Monday, December 26, 2011

Starbucks Pays Big!

TLC Class of 2011 Graduate John Gomez, just sued Starbucks & won! Fellow classmates recall John working on this case throughout their work at the Thunderhead Ranch. Read below for all the details on this case:

Cup of woe: $7.5 million award to man who fell at Starbucks
By Joseph M.D. Young,

A San Diego jury awarded a man and his wife nearly $7.5 million Friday in their civil suit against Starbucks after the man fell inside a North County business in 2008.

The case, which was filed in 2009, centered on Anthony Zaccaglin, who reportedly sustained a concussion after falling inside a Starbucks located on Melrose in Vista. Zaccaglin slipped and hit his head on a cash register as he was walking from the cashier to the pickup counter, according to Zaccaglin's attorneys, who added that witnesses at the scene said a manager had just mopped the area where Zaccaglin slipped and also said that that employee later apologized for not "dry mopping."

Zaccaglin alleged that he suffered complications stemming from the fall and was unable to return to work as a chiropractor.

Starbucks initially offered a $100,000 settlement to Zaccaglin; he declined to accept that proposal, however, said Zaccaglin's attorney John Gomez.

After two and a half weeks in court, a jury returned a verdict against Starbucks on Friday, awarding $6,456,230.50 to Zaccaglin. His wife was awarded $1 million for loss of consortium, or the loss of her husband’s love, companionship, comfort and care

The total amount could grow to as much as $8.5 million, including added costs, Gomez said.

Starbucks spokesman Jim Oslo said the company was disappointed with the size of verdict:
Providing a safe environment for our customers is always a top priority for us at Starbucks. We are sorry that Mr. Zaccaglin was injured at our Vista, Calif., store. However, we are disappointed with the size of the verdict as we made every effort to reach a mutually agreeable and reasonable settlement with Mr. Zaccaglin. We are reviewing the decision to determine what, if any, steps we may take in response.
"For a national chain, Starbuck's safety policies were shockingly inadequate and inconsistently applied," Gomez said. "The family hopes that today's verdict will cause Starbucks to take safety as seriously as it does sales."If Starbucks appeals, it could take up to two more years for the case to be settled, according to Gomez.

Gomez added that he and Zaccaglin were hoping to work it out with Starbucks to avoid an appeal.

Wednesday, December 21, 2011

Largest Medical Malpractice Verdict in Wyoming History

TLC Graduate Tom Metier, obtained a $9 million verdict for plaintiffs Louis and Rebecca Prager against Campbell County Memorial Hospital and Brian Cullison, M.D. for medical negligence. Metier was acting as trial counsel for Casper attorneys Todd Ingram and Scott Olheiser of Ingram Olheiser, P.C. Ingram and Olheiser successfully litigated the case prior to trial. The verdict is believed to be the highest medical malpractice verdict on record in Wyoming. According to officials and news archives, the previous record was $1.5 million.

The verdict in favor of Louis and Rebecca Prager was rendered late last Thursday, October 27th, 2011, in Federal District Court in Cheyenne. The jury found that Cullison, a Board Certified Emergency Physician employed by the regional hospital, breached the standard of medical care by failing to diagnose Louis Prager's broken neck, causing Prager permanent left shoulder paralysis, debilitating pain and depriving Prager of the ability to work. The jury also found the negligence of Cullison and the hospital harmed the Prager's marital relationship, resulting in loss of consortium damages to Rebecca Prager.

Tom's great work on this case has produced large media buzz though out this region. Here is a summary of the case from Wyoming Public Media: November 7, 2011, 8:52AM

Tuesday, December 20, 2011

Elk Grove woman wins $7.6M in UC Davis malpractice suit

TLC's Grads, Brooks Cutter and Eric Ratinoff  won a verdict on behalf of a 22 year old woman who was paralyzed from her chest down after the U.C. Davis Medical Center failed to identify a mass on her spine that appeared in her MRI films. $7.6 million is believed to be one of the largest medical malpractice verdicts in Sacramento County history.
Here is a article summarizing the case in the Sacramento Business Journal:

Elk Grove woman wins $7.6M in UC Davis malpractice suit
Sacramento Business Journal by Kathy Robertson, Senior Staff Writer
Date: Monday, October 31, 2011, 2:53pm PDT - Last Modified: Tuesday, November 1, 2011, 8:23am PDT

A young Elk Grove woman won a $7.6 million from the UC Regents in a jury verdict Friday after a UC Davis radiologist missed an abnormality on her spine that later grew and caused her to become paralyzed from the waist down.

The verdict, won by Sacramento attorneys Brooks Cutter and Eric Ratinoff, is believed to be one of the largest medical malpractice judgments in Sacramento County history.

The plaintiff was awarded $6.4 million to compensate for lost wages and costs associated with the medical and attendant care she will need the rest of her life. The jury awarded $1.2 million in pain and suffering, but California’s medical malpractice law caps these damages at $250,000, so she’ll collect $6.67 million if the verdict stands.

It was unclear Monday afternoon whether the university would appeal.

“The jury did a thorough, careful review of the evidence and came up with an award that will enable this young woman to move forward with her life independently with the resources she needs,” Cutter said. “She’ll be in a wheelchair the rest of her life.”

D’Knawn Hairston was 13 and experiencing back pain and loss of sensation in her lower extremities when she was hospitalized at the UC Davis Medical Center in December 2003, court documents show. She had an MRI of her spine, but the pediatric radiologist and radiology resident who viewed the images stated the spine was normal and unremarkable. In fact, the images show an abnormal mass on the spine, according to court documents.

UC Davis doctors concluded Hairston was suffering from Guillain-Barre Syndrome and treated her for that condition. She continued to have lingering weakness in her lower extremities.

On February 1, 2008, Hairston awoke unable to move her legs, with pain in her lower back. She was hospitalized and an MRI showed a large, bleeding growth on her spine at the same place where the abnormality was detected on the images taken in 2003. It was removed, but Hairston had permanent injury to her spinal cord, rendering her paraplegic, with no sensation or muscle control from her mid-torso downward.

An expert testified on behalf of Hairston that the abnormality along her spine should have been detected and removed in 2003. An expert called by the medical center countered that the mass was ”subtle” and it was within standards of care to miss it.

The jury found Hairston’s injuries were caused by medical negligence.

A spokeswoman said the university and the UC Davis Health System empathize with Hairston and her family, but they could not discuss the details of the case. However, Leslie Sepuka of the president’s office said that an investigation was done into the patient’s care, and that it was “appropriate.”

“This is a regrettable and unfortunate case for everyone involved,” Sepuka said. “As always, the UC Davis Health System is committed to providing high quality patient care and safety.”

Monday, December 19, 2011

Students Win Sexual Harassment Case Against School Board

TLC Faculty members Eddie Schmidt (Nashville,TN) and Ann Johnson (Houston, TX) recently sued the school system for violation of Title IX, which prohibits sexual harassment of students. The plaintiffs claimed that school officials had actual knowledge of the harassment and acted with deliberate indifference by failing to institute an appropriate disciplinary response.

The jury found the school board responsible and awarded $100,000 to each student. 

Here is a summary of the Case:
Verdicts & Settlements: Schools
August 4, 2011
School district fails to respond to students' sexual harassment 

While on their middle-school basketball team, 12-year-old seventh graders Doe and Roe were sexually harassed by four eighth-grade teammates in the school locker room. On one occasion, three of the eighth graders grabbed Doe and held him down, while the fourth removed Doe’s shorts and attempted to sodomize him with a marker. On other occasions, the eighth graders subjected Doe and Roe to “lights out” sessions in which the older boys blocked the door, turned off the lights, and simulated sexual gyrations on the younger boys. Another time, one of the eighth graders attempted to pull down Roe’s shorts. On yet another occasion, the eighth-grade students taunted Roe into doing a sit-up while blindfolded and, and he was trying to sit up, one of the students dropped his pants and placed his naked buttocks in Roe’s face.
Although the coach allegedly became aware of the attempted sodomy incident within days, he failed to immediately report it or discipline the offending students. After learning of the incident, Doe’s mother went to the school principal, who denied knowledge of it. Doe’s mother then received a call from the coach apologizing for the incident. The four students involved were subsequently suspended for 10 days, and Doe’s father and Roe’s mother, together with another parent, met with the superintendent and notified her of additional incidents of student-on-student harassment and bullying that had occurred in the boys’ locker room. Roe’s mother also advised the principal and superintendent that other students were threatening her son to keep quiet about the incidents.
When the threats and intimidation continued, Roe’s mother removed him from the school. About a week later, the school’s disciplinary board voted to terminate the disciplinary action against the four suspended students and reinstate them to the basketball team. The following month, Doe’s mother removed him from the school, fearing for his safety.
Both boys suffered emotional distress and severe humiliation.
Doe’s and Roe’s parents sued the school system for violation of Title IX, which prohibits sexual harassment of students. The plaintiffs claimed that school officials had actual knowledge of the harassment and acted with deliberate indifference by failing to institute an appropriate disciplinary response.
The jury found the school board responsible and awarded $100,000 to each student. The plaintiffs anticipate posttrial motions.
Citation: Mathis v. Wayne Co., No. 1:09-cv-0034 (M.D. Tenn. June 9, 2011).
Plaintiff counsel: AAJ member Edmund J. Schmidt, Nashville, and Ann Johnson, Houston.
Plaintiff expert: Carole de Casal, school administration, Nashville.

Sunday, September 18, 2011

Orderly Conduct in the Courtroom

Summary written by Bobby Frederick ('09.1)

We got a not guilty on a public disorderly conduct case in Georgetown, SC today - police testified that our client Teresa was extremely intoxicated and that she continued to curse at the officer after he warned her to stop. Our judge respectfully disagreed with the twenty or so Supreme Court cases I gave him that said she cannot be arrested for cursing at the officer (he later asked me if he called the Georgetown police department over to the courtroom, and if I cursed at them, if I thought they would arrest me. I had to agree they probably would, but told him I doubt that they would convict me). The judge refused to grant a directed verdict, he refused to give a jury instruction on the First Amendment, and he all but instructed the jury to find her guilty.

Teresa has been in recovery for 15 years. She goes to NA meetings four days a week and sponsors 5 people. She works as an addictions counselor, is working on her masters degree in addictions counseling, and she was not drunk. She readily agreed that she cursed while talking to the officer, and that she curses quite often. Between myself and Teresa, we managed to say "Fuck" and "Bullshit" at least twenty times during the trial. At first the jury looked offended, but by the end I think they were laughing with us. I got the cop to say "F***" and "BS" several times as well, and pointed out to the jury that none of us were getting arrested and we were cussing up a storm.

The cop and his friend handcuffed her, and then hauled her about a block to their police car, lifting her off the ground by her arms which were handcuffed behind her back. She is 51 years old and 4"11'. They fractured her right elbow in the process.

We spent yesterday afternoon re-enacting the arrest and exploring the story with our client, and it really paid off when we retold the story to our jury. Bill Luse and a few other local attorneys came and helped us work with her. During her testimony in trial, she was able to come out of the witness chair and show the jury what happened, and it made a tremendous difference to see it instead of just hearing it. She did a wonderful job of connecting with the jurors, and I think the psychodrama from yesterday afternoon gave her the confidence she needed.

We do not get voir dire in South Carolina. During opening, I worked in some voir dire questions and, although no jurors answered out loud, they were nodding and raising their hands in response. At one point my client answered a question during my opening and got called down by the judge.

The jury took about an hour to deliberate, which is a long time for a magistrate court case, and they came back twice with questions.

It's a small case and Teresa had no money to pay us. But, we are going to file suit now for the wrongful arrest and fractured elbow. Thanks for listening.

Tuesday, September 13, 2011

Risks and Journeys

By Jude Basile
Reprinted from the Warrior Magazine

Back in 1997, I climbed the Grand Teton.

I had never rock-climbed before. I had seen the Tetons and often wondered what it would be like to reach the top. So, I decided to do it. After two days of instruction with Exum guides, the premier mountaineering guiding outfit in all of the National Parks, we did an all day hike to the "saddle". The saddle is the "U" shaped area just south of the summit and has long been used as the base camp for the final ascent.

It was a long and difficult hike. There were 4 of us in the group and we were shepherded along by a legendary 57 year-old guide, Peter Lev. This experienced mountaineer could perceive without commentary that I was the most apprehensive climber in the pack. Others in the group were in better physical condition. Lev took all this in and put me right behind him in our trek.

After sleeping in a huge canvass tent with about 50 others, our group of 5 arose at 3 am. The stars were magnificent. They filled the sky like large spotlights. We began hiking and made headway for about an hour when we reached our first climb, called a pitch.

There are about 17 pitches to tackle in order to reach the summit. Each pitch required climbing from 20 to 60 yards of shear granite, all while our team was roped together. The leader would go first. After he completed the pitch, he would sit on a small ledge, then belay (hold the rope securing the next climber) me. I would reach the ledge and he would take off – trusting me to belay the climber behind me and so on.

It was terrifying.

The pause upon each ledge at each pitch was the same. Once up, Peter would tell me to look around and enjoy the view. We would be teetering upon what might have been a 6 foot square ledge, looking down thousands of feet of sheer rock as the wind whipped around us.

Mr. Lev wanted me to look around and take in the scenery.

I said "Are you crazy?!?"

I stared at the ground under my feet, absolutely frozen. If I could have summoned a helicopter to get me out of there, I would have. Peter was amused. It was a particular harrowing day. Ice had formed from a storm the night before.

As it turned out, our group would be the only ones to achieve the summit on this day. Lev decided to take the east facing route up the Exum ridge. This side faced the rising sun, was therefore warmed and the treacherous ice was melted sufficiently. Others had tried the west side, which provided a technically easier climb but was shaded. Thus, the ice remained in place and prevented those selecting that route from reaching the top. It was particularly gratifying to be the only group to make it to the very top of Wyoming on that day.

The climb to the summit took longer than expected. Once there, our joy at making it to the top was tempered by the understanding that we had to get off the mountain before the afternoon storms and dangerous lightning raced through. I remember Peter Lev giving a rope to my TLC '92 classmate, Wil Smith, who was with me. Lev told him to just rapel down as far as he could, streaming down the mountain until most of rope was run out and find a spot on the rugged mountain where the 5 of us could fit. Notwithstanding the casual nature of the command, we needed to get down fast !

Once again, I was absolutely terrified. When my turn came, I went over the edge out of sight of anyone above or below. I quickly found myself out of sorts, spinning and twisting away from the mountain instead of keeping my feet on the mountain as I had been instructed. Instead, my back was up against the mountain and I was literally hanging on the side of this 13,000 foot mountain with my puckered rear-end and elbows against the granite wall. This was NOT how it was done in the movies.

I paused and gathered myself. I dug one elbow into the wall and spun myself around. Facing the mountain, I could thereafter plant my feet. Once situated in this manner and repeating my training over and over in my head, I was able to keep rappelling down.

We made it through but --- as soon as we got down --- Wil went into hypothermic shock. We got back to our base, wrapped him in blankets and gave him warm soup. Wil is one of the smartest, toughest and quietest men I have ever met and accepted our minestrations like the trooper he is. He finally slept. All of us finally slept.

We awakened the next day changed. I am changed even yet by that experience.

I relate this story as I am about to board a plane bound for Thunderhead to start this year’s July TLC class. I think of my journey through TLC like climbing the Grand for the first time. New students will have an opportunity to take risks they have never taken before -- risks bubbling around the spring of truth, truth about themselves, truth about life, truth about their place in the world. They will venture into a rigorous search of what is truly real within them. By so doing, they will learn who they are. With courage, maybe they will become more of who they truly are once they embrace what is truly special about themselves and their life. Thunderhead Ranch, teeming with natural beauty and sheltered isolation, provides a rare opportunity for self-discovery and personal growth.

This process of self-discovery is an ongoing thing. It does not end when we leave The Ranch. We learn that we must frequently take personal risks in order to do better, because nothing comes for free. You cannot just “be” better. You have to be willing to take risks to step into true self-knowledge. And, yes, some of those are scary.

TLC has taken risks throughout its life. It has grown in numbers and in its successes, many victories small and tremendous, seen in courtrooms all across this country and in the lives of our Warriors.

Yet the essence of TLC’s foundation always remains : Nothing worthwhile comes without risk and pain and it all starts with us, individually.

In the past two years since I became President, there has been much positive growth within our College. This growth has come with great effort and many are responsible. The TLC Board, our new Executive Director, Gerry, the tireless F-Warriors, our amazing Alumni, the generous TLC Staff and our new Ranch hands -- ALL have contributed in many significant ways. Some of the changes have come with risk and pain but – through that-- there has been growth, joy, and satisfaction.

As part of this growth, we are currently putting more emphasis on trial experience for admission to the college. I am not now on the Selection Committee, but I served in that assignment for about 6 years. It is a tough job.

The selection and admission of women and racial minorities always provides a challenge for the Selection Committee. We give those important groups high priority as we believe diversity in all our TLC Classes is a prized component. Of course, we are often criticized for this approach. On the other hand, if we do NOT afford some degree of priority in this diversity search, we get criticized just the same. The criticism comes regardless – and we listen intently. To my mind, though, one cannot complain that there are people on TLC Staff and admitted to the college without trial experience, then complain when we put an emphasis on trial experience for admission.

There is always difficulty in getting enough women into the classes. Some years women were accepted with no trial experience because we felt an overriding need to include women and address that direly needed class component.

Staff selection is similarly difficult. I have circulated my own view of TLC Staff criteria numerous times on the list serve, in The Warrior, and within hand-outs circulated at various TLC events. Success in trial using TLC methods is important and highlighted among the staff criteria we review. Understanding what we are teaching and in leading a small group is very important, especially when there is struggle involved. We review that, as well.

What we often discover are these singular truths: Not all good trial lawyers know or can teach the TLC Method. Not all good teachers can try cases. What are we to do with this knowledge learned through years of experience?

This is the recurring debate among the members of The Board. Personally, I feel our TLC Staff must have been in trial actually employing our method more than once a decade. I have averaged a 3 week trial or longer every 18 months since 1992. Does this mean, however, that I will ALWAYS be more proficient at leading a small group of TLC students than someone with less trial experience? That doesn’t seem to ALWAYS be the case.

Life's perspective is much larger than being a part of TLC Staff, serving as TLC President or as a TLC Board Member. We have worked hard for TLC the past 2 years – doing our best in the face of the recurring challenges. I have received tremendous satisfaction in watching TLC grow in the right way. There is new criteria for Staff, although it will certainly evolve and we are always listening. There is a new accountability and transparency which I have worked hard to foster and support. There are more people attending more TLC events than at any time in the history of the College. Our endowment is growing. Ranch Club memberships are growing. Our financial stability is more promising than it has ever been as more Warriors step up to support TLC with both their time and their money – just as we must.

Most important of all, lives are still being changed and saved. Courtrooms in every state in the union are alive with our methods !!

Our staff and alumni are the best trial lawyers in the world !

Remember, though: It all starts with you. Making the choice to venture up the mountain, not knowing if you will make it and not knowing what you will find when you get there, but demonstrating a willingness in action to go nonetheless. That is where it starts. On this climb, all of us are called to look at who we really are with rigorous honesty. And, once we have taken that look, we are called to honestly embrace and become that person.

The Classes of 2011 begin with this July gathering. The journey continues. I am so proud to be a part of this wonder.

Saturday, September 10, 2011

CA Warrior Gary Wenkle Smith spares his client's life

On August 19, Gary Wenkle Smith wrote: “Today the jury acquitted my client of three counts of murder. He shot and killed three people. I argued self-defense. He walked out of the courthouse today a free man. The voir dire, opening statement, cross-examination, direct of our witnesses, and closing were all based upon what I have learned from TLC.”

The San Bernardino County Sentinel: Friday, August 26, 2011

Deliberating A Single Day, Jury Acquits Flechtner On All Counts

V I C T O RV I L L E —

Dennis L. Flechtner was acquitted of murder in the 2009 shooting deaths of three people, three days after he took the witness stand to testify in his own defense. Flechtner’s straight-forward account of what occurred the night of October 4, 2009 had far greater resonance with the jury than did the testimony of the prosecution’s star witness, Whitney Telliano. Telliano, the lone surviving witness to the shooting other than Flechtner, had accompanied the deceased, Angela Leird, Adam Owen and Robert Light, to Flechtner’s

residence in Phelan that fateful night. And while Dennis Flechtner held up under

the cross examination of prosecutor Robert Brown, Telliano fared less well under questioning by defense attorney Gary Wenkle Smith.

In large part, the district attorney’s office had moved ahead with the prosecution of Flechtner based on what it presumed was the strength of information that Telliano had provided the Sheriff’s department and District Attorney’s office investigators in the immediate aftermath of the shooting. Once on the witness stand, however, she provided testimony that in many respects appeared to vindicate rather than implicate the defendant, even before Smith’s cross-examination began.

And when Smith cross-examined her, Telliano admitted lying and exaggerating in her initial accounts to investigators and minimizing the self-defense aspect of what had occurred because she knew if she spoke truthfully that Flechtner, who had remained in

custody for more than 21 months until his acquittal, would be let go. Telliano testified she had previously lied to sheriff’s investigators. She testified that she saw the 41-year-old 6’2 1/2’’, 337-pound Owen and 41-year-old 6’1”, 376-pound Light smoke speed prior to their block-and-a-half sojourn on foot from Leird’s home to Flechtner’s on the night of October 4, 2009. As they made their way to Flechtner’s place, Telliano said, there was

continual talk of how Owen and Light were going to, in her words, “kick his [Flechtner’s] ass” and that they were going to “f**k him up.” Telliano, who was not

shot, did not come onto Flechtner’s property. All three of the deceased were found by authorities in the dirt roadway off of Flechtner’s property, a circumstance that led investigators and prosecutors to theorize, at least early on, that Flechtner had ambushed

them in the street. But forensic evidence presented at trial showed a trail of Owen and Light’s blood leading from Flechtner’s property and down his driveway into the street where their bodies were found huddled with Leird’s. Leird’s blood was not found on

Flechtner’s property, but she was wearing several layers of heavier clothing than her two male companions, which an expert witness testified would have absorbed her blood and prevented it from dripping onto Flechtner’s property as she stumbled away and out to the street where she collapsed.

Telliano, under cross-examination, placed Leird, who was determined by a coroner’s examination to be under the influence of alcohol and Fentanyl at the time

of her death, on Flechner’s property, along with Owen and Light. Smith utilized Telliano’s testimony and physical evidence to show that Leird, Owen and Light

approached Flechtner, who was standing on his own property, from his left, center and right, with Light seeking to draw Flechtner’s attention so Owen could blindside him.

According to Telliano, Owen picked up a rock at one point. The rock was found in his pocket after he died. Telliano said that all three of the deceased were closing in on Flechtner just prior to the shooting and both Owen and Light had “grabbed” Flechtner in

the seconds before the shots rang out.

Flechtner, who was 55 years old at the time of the shooting and had undergone a

spinal fusion that limited his mobility, testified that Owen had grabbed him by his hair. There was stripling around Owen’s gunshot wound, indicating he had been shot at

a distance of around five inches. Coroner’s evidence showed Owen and Light had methamphetamine in their systems at the time of their deaths. Flechtner testified to six separate threats made by Owen against him, two of which were captured on video. Smith

arranged for the jury to view both videos. The second video captured Owen threatening to rape both Flechtner and his daughter.

The animus of the deceased toward Flechtner

appeared to stem from an incident that occurred nearly a decade prior to the shootings. Until 1999, Flechtner and Leird, whose residential properties are located on adjoining streets in the rustic Phelan area and share a common property line at the back end of their respective lots, had been on amiable terms. Leird was previously in a dating/live-in relationship with Rusty Jones. Flechtner had met and befriended Jones through his acquaintance with Angela Leird. Leird and Jones’ relationship ended when Leird’s daughter, Chelsea, accused Jones of molesting her. The mother and daughter approached authorities and Jones was arrested and subsequently charged by the District Attorney’s office, but the case was later dismissed. Flechtner expressed skepticism about the accusations and maintained his friendship with Jones. This antagonized Leird, and her relationship with Flechtner sharply deteriorated. The property line between their lots became a matter of an escalating dispute and five years ago, Flechtner, claiming Leird’s fence intruded into his property, erected a 10-foot-high barricade between their yards.

At Flechtner’s trial, Chelsea Leird testified that Jones had indeed molested her, but she

made clear that Flechtner had not taken part in those molestations and had never touched her. Nevertheless, Leird’s daughter testified, her mother had grown to hate Flechtner because he had sided with Jones in the dispute over the molestation.

Flechtner testified that the shooting was the manifestation of his “worst nightmare.” Prosecutor Robert Brown did not reconstruct the crime scene. Nevertheless, he told the jury that Flechtner had lured Leird, Light and Owen over to his residence that night so he could lie in wait and pull a sneak attack on them. Over multiple objections

from the prosecution, Smith put on an expert witness, licensed crime scene reconstructionist Brian Burnett. Burnett who provided crucial, uncontested testimony with regard to where Flechtner, Leird, Owen and Light were standing when the

shooting occurred. Flechtner was charged with three counts of murder and lying in wait, a special circumstance that would have made him eligible for the death penalty.

The jury was given three options on the murder charges: First or second

degree murder or a finding that Flechtner was not guilty and that what occurred was justifiable homicide in the furtherance of self-defense. According to a survey of the jurors afterward, some members of the panel were troubled by the consideration that one of those killed was a woman. After deliberations on Thursday, August 18, the jury retired

for the evening and returned on Friday August 19, to register acquittals on all charges. Flechtner left the courtroom a free man for the first time in nearly two years.

Friday, September 9, 2011

Jude Basile on the Howell Case


Trial Lawyers Tell the Truth

J. Jude Basile, Trial Counsel in the Howell Case

When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts as full payment, pursuant to a preexisting contract with the injured person’s health insurer, an amount less than that stated in the provider’s bill. In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider’s bill but never paid by or on behalf of the injured person? We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount.

REBECCA HOWELL v. HAMILTON MEATS & PROVISIONS INC., Ct.App. 4/1 D053620; S179115; San Diego County; Super. Ct. No. GIN053925; August 19, 2011.

And so, the California Supreme Court issued its decision in Howell vs. Hamilton Meats last week – no doubt destined to take its place among The Golden State’s pantheon of justice. A true “landmark” case.

The main issue was whether courts should remove the proven value of medical special damages incurred by a plaintiff injured through the negligence of another IF the tortfeasor could show that the injured victim had private insurance that never actually paid all the sums due the health care providers.

At the center of the controversy was the sanctity of the long cited “Collateral Source Rule.” All eyes were focused upon this “medical bill” issue as the case made its way through the system.

The Trial Court had said yes, such reductions in a plaintiff’s medical specials could occur. The Court of Appeal reversed and said no – no such abrogation of the “Collateral Source Rule” should be tolerated.

Then, our state’s Supreme Court weighed in. The appellate court was reversed.

And with that decision, plaintiffs seeking a full measure of justice AND who happened to be lucky enough to hold insurance coverage with a company having the ability to negotiate with health care providers for lower prices found their ability to collect the reasonable value of their medical services stripped away. Instead, they awoke on the 20th of August 2011 to discover that—henceforward—they can only collect the actual amounts their managed care plans paid on their behalf. Predictably, the decision led to much wailing within the California plaintiff bar about the further erosion of long upheld plaintiff rights.

As Becky Howell’s trial counsel, I was tempted to wail along with them, realizing—as I did—that the verdict we had obtained would be reduced by over $135,000 as a result of this ruling. Somewhere amid all the wailing, though, I got to thinking about what it all meant. Where I ended up was a far piece from where all the Supreme Court’s deliberation took them.

The truth is that many lawyers and insurance adjusters use the amount of past medical expenses to be the cornerstone of evaluating all the damages in a case. Courts do the same thing sometimes. I guess we shouldn’t blame juries for following suit, IF that’s how they are led.

How often do we hear as the first case-evaluation question asked: “How much are the meds?”

This concentration on the amount of the medical bills is supposedly an easy and quick way to gauge the “value” of a case. It evolved over time into the insurance company’s method of pegging a value on an injured person’s claim for justice. It became the basis for some settlement mills to exist and operate. Somehow, somewhere, somebody even formulated the myth that “3 times the medical costs” could give a reasonable general damage figure for a victim’s pain, suffering and anguish.

And so many lawyers ask, just as the insurance industry hoped they would: “How much are the meds?”

While many addressed a victim’s request for justice in this mechanical way, the embracing of human experience and the life-numbing misery resulting from another’s wrongful conduct begin to disappear. The human condition, suddenly altered from what had existed before, was seldom perceived with any real detail or empathy. But, boy, many wanted to concentrate on those meds.

I wanted to remind all of us that this decision is a wake-up call for many – a call to remember what our cases are really about: The people we represent. Medical bills, health insurance companies, hospitals, liens, and other “economic” stuff, are only a tiny part of what our cases are about. Our cases are about real people and their changed realities – lives changed in an instant when some other person or corporation betrayed them.

I have been a lawyer since 1982. I have spent most of my career representing people. Since 1985 I have been in private practice representing individuals and families. I have tried many cases. Cases are about people, not “the meds.”

As I said before, I was the trial lawyer in the Howell case. The day I was asked to take the case, I knew Becky Howell was someone special. She was an extraordinary athlete, attending Stanford on an athletic scholarship. She was a world class surfer. She surfed most days of her life. She was married to a musician, poet, songwriter, entertainer, who was also a first class lawyer for people. Her husband asked me to take Becky’s case and it did not take long for me to agree to help if I could.

Becky was driving along the Coast Highway in Encinitas, when a Hamilton Meats delivery truck slammed into the side of her Explorer. The driver was inexperienced with the route, got lost and made a sudden attempt at a U-turn directly into Becky’s path. The defendants, after months of litigation, finally admitted liability but denied Becky was injured beyond a temporary soreness.

Shaken badly in the collision, and after months of enduring needle like pain, fatiguing numbness and a frightening inability to move her previously athletic arm in full motion, Becky went to a doctor for help.

Before long, she ended up with 2 neck surgeries.

The second surgery was terrible for Becky because the surgeon had to scrape out the material between her neck bones and drill screws and metal bars into her upper spine to hold all the vertebrae in her neck together. Please note I am not describing these procedures as involving a herniated disc at C-5/C-6 with radiculopathy requiring laminectomies and internal fixation, etc. That is doctor/ lawyer/adjuster talk -- not the sort of talk that passes between ordinary human beings. When we forget to talk like the human beings entrusting their lives to us, we distance ourselves from the human connection.

Being the person she is, Becky dedicated herself totally to reclaiming her health and her life. She did all she could possibly do to reach a full recovery. I was amazed at her strength and considered her the Bethany Hamilton of her day. (See the movie Soul Surfer if you want to know more about this reference!) A determined competitor her entire life, Becky worked hard in her recovery and at managing her considerable pain. Her guts and determination got her through those awful life-phases. I watched her struggle and often thought: Becky is the kind of person we all admire and hope we can emulate.

Her medical bills were $180,000 or so but her insurance carrier settled these for about $40,000. The judge let the $180,000 go to the jury but reduced it after the trial was over to the $40,000 actually paid, setting the stage for the Supreme Court opinion ultimately to come.

The defense did a sub-rosa video, spying on Becky surfing and other things. Although we asked to see all of the video footage, the defendants refused to show us the whole thing. As a result of this “selective editing,” the trial judge excluded all of it. I suspect there were some pretty nasty things they did not want us to have.

The footage of their edited spy video that was shown to us had her surfing again. This was a reality we had NEVER denied. Her pure grit got her back in the water, but not with the effortless athleticism she possessed before that betraying Hamilton Meats U-Turn.

Who knows what video footage existed that they refused to show us? Maybe they had some shots of Becky rinsing off at the beach shower, or maybe they had footage of her painfully struggling with her wet suit. We will never know what sort of invasion of privacy that hidden footage revealed. We asked to see it, but the cowards never showed it to us.

After the trial, I received a motion from the defense seeking to reduce the amounts awarded to Becky for her medical bills, all as supposedly required by the Hanif case. I contacted John Rice, an expert in this area, to help. Is it not weird that a trial lawyer has to get an EXPERT to help force a negligent driver to PAY for the reasonable value of the medical bills his negligence caused the plaintiff to incur? Am I the only one who thinks that is as peculiar as hell?

Anyway, John helped, did a great job and the case was off to appeal after the trial court granted this defense motion to reduce the medical bills to what Becky’s insurance company actually paid. I am a trial lawyer and could see straightaway that I would need some assistance on the appellate issues. Given this, appellate counsel was hired (Gary Simms) and Consumer Attorneys of California ( formerly California Trial Lawyers) helped, with Scott Sumner’s office leading.

The judgment now handed to all of us by the California Supreme Court is consistent with the pro-business attitude of most of the judicial branch of government. It will create a quagmire in trying cases, IF we continue to focus on the past medical bills as the basis for evaluating a case. This is a wake-up call. We must become more understanding of and empathetic with the people we represent and with all of the members of our juries.

Our system of justice requires tremendous TRUST. We trust that people will do what is right. We trust people will follow the law. We trust in the golden rule, to do unto others as you would have them do unto you. We trust each other in basic daily activities. We trust others to follow the rules of the road, stop at stop signs, not to use drugs or alcohol and drive, to be attentive, to not speed, to not use a cell phone while driving, etc. We trust businesses to be honest. We trust trucking companies to be extra careful when they are making a profit by operating vehicles much larger, more dangerous and thus capable of causing much more damage than other ordinary vehicles on the public roads, which all of us own. We trust them to properly train and supervise the drivers of these huge machines, which bring the companies immense incomes. The more dangerous the instrumentality or activity, the more we must trust those in control of it.

TRUST is the basis of how we live.

Sometimes this trust is broken. It is broken sometimes by not paying attention. On other occasions, the trust is forsaken for greed and for the all-important “bottom line.” There are always motivations for breaking this trust. The motivations must be explored in every case.

When the trust is broken, harm follows -- sometimes great harm. Medical bills are but a small part of the broken trust. Medical bills are the given, for crying out loud. If you break something because you were not behaving as others had a right to truly expect, then you should pay to fix what you broke as best it can be fixed. But human beings are not things. Car fenders do not bleed. Cars do not need oxygen when being fixed. Cars do not need diapers on them as they lay in the repair shop. Cars do not feel. Even knowing all this, though, so much of insurance company and lawyers’ “case evaluations” are rooted within the costs of repair, or the “What are the meds?” inquiry.

What is often missing is an empathetic concern for the human experience.

Have you ever tried to actually experience what the people we represent go through? Have you crawled into a hospital bed and tried to use a bed pan? Have you laid there in that hospital room and tried to eat with one hand, when no one else is present to assist? Do you have any understanding of how lonely that feels? Have you spent a night in your client’s home, sharing their altered realities, their tears and their pain? Have you gotten up with them at night when the fear and the pain will not let them sleep? Gone to the Doctor’s office with them and sat trembling in the examining room wondering what new surgery will be unveiled by the doctor? Is there is nothing else we can do along these lines?

In Becky’s case, I spent lots of time with her and felt honored to do it. I went back and met with her high school teachers, learning what a driving force she had been even as a kid. I went with her to her favorite surf spots. I visited neighborhoods where she grew up. I stayed at her house and saw her morning routine. She told me how the ring and little finger on one hand felt constant numbness and pressure 24/7, so I tightly wrapped my ring and little finger with rubber bands for a 24 hour period to try to feel like she was feeling. I learned very private stories of her life and intimate details of her relationships with her parents and siblings. I came to love and respect her, her husband and her family more than I even imagined was possible.

There is nothing more important than understanding who the people we represent are and how they must live with the changes crashing into their lives. When you seek this understanding, you begin to love these folks. You become their story-teller and their champion.

I am sure there will be ongoing discussions and seminars crafted so we can learn to deal with the Supreme Court’s decision in Howell. There will probably be Howell motions required in the trials of the future. I would not be a bit surprised to watch as a whole cottage industry of experts germinate from the ground like clover to deal with the medical billings issues in trials yet to come.

Becky Howell stood up and took this case about medical bill fairness to the California Supreme Court. While she was willing to make that fight, Becky was never only about the medical bills paid by her insurance company. She was never only about insurance company reimbursement agreements, managed care or lawyers who only look at numbers.

There is a LOT more to THIS lady.

Becky Howell is a human being of unbelievable courage and stature. She is quiet and unassuming and probably wishes I was not writing this about her. She is about being human and fulfilling her human potential in every way she can. She does it so simply and as a matter of such routine that I doubt she realizes her efforts are heroic.

As lawyers, we should pry away the ultimate lesson from the Howell case: Cases are about PEOPLE. If we want to get to know and understand them, we just might start by looking at and understanding ourselves. Why do we do what we do? Is it for our own financial self-enrichment? Are the numbers what we are looking to put up? Is THAT why we look at “the meds” or the property damage sums, because we are focusing on the numbers in our OWN lives?

I am suggesting that everyone heed this Howell wake-up call. Let us truly look at ourselves first. Why do we do what we do? Have we really ever reversed roles with the people we represent and seen their world through their eyes before, during and after the event? Do we take the time to ask who these people are in a soulful way or do we mechanically look at numbers?

Take the time to share the humanity which defines your client. It is there and it is powerful – more powerful than all “the meds” in all the cases ever tried. Allow yourself to feel the love such sharing will engender within your heart.

And, guess what? Those heart-gifts can never be given totally away. They come back to you, like the timeless swallows. Sharing of this type, stirring –as it does-- “the better angels of our nature,” will cause your own humanity to bloom as never before. Budding humanity within an open, caring heart will trump mechanical concentration upon “the meds” every time. I would guarantee it…but, once you feel it, no guarantees are required.