How-ever, neuropsychological testing provided evidence for the existence of dysfunction to the left side of the brain could not be obviously attributed to any preexisting condition, current psychiatric disability and/or exaggeration. It was probable that a portion of his disability was due to a focal injury to the left side of his brain consistent with the point of impact of the crushing blow to his head.

Conclusion

Biomechanical forces resulting from acceleration-deceleration or crush injuries result in predictable consequences to the brain. Knowledge of the neuropsychologi-cal impairments related to the regions of the brain most susceptible to damage provides a template to evaluate whether the problems that manifest after such an injury can be rea-sonably attributed to the injury in question. Of course, the failure to match this template


expected associated with the combined effects of the concussion and the alcohol. He was transported to the hospital where his mental state was not raised as an issue. A CT scan was reported to show soft tissue swelling of the left frontal bone and both high parietal bones but with a normal brain. He discharged himself against med-ical advice and was taken home, where he woke up the next morning with almost no memory of what had happened over the prior several hours.

When I evaluated H.I. several months post-injury, he complained of a variety of cognitive, emotional and physical prob-lems. His vocational and social func-tioning had been significantly impacted. During the clinical interview and testing, he was able to express himself fairly well but showed signs of depression and anxiety. A consideration of these factors clearly argued again the presence of a traumatic brain injury. While he received a definite blow to the head, his mental

that a traumatic brain injury is associated with an alteration of consciousness.

The Case of H.I.

I recently evaluated a 30 year old man, H.I., who was assaulted in a bar. When on the ground, the assailant brutally kicked him in the left posterior region of his head with a steel toed boot. There was evi-dence of trauma to the left forehead and left parieto-occipital region of the scalp. Any issues related to an alteration of consciousness due to the head injury were complicated by the fact that the victim was highly intoxicated at the time. He suffered a loss of consciousness, but by the time the paramedics arrived, he was sitting up and interactive. They described him as alert and oriented with a GCS score of 15. On the other hand, they described him as combative, a state often associated with posttraumatic confusion. Certainly, given comments that he was intoxicat-ed, some degree of confusion would be


argues against the impairments as emanating from a traumatic brain injury, as well. Neu-ropsychological evaluation, therefore, serves a critical methodology in cases of differential diagnosis of traumatic brain verses other fac-tors as the cause of complaints and impair-ments following an injury. The data from the neuropsychological evaluation also is often critical in providing a fairly comprehensive determination of the plaintiff’s capabilities and impairments that directly addresses the issue of damages.


Dr. Purisch is a neuropsychologist in Laguna Hills. He has been in prac-tice since 1984. He can be reached at 949-829-8141.

Dr. Arnold Purisch

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Aitken*Aitken*CohnBisnar | Chase

DiMarco, Araujo & MontevideoGirardi Keese

Robinson Calcagnie Robinson Shapiro Davis, LLP

Shernoff, Bidart, Echeverria, Bentley, LLP

Zamucen & CurrenThe Foundation Club provides generous financial support for

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To become a member, contact Janet Thornton at 949.916.9577 or [email protected].

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control GERD. One year later, claimant con-tinued to suffer from sore throat and had a new mass on his neck. He presented to VA Hospital in Long Beach, where a CT and PET scan of the neck revealed a mass on the tongue base. He was immediately diagnosed with Stage IV squamous cell carcinoma of the tongue base.-----------------------------------------------------------------------------------------------------------------------------Greg Rizio of Rizio & Nelson obtained a settlement of $250,000.00 for his client that suffered injuries after a County of Riverside employee struck plaintiff on his motorcycle. Defendant was on her way to work and Plain-tiff was wearing a bright orange reflector vest at the time of the accident. Plaintiff suffered significant injuries including a right interochan-teric fracture, femur fracture, patella fracture, foot/toes fractures and a left shoulder disloca-tion. Due to his inability to run, plaintiff lost his civilian military employment and his ben-efits from being in the Air Force reserves. He was able to pick up the exact same job in the civilian sector following his military dismissal. -----------------------------------------------------------------------------------------------------------------------------Ted Wacker of the Law Offices of Ted Wacker received a verdict of $250,000.00 for his client that slipped and fell at Whole Foods Market in Tustin, CA on spilled bulk food items left on the floor. Defendant stipulated to liability before trial and case was tried on damages only. Plaintiff claimed injury to left hamstring rupture and repair with recommend-ed future repair surgery, pudendal nerve injury with bladder and bowel issues, aggravation of sciatic nerve, and right shoulder impingement.-----------------------------------------------------------------------------------------------------------------------------Robert Simon of The Simon Law Group, LLP; and co-counsel obtained a settlement of $4,000,000.00 before closing arguments against the County of Los Angeles for an accident causing plaintiff to suffer traumatic amputation of his dominant hand, along with other injuries to himself and his family, who were passen-gers. Plaintiff extended a pretrial 998 offer to compromise of $2,649,999.99, which was denied by the County of Los Angeles.

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Verdicts & Settlements

Continued on Page 40 u

Darren Aitken of Aitken*Aitken*Cohn secured a global settlement of $1,600,000.00 less than two weeks before trial for the wife and two adult children of a 79-year-old physician. Decedent was driving to work in the early morning and collided with a parked landscaping truck that was performing land-scaping services in his community. After the collision, decedent walked out of his vehicle to speak with the nearby workers. He then returned to his driver’s side front door to re-trieve his cell phone to call his wife when he was struck by another motorist that claimed the sun glare that morning obstructed his ability to see the two stationary vehicles. The Defendant maintenance company contended that the work vehicle was plainly visible even when the sun glare was considered, and it was solely the fault of the two drivers that these “rear end” collisions occurred.-----------------------------------------------------------------------------------------------------------------------------Gabe Houston of Hodes Milman Lieb-eck, LLP received an arbitration award of $360,000.00 in a medical negligence case against Kaiser. Claimant presented to the ENT department at Kaiser with complaints of sore throat lasting for more than 6 months. Claim-ant was evaluated by a physician’s assistant, who discharged claimant with medication to

by Megan G. Demshki

ORANGE COUNTY TRIAL LAWYERS ASSOCIATION

INSTALLATION EVENT FLYER

Installation of Officers &

Judicial Awards Program

Save the Date

INCOMING PRESIDENT

Ted B. WackerJanuary 31, 2015

Balboa Bay ResortNewport Beach


t is with extraordinary excitement and admiration that OCTLA will be inducting Peter Noronha as the fourth member of the OCTLA Hall of Fame during the Top Gun Awards Dinner and Charity Auction on November 22, 2014 at the Montage Hotel in Laguna Beach.

Peter Noronha was born in the Far East, and is a true child of the world, having lived in and attended schools in many countries across the world, including Asia, Africa, and Europe. Peter finally made the trip across the Pond, moving to the United States from England in 1975. After earning an Associate Degree from Orange Coast College in 1977, he con-tinued his education at California State University at Fullerton, receiving a Bachelor Degree with honors in 1979. He then ob-tained his Juris Doctor from Southwestern University School of Law in 1982. From the very beginning of his legal career, Peter dedicated his practice to representing the injured.

Peter’s legacy of service to consumers and to the Orange County plaintiffs’ bar runs deep – spanning a career of more

I

2014 OCTLAHall of Fame InducteePeter A. Noronha

receiving a Bachelor Degree with honors in 1979. He then ob-tained his Juris Doctor from Southwestern University School of Law in 1982. From the very beginning of his legal career, Peter dedicated his practice to representing the injured.

Peter’s legacy of service to consumers and to the Orange County plaintiffs’ bar runs deep – spanning a career of more

than thirty years – during which he tirelessly represented the injured and actively gave back to the community through his volunteer and leadership service. Peter’s powerful yet respectful presence in the courtroom led to countless victories for his clients frequently against all odds – making him a universally liked and respected by every judge before whom he appeared. These talents, including his well-reasoned legal analysis and his friendly demeanor, served him well as a Judge Pro Tem for the Orange County Superior Court.

While practicing law, Peter was an active member of the Amer-ican Board of Trial Advocates (ABOTA), Consumer Attorneys of California (CAOC), the American Association of Justice (AAJ) the Orange County Bar Association(OCBA) and of course, the Orange County Trial Lawyers Association. After years of dedicated service to OCLTA, Peter ultimately served as OCTLA President in 1995.

Peter has frequently lectured on a wide range of trial related topics authored numerous articles for publication for CAOC (and its predecessor California Trial Lawyers Association, the Orange Coun-ty Bar Association, the Orange County Trial Lawyers Association as well as other civic and professional organizations.

Outside of the law, Peter is active in St. Cecilia’s Catholic Parish and served as a long time advisory Board member for Orange County MADD (Mothers Against Drunk Driving), in which he frequently lectured and conducted presentations for MADD. He is a passionate tennis player (competitiveness running in his blood), having competing in many club and local tournaments.

Perhaps one of Peter’s best attribute, both in and out of the courtroom, is his ability to light up a room. With a twinkle in his eye and a heartfelt and sincere, yet slightly devious smile on his face, Peter’s ability to make an instant connection with people is truly remarkable.

Despite his tremendous success as a lawyer fighting for the little guy, and his long standing presence in the legal community, Peter’s modesty has pervaded his every accomplishment. Even living in the age of the internet, where a simple google search can returns endless information and photographs about anyone you would be hard pressed to dig up any information on Peter. The absence of information about Peter is no comment on his lack of contributions to the community or his lack of accomplishments, but speaks to the fact that he is a true lawyer’s lawyer, putting in the time and doing the hard work with no expectation of recognition.

When asked about Peter, longtime friend and colleague Byron Rabin commented “Peter is a perfect selection for the OCTLA Trial Lawyer Hall of Fame. Peter approached his cases with great intelli-gence, creativity, advocating for his clients zealously, securing great results and always with impeccable civility. I came upon a quote which fits this moment perfectly ‘When I was young, I admired clever people. Now that I am old, I admire kind people.’ With my good friend Peter, I get both.”

An advocate, mentor, friend and inspiration, OCTLA is honored to recognize Peter Noronha as its newest member of the

OCTLA Hall of Fame.


2014 OCTLA Top GunsProduct Liability Trial Lawyer of the Year Brian Chase is a partner at BISNAR | CHASE, located in Newport Beach, Cal-ifornia. He specializes in representing injured plaintiffs in matters involving automobile product liability, catastrophic injury, and pharmaceutical and defective medical device cases – litigating cases locally and across the country. Brian is a member of ABOTA and is AV rated by Martindale Hubbell. He has been recognized as Trial Lawyer of the Year by the Consumer Attorneys of California (2012), a Top Gun by OCTLA (2004), one of the Top 100 Trial Lawyers by American Trial Lawyers Association (since 2007), a Superlaw-yer (since 2007) and a Top 50 Orange County Superlawyer. Brian is a past president of OCTLA and is the President Elect of Consumer Attorneys of California, to be sworn in as President on November 15, 2014. Brian is receiving the Top Gun Trial Lawyer of the Year award for Product Liability for his work on Romine v. Johnson Controls a seatback failure case that Brian tried to verdict in Pasadena in 2011 that resulted in a verdict in ex-cess of $24 million for his quadriplegic client. The judgment was appealed, and resulted in a published decision which upheld both the judgment and the use of the consumer ex-pectations test in matters against component part manufacturers, and remanded the matter for retrial on the issue of apportionment of fault only.

Personal Injury Trial Lawyer of the Year Brian Brandt earned his law degree from Santa Clara School of Law in 1987 and was admitted to the California Bar that same year. He is a graduate of the Gerry Spence Trial Lawyers College (2008) and has been recognized as a Top 100 Trial Lawyer by the National Trial Lawyers. Brian is a member of OCTLA, the Multi-Million Dollar Advocates Forum, Consumer Attorneys of California, American Association of Justice, Consumer Attorneys of the Inland Empire and ABOTA and is AV preeminent rated by Martindale-Hubbell. He has been married for twenty two years to his wife, Camille and has six children. Brian is being recognized for his work in Asam v. Ortiz. The case involved a family whose SUV slammed into an illegally parked big rig on the 210 freeway. The father (driver), mother and 14 year old son were killed in the collision and survived by a nine year old daughter and eleven year old son. Three days before trial, the surviving son committed suicide. Following a six week trial and three days of deliberations the jury returned a verdict of $150 million - $20 million more than Brian asked them to award. The judge granted defendant’s new trial mo-tion, finding the verdict excessive. The matter then settled for a confidential amount.

Young Gun Trial Lawyer of the Year Robert T. Simon the co-founder of the Simon Law Group and acts as the prima-ry trial attorney. He founded the firm with his twin brother/wombmate/best friend Brad Simon in late 2009. Bob earned his undergraduate degree from George Washington University in Washington D.C. and obtained his JD from Pepperdine University in 2005. He was a finalist in 2013 for the award for the Top Trial Attorney Under 40 from the Consumer Attorneys Associ-ation of Los Angeles. Bob is member of OCTLA, CAALA, AAJ, SDCA, SFTL, CAOC and is the Past President of the Los Angeles Trial Lawyer Charities. He is also a player/manager for the Los Angeles Squires of the Los Angeles Men’s Baseball League. Bob is being recognized as a Young Gun for his tremendous trial results here in Orange County. His most recent Or-ange County results include a $3.8 million verdict in a matter tried against venerable defense attorney Bruce Schechter and a $1.564 million verdict against State Farm house counsel, Kevin Jolly, in a trip and fall case involving a planter outside of a doctor’s office. In the more recent trip and fall matter, Pinzon v. Flores, Bob’s client was a 72 year old Columbian man who had recently become a citizen and did not speak English. Not only did Bob skewer the defense medical expert on cross examination, but he completely discredited the purportedly pious defendant with a single question “What is a Hail Mary?”

2014 OCTLA Top Guns2014 OCTLA Top Guns

Personal Injury Trial Lawyer of the Year


2014 OCTLA Top GunsMedical Malpractice Trial Lawyers of the Year Sean Burke earned a combined JD/MBA from USC Law and Business Schools in 1981. Since 1985, he has specialized in representing plaintiffs in catastrophic personal injury, medical malpractice, and product liability cases. Sean is national board member for ABOTA, holds an AV rating from Martindale-Hubbell, is listed in Best Lawyers in America, was rated in the Top 5 Lawyers in Orange County by OC Metro/Avvo, has been named a Southern California SuperLawyer for the last 9 years and has been listed in the Top 50 Lawyers in Orange County for the last 7 years. Sean is a previous recipient of this award in 2005 and 2009.

Elder Abuse Trial Lawyer of the Year Nigel Burns is the managing partner of the Law Offices of Nigel Burns and is originally from Ireland where he obtained the first of his two law degrees. He received his law degree in the United States from Loyola Law School in Los Angeles, California and was graduate speaker for his graduating class. Nigel specializes in handling cases involving business disputes and trademark issues as well as serious personal injury cases, including automobile and pedestrian accidents, victims of criminal attacks on commercial premises, product design and defect cases. He also handles criminal law matters. Nigel is a frequent lecturer and writer on subjects including entitlement to Medical Payments for Injured Patrons, How to Prosecute a Third-Party Criminal Attack Case and the validity of releases. He has been an active member of many boards and organizations and is a for-mer member of the Board of Directors of OCTLA. Nigel is receiving the Top Gun Trial Lawyer of the Year award in the area of elder abuse for a matter he handled that involved a predator woman befriending a 70+ year old man. She convinced him to quitclaim his property to her. She returned the favor by evicting him and suing him for $250,000 in back rent. Judge Linda Marks presided over the trial on the promissory note (for back rent) that resulted in a judgment favor of Nigel’s client. The predator then hired a new firm (Venable LLP) who brought suit against the elderly gentleman. The parties agreed to arbitrate the matter before a retired judge in Los Angeles. The arbitrator returned the home and all the personal property to the elderly man and awarded him $300,000. After three appeals, the arbitration award was finally confirmed.

2014 OCTLA Top Guns2014 OCTLA Top Guns

Heather J. Higson has 25 years of experience litigating medical malpractice cases, representing physicians and hospitals during her first 10 years of practice, until discovering her true passion – representing victims of medical malpractice and their loved ones. Born in Newfoundland, Canada, she and grew up living in several locations including Maine, Pakistan, New York, California, Colorado, Massachusetts, and Virginia, while often visiting extended family in England. Heather received her Bachelor of Arts degree in English Literature from Middle-bury College in 1983 and obtained her JD from Pepperdine Law School in 1989. Heather is a m ember of OCTLA, OCBA, OCWLA, CAOC and the CANHR Lawyer Referral Service. Sean and Heather are being recognized for the $2.588 million arbitration award they se-cured on behalf of their client. The matter involved pancreas surgery which was performed by a resident at Kaiser without the patient having been told that a resident would perform the procedure. As a result of the negligently performed procedure, the plaintiff now suffers permanent and painful pancreatitis.

– representing victims of medical malpractice and their loved ones. Born in Newfoundland, Canada, she and grew up living in several locations including Maine, Pakistan, New York, Canada, she and grew up living in several locations including Maine, Pakistan, New York,


By Mark Desmond

In 1975, High Hopes became the first non-profit charitable organization in the country to provide desperately needed

services to brain-injured individuals. Since its origination, High Hopes has served hundreds of brain-injured individuals and families with outstanding results. Many of our students have regained abilities they thought were lost forever due to their accidents. High Hopes provides a full service day treatment program. The High Hopes pro-gram uses a unique method of rehabilita-tion, which has been developed over many years of working with individuals with a wide variety brain injuries. Our physical programs include con-ditioning classes, therapeutic swimming at a local pool, nautilus weight training, and physical therapy. Through the use of robot-assisted machinery for both upper and lower extremities, including Lokomat, for walking therapy, High Hopes is able to maximize the physical benefit of its students. In fact, High Hopes is one of only a few facilities in the country, that has more than one Lokomat machine for walking therapy. Rehabilitation activities at High Hopes have been tailored to address both cognitive and social challenges. Students manage a “Lunch Express” business that makes lunch twice weekly for students and staff. Other services include vocational art classes, pre-vocational training, music classes,

community activities, independent living classes, occupational therapy and speech therapy. The goal of our program is to help each brain injured person regain their inde-pendence, no matter the severity of their disability. In September, 2014, we will celebrate our 40th year of providing the best possible programs and services to these deserving people. The more people that understand about our services and the improvements that can be attained through rehabilitation, the better we can serve our community and others facing the same hurdles. Our goal for the future is to continue to be the best program in the country, to meet the needs of each of our brain-injured students, and obtain results thought to be impossible. To reach this goal, we have a five-year plan: • Double in size. We will strive to help 120 brain-injured individuals each month. • Acquire more general and scholarship funding. • Increase our facility capacity and acquire additional equipment and staffing to meet this growth. We are looking forward to a great future in helping hundreds of brain-injured individuals.

High Hopes Head Injury Program Past, Present and Future


By Luis Avila

WIoody Allen once said that eighty percent of success is just showing up. Nowhere is this more true than

with respect to trial work. I’ve come to learn that the secret of winning a trial is to at least show up, even when you are deadly afraid of it. You never know what will happen when you show up, and, you just might win. Here, I share some thoughts about a case that I was afraid to take to trial, but I am now proud to say that in spite of my fears I did try it and it paid off: The jury awarded my client $2,500,000.00 in damages. I was afraid for many reasons. First, I represented a construction worker who was undocumented and spoke only Span-ish. Second, the liability of the general contractor that I sued rested on what its superintendent instructed my client to do, and that superintendent spoke no Spanish. Third, my client’s credibility was ques-tioned by his own doctor and a neuro-psychologist, both of whom said that my client was malingering and had a second-ary gain syndrome. All the bad ingredients were present. The case involved an injury on a construction site. My client worked for a demolition company that contracted to tear down 20 foot high walls. Before beginning the demolition, my client inspected these walls, and noticed that they were unstable. So, to keep them from collapsing, he and a co-worker decided to bring them down in

an unorthodox but ingenious manner. They threw a rope around the top of the first wall and then pulled on it. Sure enough, the wall came down easily, confirming that these walls were structurally weak. However, the general contractor’s super-intendent did not like this way of bringing the walls down because the falling pieces made too much noise. The superintendent ran up to these workers screaming obscen-ities and telling them that they needed to climb a ladder and bring the wall down in pieces with a hammer. He used some words in Spanish also as he was screaming at them. My client tried to tell him with his limited English skills and through signs that the walls were weak and that it seemed dangerous to use a ladder next to them. My client even pushed one of the walls sideways a little to show its weak-ness. In response, the superintendent told my client to go “f@$% himself,” and that he would talk to my client’s supervisor about it in order to get my client fired. The superintendent followed through on

An Overlooked Secret of Success in Trials Is to Just Show Up


his word and my client was subsequently fired. The supervisor was more eager to please the superintendent than to look after his workers’ safety. Instead of inspecting the wall himself to verify my client’s safety concerns, the supervisor told him to do what the superintendent wanted. The perfect storm was created. My client climbed the ladder, and on the first blow with the hammer the wall came tum-bling down on him. It knocked him off the ladder and hurled him to the floor twelve feet below. He broke his knee cap, all nine ribs on the right side, his shoulder, and worst of all, he cracked his skull, resulting in a closed head injury. I filed a lawsuit against the general contractor alleging that my client was in-jured because its superintendent interfered with his means and manner of working, thus making the work unsafe. The defense argued that the superintendent never told my client anything about tearing down the wall. In fact, the defense argued that the superintendent did not speak Spanish and since my client did not speak English, the conversation mentioned above could not have occurred. In essence, the defense argued that my client was a liar. At my client’s deposition, he was asked to state exactly, in English, what the superinten-dent said to him. My client failed the test miserably. The defense thereafter made an offer of $30,000.00, or my costs. To make matters worse, my client’s treat-ing physician, a workers’ compensation doctor, also called my client a liar. The doctor stated in her reports that that my client had a secondary gain syndrome, that he was malingering, and that she knew it because she saw him walking without a cane when he thought he was not being watched. Also, because of the brain injury, my client received neuropsychological testing. The neuropsychologist gave his opinion that my client faked the responses, and that he concurred with the workers’ compensation doctor - that my client was malingering. To boil it down, I had a case that de-

pended on whether the jury believed that the superintendent instructed my client on how to do his work, and this belief depended on the word of my client who could not speak English, and on top of that, a client who the doctors thought was

not credible and a malingerer. The stage was set for me to take my costs and run. Honestly, I was afraid to try the case. But my friends urged me onwards, reminding me that it did not make sense that the client would have torn down a wall one way, which was proven safe, and then turn around and tear down a different wall in an unsafe manner. That is, common sense was on our side. I also be-lieved my client, and as one of our greatest trial lawyers (Gerry Spence) teaches, a true belief in our case and our clients is the best weapon we can have as lawyers. With this in mind, I show up for trial, full of fear, but ready to ask for millions of dollars for an undocumented laborer who was branded a malingerer. Sure enough, at trial he was asked to repeat in English what the superintendent told him. You could barely make out a word of what he said. But he told the jury in a humble manner through his interpreter: I know that I cannot speak English right, but I understand the trade words that

“I asked for 3 million and the jury awarded 2.5 million. After the verdict I talked with

the jurors. They did not like the superintendent as he seemed arrogant

and untruthful.

”OCTLA Upcoming Events

Discovering Discovery October 23, 2014 Learn discovery plans to identify what you need to prove your client’s claim, as well as insight on bringing and defending discovery motions.

Judges-Mediators-Arbitrator& Experts Evaluation November 20, 2014 A candid evaluation of local Judges, Mediators, Arbitrators and Defense Experts. This program is open to Plaintiff Attorney Members Only.

Top Gun Awards Program November 22, 2014 Honoring local trial attorneys who have demonstrated exceptional trial skills, commitment and dedication to preserving access to the civil justice system.


I have lived with and breathed everyday as part of my work for the last 10 years, and I know he told me to get up on a ladder to knock the wall down. And, the superinten-dent used words in Spanish here and there as he was yelling at me. Later, the superintendent got on the stand and a miracle happened. To demon-strate to the jury that the superintendent could not have said anything in Spanish, the defense attorney asked him what “clavos, martillo and escalera” meant. I expected him to say he did not know. I thought that surely

the attorneys had talked about it and he was coached to say he could not say it in Span-ish. But to everyone’s surprise, including his own lawyers’ and the jury’s, he stated clearly with pride, “it means nails, hammer and ladder.” It has been a while since I’ve seen a lawyer embarrassed and not knowing what to do. The defense immediately changed the subject, but the damage was done. The sole defense about a language barrier had just crumbled, and suddenly the case was going our way. The defense’s main argument came crumbling down just like the walls that

injured my client. As to the malingering claims, I chose to not get another doctor or another neuro-psychologist to counter the bad testimony. I simply relied on a humble counselor who was not a psychologist, not a medical doctor, but just a counselor who has a little office full of books about depression and a bible on top of her desk. She had treated my client and was all heart. (Incidentally, she reminded me of the Robin Williams character in the movie “Good Will Hunting”, and I referred to her as my Robin Williams, which sadly, has turned out to be a strangely timely foreshadowing concerning testimony about depression.) She told the jury that she did not have any fancy degrees, but that she had years of helping brain injured people cope and could tell when someone was truly hurt, and that she loved my client because he was a genuine person who had gone through hell and back. She could not help but cry when she berated the expert doctors for being so callous toward brain injured people. The jury loved her. I asked for 3 million and the jury awarded 2.5 million. After the verdict I talked with the jurors. They did not like the superintendent as he seemed arrogant and untruthful. They also thought that the treating doctor and the neuropsychologist needed to have more experience with brain injured people to understand them like my Robin Williams did. In the end I was glad that I showed up for trial, that I overcame my fears, and that I believed in my client and his case. My client would have suffered for the rest of his life had I not done so.

Mr. Avila has been a trial lawyer since 1986. He is a staff member of the Trial Lawyer’s College founded by Gerry Spence. He is Board Certified in personal injury law in Texas. Mr. Avila can be reached at [email protected] Avila



By Jim Brady

IIs there a Medicare component in my Iliability case? Too many times this Iquestion comes at the later stages of

negotiations, and can delay or derail a proposed settlement if one side overlooks Medicare’s rights regarding future benefits. Below is a check list which applies to about 95% of cases: • If the plaintiff is 65 years old the answer is yes. There are some exceptions for those who didn’t pay into the Social Security System. • If your client has a Medicare Card or knows they are on Medicare the answer is yes. Many clients confuse Medicare with Medi-cal. Ask to see the card. One has to pay into Medicare to be eligible for them or a spouse. Medi-cal is the Federal Medic-aid program administered by the State of California to provide benefits for the poor or disabled.

• If a treating physician or a medical expert indicates that there will be lifelong need for treatment as the result of the injury, the answer is yes. This may be an unintended consequence as the defense will insist on a Medicare Set Aside Arrangement since it was part of the damages argument. • If there is a Workers Compensation element where the plaintiff will receive over $250K in benefits, and or file for So-cial Security Disability benefits in the next 30 months, the answer is yes. • If the plaintiff is on kidney dialysis, the answer is yes. Also, end-Stage Renal Disease automatically grants the plaintiff Medicare benefits. • If the plaintiff is 55 years old and has never paid into Social Security, the answer is NO. Conditional Payments by Medicare I have given over 25 seminars on applying Medicare Set Asides to Liabili-ty and Workers Compensation cases, yet there isn’t a week that goes by that I don’t receive 3 to 4 calls or emails asking if it’s

ok if the defense just puts Medicare’s name on the settlement check. The short answer is NO. There are still believers in the defense bar that think liability will be transferred to the plaintiffs by merely adding Medicare’s name on the settlement check. It’s the quick and easy thing to do and some adjusters have been doing it for 20 years, so there is little motivation to change their ways. More and more however, the defense and insurance carriers are starting to realize that Medicare liens are not to be taken lightly. Given the potential penalties that Medicare can collect for non-reporting or failing to take Medi-care’s future interests into account, some carriers have become overly assertive in applying the law to settlements. The Medicare Secondary Payer Act (42 USC 1395y) requires that if there is a primary payer, Medicare pays second. Pri-mary Payers are Liability insurers, Workers Compensation insurers, No Fault Insurers, Self-Insured’s and Health insurers. Thus, if Medicare makes a payment it has a right of recovery (aka “lien”) to be reimbursed. The “goal” is to avoid a plaintiff from being paid Medicare benefits for his or her medical care and then, after receiving a settlement, being allowed to keep any payments made by the defendant toward those billings. This is simply an equitable stance such that Medicare will continue to be around for the rest of us. This is only one piece of the Medicare puzzle, and the one where there is the least amount of confusion. For the plaintiff, the failure to take Medicare into account is the loss of Social Security Benefits. Gory v. U.S. Food Service, Inc., 2009 Cal. Wrk. Comp. P.D. LEXIS --, ADJ1180690 (OAK 0281569) (October 13, 2009) (WCAB panel deci-sion). This is not the call you want to get from your client when his or her social secu-rity check has been dinged for an unpaid bill. For the Primary Payer (Insurance Companies and Self Insureds ) there is a 100% penalty for the shortfall up to the total amount of the settlement. In addition, the plaintiff may have a pri-

Medicare Set Asides The new deal points in liability settlements


vate cause of action if the Medicare enrollee/former Plaintiff can sue the Primary Payer, i.e. Medicare paid the claim-related expense, Medicare was not reimbursed and the prima-ry payer owed the primary payment. I was asked to speak on this topic two years ago at a national conference for insurance executives. Believe me, insurance companies are on board at the top levels, and given the amount of questions I had after the session it was clear that the insurance indus-try doesn’t want to be the brunt of litigation from The Center for Medicare Medicaid Services (“CMS”) for not complying with the Medicare rules, ergo some insurance compa-ny’s overly dogmatic approach to the issue.

MEDICARE’S RIGHT OF RECOVERY “Smart Act”= Strengthening Medicare And Repaying Taxpayers The government has now given us a modern solution to ascertain the lien amount before settlement. Accordingly, 120 days before you expect to settle the case, you can go on-line to see the right of recovery amount. (http://go.cms.gov/cobro) You may also dispute the amount through the website. Health and Human Services’ (“HHS”) current position is to collect every dollar. CMS originally did not factor in comparative negligence and limits of liability on policies as their experience was primarily with the Health Insurance and Workers Compensation cases. Therefore, now there is provision for waiver, compro-mise and hardship considerations.

MEDICARE SET ASIDES (MSA) The Government requires that Medi-care’s interest be protected for future medical treatment or services of the plaintiff. Without giving us specific procedures to go about do-ing so, CMS looked to the Court to cite var-ious cases as precedent in applying the law. Some of the language cited is as follows: Since CMS provides no procedure for determining the adequacy of protecting Medicare’s interest for future medical needs and or expenses in the settlement of the case pending before this Court and considering

the strong public policy interest in resolving lawsuits though settlement, the Court finds it necessary and appropriate to decide the MSA amount. Welch v. American Home Assur-ance Company, (S.D. Miss. 2013). The law requires that the Medicare Trust funds be protected from payment for future servicers whether it is a Workers’ Compensation or liability case. There is no distinction in the law. Set-aside is our method of choice and the agency feels it provides the best protection for the program and the Medicare beneficiary. Schexanyder v. Scottsdale Insurance Com-pany, Civ. No. 6:09-cv-1390, 2011 U.S. Dist. LEXIS 83687, 2011 WL 3273547 (W.D. La. July 29, 2011). If your case has a component part where there is a need for future treatment and the client is Medicare eligible, it will be necessary to obtain a MSA allocation report. There are various companies that prepare the MSA reports by reviewing the past medical records, usually for the past two years, and using the International Clas-sification of Diseases Code(s) to determine a dollar figure that will be needed to be “set aside” for future medical treatment. This amount must be segregated by the plaintiff from the other portion of the settlement in an MSA account. A MSA allocation can be set up as a lump sum or a structured settlement with a discount for present value and taking into account the claimant’s individual life expec-tancy. This means if you annuitize the MSA over the plaintiff’s lifetime it costs a lot less. By way of example:

Example A: $200,000 Settlement OfferAttorney fees are$66,666Lump Sum MSA with no present value is $130,618Cash to Claimant $2,716Example B:$200,000 Settlement OfferAttorney Fees are $66,666MSA funding $88,611------------- Structured MSA, Seed Money $29,986 + $58,625

annuity=$88,611.(annuity payout is $4,193/yr for life = ex-pected payout $130,618)Cash to Claimant $44,723As we can see, example B may always be preferable. The second issue we frequently encoun-ter with MSA’s has to do with the amount that Medicare believes needs to be set aside for future medical treatment. In many cases the set aside can be more costly than what the plaintiff retains. The case below is an illustration on how this can be dealt with. Facts: Plaintiff is a 64 year old female who was being transported in a medical van when she fell out due to negligence of the van operator in failing to secure her safely in the ambulance. The injury eventually resulted in the loss of her leg below the knee. The insurance coverage was $1mm which the carrier agreed to pay. We were asked to prepare an MSA report to determine what was needed to be allocated for the future medical care. The initial MSA report indicated that the total MSA allocation would be $172,459. This case had a settlement value of $2,000,000 but there was only $1mm in coverage which the Plaintiff accepted. However, because settlement was less than the total value of the case, we were able to obtain an Apportionment Report for the Medicare Set Aside. It worked this way:Settlement Demand/Value: $2,000,000Total Settlement Accepted: $1,000,000% of Settlement vs. Demand: 50%Total MSA Allocation: $172,459Apportioned Allocation: $86,229 (50% of Total Allocation Amount) Furthermore, the MSA was structured over the claimant’s life expectancy vs lump sum, freeing up additional funds for the plaintiff.Apportioned Allocation: $86,229Structured Cost: $61,927Additional Cash to Claimant: $24.302Rated Age in MSA’s. Some of this additional saving in the above case was the result of applying for a “rated age”. Because of the injury or medical


OCTLA Welcomes the Following New Members

ASSOCIATE ATTORNEY MEMBERSJosh Franklin

PARALEGAL MEMBERSDenise FloresKymberly Stockdale

AFFILIATE & ADR MEMBERSJourney Coaching & Consulting, Ann PorterMedLegalFirm.com, Khyber Zaffarkhan, DOProvidio MediSolutions, LLC, Bob Caracciolo

LAW STUDENT MEMBERSTomislav AntunovichVictor LangeJorge L. HernandezPriscilla George

John CliffordDavid deRubertisMatthew EastonMatias FloresStephen FredkinDiana Hamlin

Stephen KaufmanMark KearneyJoshua KimuraRichard SailerFarzad SeyfniaJohn Whelan

condition, a person may, in life insurance company terms, be “Rated”. This means that the normal life expectancy is reduced. For our practical purposes, this reduction acts to improve the lifetime payouts as the life company believes the person/plaintiff will not live as long, therefore life company will not have to pay benefits as long, which reduces the life company’s costs. Certain conditions that are accident related, like paraplegia, will reduce life expectancy as will some non-accident conditions like COPD which is a respiratory aliment. Although the compensable injury maybe trauma related, you can also benefit from a better rating if there is information in developing the non-accident injury that can increase the rated age.

developing the non-accident injury that

ATTORNEY MEMBERS

Thank You For Referrals

For ReferralsOCTLA would like to thank these members who have referred one or more New OCTLA Members this past quarter:Nigel BurnsTraci KaasYoshi KubotaSteven SmithDoug Vanderpool

TAKE NO CHALLENGE

ALONE

Mr. Brady is a Certified Structured Settlement Consultant at Ringler Associates and currently holds the title of Senior Vice President and West-ern Regional Director. He can be reached at 949.425.5400.

Jim Brady

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PARALEGAL MEMBERSDenise FloresKymberly Stockdale

AFFILIATE & ADR MEMBERSJourney Coaching & Consulting, Ann PorterMedLegalFirm.com, Khyber Zaffarkhan, DOProvidio MediSolutions, LLC, Bob Caracciolo


lines/TH1.aspx. http://www.calbarjournal.com/Au-gust2011/TopHeadlines/TH10.aspx. ) In July 2013, the State Bar advertised that it would be mailing notices to approxi-mately 4,700 of those who are required to report their MCLE compliance. (See, http://www.calbarjournal.com/July2013/TopHeadlines/TH2.aspx.) This year, the State Bar increased its audit pool to an all-time high and audited approximately 5,500 members. If you are one of this year’s lucky ones to be audited, you were required to submit proof of compliance by August 21, 2014. Attorneys who did not complete the

required 25 hours of coursework will be subject to a $75 penalty. If they still have not met the requirement by November 21, 2014, they will be placed on

administrative inactive sta-tus and will not be eligible to

practice law. False declarations of compliance will be reported to

the Office of Chief Trial Counsel for further investigation and potential dis-

cipline.” (See, http://www.calbarjournal.com/July2014/TopHeadlines/TH6.aspx.)

Thus, for those looking for MCLE credits, you have an even greater

reason to join us at our upcoming OCTLA fall programs.

Changes to MCLE Requirements

In addition to MCLE compliance audits, the State

Bar Board of Trustees approved changes to MCLE that took effect in July 2014. One major change that was debated, but ultimately deferred for action, was the increase of CLE requirements from 25 hours to 36

hours. The Board did, however, make changes that will: ● Expand the substance abuse edu-cation specialty requirement to include a broader “competence issues” require-ment. Competence education would teach lawyers how to recognize and deal with any mental or physical issue — including dementia, mental illness or substance abuse — that could affect their ability to practice. ● Establish a formal audit system for MCLE providers that would use volun-teers to review courses and provide a

The Requirements

As we head into fall, most of us are not thinking about our Minimum Continuing Legal Education (MCLE)

credits. For some, however, at the end of this year they will be re-quired to report to the State Bar that they have successfully completed:

● At least 25 hours (no more than 12.5 hours of self-study) of MCLE over the course of the past three years. Of those 25 hours, the following mini-mums are required:

● At least 4 hours of legal ethics;

● At least 1 hour dealing with the elimination of bias in the legal profession; and,

● At least 1 hour must include education addressing substance abuse or other mental or physical issues that impair a mem-ber’s ability to perform legal services with competence. There are some exceptions to the above, including if you were inactive for any part of the reporting period, but generally speaking, the practitioner needs 25 hours of MCLE to be compliant with the State Bar. Rules of the State Bar of California, Title 2. Rights and Responsi-bilities of Members, Division 4. Minimum Continuing Legal Education.

Audits Are on the RiseOver the past few years, the State Bar

has been increasing its MCLE compliance audits. In 2011, the State Bar audited 625 attorneys. In 2012, that number increased to 2,600. (See, http://www.calbarjournal.com/MCLESpecialEdition2012/TopHead-

MCLE Audits are on the Rise...And New Changes Take Effect July 2014

By Atticus Wegman


process for attorneys to register com-plaints about providers. ● Require written materials for MCLE courses that are an hour or more in length. Currently, written materials are not required for programs that are one hour or less. ● Broaden the elimination of bias specialty requirement to include courses on how to recognize bias in society, not just in the legal profession.

What To Do Now With the steady increase in CLE compliance audits and new changes in effect, now might be a good time to brush up on your knowledge of the State Bar Rules. For those looking to make sure they are not “lucky” (see above), the California Bar Journal has published an article revealing the “Top 7 MCLE Mis-takes” that they encounter when auditing members: 1. Forgetting or overlooking ethics, elimination of bias and substance abuse CLE; 2. Taking CLE classes after reporting compliance; 3. Math Bloopers (Arithmetic errors

“With the steady increase in CLE

compliance audits and new changes in effect, now might be a good time to brush up on your

knowledge of the State Bar

Rules.

”

resulting in failure to complete enough hours); 4. ‘I thought I was exempt’ (Misin-terpreting the exemption rule); 5. “My cat ate my certificate” (Lost attendance certificates); 6. Sky-diving for MCLE credits (Submitting activities that have not been approved for MCLE); and, 7. Mistaking programs that ad-vertise “MCLE credit available” for “MCLE approved.” (Taking classes from out-of-state CLE providers that have not been approved). (See,http://www.calbarjournal.com/MCLESpe-cialEdition2012/TopHeadlines/TH5.aspx.) For more information, please visit the State Bar website at http://www.calbar.ca.gov.

Mr. Wegman is an attorney at the law firm of Aitken Aitken Cohn and specializes in gen-eral negligence cases. He can be reached at

714.434.1424 [email protected]

Atticus Wegman


----------------------------------------------------------------------------------------------------------------------------David Reinard of the Law Offices of David Reinard, P.C. obtained a $450,000.00 settlement in a motorcycle v. auto accident. The plaintiff suffered a traumatic amputation of his left index finger. The accident occurred when Plaintiff was “lane splitting” between traffic on PCH in Malibu. The only witness -- an experienced mo-torcycle rider -- was adamant that Plaintiff was traveling far too fast for the conditions.----------------------------------------------------------------------------------------------------------------------------Robert Simon and Brad Simon of The Simon Law Group, LLP secured a settlement of $950,000.00 for plaintiff who suffered injuries to her neck and back. Plaintiff had slowed for traffic and defendant slammed into her at a high rate of speed. ----------------------------------------------------------------------------------------------------------------------------Doug Vanderpool of Vanderpool Law won a verdict in a bitter quiet title and fraud action brought by a daughter against her own mother. Daughter was suing mother over a house that mother had purchased and had allowed daughter to live in rent free for the past 12 years. When Mom simply asked daughter to start paying minimal rent after getting married, Daughter

refused. After a four day bench trial, and at close of Plaintiff’s case, Mr. Vanderpool and his client moved for judgment pursuant to CCP 631.8. Judgment was granted.----------------------------------------------------------------------------------------------------------------------------Robert Simon and Brandon Simon of The Simon Law Group, LLP obtained a special jury verdict of $1,803,169.71 for plaintiff, who was rear ended while stopped at an intersec-tion. This verdict was more than 10 times the defendants’ last offer, and over commercial insurance policy limits. ----------------------------------------------------------------------------------------------------------------------------Dan Hodes of Hodes Milman Liebeck, LLP received an arbitration award of $2,225,000.00 for a 44-year-old claimant due to the misdiagno-sis and/or failure to properly advise of the risks of stroke, which led to left side paralysis and aphasia. Dan Hodes also secured a settlement of $699,000.00 for his client after physicians failed to inform her of the result of a breast biopsy that revealed cancer. The delay in information was 100 days. Due to the delay, Plaintiff argued that the cancer progressed from curable to incurable. ---------------------------------------------------------------------------------------------------------------------------- Atticus Wegman of Aitken*Aitken*Cohn obtained a policy limits settlement of $250,000.00 for a 19-year-old that was struck by a vehicle while he was waiting to cross a

street on his bicycle. Plaintiff sustained a lacera-tion to his spleen and fractures to his ribs and left ankle requiring surgery. ----------------------------------------------------------------------------------------------------------------------------Robert Simon and Thomas Feher of The Si-mon Law Group, LLP obtained a settlement in a slip and fall case against 99 Cents Only Store, Inc. on February 18, 2014 for $390,000.00. Plaintiff slipped and fell on water on the ground of the floor, sustaining major injuries to her knee. Conveniently, the video cameras in the store were non-operational at the time of the incident, but Plaintiff was able to secure a key witness to attest to the hazardous floor condition.---------------------------------------------------------------------------------------------------------------------------- Matthew Easton of Easton and Easton, LLP obtained a settlement of $1,240,000.00 for Plaintiff who was involved in a T-bone auto-mobile accident. Plaintiff was a breast cancer survivor, who had undergone a Double Mas-tectomy with Breast Reconstruction in 2010. About 3 months before the accident, Plaintiff underwent the Second Stage Bilateral Breast Reconstruction, which involved the placement of the permanent breast implants and was the final stage in her reconstruction process. This impact ruptured the incision site of her left breast requiring emergency repair surgery the following

Verdicts & Settlements

Continued on Page 48 u

From Page 22

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Register online at www.OCTLA.org or 949-916-9577 Sponsorships and Tribute Ads available

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Reception & Silent Auction 5:30pmDinner & Awards Presentation 7:00pm

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TOURNAMENT ENTRY FORM


Judicial Profile Honorable Linda Marks

known as Marks & Yocum. While the firm was primarily a defense litigation firm, and mostly self-insured clients, we also repre-sented plaintiffs. Over the years, I had tried a lot of cases, and became interested in mediation and arbitration. Prior to appointment on the bench, I took the Straus Institute course on alternative dispute resolution, and was an attorney-mediator with Judicate West, and the AAA panel. Although my work on the bench does not employ a mediation paradigm, my past experience is helpful in getting cases resolved.

What were your assignments when you became a judge? I was appointed to the bench in 2003 by Governor Davis. My first assignment was at the West Justice Center where I was assigned to handle a variety of criminal matters from very busy calendar courts, including the felony arraignment court to misdemeanor and felony trials. I also served for two years as the Presiding Judge over the West Court drug court program. I found it extremely satisfying to see defen-dants thrive and rehabilitate without having to be incarcerated. Also, while I was still at West Court, I transitioned into a family/civil assignment. In 2009, our civil panel was consolidated into one courthouse, and I was transferred to the Central Justice Center where I pres-ently sit and handle general civil matters.

What is your caseload now? I have approximately 600 cases, and started with 350 cases. Since the budget cri-sis, civil judges have had to feel the pinch of

London and went on to Southwestern Law School. Law appealed to me not only be-cause it is a great discipline, but a profession that would provide for a great career path.

How were you employed before you became a judge? Before starting law school, I wanted to learn about the law. The law firm of Morrison & Foerster was recruiting to hire their first legal assistant in Los Angeles. I got the job and it gave me the opportunity to learn about the law, and ultimately con-vinced me to pursue a career in law. Prior to law school, I worked at various jobs that gave me a wide exposure to lots of areas of employment. I worked several jobs including writing for the UCLA Bruin to working as a veterinary assistant. Each ex-perience put me in touch with people from various backgrounds which taught me a lot about the working opportunities afforded to some, but not others. After I graduated law school, I joined the Los Angeles Public Defender’s office, I had the opportunity of working with some of the best trial lawyers such as Leslie Abramson, Jill Lansing, and Howard Weitzman - all excellent trial lawyers, and wonderful mentors. I knew that my pas-sion would be trial work. After a few years at the office, and gaining a lot of trial experience, I made a lateral move and joined Fonda & Garrard,

a civil law firm in Los Angeles. My move to Orange County in

1989, resulted in my later establishing

my own civil firm which became

In this edition we profile Judge Linda Marks of the Orange County Superior Court. Judge Marks has been a sitting judge in Orange County since 2003. Now handling civil matters, she discussed her take on issues from discovery to the future of the civil jury trial.

What is your educational background? I attended UCLA for my undergradu-ate work, majoring in English with Film as a minor. My interest in theater was a factor in my journey to a career in law. I like to think of the courtroom as the “theater of the law.” Before law school, I spent time in


a larger caseload. This is where lawyers can help. I would urge attorneys to find ways to limit appearing in court, and work out their disagreements as much as possible.

What are your pet peeves in Court?

My number one rule is that lawyers should remain civil toward each other. Lawyers should not take on the emotion-al angst of their clients. I believe that attorneys should always strive to be civil, professional, and courteous. Some law-yers think that if they are courteous, they may be perceived as weak, but nothing could be farther from the truth. A lawyer only has one reputation which should be upheld at all cost. Attorneys should keep in mind that a judge’s memory will run deep for those that do not represent the best in their profession. This does not mean that you should not argue zealously on behalf of your client. A lawyer can still advocate effectively, and be civil. Attorneys should keep in mind that we have a wonderful system of higher review. It reflects poorly on the pro-fession when a lawyer challenges or is disrespectful to the court after a ruling is made.

I always appreciate well prepared lawyers. Well prepared on the law, pro-cedure, and facts of each case insures that a client will have the best representation, and that the court will have all the infor-mation needed to make the best ruling. I always say that my rulings are only as good as the information I receive. Many times, I find myself doing the job of the attorneys to the chagrin of my research attorneys.

At trial, one of my pet peeves are attorneys during voir dire telling jurors “you do not want to be here.” We all know it is a sacrifice of time for jury duty, but jurors breathe life into the Con-stitution and the Seventh amendment. I would like prospective jurors to under-stand that their job as a juror is extremely important, and should not be taken light-

ly. I recently had a prospective juror who was an immigrant, and while reluctant to cancel her important work related travel plans would do so, if she were selected to be a juror because of her deeply held belief in the importance of serving as a juror and performing her civic duty.

What is your take on discovery motions? None of your readers would be sur-prised to hear that I stress that the parties exhaust all meet and confer efforts before bringing a discovery motion. There are so many creative ways to resolve discovery disputes before running into court. These days it is taking longer for matters to be set on the law and motion calendar, and often I see attorneys allowing a discovery dispute to halt the progress of the case. If responses to interrogatories is insufficient, consider taking a deposition. If responses to a demand for production is inadequate, issue a subpoena. I like to remind attorneys


that if you are bringing a needless motion you are taking time away from another case, and impeding the Court’s ability to be efficient in utilizing its resources.

What do you enjoy about being a civil trial judge? I really like the variety, and love the trials. I am intellectually curious, so I get to learn about a whole host of interesting topics. When well-prepared trial lawyers

present their case, it is the best example of what I believe our founding fathers had in mind of how our civil trial jury system was envisioned to work.

What do you do in your spare time? I love to read, and am an avid equestri-an, along with a passion for travel. Community outreach is also very important to me. I am on the board of the OC ABOTA chapter. We have been working and developing programs for our local students dealing with civics education in the classroom. In order for our civil jury system to survive, it is imperative that young people learn about the Constitution and the three branches of government.

What do you see for the future of civil jury trials? As we go into the years ahead, we may have to continue to manage large civil case-loads. We have to devise ways to make the

“civil jury trial” more efficient. I foresee that the time estimates for trial will shrink, and procedures such as the expedited jury trial will be the norm not the exception. I worry about the civil jury trial becoming obsolete. This is where groups such as OCTLA have to become lobbyists for the civil jury trial. The alternative would be contrary to our Constitution, and one of the most important rights we have as citizens. ----------------------------------------------------------------- By Sarah Serpa


OCTLA member receives State Bar Attorney of the Year Award OCTLA member Solange Ritchie was awarded the Myer J. Sankary Attorney of

the Year Award for 2014 from the State Bar of California Solo & Small Firm section. The award will be presented at the State Bar convention in San

Diego on Sept. 12. Only one attorney is se-lected for this honor each year. The Myer J. Sankary Attorney of the Year Award is pre-sented to an individual who has exercised notable leadership or contributed to the development of greater justice in a field of law. The award is presented annually to an individual who is a sole practitioner or a member of a small firm and who has devoted years of faithful service and leadership to the community or his or her fellow attorneys.

Availability of Court Reporters in Orange County Superior Court Effective August 25, 2014, Depart-ments C6, C10, C12, C13, C14, C15, C17, C18, C21, C23, C25, C26, C31, and C32 will be participating in a Court Reporter Pooling Pilot Project. Official court report-ers (i.e. court reporters employed by the Court) in those departments will be provid-ed only for trials and other matters in which oral evidence will be presented. Official court reporters will continue to be provided for all hearings in the remaining unlimited civil departments, including civil complex

departments.

OCTLA member enters Western State College of

Law Hall of Fame Congratulations to Gregory Bentley for his selection into the Western State College Hall

of Fame. Greg will be honored at the Hall of Fame Gala on September 27th, 2014 at the Balboa Bay Resort in Newport Beach, California. Western State’s annual Hall of Fame Gala is the school’s largest fundraiser of the year. The proceeds from this event are awarded to deserving students to help defray the rising costs of education.

New United States District Judge for the Central Dis-trict of California On August 8, 2014, former United States Attorney André Birotte Jr. was sworn in as a federal district judge for the United States District Court, Central District of California. Judge Birotte was nominated by President Barack Obama on April 3, 2014. He was confirmed unanimously by the Senate on July 22, 2014, and received his commission on August 8, 2014. Judge Birotte will preside over matters in Los Angeles in the Court’s Western Division in Courtroom 790 of the Edward R. Roybal Federal Building and Courthouse. Judge Birotte had served as United States Attor-ney for the Central District of California since his appointment in 2010 by President Barack Obama.

Superior Court of Orange County Wins 2014 Top 10 Court Websites Award

The Forum on the Advancement of Court Technology (FACT) named the Superior Court of Orange County, www.occourts.org, as a 2014 winner of its annual Top 10 Court Websites Award. One of the FACT judges commented, “The site does a great job of presenting a lot of information in a manner that is attractive and accessi-ble.” Another of the judges said, “‘Quick links to ‘Find Information For…’ and ‘How Do I…’ are nicely done! This website is very well done and user friendly.”

Changes to Local Rules Pro-posed to Become Effective December 1, 2014 The Court has preliminarily approved the new and amended Local Civil and Criminal Rules that accompany this notice. The proposed effective date for these rules is December 1, 2014. The proposed new and amended rules are posted on the Court’s website, and include the following: Local Civil Rules:3-1 [Civil Cover Sheet and Other Forms Re-quired at the Time of Filing a New Action]3-2 [Filing of Initiating Documents]4-1 [Summons – Presentation for Issuance]5-3.2 [Service of Documents Filed Electron-ically]5-4.2 [Exceptions to Electronic Filing in Civil Cases]15-1 [Separate Document]15-4 [Manner of Filing]17-1 [Minors or Incompetents]54-2 [Application to Tax Costs Pursuant to F.R.Civ.P. 54(d); Bill of Costs]54-6 [Objections to Bill of Costs – Re-sponse]83-1.1 [Assignment of Cases]83-1.3 [Notice of Related Cases]83-5 [Minors or Incompetents] (renum-bered)83-5 [Minors or Incompetents] (renum

Tidbits & AnnouncementsFall 2014

46 ORANGE COUNTYTRIAL LAWYERS ASSOCIATION

OCTLA Meetings & Events Calendar 2014-2015

Oct. 13, 2014El Niguel Country ClubBench & Bar Golf TournamentOct. 23, 2014Tustin Ranch Golf ClubDiscovering DiscoveryNov. 20, 2014Tustin Ranch Golf ClubAnnual Judges Evaluation & Board ElectionsNov. 22, 2014The Montage, Laguna BeachTOP GUN Trial Lawyer of the Year Awards Programand Charitable Silent AuctionDec. 12, 2014Original Mike’sHoliday Luncheon

January 22, 2015What’s New in Tort &Trial? 2014 in ReviewTustin Ranch Golf ClubJanuary 31, 2015Balboa Bay ResortInstallation of Officers & Judicial Awards ProgramNewport BeachMay 1-3, 2015Rancho Las Palmas ResortCAOIE / OCTLA Palm Springs Seminar May tbd, 2015The Capitol Justice Day (CAOC’s Annual Lobby Day) Sacramento, CA

THE GAVEL – FALL 2014 47 Photography by Rick Kraemer of Executive Presentations


morning to replace the exposed implant. Plaintiff developed a left breast infection 3 days later that was treated with IV antibiotics.----------------------------------------------------------------------------------------------------------------------------Mike Pena of the Law Office of Mike Pena secured a $215,000.00 settlement on behalf of his client who suffered injuries when defendant fell on top of her at a local amusement park causing her to suffer a tibial plateau fracture requiring surgery and rehabilitation. ----------------------------------------------------------------------------------------------------------------------------David Reinard of the Law Offices of David Reinard, P.C. obtained a $563,000.00 set-tlement in a motorcycle v. auto accident. The plaintiff suffered a fractured left wrist and a fracture of his right forearm. Medical specials were $40,000 for two ORIF procedures. Plain-tiff alleged $100,000 in lost earnings.----------------------------------------------------------------------------------------------------------------------------Ted Wacker of the Law Offices of Ted Wacker obtained a $500,000.00 policy limits settlement on behalf of plaintiff that was rear ended. The police report did not indicate any injuries. Plaintiff worked as an engineering assistant for almost 20 years. She claimed 2 weeks for loss of earnings. She also claimed new injury to her back resulting in a lumbar fusion and a cervical fusion. The initial offer from defendant insur-ance company was $4,400.00 due to the non injury police report and causation dispute. ----------------------------------------------------------------------------------------------------------------------------Robert Simon and Brad Simon of The Simon Law Group, LLP secured a settlement on behalf of their 80-year-old client who was accompanying her grandson to an auto body shop to sign pa-perwork. As Plaintiff exited the shop, she tripped over an over extended tailpipe hanging out from an old Volkswagen Beetle that was parked outside the building. She fell and landed directly on her face, causing her to fracture a tooth. The tooth got infected and months later the infection reached her brain, resulting in permanent brain damage and other severe complications due to brain trauma. The case settled for the policy limits of the body shop and owner of the vehicle.----------------------------------------------------------------------------------------------------------------------------David Reinard of the Law Offices of David Reinard, P.C. obtained a $350,000.00 settle-ment in a motorcycle v. auto accident. The plaintiff suffered a right wrist fracture which re-quired an ORIF and subsequent surgeries due to an infection. Plaintiff had previously fractured the wrist and had undergone surgeries leaving a deformity and loss of strength and mobility. While the accident occurred after defendant made a left turn from a side street into plain-tiff’s path, defendant was proceeding straight in

her lane when plaintiff’s motorcycle struck the middle of the defendant’s rear bumper (i.e., a direct rear-end collision). ----------------------------------------------------------------------------------------------------------------------------Greg Rizio of Rizio & Nelson and co-counsel received a verdict for $14,374,350.00 on behalf of a traumatically brain injured 25-year-old who fell asleep while driving southbound on the I-215. Plaintiff fell asleep at 4:00 am causing his car to spinout and become disabled in the fast lane on an overpass facing nearly perpen-dicular to the oncoming traffic. Plaintiff had some alcohol in his system though evidence of such was excluded per motions in limine. A Good Samaritan saw the spin out, pulled over to the other shoulder and activated his emer-gency flashers before running over to assist plaintiff out of his car. Defendant’s vehicle was traveling southbound in the fast lane and struck the plaintiffs vehicle which then struck plaintiff and the Good Samaritan throwing them over the overpass. After a 20 day bifurcated trial, the jury returned a verdict for $57,497,402. Plaintiff was found 75% comparatively negligent. ----------------------------------------------------------------------------------------------------------------------------Ted Wacker of the Law Offices of Ted Wacker settled a premises liability case for $262,500.00 against plaintiff’s landlord before trial. Plaintiff was in his own apartment when some of the plaster ceiling material fell on his head. No injuries were reported at that time and plaintiff went to work on the day of the accident as a sign installer. However, a few days later he had an MRI of the head, which showed a hairline fracture of the orbital bone.----------------------------------------------------------------------------------------------------------------------------Darren Aitken of Aitken*Aitken*Cohn obtained a combined wrongful death and personal injury settlement in the total amount of $1,800,000.00 for an 82-year-old husband and his three adult sons due to the loss of their 76 year old mother in vehicle collision on the I-15 near Barstow, CA. The accident sequence was caused by Defendant, who was working in the course and scope of his employment for a construction contractor. As traffic slowed, Defendant impacted the vehicle in front of him, which caused a domino effect whereby 4 vehicles impacted each other. Dece-dent and her family were the third vehicle in the collision. The Decedent expired two days later in the hospital. The wrongful death claim settled for $1,600,000.00, and the personal injury claim of the Decedent’s husband settled for an additional $150,000.00, Decedent’s grandson was in the rear seat of the passenger van and sustained moderate injuries which led to a $50,000 settlement on his behalf.

Verdicts & Settlements From Page 40 Index of

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June 26th Program – Identifying and Proving Traumatic Brain Injury


Presented by Dr. Arnold Purisch, John Montevideo, Esq., and Chris Wesierski, Esq.

July 24th Program – Substance Abuse and Mental IllnessPresented by Justice David R. Thompson and Supervising Judge Gerald Johnston

Alex Sevila, Sponsor Vahe Garabedian with MotionLit Video and Daniel Kim

Sponsor James DickinsonOC 3D Engineering

Anthony Burton and Greg RizioBruce Brusavich and Amy Brummel

Speaker Dr. Arnold Purisch Hon. Lon Hurwitz, Speaker Chris Wesierski and David Solo Brandon Simon and Geoffrey Kraemer

Paul Lee, Linda Simon and Lance Kirk Speaker John Montevideo and Geoff Gray

Ed Susolik, Jeff Milman and Traci Kaas Speakers; Hon. Gerald Johnston and Justice David R. Thompson

Tom Weaver and Jerry Gans

50 ORANGE COUNTY TRIAL LAWYERS ASSOCIATION Photography by Verdict Videos

OIn Sunday, September 7, 2014, 13 judges and commissioners, I16 members of the OCTLA, and 4 mediators gathered at Grant IHowald IField in Corona Del Mar to participate in the 8th Annu-

al OCTLA Bench vs. Bar Softball Game. The Bar decided to start the game an hour earlier this year, which backfired as the Bench, who are used to starting work at 8:30 a.m., jumped out to a quick 5-1 lead after the first inning. However, true to form, the Bar woke up for the second inning (second call) with home runs from Darren Campbell “Soup is Good Food” and Daniel “Swiss Family” Robin-son, cutting the lead to 6-3 after two innings. The game was close throughout with the Bar tying it up at 8-8 in the bottom half of the fifth inning. The Bench would not be denied, however, by pushing a run across in the top half of the sixth scored by the Honorable Karen Robinson. The Bench was therefore primed to score more runs, but Judge Andrew Guilford “federally preempted” Commissioner Ronald Klar with a line drive to his lower leg, killing the rally. Unfortunately, the Bar could not muster another comeback and meekly went down in order in the

bottom of the sixth inning handing the Bench a hard fought and well played 9-8 victory. After the game, the Bar’s distraught Manager,

Darren Campbell was quoted as saying: “If we had the Bench’s cheering section, comprised of Judge Gail Andler, Judge Eliz-abeth Macias, and Judge Nan Pollard (Ret.), I think we could have pulled that one out. Unfortunately, I failed to take the sage advice of my predecessor, Alan Brown, by paying off the umpires.” OCTLA President Casey Johnson, who played second base, im-mediately opened an investigation into Mr. Campbell’s leadership ability by failing to properly bribe the umpires, namely, Hon. Robert Jameson (Ret.), Gary Donovan, Alex Polsky, and Tom Weaver. Other than Commissioner Klar and the tired and aching muscles that normally follow such a hotly contested affair, the injuries were limited to a pulled hamstring by Greg “I drove all the way to the OC for a softball game?” Rizio and Geraldine “Girl Power” Ly. The judges unanimously voted OCTLA Past President Yoshi “I actually fell out of a tree as an adult once” Kubota as their MVP because he did so much to thwart the Bar’s success. The Bar had co-MVPs, OCTLA Past President Scott Coop“-da-Loop-”er and current Secretary Jim “and the” Pantone(s). All in all, it was a great day to play ball, which followed

with a great bar-b-que picnic with a face painter for the kids. Special thank you to the members of the Bench that participated in this year’s game.

8th Annual OCTLA Bench vs. Bar Softball Game8th Annual OCTLA Bench vs. Bar Softball Game8th Annual OCTLA Bench vs. Bar Softball Game


Family BBQ Picnic in the Park Family BBQ Picnic in the Park Family BBQ Picnic in the Park


Outside the Law

Eric Traut and Pam Liosi at Stirling Castle, Scotland

Anthony Burton and Layla at the Padres game

Ted Wacker and sons enjoying an Angels Game

Casey Johnson and his dog Sydney

Yoshi Kubota and his dog Bernie

Geraldine Ly and her family in San Francisco

Janice Vinci and her horse Scooter

Sarah Serpa posing on her father’s motorcycle

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