San Diego Injury Law Blog

The Boy Scouts of America have agreed to settle a lawsuit with six former scouts who alleged that they were molested in the 1980s by their Portland area scout leader. The settlement is confidential, but to avoid trial, the Boy Scouts have agreed to pay an additional $2.25 million in punitive damages.

One of the plaintiffs participating in the settlement was Kerry Lewis, a 38-year-old who actually won a separate trial last April, when a jury awarded him $20 million in damages for the molestation he endured as a scout in the 1980s. In order to avoid the expected appeal by the Boy Scouts, and to get on with his life, Lewis participated in the settlement this week. What was stunning about Lewis's trial was that the trial judge allowed into evidence files maintained by the Boy Scouts that documents complaints made about suspected molestation:

From the Oregonian:

Key to Lewis' case were so-called red-flag files that the Boy Scouts of America have fought to keep out of the public eye, but that Judge John Wittmayer allowed to be used during trial. The files amounted to 20,000 pages of information collected by Boy Scout executives from 1965 to 1985 on 1,247 Scouting volunteers who were suspected of molesting boys or other unbefitting behavior.

From 1965 to 1985 there were 1,247 scout leaders suspected of molestation or unbefitting behavior? That is an incredible revelation that doesn't get much coverage, and compares to what we've all learned about the Catholic Church in recent years.

In response to the settlement the Boy Scouts issued the following statement:

“Youth safety is the number one priority of the Boy Scouts of America, and we are deeply saddened by the events in these cases. We extend our sympathies to the victims and are pleased to have reached a settlement which will both prevent these men from reliving their experiences during a trial and allow BSA to focus even more intently on the continued enhancement of our youth protection program.”

Source: Oregonian

The Walton Law Firm represent individuals and families who have been impacted by all types of incidents, including auto accidents, wrongful death claims, worksite injuries, elder abuse and neglect, sexual molestation, pedestrian injuries, construction accidents, property injuries, and malpractice matters. Call toll free at (866) 607-1325 or locally at (760) 571-5500 for a free and confidential consultation.

Watch this excellent video from the Consumer Attorneys of California about what lawyers are doing now, and have done for centuries, to protect the rights of individuals. I particularly like that it highlights California's Medical Injury Compensation Reform Act (MICRA) and the injustice it has caused. Most people don't realize that the non-economic damages caused by medical errors (non-economic = pain, suffering, and overall impact the injury has caused) cannot exceed $250,000.00...ever. That amount was set in the early 1970s and has never been adjusted. Imagine, if a young mother was killed by a negligent driver, a jury would deservedly give her surviving husband and children hundreds of thousands of dollars, maybe millions. If a negligent doctor causes the death, her life can't be worth more than $250,000.00.

Watch this:

Source: Consumer Attorneys of California

The accident and injury lawyers at Walton Law Firm represent individuals who have been injured in all types of incidents, including auto accidents, worksite injuries, elder abuse and neglect, food poisoning, pedestrian injuries, construction accidents, property injuries, and malpractice matters. Call (760) 571-5500 for a free and confidential consultation.

One of the most maligned jury verdicts in United States history is the McDonald's coffee case. You can approach 100 people on the street and ask if they've heard of it, and 95 will have heard of it, and a majority of those will have a negative opinion. The case has been used as an example of how our jury system fails us, and how lawsuits are nothing more than lotteries, with frivolous claimants hoping to hit it big.

But what most people don't know is that the true case of Stella Liebeck, the plaintiff in the McDonald's coffee case has a very compelling story. Now filmmaker Susan Saladoff is trying to complete a documentary about the case, and to get the true facts out there.

For example, most people are not aware that:

• Ms. Liebeck was not driving at the time of spill, but was a passenger.

• After the spill, a vascular surgeon determined that Ms. Liebeck suffered third-degree burns over 6 percent of her body, on the area of her inner thighs, perineum, buttocks, and genital and groin areas. She required skin grafting surgery.

• She offered to settle her case for $20,000, but McDonald's rejected it.

• During discovery, McDonalds produced documents showing it had received more than 700 claims by people burned by its coffee between 1982 and 1992.

According to the website, Hot Coffee the movie will reveal what really happened to Stella Liebeck, and explore "how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this documentary film, you will decide who really profited from spilling hot coffee."

Here's a trailer for the movie, which is currently raising funds to complete.

Source: HotCoffeeTheMovie.com

The San Diego accident and injury attorneys at Walton Law Firm represent individuals who have been injured in all types of accidents, including auto accidents, worksite injuries, nursing home neglect, food poisoning, pedestrian injuries, construction accidents, property injuries, and malpractice matters. Call (760 571-5500 for a free and confidential.

Good news California. The U.S. Supreme Court may have just inadvertently helped us put an end to the maddening referendum process that pollutes every election cycle in our state. Yesterday, in the case of Doe, et al. v. Reed, Washington Secretary of State, the Supreme Court voted 8-1 that individuals who sign petitions to put referendums on state ballots do not have a privacy right under the First Amendment to keep their name a secret.

The case arose out of a Washington State ballot measure that sought to overturn a state domestic partnership law. Opponents of the measure sought to obtain the names of the 130,000 individuals who signed the petition in order to verify that the signatures were valid. A group called Protect Marriage Washington, which opposes gay marriage, sued to block the release of the names, arguing that those who signed would be subject to threats and harassment, and would likely have their names posted on the internet. Signers, the group argued, have a right to privacy that is protected by the First Amendment.

At first, a federal judge agreed, and prevented the release of the names, but the 9th Circuit Court of Appeals overturned the trial judge in favor of releasing the information. The Supreme Court then took the case on and ultimately agreed with the 9th Circuit.

Writing for the majority, Chief Justice John G. Roberts Jr. narrowed the case into a single question, whether there is a general First Amendment right to be anonymous when signing any kind of petition to place a matter on a ballot. He and seven other justices say no.

In the opinion, Justice Roberts wrote that “public disclosure can help cure the inadequacies of the verification and canvassing process..." The opinion also said that there we other instances of the names being released without incident.

In a concurring opinion, Justice Samuel A. Alito Jr. argued that a narrower challenge should succeed. That is, if there is a reasonable probability that the signer would be harassed by signing, then those names should not be released. The case before him, he wrote, did not rise to that level.

What does this mean for California? Those who sign petitions in front of the local grocery store should be forewarned. The opponents of those circulating the petition you signed may get your name, put it up on a website, and tell the world where you stand on a certain issue.

To read the entire opinion click here.

Source: New York Times

The San Diego County attorneys at Walton Law Firm represent individuals and families who have been impacted or injured by the negligence of others, including those injured in auto accidents, product liability incidents, worksite injuries, pedestrian injuries, construction accidents, property injuries, and malpractice matters. Call (760) 571-5500 for a free and confidential consultation.

A new device that tracks and locates retained objects (surgical items left inside a patient after an operation) is getting attention. The RF Surgical Detection System uses a wand to scan the surgical area to find any tagged items that might have been left inside the patient. Tags are small seed-like items that are embedded in gauze and surgical sponges.

According to the New England Journal of Medicine a major hospital can expect to have one or more cases of retained objects per year. Those figures however, were based on actual medical malpractice claims, so the real number is probably higher. It is generally believed that an object is left in the body in 1 of every 8,000 surgeries, the most common item being the surgical sponge.

Most hospitals rely on a counting system. Nurses count the number of sponges that are being used in a procedure, and then make sure they have the same number of used sponges in sight before closing the patient. If the count doesn't match, then the patient cannot be closed. Sometimes, however, nurses count incorrectly (or forget).

"With this system, if that should ever happen and the count still comes out correct, you still are able to wand the patient," said Kim Stache, administrative director of surgical services at Edward Hospital in Naperville, Ill., which started using the system in December. Because of the RF seed, if there is still a sponge in the body or the opening, it would beep at us to let us know, hey, there's still something in the wound.“

Currently more than 100 hospitals are using the system, which costs about $15 per surgery. The results have been generally positive.

Source: Chicago Tribune

The accident and injury lawyers at Walton Law Firm represent individuals who have been injured in all types of accidents, including auto accidents, worksite injuries, pedestrian injuries, construction accidents, property injuries, and malpractice matters. Call (760) 571-5500 for a free consultation.

The New York Times has obtained a government report that concludes that the drug Avandia [aka Rosiglitazone], prescribed for diabetes, causes heart attacks and heart failure and should be removed from the market. According to the report, if every diabetic currently on Avandia were instead given Actos, an alternative drug, about 500 heart attacks and 300 cases of heart failure would be avoided every month.

Because of a multimillion dollar advertising blitz, Avandia was, at one time, one of the biggest selling drugs in the world. In 2006, sales of the drug totaled over $3 billion dollars. In 2007, however, a study by a Cleveland Clinic cardiologist suggested that the drug actually damaged the heart, and after a warning from the FDA, sales of the drug dropped dramatically. Despite the findings of heart damage, the drug stayed on the market when "an F.D.A. oversight board voted 8-7" too keep it on the market. (It would be interesting to know the politics at work behind that decision.)

“Rosiglitazone should be removed from the market,” concluded Dr. David Graham and Dr. Kate Gelperin of the FDA in the report obtained by the Times. GlaxoSmithKline, the drug's manufacturer, disagrees (of course). It has stated that Avandia has been thoroughly tested and that “scientific evidence simply does not establish that Avandia increases” the risk of heart attacks.

A bipartisan multiyear Senate investigation, which will release its report on Monday, will apparently harshly criticize GlaxoSmithKline for failing to warn patients years earlier that Avandia was potentially deadly. According to the forthcoming report from the Senate:

“[GlaxoSmithKline] executives attempted to intimidate independent physicians, focused on strategies to minimize or misrepresent findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that a competing drug might reduce cardiovascular risk.”

Ultimately, this will be a story about the quest for profits at the expense of human lives.

Source: New York Times

The lawyers at Walton Law Firm represent individuals throughout San Diego County who have been injured in all types of incidents, including product defect claims, malpractice claims, car accidents, motorcycle accidents, an all other negligence induced incidents. Call (760) 571-5500 for a free consultation.

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Looking for a personal injury lawyer? Don't grab the phone book (who uses phone books anymore?), grab the laptop and hit Google. Avvo.com is national lawyer directory founded by Mark Britton, an attorney for 16 years and formerly the top lawyer at Expedia.com, and Sendi Widjaja, a veteran of Microsoft. Together they launched Avvo.com as a way for people to navigate "the complex and confusing" legal industry, and to help people choose the right lawyer for the situation.

We use it here at Walton Law Firm. Randy Walton is rated as "Superb" by the Avvo ratings system, and there you can find a lot of information about his background, sample cases, and read testimonials from a few of his former clients.

At its website, Avvo states that it is guided by two basic principles: Focus on the needs of regular people, and the provide information and guidance. Whether a person is looking for a car accident lawyer, an elder abuse lawyer, or a lawyer to prepare an estate plan, Avvo can give you the low down on all of them.

Source: Avvo.com

The personal injury lawyers at Walton Law Firm represent individuals who have been injured in all types of accidents, including auto accidents, motorcycle accidents, pedestrian accidents, bicycle accidents, construction accident. Call (760) 571-5500 for a free consultation.

Frank Rogozienski felt that something wasn't right. The judge in his divorce case kept ruling against him, including voiding a prenuptial agreement that cost Mr. Rogozienski $20 million in stock. Making matters worse, the presiding judge on the case refused to disclose any conflicts of interest he might have.

Mr. Rogozienski decided to conduct his own investigation into any conflicts of interest, and discovered that the judge, James Allen, had received a timeshare condominum during the pendency of the Rogozienski divorce case. A little more digging revealed that the friend that gave Allen the time share, received it from a San Diego lawyer named S. Michael Love. You know what's coming next. Attorney Love was the lawyer for Mr. Rogozienski's wife Shirley in the divorce proceedings.

After the divorce, Mr. Rogozienski sued Love and Allen for professional negligence. Allen, a lawyer who was sitting as a private judge, was held to have judicial immunity and protected from liability. Love on the other hand, was determined to be negligent by a San Diego jury and awarded Mr. Rogozienski $800,000 in attorney's fees. From news accounts, it doesn't sound like the jury was all that fond of Mr. Rogozieski. For his emotional distress damages he was awarded 1 dollar.

Both attorney Love and judge Allen are subject to a California State Bar investigation. Both have long histories in the San Diego legal community, and neither has been subject to a State Bar investigation before.

Source: San Diego Union Tribune

The accident and injury lawyers at Walton Law Firm LLP represent individuals and families who have been injured in all types of accidents, including car accidents, motorcycle accidents, pedestrian accidents, bicycle accidents, construction accident. Call (866) 607-1325 for a free consultation.

For many years now, the issue of medical insurance payments to health care providers who care for personal injury victims has been a source of confusion and frustration among personal injury lawyers. When an injured person incurs medical bills as a result of an accident, and then recovers money from the person/entity that caused the injury, should the injured person be allowed to recover the full amount of the medical charges billed by the health care provider (doctors, hospitals, etc.), or simply be allowed to recover the amount paid by the health insurance carrier?

The answer to that was cleared up a bit yesterday when the Fourth District Court of Appeals (Div. One) issued its opinion in Howell v. Hamilton Meats & Provisions.

Rebecca Howell suffered very serious injuries when the car she was driving was struck by a truck being driven by one of Hamilton Meats’ employees, who made an illegal U-turn. Ms. Howell suffered a major spinal injury that required two surgeries and substantial post-surgical care. She sued Hamilton Meats, who admitted fault, and a trial was held on the amount of her damages.

At trial, a jury awarded Ms. Howell a total amount of $689,978.63, which included payment for all past medical care, and for her general pain and suffering damages. After the trial, the Hamilton Meats moved to reduce the past medical expense portion of the verdict by a whopping $130.286.90 from $189,987.63 to $59,692.73, since that was the amount her health insurer (PacificCare) had paid to her health care providers. The trial judge agreed, holding that Ms. Howell would receive a windfall if she received more money for past medical care than she would ever personally be liable for. Ms. Howell appealed.

After some excellent lawyering (a hat tip here to San Diego lawyer John Rice), the court of appeal reversed the trial judge, and ordered that Ms. Howell be awarded the full amount of the medical bills that were billed by her health care providers without any reductions. The court held that any trial court reductions was a violation of the long-standing collateral source rule (payments from source independent of negligent party should not be deducted from damages), and that the wrongdoer, here Hamilton Meats, should not receive the benefit from Ms. Howell’s own responsibility and thrift, or any side deals made between PacificCare and her doctors. In short, why should Hamilton Meats get a $130.286.90 break simply because Ms. Howell, the person it injured, purchased good health insurance?

The court said:

Under California’s collateral source rule, Howell, as a person who as invested in premiums to assure her medical care, should receive the benefits of her thrift; and Hamilton, as the party liable for Howell’s injuries, should not garner the benefits of Howell’s providence. The law allows Howell to keep this collateral source benefit for herself because she was responsible for the benefit by maintaining her own insurance.

You can be sure the defense bar and insurance industry will be appealing this one. But it’s hard to argue the logic in terms of providing justice. If private health insurance companies and private doctors and hospitals agree to price reductions for care, why should defendants who cause injury get the benefit?

To read the entire Howell opinion click here (.pdf).

The Walton Law Firm represent accident victims throughout San Diego County and has recovered millions of dollars for individuals involved car accidents, motorcycle accidents, pedestrian injuries, uninsured motorist claims, animal bites, construction accidents, slip and fall injuries, dog bites, insurance disputes, and medical malpractice suits. Call (760) 607-1325 for a free consultation.

As was expected, the family of a Huntington Beach junior lifeguard who was accidentally killed during camp when she was run over by a lifeguard boat has filed a claim against the City of Huntington Beach. The claim alleges that Huntington Beach lifeguard Greg Crow, the boat operator, was negligent, and that his negligence caused Alyssa Squirrell's death. As was blogged about here, Alyssa died during a training drill where the junior lifeguards would jump off the back of the rescue boat near the surfline.

The filing of a claim is not a lawsuit, but a precursor to a lawsuit. Under California law, anytime a person wants to file a law against any governmental entity, whether a city, county, or any other public agency, it must first file a claim against the public entity, and the claim must be denied. In addition, the claim must be filed within 6 months of the incident. If the claim is not filed within six months, the person is usually barred from filing a lawsuit.

This requirement, which places an unfair burden on claimants, is often confusing for claimants. For example, if Alyssa Squirrell was killed by a private boater, not a city employee, her family would have up to two years to file a wrongful death case against the boater. Since the prospective defendant is the City of Huntington Beach, they must first file the claim referenced above, then will be permitted to file a lawsuit once the claim is denied (which is what Huntington Beach will do). After the claim is denied, the family will have six months. So while California has a two-year statute of limitations in most personal injury claims, it is usually one year in cases involving public entities.

The Squirrell case is just a plain tragedy. By all accounts the boat operator was an excellent lifeguard, who, for just a moment, acted negligently.

Source: ocregister.com

Walton Law Firm represents personal injury victims throughout San Diego County in cases involving negligent conduct, including car accidents, pedestrian accidents, medical malpractice, motorcycle accidents, uninsured motorist claims, defective products, construction accidents, slip and fall injuries, dog bites, and insurance disputes. Call (760) 607-1325 for a free consultation.

The California Citizens against Lawsuit Abuse (CALA), an insurance industry-backed organization whose goal is to limit access to justice, is out with a study that finds that eight of California's largest cities and nine of the largest counties spent $504.1 million in 2007 and 2008 to defend lawsuits, and to pay settlement and judgments.

While those numbers may be accurate (it's hard to tell), the so-called study provides no real context for the number. For example, what percentage of the overall budgets of the cities and counties does $504.1 million represent for a two-year period? How many lawsuits are we talking about here, and what percentage were meritorious, and what percentage were defeated? We'll probably never know, which is the problem with the "lawsuit abuse" organizations.

For example, a few years ago a San Francisco jury awarded $27 million to the family of a 4-year-old girl who was fatally struck by a City of San Francisco truck driver who ran a red light, jumped a curb, and crushed the little girl and her mother, who was severely injured. Is that a legitimate lawsuit and verdict against the City? Or the more recent Metrolink crashes in Los Angeles that killed 18 people after the engineer, it was learned, was texting moments before the accident. If those injured or killed bring cases against entities responsible for the crash, is that considered "lawsuit abuse"?

That's the problem with CALA's report. Whenever it, and similar organizations, issue a press release it must be taken with a grain of salt. Shouldn't the legal fees and awards from legitimate claims be deducted from the overall number being bandied about by CALA? I mean, I don't think anyone would argue that the victims of the Metrolink shouldn't be compensated for the devastation that has been visited upon them by the negligence of a government employee.

But we won't hear about the legitimate claims from CALA, because "fair-and-balanced" information is not part of its objective. We will only hear about the claims that sound frivolous, so the public will infer that aggrieved people are abusing the justice system, when there is very little evidence to support that. Does CALA protect the taxpayers, or is it's objective something larger. This is from the Center for Justice Democracy:

While CALA represents themselves as grassroots citizens groups, and they say they are sustained by small donations from ordinary citizens, they actually represent major corporations and industries seeking to escape liability for the harm they cause consumers. The money trail from these groups leads directly to large corporate donors, including tobacco, insurance, oil and gas, chemical and pharmaceutical companies, medical associations, and auto manufacturers. They are also funded by the American Tort Reform Association (ATRA), as well as professional associations, local businesses and industries that also wish to be shielded from consumer lawsuits.

Be wary of organizations who want to "reform" the justice system. Our system works remarkably well the way it is. Want proof of that? Just go down to the court house and watch a few trials. I will bet that you will be impressed with the quality of cases that have been brought (even the ones that lose), and you'll have a renewed sense of satisfaction in our system of justice.

Based in San Diego, California, the accident and injury lawyers at the Walton Law Firm represent individuals and families throughout the region who have been injured in all types of auto accidents, motorcycle accidents, and all other accidents caused by negligent conduct. Call (866) 607-1325 for a free consultation.

The baby stroller maker Maclaren USA Inc. is recalling 1 million umbrella baby strollers after received reports of 12 children who have had fingertips amputated by side hinges. The Connecticut-based manufacturer has apparently been working with the Consumer Product Safety Commission on what is being called a "voluntary recall." (Click here for the CPSC notice.)

According to reports, the Maclaren USA has received reports of 15 injuries to children placing their fingers in the hinges on the side of the stroller. Those injuries have increased in the last two years.

The recalled strollers include all "Volo" and "Techno XT" models sold in the last 10 years. The company is asking that owners immediately stop using the strollers until protective covers are placed on the hinges. Maclaren will provide free hinge covers to all owners who request them. (Click here for more info.)

Here are images of the strollers being recalled:

The umbrella strollers are made in China, and sold in the U.S. at retailers including Babies “R” Us and Target.

Source: Bloomberg

The injury and accident attorneys at Walton Law Firm LLP represent individuals and families who have been injured in all types of accidents, including those caused by defective products. Call (866) 607-1325 for a free consultation.

Most people would be surprised to learn the lawyers do not have to carry malpractice insurance (neither to doctors, by the way). And most clients don't ask whether their lawyer carries malpractice insurance. That's about to change.

Beginning January 1, 2010, lawyers who do not carry malpractice insurance must disclose that fact to their clients, in writing, at the time the attorney-client relationship is being formed, but only if the representation is expected to exceed four hours.

This new Rule of Professional Conduct (Rule 3-410) was approved by the Supreme Court in August, but not all attorneys are happy about it. Opponents of the new rule, mostly from solo practitioners and small firms, argued they would be unfairly affected, which would impose undue expenses and unfairly stigmatize those without it. It is estimated that approximately 20% of all lawyers in California do not carry legal malpractice insurance.

Here at the Walton Law Firm, we have always maintained an insurance policy for errors and omissions (malpractice). While it is ridiculously expensive (like pretty much all insurance these days), it's the responsible thing to do, for both client and lawyer.

Source: State Bar of California

The Walton Law Firm provides representation in the areas of personal injury, wrongful death, and nursing home abuse and neglect. Estate planning services are also available, including the creation or modification of will and trusts. Call (760) 607-1325 for a free consultation.

In 2005, several people were injured and killed when a documented gang member stole a tow truck from a commercial vehicle repair shop in Los Angeles County, and, while driving it away, lost control and drove up onto a sidewalk. The injured parties brought a lawsuit against the repair shop alleging that it was negligent for leaving the keys in the tow truck ignition, in an area known for high gang and vehicle theft activity. Apparently the thief simply had to start the vehicle and drive out an open gate.

The defendant repair shop brought a motion for summary judgment, to dismiss the case in its entirety, arguing that it owed no duty to the injured people, and that if it did, any negligence committed was not the cause of the injuries: a criminal intervener was. The court agreed and dismissed the case.

On appeal, the Second District noted that absent special circumstances, California courts have consistently have refused to impose a duty on owners or bailees of automobiles or ordinary pickup trucks who leave the key in the ignition of an unattended vehicle to prevent harm to third parties caused by a thief. The court went on to note several cases where "special circumstances" were found, highlighting cases were heavy equipment machinery was stolen and caused injury.

Ultimately, the appellate court reversed the trial court holding that:

[T]he tow truck was accessible to thieves in that it was parked in an area plagued by vehicle thefts, with the key in the ignition, in a position that permitted Bermudez to leave the facility through the unlocked and open gate. The totality of the circumstances “justifies the conclusion that the foreseeable risk of harm imposed is unreasonable, and that the defendant owner or one in charge of [the] vehicle has a duty to third persons in the class of the plaintiffs to refrain from subjecting them to such risk.

Read the entire case here (.pdf)

The injury and accident law firm of Walton Law Firm LLP represents individuals and families throughout San Diego County who have been impacted by negligence related car accidents, defective products, food poisoning, spinal and brain injuries, construction accidents, dog bites, and other personal injury cases.

A former lawyer for Toyota Motor Sales, USA, has alleged that the car company intentionally withheld evidence of its vehicles’ structural shortcomings in hundreds of injury and death cases arising from rollovers. Toyota counters that the former employ has an ax to grind, since he was fired for alleged misconduct on the job.

The information arises from a lawsuit filed by the former employee, attorney Dimitrios Biller, who claims that his complaints about the withholding of evidence cost him his job. The lawsuit must contain some damaging information as Toyota has brought a motion to seal the complaint, claim it contains confidential information.

Biller worked for Toyota from 2003 to 2007, and helped the car company defend rollover lawsuits that blamed the company for design defects involving instability and weak roofs. Most of the cases involve serious personal injuries or death. His complaint claims that Toyota refused to produce emails and other electronic data, which is required by the rules of discovery. Biller complained to his superiors, and alleges those complaints led to a "forced" resignation.

Here's the most interesting part: Biller was given a $3.7 million severance package. $3.7 million? That's quite a severance package for an in-house lawyer.

Source: CBS News

The San Diego accident and injury lawyers at Walton Law Firm LLP represent individuals injured or killed in car and motorcycle accidents, construction accidents, product defect cases, slip and falls, dog bites, and malpractice matters. Call (760) 607-1325 for a free consultation, or fill out an online contact form.

Those who follow California law are familiar with the "Civil Justice Association of California," an organization that seeks to curb access to the courts or to justice in the name of curtailing those scurrilous lawyers. You may have been exposed to some their handy work.

One of the leaders of CJAC is its general counsel, Fred Heistand, a tort reformer who has made a career of railing against plaintiff injury lawyers, and the evils of consumer class-action lawsuits, calling them “shakedown lawsuits” and “the weapon of choice for ... vexatious litigants.”

Funny thing happened. When Heistand's car was towed from a Sacramento no-parking zone, he got very upset. Apparently there were no signs that said that that illegally parked cars could be towed. So what did the anti-class-action crusader do? He filed a class action lawsuit, seeking damages from the city, the police chief, police officers, and the two truck company itself.

"It's hysterical," said Timothy Blood, a lawyer who specializes in unfair competition lawsuit. "The whole PR campaign during Prop 64 was that 17200 [the law Heistand used to sue under] was driving businesses out of California. So what does do? He sues a small business."

Heistand is not getting any love from CJAC, either. Its president had this to say about Heistand:

“I was concerned this might happen,” he said. “Fred has been fighting against frivolous lawsuits for decades, and like a doctor fighting malaria, he’s become infested himself -- and with the worst strain of the disease -- class actions.”

Source: LA Times

The San Diego accident and injury lawyers at Walton Law Firm LLP represent individuals and families who have been injured in all types of accidents, including car accidents, motorcycle accidents, work site incidents, animal bites, elder abuse, and malpractice matters. Call (866) 607-1325 for a free consultation.

A Good Samaritan who accidentally injures a person while trying to provide voluntary aid will not be protected from lawsuits by the injured party. Last week, Governor Schwarzenegger signed Assembly Bill 83, which is intended to encourage Good Samaritans to provide aid and rescue in emergency situations.

"Now Good Samaritans have no reason to hesitate to responsibly help someone in an emergency out of fear that they might be sued,” Assemblyman Mike Feuer said. "This legislation encourages Californians to look out for each other at a time when public resources are all too scarce."

The new law reverses a recent California Supreme Court decisions (Van Horn v. Watson) which held that the state's existing Good Samaritan law only provided partial protection from lawsuits for negligence when a volunteer provides assistance to a person in peril. The cases found that a Good Samaritan who injures someone while providing non-medical care could be held liable for damages.

The new law also received support from both plaintiff and defense attorney associations.

"This bill strikes an important balance between the human desire to help people who are in distress, and the rights of victims. Consumer attorneys are delighted to join police, firefighters, paramedics and insurance and business groups in endorsing this measure," said Christine Spagnoli, president of the Consumer Attorneys of California.

Source: California Chronicle

The injury law firm of Walton Barber LLP represents individuals and families throughout Southern California who have been impacted by negligence related car accidents, defective products, food poisoning, spinal and brain injuries, construction accidents, dog bites, and other personal injury cases.

While deaths in the workplace have declined over the last 20 years, the number of Hispanic workers who are killed on the job has increased. According to federal statistics, deaths of Hispanic workers increased from 533 in 1992 to 937 in 2007, an increase of 76%.

"I am particularly concerned about our Hispanic workforce, as Latinos often work low-wage jobs and are more susceptible to injuries in the workplace than other workers," U.S. Labor Secretary Hilda Solis told USA TODAY. "There can be no excuses for negligence in protecting workers, not even a language barrier."

According to records, Hispanic workers have fallen off roofs and scaffolding, been crushed under machinery and run over by trucks, according to workers' rights advocates. One reason for the increase is the number of Hispanics in the workforce. In the last decade, Hispanics have increased their percentage in the workforce from 10% to 14%. Another is that many Hispanic workers are without legal documentation to be in the U.S. and are less likely to join a union, which helps protect workers.

Source: USA Today

The San Diego accident and injury lawyers at Walton Law Firm LLP represent individuals injured in all types of accidents, including construction accidents, auto accidents, slip and falls, dog bites, and malpractice matters. Call (790) 607-1325 for a free consultation, or fill out an online contact form.

This weekend the New York Times had two good opinion pieces about reform in the medical liability system. Both contributors agree that the real problem is medical errors, not medical malpractice lawsuits, and that arbitrary caps on damages do little or nothing to address the underlying problem of too many preventable medical mistakes.

Professor Tom Baker writes that medical liability actually improves patient safety, because it has led hospitals to hire risk managers and create policies and procedures that work to improve safety. He also mentions an important fact lost on many tort reform advocates, that most victims of medical malpractice to not file lawsuits. Ultimately, he says,

… the real problem is too much malpractice, not too many malpractice lawsuits. So medical providers should be required to disclose injuries, provide quicker compensation to deserving patients and — here’s the answer for doctors worried about their premiums — shift the responsibility for buying malpractice insurance to hospitals and other large medical institutions. Evidence-based liability reform would give these institutions the incentive they need to cut back on the most wasteful aspect of American health care: preventable medical injuries.

Professors Michelle Mello and Amitabh Chandra contend the medical liability system isn’t working. Both the doctors and victims are battered by it, the doctors always playing defense, worried about insurance costs, litigation, and their reputations. And the victims, embroiled in stressful litigation, have to wait up to five years, on average, to receive compensation.

Mello and Chandra propose two reforms: The first, where there is reliably scientific evidence of what constitutes optimal care, the doctors should be able to present that evidence in defense before a lawsuit is filed. Second, pull out of the liability system certain types of cases, such as birth injury cases, and move them into a no-fault system. They point out that other states have done this with some success, and conclude that their proposals would not do away with the malpractice system, but would curb the worst of it.

Both pieces and be found by clicking here and here.

The medical malpractice lawyers at Walton Law Firm LLP represent individuals and families who have been impacted by medical negligence and other negligence related accidents. Cases are taken on a contingency fee, and all consultations are free and confidential.

You've seen the ads, "my personal injury lawyer got me ___ millions of dollars." Or the lawyer on TV with the slicked back hair, promising to win your case "with little to no money down." I thought this lawyer ad was pretty funny. Not because of the content, but because of the background. Watch the exploding cars flying though the air. If you're in this type of accident, please give us a call [if you survive, that is]:

The car accident attorneys at Walton Law Firm LLP represent individuals and families who have been impacted by accidental injuries and death. Call (866) 607-1325 for a free consultation.

An $86 million judgment against Starbucks was reversed by a San Diego appellate court today. The judgment was based on the finding that Starbucks violated tip-sharing law by allowing shift "supervisors" to share in tip pools. The judgment ended a lengthy class action lawsuit brought by a Starbucks "barista" named Jou Chau.

In a 3-0 ruling, San Diego 4th District Court of Appeals reversed the award, holding that the trial court's ruling...

...was improperly based on a line of decisions that concerns an employer's authority to mandate that a tip given to an individual service employee must be shared with other employees....There is no decisional or statutory authority prohibiting an employer from allowing a service employee to keep a portion of the collective tip, in proportion to the amount of hours worked, merely because the employee also has limited supervisory duties. Accordingly, we reverse the judgment and order the trial court to enter judgment in Starbucks' favor.

Under California law, owners, managers or other “agents” of business owners cannot share in tips given to specific employees. The question in this case dealt with the role of the supervisor, who, it was argued, also performed the duties of a regular barista during shifts. Attorneys for the baristas plan on appealing the ruling to the California Supreme Court.

To read the entire opinion, click here (.pdf).

The civil litigation attorneys at Walton Law Firm LLP provide free consultation on all civil litigation matters. Call (866) 607-1325 to schedule an appointment today.

The New York Times is out with a story about independent medical exams - or IMEs - in the state's beleaguered worker's compensation system. The article more or less confirms what injury attorneys all over the county already know: there is nothing "independent" about IMEs.

Generally speaking, an insurance company in a personal injury or workers compensation claim has a right to conduct a medical exam of the claimant to confirm the injuries are legitimate. But what usually happens is the doctor - hired by the insurance company - will issue a report that either dispute, denies, or down-plays the injury.

The Times article (which can be found here) starts with the story of plumber, injured on the job, who seeks more time under his work comp claim. The doctor conducts an exam, and appears to confirm all of the plumber's injuries and complaints of pain. But when the doctor issued the report, it reported the plumber had no injuries. According to the doctor, he couldn't be truthful because it would hurt is standing with the insurance company:

“If you did a truly pure report,” the doctor said, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

So who gets screwed? The injured person, now twice victimized. While this doctor is in New York, he has many brethren in San Diego. There are IME doctors here who make hundreds of thousands of dollars working for the same insurance companies, and who routinely issues reports that dispute the injured party's claims, or disparage the character of the victim.

I had a client who had her tongue pierced. She suffered a neck injury in a car accident and was sent to an IME with a particularly notorious San Diego defense doctor. When the report came back, the doctor spent a paragraph talking about the black spot on the x-ray with turned out to be a piece of jewelry in the woman's tongue. He went on to call her a malingerer (a liar), and concluded that she had no discernable injury.

What did a tongue piercing have to do with her neck injury? Nothing, of course. It was just this doctor's way of diminishing the character of the patient before him, hoping that somewhere down the road, either an insurance adjuster or jury, will judge her wrongly and reduce the value of her claim. I guess “that’s the game, baby,” but it is a pathetic game indeed.

The U.S. Supreme Court dismissed an appeal by cigarette manufacturer Philip Morris to overturn a state verdict of $79.9 million awarded to the widow of a longtime smoker by an Oregon jury. Legal analysts believe the ruling may mark a shift in the court, who most consider to be decidedly "pro business" it its rulings.

The court's ruling ended a decade-long battle for Mayola Williams, the widow of Jess Williams, a Portland Oregon janitor and smoker who died of lung cancer. In the product liability lawsuit, the family argued that Jesse, who began smoking in the 1950s, believed that cigarettes would not harm his health because of representations made by the cigarette company. A state jury agreed, awarding Mayola over $800,000 in compensatory damages, and $79.5 million in punitive damages.

Organized business interests had hoped the high court would send a strong warning to state courts about excessive punitive awards, and clarify a constitutional limit, but that was not to be the case.

The accident and injury attorneys at Walton Law Firm LLP represent individuals who have been injured in automobile accidents, motorcycle accidents, insurance disputes, products liability cases and all other personal injury cases.

The Voice of San Diego is out with an article about the impact the economic downturn is having on San Diego's larger law firms. Nationwide, thousands of lawyers and support staff have been laid off, mainly younger associates that don't yet have a book of business to sustain their own workload.

Luce Forward laid off 12 San Diego lawyers last month, and Cooley Godward, Paul Hastings, DLA Piper, and Latham & Watkins have all let lawyers go.

While the number of attorneys laid off is dwarfed by firings in other sectors, the law firm layoffs underscore the weakness in the economy because in past recessions, law firms have prospered in the "countercyclical" environment, because business is naturally more contentious when there's less to share, and because lawyers are necessary to restructure failing corporations.

This downturn is different, it is said, because failing businesses aren't reorganizing but liquidating, and those who survive are choosing not to spend money on legal advice or litigation. The greatest victims in all of this are the young lawyers and law students, who are burdened with huge student loans and dim job prospects.

To read the entire article click here.

Walton Law Firm LLP is a small civil law firm in San Diego County representing individuals, families and businesses in cases of personal injury, nursing home abuse and neglect, real estate litigation, and estate planning. For convenience Walton Law Firm has offices in downtown San Diego, and in the North County.

The American College of Trial Lawyers and the Institute for the Advancement of the American Legal System has issued a report calling for major reform to the American civil justice system. Current rules allow attorneys to delay litigated disputes by demanding irrelevant or difficult to find information.

Current federal discovery rules, which require the sharing of information before trial, are antiquated according to the report. The current rules, mostly written in the 1930s, didn't contemplate the volume of documents maintained by business today, or computers and email. As a result, the rules cause cases to go on for years, and drive people to settle or dismiss without regard to the merits.

Some other reforms suggested were setting requirement for expert witness testimony, assigning cases to a single judge to the life of a case, and allowing judges to provide mediation services on cases.

The San Diego personal injury attorneys at Walton Law Firm LLP represent individuals and families throughout Southern California who have been impacted by negligence related car accidents, motorcycle accidents, defective products, food poisoning, spinal and brain injuries, construction accidents, dog bites, and other personal injury cases.

The new year will bring new laws to all California drivers. Just as the CHP is reporting that many Californians are ignoring the 6-month-old ban on using cell phones without a hands-free device - 42,000 citations have been issued - a few new laws will begin tomorrow.

• No text messaging while driving. This one seems like a no-brainer, but one-handed text messaging has become an epidemic on California roads, and now we have a law that bans it.

• GPS devises that are affixed to the windshield must be placed at the lower left hand corner of the window.

• Calling 911 for non-emergency purposes may now result in a fine.

• Drivers 18 and under may not use a cell phone at all while driving. (This law actually went into effect last July but it's worth mentioning.)

For more on these new driving laws and others click here (.pdf).

In recent years there has been a raging debate about what is the best age to allow a person to obtain a driver's license. For teenagers, it is a rite of passage to get a driver's license, but in increasing numbers teen drivers are causing mayhem on the roads. While road fatalities have dropped in the last twenty years, deaths involving newly licensed drivers have been on the increase. In fact, highway safety specialists have called it a "silent epidemic."

Case in point: On Sunday, a Ramona woman named Melissa Jean Day was hit head on while driving on Route 67 in Poway. The accident occurred when a pickup truck driven by a 17-year-old boy (with a 15-year-old passenger) hit a curb, then drove his truck across the center lane and striking Day's car. Day died in the accident, and her two daughters, ages 11 and 14, were injured. A truly, truly tragic accident.

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According to the Insurance Institute for Highway Safety delaying the age at which drivers are licensed saves lives. Most European countries, as well as Japan, China, Brazil and Russia do not license drivers until age 18. Delaying the age, the argument goes, allows teens to mature before they get behind the wheel. No doubt it would save a lot of lives.

The Escondido injury and accident attorneys at Walton Law Firm LLP represent individuals who have been injured by car accidents, defective products, construction accidents, dog bites, and other cases involving negligence, including cases of wrongful death.

FACTS: Last September 52-year-old Theodore Angle was struck and killed by an SUV while jogging at the intersection of Via Cordoba and Redhawk Parkway in Temecula. The SUV was turning onto Redhawk from Via Cordoba when it struck Angle.

Allegations were made that the intersection was dangerous when turning left from Via Cordoba, because traffic on Redhawk blocks the line of sight for those turning right. Angle’s neighbor sent a letter to the City Council commenting on the dangerousness of the intersection, and recommending changes. Last week, Temecula's Public and Traffic Safety Commission vote against making significant changes to the intersection.

It was stated by the city's engineer that there have only been two accidents at the intersection since 2004, and also stated that proposed changes could actually make the intersection more dangerous.

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LIABILITY ANALYSIS: Public entitles such as the City of Temecula are protected by under a roadway design immunity at Government Code section 830.6 if the plan or design of the road if the design caused the accident, if it was approved by an employee authorized to make such decisions, and if there is "substantial evidence" that supports the reasonableness of the plan. The burden is on the city to prove the immunity applies.

The immunity may be lost if the plan or design has changed due to conditions, was aware of the change, and failed to take corrective action. The injured person must then show that the plan or design had become dangerous because of the change in conditions, that the public entity had actual or constructive notice of the change, and the public entity had time to obtain the funds to correct the problem.

If the case involves traffic signals, signs or markings, the city may be liable for failure to provide an adequate warning sign if one was necessary to warn of a danger that is not reasonably apparent.

The City of Temecula would only be liable if the above-referenced conditions were met. Since there were so few accidents involving the intersection, liability seems difficult. However, if the city had been on notice of the dangers created by the conditions leading to this unfortunate fatality, and failed to take appropriate action, there may be a viable case. The immunities would have to be overcome, which is no easy task.

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Want your case analyzed? The San Diego injury lawyers at Walton Law Firm LLP provides a free consultation on all cases. Please call (866) 607-1325 or fill out an online questionnaire.

FACTS: During a routine traffic stop in East San Diego County, police discovered an elderly woman bound and gagged in the back seat of the Dodge Magnum. According to reports, 75-year-old Natalie Vinje was kidnapped from her home on Friday night, and bound with duct tape. It was discovered that she had been beaten, and police speculate she may have been on the way to her death.

Police say one of the suspects arrested in the crime worked for a carpet company and sold the victim an vacuum cleaner on Monday. After he had performed work for the victim, he returned later that evening with accomplices to commit the crime. Three people have been arrested.
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LEGAL ANALYSIS: The three charged in the crime will face criminal charges, but does Ms. Vinje have a civil case for damages against the carpet cleaning company that apparently employed the kidnapper? Maybe. Typically, employers are only liable for the negligent acts of their employees that committed in the course and scope of their employment, but not liable for an employee’s intentional criminal acts. The employer could be liable, however, if it knew or should have known that its employer had a propensity to commit crimes like the one here. That can only be determined after a thorough investigation, such as an examination of criminal records, and interviews with management.

When attorneys get phone calls on serious auto accident cases the first thing they think of is insurance coverage. It's not just that they're wondering if there is a deep pocket - they are - but they're primarily wondering if there is much of a pocket there at all.

As you probably know, California requires that all drivers in the state maintain a policy of insurance of at least $15,000 per person, $30,000 per accident. Because that is the lowest amount of coverage a driver can possess and still drive legally in the state, it is also the cheapest... and many, many drivers buy it for that reason.

What does that mean? If you are in an accident that is not your fault, and the driver that hit you has a $15,000/$30,000 policy, the most you can collect from that insurance policy is $15,000 no matter how severe your injuries are. If you broke a leg and incurred $18,000 in medical bills, and missed one month of work at $4,000, and endured a tremendous amount of pain and suffering and inconvenience, your claim against the bad driver's insurance policy will be limited to $15,000 - not even enough to cover your financial losses.

This is where uninsured and underinsured motorist coverage comes in. A UM or UIM policy is a policy that you purchase from your own insurance company which will cover you in the claims like the one outlined above. Whenever your losses exceed the available insurance limits (of if the bad driver had no insurance at all), your UM or UIM policy will cover the losses above and beyond the available coverage.

There is one caveat: your UM or UIM policy must exceed that of the driver that hit you. If, for example, you purchased a UIM policy of $15,000/$30,000 and then were injured by a driver that had a liability policy of the same amount, you would not be able to tap into the UIM policy if your damages exceed the $15,000 limits. Under those facts, you must maintain a UM or UIM policy of more than $15,000/$30,000 to collect money above-and-beyond the bad driver’s policy.

The important points. First, always purchase UM and UIM coverage. If you don't have it presently, call your insurance broker and get a quote. Second, make sure you purchase the highest amount of UM or UIM coverage you can afford, or the highest the insurance company will sell you. This coverage will protect you against all bad drivers in the world, many of whom are insufficiently insured to cover the damages they will cause.

If you have any questions about making a claim for UM or UIM coverage, feel free to give us a call at (866) 607-1325 or fill out our online questionnaire.