California Personal Injury Law Case Notes : California Personal Injury Lawyer & Attorney : Kristine Meredith : The Danko Law Firm : Car Accidents & Product Liability

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

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

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

Watch out -- many bumps ahead!

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

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

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

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

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

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

Punitive Damages Claim Won’t Be Split Off

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

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

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

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

Too Many Motions in Limine

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

Lawyers Return to Court

Next Case Management Conference: December 11.

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

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

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

Let’s see if PG&E gets the message. 

Other news from the two-day hearing:

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

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

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

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

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

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

The trial date of January 2 remains unchanged.

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

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

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

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

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

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

Study - Safety Effects of Marked Versus Unmarked - 2005

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

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

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

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

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

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

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

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

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

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