TTTTTHEHEHEHEHE UUUUUPDAPDAPDAPDAPDATETETETETESan Diego Defense Lawyers Association

March 2004

separated from the mold. Infectious re-sponses to mold are exceptionally rare andtypically occur only in individuals withweakened immune systems.

“Toxic mold” refers to certain mold speciesthat allegedly cause a toxic response inhumans—stachybotrys chartarum , aspergil-lus, penicillium, and cladosporium . As a by-product of their metabolism, these moldsproduce poisons known as toxins, which canbe inhaled. While the existence of thesemolds is not debated, their health effects are.Although conclusive proof has not yet beendiscovered, plaintiffs claim that toxic moldhas caused a range of temporary andpermanent injuries, including cancer andbrain damage.

Complex Mold LitigationOccupants of multi-unit office towers are

suing building owners and property manag-ers, who are in turn suing architects, engi-neers, and contractors, and everyone is suingtheir insurance carrier. Estimates indicate thatthere are approximately 10,000 mold-relatedlawsuits pending in the United States, filed inmore than 20 different jurisdictions. Virtuallyanyone who has any connection to a mold-contaminated building is at risk of becominga defendant. Not only is the expert-intensivelitigation itself expensive, but the investiga-tion to determine the cause, type, and extentof the contamination can run in excess of $1million, and the cost to remediate can beupwards of $150/square foot. Additionally,punitive damages will likely be claimed incases of fraudulent concealment.Continued on page 4

“Toxic” Mold Litigation A Multi-Disciplinary/Proactive Approach

In This Issue

Toxic MoldBottom LinePresident’s MessageBrevety, Clarity & GracePhoto MontageMember NewsAvoiding Bias SeminarBoard of Directors BiosBrown BagLetters to the Editor

122368991111

by Brian J. Clark and Deborah A. Little

Multimillion dollar verdicts in lawsuits thatallege injury caused by mold infestation havethrust mold into the national spotlight.Making headlines was Ballard v. FireInsurance Co., No. 99-05252 (Tex.Dist.Ct.,250th Dist., Travis County, June 1, 2001),where a family was awarded $32 millionagainst their insurer for bad faith. Althoughthe Texas Court of Appeals reduced thatverdict to roughly $4 million in Allison v. FireInsurance Co., 98 S.W.3d 227 (2002), thefamily is appealing the decision to theSupreme Court of Texas. However, the finaloutcome of the suit is irrelevant because theoriginal verdict has already sent its message:mold litigation can equal big money forplaintiffs and their lawyers.

The largest personal injury verdict to asingle family is believed to be that of Mazzav. Schurtz , No. 00ASo4795 (Superior Ct.,Sacramento County, California, Nov. 7,2001)—$2.7 million. In Mazza, the plaintiffalleged that the defendant property ownersfailed to properly maintain and repair thesubject property, resulting in water intrusionand the development of toxic molds.Plaintiff’s contention was that this moldinfestation caused them to sustain significantinjuries to their immune, cellular, and respira-tory systems, with symptoms including jointpain, fatigue, and chronic upper respiratoryinfections.

In addition to these large monetary awards,mold has also garnered media attentionbecause of its high profile plaintiffs. Forinstance, legal crusader Erin Brockovich(played by Julia Roberts in the movie thatbore her name) alleged that she and herfamily got seriously ill from mold growing inthe house that she purchased with her movieroyalties; she settled with the home builderfor an undisclosed amount, and a lawsuitagainst the seller is pending in California.Johnny Carson’s former Tonight Showsidekick, Ed McMahon, fell ill, and his dogdied, allegedly from toxic mold growing in hisBeverly Hills mansion. He sued his insurancecompany and contractors who had workedon his house, asserting that the contractors’faulty repair work on a leaky pipe caused thecontamination and subsequent spread ofmold. In April of 2003, McMahon settled forover $7 million.

Even more recently, hard rock musician TedNugent and his family were allegedly forced

from their Michigan home after a water leak inthe house’s roof apparently led to mold. Thefamily is considering legal action. Mold casesinvolving public figures like these haveadded fuel to the mold litigation fire.

It is important to note that such claims,however, are not limited to homeowners.Mold has now become one of the biggestenvironmental liability concerns thatbusinesses face. How can lawyers bestprotect their clients from mold litigation andpossible business interruption and relocationdue to mold? They should develop anunderstanding of mold and the multifacetedlegal, scientific, and medical issues itinvolves and work with a multidisciplinaryteam to proactively focus on the issues.

What is Mold?Molds are the most common type of fungi.

While most mold is harmless, some claim thatexposure to certain “toxic” molds causesillness. To date, only a handful of studieshave examined the potential health effects ofmold, and scientists disagree about whetherthese studies have effectively established acausal relationship between mold and illness.

Mold needs both food and water to live.Unfortunately, the cellulose-based productsused today to construct buildings makeperfect meals for mold, which can exist withinwalls, insulation, and floor underlayment.Given any source of water, such as a leakyroof or pipe, mold can thrive in virtually anybuilding, in any climate. Molds reproducethrough the production of spores which,when released, are carried in the air and caneasily be inhaled.

Although mold has been around since atleast biblical times (Leviticus, 14:33–14:57), ithas recently become a greater threat asconstruction means, methods, and materialshave changed. Today’s energy-efficientbuildings are generally more airtight, and thereduced amount of outside air introduced hasbeen linked to many indoor air qualityproblems.

Health EffectsThe alleged impacts of mold on the human

body are typically categorized as: allergic;infectious; and toxic.

Although some people are allergic to mold,whether toxic or not, their reactions areusually temporary and abate once they are

March 20042

The President’s Message…

Upon learning that I had been elected President ofthe San Diego Defense Lawyers for the year 2004, myfriends congratulated me and then in the next breath Iasked, “What does SDDL do?” It occurred to me thatthere may be a good number of our members who donot know what SDDL does. Although SDDL is in-volved in charity work and helps promote camaraderiebetween its members, primarily, SDDL focuses oneducation for its members.

Every month SDDL promotes, selects speakers, and conducts a one-hour brown bag seminar on the various subjects that the State Bar ofCalifornia requires to satisfy the MCLE requirements. In January, therewas a seminar on “Elimination of Bias” and in February there was one onMedical Records and Terminology. There will be one-hour brown bagseminars in the months of March, April, May, June, July, August, Septem-ber, October, November and December 2004.

For the more substantial subjects, SDDL arranges, promotes and con-ducts two-hour seminars which are held in the evening at the U.S. GrantHotel. These two-hour seminars are reserved for those subjects that needto be covered more in-depth to give members greater insight to thosesubjects which cannot be covered in a one-hour time period. Speakers forthese seminars come from our own membership, as well as recognizedexperts in various fields.

With respect to our charity work, SDDL sponsors a golf benefit, usuallyin October to raise money for the Juvenile Diabetes Foundation. ThisOctober, will be our third annual golf benefit. We are hopeful that with allmembers participating, our contribution to the Juvenile Diabetes Founda-tion will exceed that of prior years.

In addition to keeping these ongoing programs up and running, it is mypersonal goal this year to increase our membership. I believe that SDDLhas a lot to offer to the defense attorneys in our community.

Sincerely,

Billie Jarosek

The Bottom Line

James Davis v. Glenn A. Kawesch, M.D.,an individual; RK and Laser EyeInstitute, a California entity ofunknown organization; Laser EyeCenters of Southern California, aCalifornia entity of unknown organi-zat ion

Case Number: GIC 796520Judge: Honorable J. Richard HadenPlaintiff’s Counsel: Joseph G. Dicks, Esq. and

Eric Hoffland, Esq. of the Law Offices ofJoseph G. Dicks

Defendant’s Counsel: Daniel S. Belsky, Esq. ofBelsky & Associates

Type of Incident/Causes of Action: medicalmalpractice, failure to obtain informedconsent, and fraud and battery in connec-tion with the performance of PRK and AKsurgery on a patient with keratoconus

Settlement Demand: CCP §998 offer for$175,000

Settlement Offer: Defendant served plaintiffwith CCP §998 offer for zero dollars and awaiver of costs

Trial Type: JuryTrial Length: 5 daysVerdict: Defense

Burin v. Ellison, et al.Case Number: 03CC07027 (Orange County)Judge: Honorable David R. ChaffeePlaintiff’s Counsel: Robert K. Scott, Esq.Defendant’s Counsel: Carl H. S tarrett II, Esq.

of Paul K. Schrieffer, LLPType of Incident/Causes of Action: Legal

MalpracticeSettlement Demand: NoneSettlement Offer: NoneTrial Type: Jury/JudgeTrial Length: N/AVerdict: The court sustained demurrers by both

defendants based on the statute oflimitations. Plaintiff did not amend hiscomplaint and the court later granted eachdefendants’ separate motions to dismiss,with prejudice.

Billie Jarosek

March 2004 3

Brevity, Clarity, and Graceby Peter D. Gray, Esq. of Rider Bennett

Further, counsel is obligated to advise theappellate court of all controlling cases orstatutes, whether they support or detractfrom the client’s position. In Newhouse v.McCormick & Co., 130 F.3d 302 (8th Cir.1997), the court sanctioned counsel for failingto disclose that his ostensible supportingauthority had been reversed several yearsearlier: “[I]t is one thing to argue zealouslyfor a change in law; it is altogether quiteanother thing to represent that the law issomething it is not.” Id. at 304-05.

These concepts are all matters of commonsense. Appellate judges are human beings,and as such, they do not appreciate beingbored, confused, insulted, or misled.Applying the concepts of brevity, clarity,grace, and candor avoids these pitfalls andmakes for better briefs and advocacy.Author: Peter D. Gray is a lawyer with theMinneapolis firm of Rider Bennett. His practiceconcentrates on employment law and appellateadvocacy.

When I was in law school, a distinguishedfederal circuit judge lectured regarding hiscriteria for an effective appellate brief. Hisadvice boiled down to three concepts:brevity, clarity, and grace. Stick to theseconcepts when drafting briefs, the judgeassured us, and we would be well on ourway towards becoming capable brief writers.

At the time, I did not appreciate thesoundness of this advice. I could graspsomewhat the importance of “clarity”—to bean effective advocate, I had to be under-stood. But “brevity” and “grace” left mecold. I thought that I was not going to defeatmy opponents quickly and graciously, butinstead was going to mercilessly savagethem, while taking all of the time and spaceallowed in so doing.

Several years of practice have had at leastone salutary effect: I am now sufficientlyhumbled to consider anew the hard-earnedwisdom of those having been in thisprofession longer than I. Among theseformerly neglected pearls of wisdom are thejudge’s suggested concepts—brevity, clarityand grace—which I now view as benchmarksof effective brief writing. Further, I would addthe concept of “candor” to this list.

BrevityIn appellate briefs, less is usually more.

Most appellate rules allow ample space tofully advocate the client’s position. In thefederal circuit courts, a principal brief cancontain up to 14,000 words, and a reply briefup to 7,000 words. The most effective briefstypically are much shorter. This is particu-larly true of respondents’ briefs. Therespondent has already won below—itshould not take 13,999 words to explain whythe lower court’s decision should beaffirmed. Briefs should be brief.

ClarityClarity is critical to the success of an

appellate brief. The most winning legalargument is worthless if the appellate courtcannot comprehend it. Recently, in Racickyv. Farmland Industries, Inc., 328 F.3d 389,398 n.9 (8th Cir. 2003), the court pointedlyrebuked an attorney for ignoring the conceptof clarity:

We are frustrated by the failure of theRacickys to cite specifically to the record insupport of their lost profits argument. …With a record spanning thousands of pages,citing scores of scattered pages at a time isnot helpful.

Not surprisingly, the clients did not prevailon the lost profits argument. Moreover , nolawyer likes to see his or her work productdisparaged in such terms, regardless of theoutcome.

GraceJudges hate it when lawyers engage in

mudslinging and name-calling. They are notat all interested in the fact that you believeyour opponent to be “an ass, a fool, and aprating coxcomb.” Shakespeare, Henry V.Indulging in such behavior distracts from thereal issues at hand, and seldom serves theclients’ interests. See, e.g., Regner v.Northwest Airlines, Inc., 652 N.W.2d 557, 564(Minn.App. 2002), in which a judge chas-tised respondent’s counsel for “ad hominemand irrelevant arguments against appellantand appellant’s counsel.”

An even greater sin is casting aspersionsupon the lower court. Recently, the IndianaSupreme Court sanctioned an appellant’slocal counsel for the following statement:“Indeed, the Opinion is so factually andlegally inaccurate that one is left to wonderwhether the Court of Appeals was deter-mined to find for Appellee Sports, Inc., andthen said whatever was necessary to reachthat conclusion (regardless of whether thefacts or the law supported its decision).”Although counsel did not actually write theoffending words, he signed the finishedbrief, and the court initially sanctioned himwith a 30-day suspension from practice. Inthe Matter of Wilkins, 777 N.E.2d 714 (Ind.2002) (on rehearing the court reduced thesanction to a public reprimand). Be polite. Itis both good manners and good advocacy.

CandorBeing candid with an appellate court is

especially important because that courtmakes its decision on the basis of the record.Consequently, the record must supportevery factual assertion made in the briefs.Counsel must present the facts fairly and incontext, and must not ignore unfavorablefacts. “Attorneys, as officers of the court,have the responsibility to present the recordwith accuracy and candor. On those rareoccasions when attorneys fail to do so, theself destruction of their credibility almostinevitably carries with it damage to theirclient.” Pinkham v. Sara Lee Corp., 983 F.2d824, 833 (8th Cir. 1992).

Thank YouSan Diego Defense Lawyers

would like to thankBrenda Peterson

of Peterson & Associatesfor sponsoring our

Brown Bag Luncheon programsheld in her offices at:

530 “B” Street · Suite 350San Diego · CA · 92101 ·

March 20044

The Bottom Line

David Lee et al. v. David James Carro et al.Case No.: 02CC01338Judge: Honorable Mary Fingal-EricksonPlaintiff Counsel: Daniel D. Rodarte, Law

Offices of Daniel D. RodarteDefense Counsel: John P. Christenson for

Defendant State of California, Dept. ofTrans., Peter Gates of Gates, O’Doherty,Gonter & Guy, LLP for Defendants DavidJames Carro, James Carro, Maureen Carroand T&M, Inc. doing business as ChemicalData Management Systems

Type of Incident: Wrongful Death actionbrought by husband and two sonsof a 48year old who was killed while crossing theintersection of Pacific Coast Highway andSeapoint Ave. in Huntington Beach, CA.

Settlement Demand: 5 million from alldefendants

Settlement Offer: 998 for a waiver of costsTrial Type: JuryTrial Length: 4 weeksVerdict: Defense ($103,700 in costs awarded

to State)

Kristine A. Cook; Lawrence A.Radebaugh; Gerald R. Radebaugh;Debra D. Boulette; David D. Taylor v.John Gordon, M.D.; Sharp MemorialHospital; Gregory B. Mahan, M.D.;Brian Jaski, M.D.; Ronald Miller, M.D.;Ada Marin, M.D.; Currien McDonald,M.D.; Casandra Str oud, M.D.; and Does1 through 100, inclusive

Case No.: GIC 805277Judge: Honorable William C. PatePlaintiff’s Counsel: Bruce M. Bunch, Esq.,

Contos & BunchDefense Counsel: James D. Boley, Esq., Neil,

Dymott, Perkins, Brown & FrankType of Incident/Causes of Action: Medical

Malpractice - Alleged failure to refer patientfor emergent coronary artery bypassgrafting procedure

Settlement Demand: $75,000 made afterdefense opening statement.

Settlement Offer: Waiver of CostsTrial Type: JuryTrial Length: 5 daysVerdict: Defense

Toxic mold cases are usually far morecomplex than the typical personal injuryaction. The sheer number of people who canbe exposed to mold in a high-rise building isstaggering, and class actions are being filedon behalf of groups of building occupants.For instance, in October of 2001, a group ofLouisiana plaintiffs, who were employees ofseveral state agencies located in a privately-run office building, filed a class action lawsuitagainst the realty company and the compa-nies who leased and operated the building,asserting that they had suffered personalinjuries from exposure to toxic mold in thebuilding. The defendant realty company wasrequired to pay $7,000 in sanctions foralleged failure to comply with a consent orderregarding environmental testing of thebuilding for plaintiffs’ discovery purposes.See Watters v. Department of Social Services,849 So.2d 734 (La.App. 2003).

In addition to the typical torts generallypleaded in personal injury cases, moldlitigation often involves contractual issues,such as breach of lease or breach of warrantyclaims. But perhaps the most complex aspectof these cases is the causation issues theypresent.

CausationPlaintiffs typically try to prove general

causation through epidemiological studiespurporting to establish that exposure to moldincreases the risk of a particular injury. Thenthey try to show specific causation throughexpert testimony establishing that their doseof exposure was sufficient to cause theirparticular injury.

The problem for plaintiffs is that theirtypical symptoms can have many othercauses, such as the flu, obesity, inactivity,stress, and other environmental/indoor airquality factors, such as tobacco smoke,radon, carbon monoxide, formaldehyde,pollen, dust, mites, and other allergens. Itmay be difficult, if not impossible, to segre-gate the effects of these multiple sources ofpossible allergy or irritation.

Because of these unique causation issues,mold cases tend to become battles of theexperts, battles often won or lost at Daubert/Frye hearings.

A MultiDisciplined ApproachAs a result of the complexities of mold

problems, many areas of legal, scientific, andmedical expertise are needed to address them.Take the hypothetical case of a developerthat purchased a high-rise building andremodeled and expanded the facility. Thedeveloper then sold the facility to an entitythat will operate it as a business and residen-

tial facility. If mold develops in the facility,there are multiple entities—including thedeveloper/seller, the buyer/owner/operator,the building design and construction teams,and the employers located in the building—that face possible claims by many potentialplaintiffs, including apartment residents,businesses leasing space in the facility, andemployees of the businesses operating out ofthe facility.

Despite their typical immunity from suitunder workers compensation statutes, thebusinesses in the building may face lawsuitsby their own employees, asserting that moldillnesses are covered under the Americanswith Disabilities Act. More and moreemployees are seeking ADA work accommo-dations, such as relocations and air purifiers.The owner/operator will also have concernsabout possible class action lawsuits beingfiled on behalf of residents or workers whowere allegedly exposed to mold in thebuilding.

Because the problems presented by moldare multifaceted, they require a multidisciplin-ary approach. In the hypothetical, it may beadvisable to conduct indoor air qualitysampling and testing to determine whetherthe mold is of a “toxic” variety. The testing isdone by industrial hygienists and toxicolo-gists. Depending on the results, a decisionmust be made, in consultation with appropri-ate experts, whether to relocate residents,businesses, and employees in the contami-nated portion of the facility, both for theirsafety, and so that their portion of the facilitycan be sealed off, preventing mold sporesfrom getting into the ventilation system andspreading throughout the building.

RemediationBefore the mold can be remediated, its

cause must first be determined. Since mold isusually caused by some sort of moisture,water intrusion experts should be consultedto find and fix the problem before the mold isremoved. Otherwise, the mold will simplygrow back.

Care must be taken in the selection of aqualified, insured remediation contractor. Aproper remediation should be conductedunder controls similar to those used withasbestos. The scope of work and standard ofcare should be developed in consultationwith environmental counsel and should bemonitored by a building integrity consultant,a firm that formulates and implementscompliance programs designed to assure thatthe work contracted for is performed in themanner agreed upon. Then, post-remediationtesting should be considered by the team.

“Toxic” Mold Litigation . . .Continued from page 1

March 2004 5

Providing Legal CounselBoth tenants and the building owner will

want legal counsel to analyze their rights, ifany, under their leases. They will also wantcounsel to consider their rights under anymaintenance contracts that may be in effect.The owner will likewise want its real estateattorney to examine the agreement of sale inconnection with its purchase of the facility, todetermine whether the buyer or the sellerbore the risk of mold. Both the owner and thedeveloper will want counsel to read theconstruction contracts to determine theirrights, if any, against the design profession-als or construction contractors.

Most importantly, everyone will need tohave coverage counsel examine theirinsurance policies—both property andliability—to determine if their situation iscovered. If so, they will need to put theirinsurance carrier on notice early, often, and inwriting. Ultimately, they may also need tobring a declaratory judgment or bad faithaction to recover.

Toxic Mold Response TeamTo tackle these diverse issues, defense

lawyers are well advised to work with a multi-disciplinary team focused on mold response.The size of the team will vary depending onthe extent of the client’s real estate holdings,risk tolerance, and mold insurance coverage.

Regardless, the team should consist ofsome combination of water intrusion experts,indoor air quality consultants, industrialhygienists, building integrity consultants,toxicologists, epidemiologists, physicians,remediation contractors, and public relationsexperts. The legal team will also need a cross-section of experience in real estate, environ-mental, employment, and insurance coveragelaw, as well as toxic tort and constructionlitigation. Of course, it is advisable to havelegal counsel retain the technical experts inorder to protect any investigation under theattorney-client privilege and/or the workproduct doctrine, to the extent possible.

The expertise of many of these teammembers is needed because of the lack offederal or state regulations or guidelines forevaluating the potential health risks associ-ated with mold. Neither the federal Environ-mental Protection Agency (EPA) nor theCenters for Disease Control (CDC) hasdetermined what dose of exposure demon-strates a causal link between mold andadverse health effects. Moreover, neither EPAnor the CDC has established an acceptablecleanup standard. Indeed, the Institute ofInspection, Cleaning and RestorationCertifications recently (December 2003)published standards and reference guideurges a multidisciplinary approach to mold.For these reasons, it is critical to form a teamand develop and implement a standard ofcare designed to avoid subsequent exposureto claims.

Those defense attorneys who are the mostknowledgeable about the array of issuesinvolved in mold litigation will be bestprepared to protect their clients. Defenselawyers are encouraged to retain a team ofexperts with a breadth of experience indealing with mold claims—including attor-neys with varied specialties. This team willprovide the resources necessary to tackle theissues involved in the complex and oftenunclear realm of toxic mold litigation.

Once a mold response team is in place, itcan take certain preemptive measures beforea mold problem arises. If a problem isdiscovered, in order to either reduce theclient’s risk of mold liability or shift the risk toothers, some reactive measures should alsobe considered.

Preemptive Measures· Performing due diligence audits prior to

acquisitions of real property.· Drafting and negotiating specific contract

clauses, including indemnification andwarranty clauses.

· Establishing compliance protocols for thedesign and construction process andmonitoring the same.

· Responding aggressively to moistureproblems.

· Evaluating current insurance coverageand purchasing additional insuranceproducts to address the risk of mold, ifnecessary.

Reactive Measures· Investigating the causes of any mold

infestations.· Analyzing leases, maintenance

contracts, construction documents, andreal estate agreements to determineliability issues and liable parties.

· Prosecuting and/or defending claimsagainst the responsible parties.

· Pursuing insurance claims.· Developing remediation programs

and the scope of work/standard of care,and implementing same.

· Evaluating the issue of whether toevacuate the building and relocate theoccupants.

· Developing a communications planto deal with employees, tenants, and themedia.

Brian J. Clark and Deborah A. Littleare shareholders in the national lawfirm of Buchanan Ingersoll. They co-chair the firm’s Toxic Mold ResponseTeam. The authors wish to acknowl-edge the assistance of Michael J. Cetra,a summer associate at BuchananIngersoll. Patricia P. Hollenbeck, also amember of the Toxic Mold ResponseTeam, is a shareholder in the firm’s SanDiego office.

(This article is reprinted from FORTHE DEFENSE, November 2003, Vol.45, No. 11 with the permission of TheDefense Research Institute, Inc.)

When you participate in our 19th Annual St.Vincent De Paul “trade-in” event we will take $200off any suit or sport coat with trousers purchase(saving you up to 40%!). Just bring in a suit orsport coat for Father Joe and you will also receivean up to $150 tax deduction for your charitablecontribution.

Choose from suits made by:

Bring Us “A Suit”.

JOSEPH ABBOUDGIANNI MANSONICHEQUERSGIANPAULOTALLIA

March 20046

The Bottom Line

Tomei v. VanderveenCase Number: GIN020906Judge: Honorable Thomas N. NugentPlaintiff’s Counsel: Saul D. Wright, Esq.Defendant’s Counsel: Carl H. Starrett II, Esq.

of Paul K. Schrieffer, LLPType of Incident/Causes of Action: Legal

MalpracticeSettlement Demand: NoneSettlement Offer: Waiver of CostsTrial Type: Jury/JudgeTrial Length: N/AVerdict: The court granted Defendant’s

Motion for Terminating Sanctions based onPlaintiff’s failure to participate in discoveryand disobedience of discovery orders.

Patricia Wright v. Rei Do GadoRestuarant, Paul Gi, ABC AmericanValet, Jamie Velarde, Carlos Wellman,and Carlton Britt

Case Number: GIC804284Judge: Honorable Jay M. BloomPlaintiff’s Counsel: Yolanda Owens, Esq. (pro

hac vice) under the Law Office of Ruth B.Herch

Defendant’s Counsel: Constantine Buzunis,Esq. of Neil, Dymott, Perkins, Brown &Frank

Type of Incident/Causes of Action: Employer/Independent Contractor issue. Defendantvalet driver hit Plaintiff as she was crossingthe street with a customer’s SUV. Plaintiffclaimed a brain injury with seizures andmemory loss, post traumatic stress, neck,back, etc and claimed $12.5 million dollarsin damages.

Settlement Offer: $5,000Trial Type: N/ATrial Length: N/AVerdict: The court granted Defendant’s

Motion for Summary Judgment one weekbefore trial.

March 2004 7

March 20048

Fredrickson, Mazeika & Grant, LLP, ispleased to announce that Karen L. Bilotti hasjoined the firm. Karen brings more than 14-years of litigation and trial experience to thepractice, and has taken at least 30-cases tojury verdict. She will continue to litigatematters in a variety of cases, including toxictorts, construction defect, medical malprac-tice, premises liability, malicious prosecution,and personal injury.

The Law Offices of Elizabeth Skane hasadded associate William Frazier, a 2003graduate of Thomas Jefferson School of Law.

On January 31st , 200 members and guestsgathered at the Manchester San Diego HyattHotel to enjoy an evening of camaraderieand to honor Judge John S. Rhoades andDavid G. Brown, Esq. The reception wasterrific, the food was excellent, the band wasrockin’ and the presentation of the awardsfor Honoree of the Year and San DiegoDefense Lawyer of the year gave thosegathered for this event some new insightinto the character and accomplishments ofboth honorees.

Member NewsThe following is an excerpt page from the

“We Love Our Community Partners”Winter 2003 San Diego Juvenile Diabetes Foundation

publication entitled DISCOVERIES:

“On Friday, October 24, the San Diego Defense Lawyers (SDDL) held their SecondAnnual Golf Benefit. Last year, the event raised $2,500 for JDRF and we anticipate thatSDDL will bring in even more from this year’s tournament. Participants enjoyed a healthycompetition, playing golf with their favorite people, a little good old-fashioned razzing andof course, a day away from the office! Golfers arrived and received a goodie bag, warmedup on the driving range and putting green and were off on a shotgun start. There weremany games, along with refreshments and even a taco stand along the course. After abeautiful day of golf, participants were treated to a BBQ and a raffle full of great prizes.Just about everyone left with at least one prize. Special thanks to Chair Dino Buzunis ofNeil, Dymott, Perkins, Brown & Frank and Co-chairs Bill Jaroszek of Fredricksen, Mazeika& Grant and Peter Doody of Higgs, Fletcher & Mack.”

SDDL’s 2nd Annual Golf Benefit raised $6,500 thisyear for the Juvenile Diabetes Foundation! We hope toraise even more in 2004!!!!

March 2004 9

Avoiding Bias in the Legal ProfessionBy Shari I. Weintraub, Esq. of Fredrickson, Mazieka & Grant

San Diego Defense Lawyers’ first brown bag seminar of the year was presented on January15, 2004. Lesa Wilson and Jack Sleeth, partners at Stutz, Artiano, Shinoff & Holtz, bothspecializing in the practice of employment litigation, spoke on the topic, “Elimination of Bias inthe Legal Profession”.

Bias is generally a function of one’s subjective beliefs regarding sex, color, race, religion,ancestry, national origin, physical disability, age, and sexual orientation, and how those beliefsaffect decisions in the workplace. The elimination of bias in the legal profession is a goal of theState Bar and its members. Recognizing that we are all victims of our own personal beliefs, theseminar identified three (3) potential problem areas (hiring, performance, and client representa-tion), and provided practical techniques to avoid including bias in the decision-makingprocess. Focusing on the job requirements, consistency and common-sense are key. Indeed,California has codified anti-discrimination in the legal practice, making it a violation of ethicalstandards. (Rules Prof. Conduct, rule 2-400.) In sum, Rule 2-400 requires that:

B) In the management or operation of a law practice, a member shall not unlawfully discrimi-nate or knowingly permit unlawful discrimination on the basis of race , national origin, sex,sexual orientation, religion, age or disability in:

(1) hiring, promoting, discharging, or otherwise determining the conditions of employment ofany person; or

(2) accepting or terminating representation of any client.

Potential for Bias in the Hiring ProcessHiring personnel for a law office requires a multi-step process: recruiting applications and

resumes, interviews, and selection. To attract a more diverse pool of candidates, hiringpartners and personnel should prepare job advertisements and posting which avoid anypotentially perceived exclusionary language, and place advertisement in publications whichhave a broad and diverse readership. Importantly, if art is to be included in your advertise-ments, be sure to include a photo which shows a diverse candidate pool.

Once the applications and resumes arrive in your office, advise the staff to tape or otherwiseblock-out the name of the candidate. Some candidates include information of a personal naturein their resumes, such as birth dates, gender, and marital status. Merely because it is includeddoes not make the information fair game in the decision-making process. Therefore, youshould advise that any personal information also be blocked-out. All this information can oftentrigger known and unknown biases. Blocking out the information allows the decision-maker tofocus their initial analysis on the candidate’s experience, skills, training directly related to theposition advertised. Wilson and Sleeth also advise that care be taken in making notations onthe application/resume. While such notes can assist the decision-maker in evaluating thecandidate’s abilities, such notations should be focused on the skills the position requires.Always keep in mind that, in the event of a potential claim of discrimination, such notes can beused as evidence of one’s state-of-mind.

Obviously, blocking out the information on the application/resume can only occur initially.Eventually, if the candidate meets your job-position criteria, a face-to-face interview willdisclose information which cannot otherwise be blocked out. It is very important at this stageto stay focused, and ask questions which are strictly job-related, do not invade the candidate’sprivacy, and are non-discriminatory in nature. Examples of inappropriate areas of questioninginclude: marital status (including a name change), age or date of birth, race, national original,birthplace, religious affiliation, hobbies or clubs which could indicate a potential candidate’saffiliation with a protected category, height or weight (unless related to the job requirements),and medical condition. The list is not exhaustive. Even if, for example, it is apparent thecandidate has a medical condition or disability (whether physical or mental), you cannot askthe candidate about them. You may only ask whether they can perform the essential functionsof the job. Note that applicants may not be asked to take a job-related physical until after anoffer of employment is made. In addition, treatment for drug and alcohol addiction may qualifyas a disability, although the addiction itself is not considered a disability.

Selection of any candidate requires care be taken to ensure the final selection is based uponjob-related objective criteria, to the extent possible. Last, it is suggested that all applications,resumes, and interview notes be maintained, because statistical evidence can be used to provediscrimination in the hiring process.

Potential for Bias in Job Perfor-mance Analysis

Once hired, the next potential trap is in thearea of job performance. Here, Wilson andSleeth identified three (3) specific areas,evaluations, discipline and termination, andpromotion. Evaluations should be basedupon objective standards because subjec-tive criteria tend to allow judgments basedupon individual biases. Where subjectivecriteria imposes itself into the process, it canbe construed by your employees as unfair-ness and undermine morale. Include specificexamples of strengths and weaknesses, andbe honest and accurate.

Disciplinary procedures should beconsistent, whether a progressive or anotherapproach is used. Before you take disciplin-ary action, you should assure yourself thatthe decision is rational, fair, and free frombias. Questions to ask include 1) whether thestandard being applied is reasonable, 2)whether the performance standard wasclearly communicated to the employee, 3)whether there is sufficient evidence thestandard was violated, and is it documented,4) was the employee adequately trained, 5)are there extenuating circumstances, 5) is theproposed discipline reasonable and appro-priate for the violation, and 6) was thetreatment and penalty applied consistently inthe same or similar circumstances?

Promotion is a “hot-button” topic when itcomes to the elimination of bias in the legalcommunity. To this day, women, ethnicminorities, older attorneys and attorneyswith disabilities are underrepresented. Forexample, fifty-percent (50%) of law schoolgraduates are women. That statistic dropssignificantly once out in the real world.Wilson and Sleeth suggest mentoring youremployees, including those in theunderrepresented groups. Education, similarto the seminar referenced here, helps as well.And, as with everything else, consistency isimportant.

ConclusionWhether we like to admit it or not, we all

bring our own personal belief system to theemployment world. However, if we firstacknowledge that possibility and thenaccount for it by focusing on job require-ments, consistency and common-sense,those of us working in the law officeenvironment are well on our way to diversi-fying the profession, one person at a time.

March 200410

Meet Your 2004 Board of Directors – OfficersBillie Jaroszek – President

“Billie”, as she is known to her many friends in the litigation commu-nity, grew up in the construction business and describes her specializa-tion in that practice area as “perfectly natural.” Since her admission tothe Bar, she has focused her practice in complex civil litigation and hasdeveloped an expertise in construction defect claims. She has repre-sented all sides of construction-related actions and was trial counsel fora client/subcontractor in one of the first multi-party construction defectcases tried in San Diego County. That experience has resulted in herbeing called upon by the Superior Court to act as a Special Master inorder to obtain an efficient resolution of these types of cases. Addition-

ally she practices in the areas of employment, products liability, business litigation, insurancelaw; general liability and toxic torts. Not long after commencing practice Billie formed her ownfirm, and was its managing partner until she elected to join forces as a partner withFredrickson, Mazeika & Grant.

Billie is a member of the San Diego County Bar Association and its Construction Lawsubcommittee. She has served as Chair for the San Diego Bar Association Law Week forseveral years. She is also a member of the litigation section of the American Bar Association aswell as the Defense Research Institute. She has been an active member of the San DiegoDefense Lawyers Association and has served as an officer on its Board of Directors. Shelectures for the San Diego County Bar Association on various aspects of Construction Lawand General Liability.

On A Personal Note: Billie tells us that she and her husband Joe can often be found pursu-ing their hobbies of golfing, Country Western line dancing, and spoiling their grandchildren.

Michelle Van Dyke – Vice – PresidentMichelle is a founding partner of Shewry & Van Dyke. She is experi-

enced in the defense of and has litigated cases including premisesliability, products liability, professional liability, automobile accidents,personal injury, employment law issues, construction defect, andconstruction site accident claims for national construction companies.The product liability cases have involved construction equipment, foodproducts, and recreational equipment. She also has experience inautomobile cases which include long-haul trucking accidents resultingin both fatal and serious personal injuries. The professional liabilitycases encompass medical and dental malpractice, engineer, contractor,

insurance brokers and subcontractor liability.Michelle is an active member of the State Bar of California, the American Bar Association,

the San Diego County Bar Association, as well as San Diego Defense Lawyers Association.She is also a member of the Building Industry Association and the Risk and InsuranceManagers Society. Michelle has been accepted into the American Inns of Court, Louis M.Welsch, Chapter #9. She received her undergraduate degree from California State University,San Diego and attended Western State University College of Law.

Dino Buzunis - SecretaryDino is a senior litigator and shareholder of Neil, Dymott, Perkins,

Brown & Frank. He represents individuals, professionals, and corpora-tions in both insured and self-insured matters.

Dino is an active member of Association of Southern CaliforniaDefense Counsel, San Diego County Bar Association, San DiegoDefense Lawyers, and Building Industry Association, San DiegoChapter. He served a term on the State Bar Board of Governors and alsoserved terms as President and Director of the California Young LawyersAssociation. He has written legal articles for the Los Angeles DailyJournal and San Francisco Daily Journal and has been a lecturer/

instructor for the State Bar of California, for insurance carrier employees, and in the TrialAdvocacy Program of the University of San Diego Law School. He continues to serve as aJudge Pro Tem and an Arbitrator for the San Diego County Superior Court.

Dino is also actively involved in the San Diego community, donating time to variousorganizations such as Presbyterian Crisis Outreach Center, Barrio Station, Monarch HighSchool, San Diego Police Foundation, St. Spyridon Church, Juvenile Diabetes Research

Foundation, and the San Diego Blood Bank.He received his undergraduate degree fromUniversity of Manitoba, Winnipeg,Manitoba, Canada and his J.D. from ThomasM. Cooley Law School.

John Farmer – TreasurerJohn is the

founding andmanaging partner ofFarmer & Case. Hefocuses his practicein general civillitigation, withconcentration in theareas of vehicular,products and

premises liability, medical and professionalmalpractice, director’s and officer’s liability,government entity liability, toxic torts,construction injuries, insurance coverageand bad faith actions, and general businesslitigation. He is also actively involved inbusiness transactional work for small andmedium-sized businesses, including busi-ness formations, acquisitions and sales, andemployment and contract matters.

He received a Bachelor’s of Arts degreefrom Marquette University and graduatedlaw school at the University of Montana atMissoula. Upon graduation John had theunique opportunity to serve as clerk toMontana State Supreme Court Justice JohnC. Harrison.

A former participant in the “Big Brother”program, John is known in the San DiegoCommunity for his active involvement andenthusiasm for local YMCA Indian Guidesand Indian Princess programs, in which hehas served as “ Nation Chief” and CouncilMember. He has donated his time, interestand experience to local community groups aswell, having served as officer and director ofthree residential community associations.Mr. Farmer resides in the Carmel Valley areaof San Diego with his wife, Linda, and theirtwins, Ryan and Stephanie. He is activelyinvolved in competitive physical sports, andit is not unusual to see him competing in atennis or tae kwon do tournament, running amarathon or climbing Mt. Shasta. He is also aguitar slinger and one of the foundingmembers of a successful local rock band,Left4Dead, and has played as the openingact with such rock/blues luminaries as B.B.King, Buddy Guy, John Hiatt, and ChrisIsaac.

March 2004 11

“Understanding Medical Recordsand Medical Terminology”By: Joel B. Mason, Esq. of Stutz, Artiano, Shinoff & Holtz

Hypothetical: The Plaintiff is a 5’8", 275 lb., 45 year old male whocomplains of, among other things, a prolonged knee injury allegedlysuffered in an automobile accident. Plaintiff claims that his knee slammedinto the dashboard of his truck and the evidence supports this conclu-sion. Among the various reports you obtained is a medical report showing damageto the meniscus of the medial compartment of the Plaintiff’s left knee. OK?

Not according to Dr. John L. Chase, orthopedic surgeon and president of BenchmarkMedical Consultants, who presented “Understanding Medical Records and Medical Terminol-ogy” on Thursday, February 12. If a knee were to hit a hard object straight on with significantforce, an expected injury would be to the patella, or knee cap. The biomechanics of an injuryfrom the incident as described would not likely result in prolonged injury to the meniscus,inside the knee. So something else is going on. This is a simplistic example, but it illustrates thefocus of Dr. Chase’s presentation.

While obtaining and reviewing medical records is standard operating procedure for casepreparation, the value of information that can be gleaned from medical and associated recordsshould not be underestimated. The more complex the injuries, the more critical it is to under-stand the information. Dr. Chase revealed how the data in medical records, traffic collision, laband emergency room reports, patient questionnaires and history, past and present physicalexams, etc., can reveal, for example, causation factors, effectiveness of treatment options, andongoing treatment needs, to name just a few areas. A lawyer can read, review, and analyzerecords and gain a great deal of understanding about an incident. But a specialist or sub-specialist such as a medical professional, trained in analyzing the multitude of reports andrecords that are part of every injury related case, can spot discrepancies and inconsistenciesand piece together a different story, or at the very least alter a Plaintiff’s explanation. Thesediscrepancies and inconsistencies will frequently point to other causative factors or pre-existing conditions related to the injury and thus the liability and damage elements of a case.

The main points of the presentation were that a proper evaluation of a party’s injuries callsfor gathering as complete a set of records as possible and analyzing all the information with aknowledgeable understanding of the type of injury suffered. The value of such an analysiscould be crucial to your case.

Letters to the EditorChanges are coming. Some subtle, some not. Courts are becoming increasingly over

burdened. Hollywood again moves to Sacramento. And the social and political barometersswing away from center to stay ahead of the firestorm raging from a spark ignited during anhalftime performance in this election year. And while some members, friends, and family passaway; others bring new life into the world looking for a bouncing knee.

SDDL has changed as well over the past months. We first congratulate our new PresidentBillie Jaroszek, Vice-President Michelle Van Dyke, Secretary Constantine D. Buzunis, andTreasurer John T. Farmer. Their leadership, dedication, personal enthusiasm, and commitmentto SDDL will serve this non-profit organization well. Other changes will be reflected in theBrown Bag luncheons, evening seminars (both free to members), and in the future publicationsof THE UPDATE. One objective is to provide a forum for the mutual education of its membersthrough the exchange of ideas.

Accordingly, we at THE UPDATE welcome information on new or changing members oroffice openings, recent trial results, recent success stories with MSJ, JNOVs, SLAPPS, articleson office management, the law, legislature activity, and personal triumphs or failures, orotherwise. We are also adding this “Letter to the Editor” column. THE UPDATE welcomesyour comments, suggestions, tips, words of wisdom, and anything else you wish to share. Please send letters to Editor, c/o San Diego Defense Lawyer, P.O. Box 927062, San Diego, CA92122. Or e-mail us at kboruszewski@stutzlawfirm.com. Being lawyers, however, THE UP-DATE reserves the right to edit all submissions for space considerations. Life is 10% change,90% reaction. Be part of the change - become involved in SDDL.

L to R: Steve Polito, Dennis Aiken,Dino Buzunis, Scott Barber, Billie Jaroszek,

Kelly Boruszewski, Martha Dorsey,Michelle Van Dyke, Sean Cahill and

John Farmer. Not Pictured: Ken Greenfield

SDDL OfficersPresident: Billie J. Jaroszek

Vice-President: Michelle L. Van DykeSecretary: Constantine D. Buzunis

Treasurer: John T. Farmer

Directors:Dennis Aiken

D. Scott BarberKelly T. Boruszewski

Sean T. CahillMartha J. Dorsey

Kenneth N. GreenfieldSteven M. Polito

Editor:Kelly T. Boruszewski

Stutz, Artiano, Shinoff & Holtz

Membership InformationMembership is open to any attorney

who is primarily engaged in thedefense of civil litigants. Membershipdues are: $ 90 for attorneys in practiceless than one year and $120 forattorneys in practice more than oneyear. Applications are available on theweb at www.sddl.org.

THE UPDATE is published for the mutualbenefit of the SDDL membership, a non-profitassociation composed of defense attorneys,judges and persons allied with the professionas suppliers of goods or services.

Views and opinions expressed in THEUPDATE are those of the authors and notnecessarily those of SDDL. Products andservices advertised are paid advertisementsand not endorsed by SDDL.

We welcome the submission of articles byour members on topics of general interest toour membership. Please submit material to:

Kelly T. BoruszewskiStutz, Artiano, Shinoff & Holtz401 West A St., 15th FloorSan Diego, CA 92101Phone: 619.232.3122E-mail: kboruszewski@stutzlaw.com

March 200412

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