A New Wrinkle on Arbitration Clauses in Retainer Agreements

Many lawyers nowadays have arbitration clauses in their retainer agreements, whereby the Clients agree that any dispute that may arise out of the lawyers' representation of the clients shall be submitted to arbitration.  However, a recent case from the 4th District Court of Appeal puts a new wrinkle on the enforceability of such clauses. Depending on the circumstances, the lawyer seeking to compel arbitration may have to pay the arbitration costs to enforce that provision.

In Roldan v. Callahan & Blaine (4^th Dist. 2013) 219 Cal. App.4th 87, 161 Cal.Rptr.3d 493, the Plaintiffs (former clients) filed suit against their former lawyers based upon a claim that the settlement they reluctantly agreed to in the underlying action was inadequate. The lawyers successfully moved to compel arbitration based upon an arbitration clause in the attorney retainer agreement. The plaintiffs then filed a motion in the trial court seeking an order compelling the lawyers to advance the entire upfront cost of the arbitration, which the trial court denied. 

The appellate court reversed and remanded for the trial court to: 1) calculate the reasonable cost of the arbitration previously ordered; 2) determine whether the plaintiffs are financially able to pay their share of the anticipated costs; and 3) if any of the plaintiffs are unable to pay, issue an order specifying that the lawyers have the option of either paying or else waiving their right to arbitrate.Thus, the Appellate Court basically said that if the Court determines that clients cannot afford the costs of the arbitration, the attorneys' option is to pay "full freight" or waive the right to arbitration and proceed to trial in court.

(It should be noted that the Appellate Court in Roldan had a number of criticisms of the particular retainer agreement involved, including the observation that the plaintiffs had been required to initial all pages of the retainer agreement  except for the page including the arbitration clause, and that their signatures on the agreement were on a different page from the arbitration provision.  This may have factored into the Court's ultimate conclusion.)
  
This case is significant because the court invoked a "public policy" exception to compelling indigent clients to arbitrate. Despite a recent spate of cases from the US Supreme Court holding that Courts should "rigorously enforce" arbitration agreements, this California case seems to impose limits on the enforceability of arbitration provisions, similar to the holding in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 6 P.3d 669, 99 Cal.Rptr.2d 745, in the employment agreement context.

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Damages- Post Howell v. Hamilton Meats

As we've previously noted on this blog (or "blawg" as it were), the California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 567, 129 Cal.Rptr.3d 325, 344 ("Howell"), held that an injured plaintiff, whose medical expenses are paid by private insurance, can only recover as damages the amount of the medical bills actually paid by that medical carrier, not the amount initially billed by the medical provider(s).  The Supreme Court held that a plaintiff's pecuniary loss is limited to the amount paid or incurred for past medical services, so the plaintiff cannot recover damages in excess of that amount. [Id. at p. 555.]  In so doing, the Court in Howell approved the general rule from Hanif v. Housing Authority (1988) 200 Cal. App. 3rd 635, 246 Cal. Rptr. 192 (“Hanif”) and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861 (“Nishihama”), in this regard. [Howell, supra, at pp. 553–555.]  

The issue, however, of what evidence is properly provided to a jury is complicated by the fact that evidence of insurance is inadmissible.  Notwithstanding the "amount paid" argument, the Court in Howell appeared to leave open the question whether the trial courts should permit evidence of amounts initially billed.  ("We express no opinion as to its relevance or admissibility on other issues, such as noneconomic damages or future medical expenses. The issue is not presented here because defendant, in this court, conceded it was proper for the jury to hear evidence of plaintiff’s full medical bills." [Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 567, 129 Cal.Rptr.3d 325, 344]) 

Thus, the Court in Howell appeared to uphold (or at least not reject) the rulings of lower appellate courts that held that it was proper for trial courts to simply admit the "full value" medical bills and then reduce the amount of a plaintiff's recovery by post-trial motion, as recognized in Olsen v. Reid (2008) 164 Cal.App.4th 200, 204 and Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157.

That "admit but then cut" approach appears to have been expressly rejected in a case from the 2nd District Court of Appeal in  Corenbaum v. Lampkin (2013) --- Cal.Rptr.3d ----, 2013 WL 1801996 ("Corenbaum") (The link to a PDF version of the decision is here- http://www.courts.ca.gov/opinions/documents/B236227.PDF)  There, the Appellate Court expressly rejected the idea that the amounts billed were at least admissible to show the "reasonable value" of the medical costs, and specifically held:

Although Howell, supra, 52 Cal.4th 541, did not directly so hold, we are persuaded by the carefully considered reasoning in Howell, and therefore do hold that evidence of the full amount billed for a plaintiff's medical care is not relevant to the determination of a plaintiff's damages for past medical expenses, and therefore is inadmissible for that purpose if the plaintiff's medical providers, by prior agreement, had contracted to accept a lesser amount as full payment for the services provided.

***  

We therefore conclude that evidence of the full amount billed for plaintiffs' medical care was not admissible for the purpose of determining plaintiffs' damages for their past medical expenses. (Emphasis added)

The Court in Corenbaum further held that the Howell reasoning extends to bar experts from relying upon the billed (but not paid) amounts of past medical expenses when proffering opinions regarding the amount of future medical expenses. On this issue, the Corenbaum court stated:

 Our conclusion that the full amount billed by medical providers for past medical services is not relevant to the value of the services provided also has implications for expert opinion testimony that may be offered on remand as to the reasonable value of medical services to be provided in the future. Because the full amount billed for past medical services provided to plaintiffs is not relevant to the value of those services, we believe that the full amount billed for those past medical services can provide no reasonable basis for an expert opinion on the value of future medical services. Evidence of the full amount billed for past medical services provided to plaintiffs therefore cannot support an expert opinion on the reasonable value of future medical services. (Emphasis added)

Further, the Corenbaum court held that billed amounts for past medical expenses are not relevant in determining future medical expenses, or for any other purpose. 

For example, Corenbaum further held that evidence of billed (but not paid) past medical expenses is not relevant in determining the amount of non-economic damage suffered by the plaintiff.  While Howell left the door cracked open on this issue, Corenbaum seems to close it by concluding (as did the Howell court) that the billed amount of past medical expenses "is not an accurate measure of the value of medical services" and therefore not relevant to determining non-economic damages.  Arguments advanced by Consumer Attorneys that the billed amount of expenses is relevant for the jury to consider in assessing the full harm (non-economic damages) suffered by the plaintiffs were rejected, with the Corenbaum court providing: 

As we have explained, the full amount billed for past medical services is not relevant to a determination of the damages for either past or future medical services if the medical providers had agreed to accept a lesser amount as full payment. We conclude that evidence of the full amount billed is not admissible for the purpose of providing plaintiff's counsel an argumentative construct to assist a jury in its difficult task of determining the amount of noneconomic damages and is inadmissible for the purpose of proving noneconomic damages.

This decision is clearly another clear victory for the personal injury defense bar, on the issue of recoverable damages in injury cases.  However, despite the restrictions imposed on the admissibility of evidence related to "amounts billed," it would appear that experts can still offer opinions on the "reasonable" costs of future medical care, provided that such opinuions are not based on amounts previously billed by a plaintiff's prior medical providers.   

Does "Aggressive" equal "Effective"??

For attorneys, does aggressive equal effective?  I was just reading an article entitled "Is An 'Aggressive' Lawyer An 'Effective' Lawyer? (the link is here, and it's a good read-http://benchandbarllc.com/aggressivelawyer/?goback=%2Egde_42966_member_224263744) that posited that exact question.  This topic may wander a bit from the supposedly subject specific nature of a personal injury blog, but since it got me thinking about my personal injury practice in general, I thought I'd add my perspective.

My take on the question: if "aggressive" means shedding the bounds of civility, then I think the answer is no.  

Sure, there are times, especially in the face of a hyper "aggressive" opposing counsel where we need to respond, and the first impulse when mud is flung your way is to fling it back.  But I believe the better approach is  to be "diligent" and thorough (in other words, how I prefer to handle every case) than to "respond in kind."  This practice philosophy is one that I developed from 2 very different sources.  

As a 1st or 2nd year lawyer, I was given a piece of advice from one of my mentors, and one of the truly best trial lawyers I know, and that advise has stuck: "never motivate your opposition."  First impressions with an opposing attorney can set the stage for how you deal with counsel throughout the case.  Hitting the "jerk button" from the get-go can only serve to motivate your opposing counsel. (Don't you feel and extra "edge" to be an opponent who was a jerk?) On the other hand, laying a foundation for respect and cooperation early on can pay dividends sown the road.  Don't get me wrong; once my opponent and I "step through the ropes," it's on, but let's do so with some measure of respect.   

I also hark back to my college days, working part time in the food service industry, when we were instructed to deal with particularly belligerent customers (yes, those do exist in food service), by being "extra nice."  In that scenario, you get one of you results: 

(1) by being nice you diffuse the situation (you never know, maybe this person dealt with a similar irritation and was simply lashing out in kind), where all the upset person needed was a kind word.  Why continue the cycle?; or 

(2) if the "jerk" you're dealing with is just built that way, his/her end game is to make you miserable too.  If you give every outward indication that he/she did not get to you, you've frustrated their purpose.  And, can't you take some satisfaction in that?

Bottom line: when I get ready for and start trial, I want to (and do) kick some tail.  But along the road to getting there, I prefer to act like a gentleman. And I've got the steady blood pressure history to prove it.   

“Joint” Offer Under CCP § 998 Offer Upheld

A recent case out of the 5^th District Court of Appeal has held that a “joint” offer of compromise to multiple plaintiffs in a wrongful death action was valid.  In McDaniel v. Asuncion (Cal. App. Fifth Dist.; March 27, 2013) 214 Cal.App.4th 1201, the Court determined that there was sufficient “unity of interest” between 2 heirs of a deceased that a single offer to them both was adequate.

The Court initially noted that “ ‘[i]n general, “a section 998 offer made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.” ’ (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 545 (Burch).)”  

The Court then noted, however, that there is “an exception to this general rule.”  Where there is more than one plaintiff, a defendant may still extend a single joint offer if the separate plaintiffs have a “ ‘unity of interest such that there is a single, indivisible injury.’ ”  (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.)

The 5^th District then pointed out that under California law, either the heirs or the personal representative on behalf of the heirs may bring a single joint indivisible action for wrongful death.  (Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 696 (Smith).)  Any recovery for wrongful death is in the form of a lump sum, i.e., a single verdict is rendered for all recoverable damages.  (Smith, supra, 41 Cal.App.4th at pp. 696-697; San Diego Gas, supra, 146 Cal.App.4th at p. 1551.

Ultimately, the appellate court affirmed an award of expert costs, stating:  “In a wrongful death action, a single joint cause of action is given to all heirs and the judgment must be for a single lump sum.  A unitary verdict can easily be compared to a joint offer to determine whether the offering party has achieved a more favorable judgment. Thus, there is little, if any, justification for invalidating a joint Offer To Compromise made in a wrongful death case.” [McDaniel v. Asuncion (Cal. App. Fifth Dist.; March 27, 2013) 214 Cal.App.4th 1201.]

(Full opinion here- McDaniel v. Asuncion )

Assumption of Risk Doctrine Applies (Again)...

If you are a fan of bumper cars and other "thrill rides" at amusement parks, be careful.  You may not be able to sue if that extra bumping leaves you with an injury. On December 31, 2012, the California Supreme Court ruled that amusement parks cannot be sued for injuries that occur in rides such as bumper cars, finding that such thrill-seeking carries an "inherent risk" just like playing a sport.  

The issue presented was whether an amusement-park operator must take reasonable, or even utmost, precautions to protect patrons from injuries associated with bumper-car “bumps”?  According to the California Supreme Court, the answer is "No." 

In the case of Nalwa v. Cedar Fair, LLP, a decision filed December 31, 2012, the California Supreme Court ruled that the doctrine of "primary assumption of the risk" barred a plaintiff's claims of injury resulting from a "bumper car" accident.  

Plaintiff, Smriti Nalwa, fractured her wrist on a bumper car ride at the Great America amusement park in Santa Clara.  She then sued the park owner for negligence in not configuring or operating the bumper car ride so as to prevent her injury. The superior court granted summary judgment for defendant on the basis of the primary assumption of risk doctrine, under which participants in and operators of certain activities have no duty of ordinary care to protect other participants from risks inherent in the activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.) The Court of Appeal reversed the trial court, holding that the public policy of promoting safety at amusement parks precluded application of the primary assumption of risk doctrine, and that the doctrine was inapplicable to bumper car rides in particular because that activity is “too benign” to be considered a “sport.”

The Supreme Court, however, reversed the Court of Appeal, concluding that the primary assumption of risk doctrine, though most frequently applied to sports, applies as well to certain other recreational activities including bumper car rides.  The Court further concluded that the doctrine applied to the ride in that case, even though amusement parks are subject to state safety regulations and even though, as to some rides, park owners owe participants the heightened duty of care of a common carrier for reward.

The Supreme Court decision also gave a useful summary of the history of the "assumption of risk" doctrine and how it developed.  (For those interested, the full Supreme Court decision is available here http://www.courts.ca.gov/opinions/documents/S195031.PDF.)

New CA Vehicle Laws for 2012

New California Vehicle Laws 2012

As Personal Injury Lawyers, and ones who deal with car accidents and the vehicle code on a regular basis, we here at T&H try to keep up with new driving laws as they come into effect, as those new statutes can sometimes significantly affect your case. Though not all of these are directly related to "PI" cases, the following are some of the new code sections or bills that have come into effect as of January 1, 2012, that you all might be interested in.

New Double White Line Law

AB 1105 prohibits vehicles from crossing double parallel solid white lines in California, except where expressly permitted.

New DUI Law

Vehicle Code Section 23579 has been added to the California Vehicle Code, which authorizes courts to revoke a driver's license for 10 years if a person is convicted of three or more DUIs. Motorists may apply for reinstatement of their license with the DMV after five years, if the driver installs an Ignition Interlock Device (IID) in their vehicle.

New Reckless Driving Restricted License Law

AB 520 allows California drivers convicted of reckless driving under Vehicle Code Section 23103.5 to apply for a restricted driver's license prior to the completion of their one-year suspension if they meet specific conditions, such as the installation of Ignition Interlock Device in their vehicle.

New DUI Checkpoint Vehicle Impound Law

AB 353 prohibits law enforcement officers from impounding a vehicle for 30 days at a DUI checkpoint if the only offense is failing to hold a valid driver license.

FDA Warning on Dangerous Weight Loss Supplements

According to a recent report in Consumer Reports (link below), the FDA has issued a warning regarding certain weight loss aids. The 20 different supplements are said to contain sibutramine, the active ingredient in weight-loss medication Meridia, previously found to substantially increase blood pressure and heart rate and also linked to an increased risk of heart attack and stroke. It was removed from the U.S. market in October 2010.

The targeted supplements include:

-Acai Berry Soft Gel ABC
-Advanced Slim 5
-A-Slim 100% Natural Slimming Capsule
-Botanical Slimming
-DaiDaiHuaJiaoNang (also contains phenolphthalein, a solution used in chemical experiments and a suspected cancer-causing agent not approved in the U.S.)
-Dream Body Slimming Capsule
-Fruit Plant Lossing Fat Capsule
-Health Slimming Coffee
-Ja Dera 100% Natural Weight Loss Supplement
-Leisure 18 Slimming Coffee
-Lishou
-Lose Weight Coffee
-Magic Slim Tea
-Magic Slim Weight Reduction Capsule
-P57 Hoodia
-Pai You Guo Slim Tea )also contains phenolphthalein, a solution used in chemical experiments and a suspected cancer-causing agent not approved in the U.S.)
-PhentraBurn Slimming Capsules
-Sheng Yuan Fang
-Slender Slim 11
-Tengda

The Consumer Reports account further notes that the FDA has recommended that the public steer clear of such supplements. We agree. Our lawyers have long advised against using weight-loss supplements because the risky side effects often outweigh the benefits. The supplement industry, unlike "Big Pharma," is largely unregulated and as consumers you have very little protection from public safety regulation (aside from those disclaimers that 'these claims have not been evaluated by the FDA...").

The lawyers at our office have had years of experience in dealing with injuries caused by harmful supplements. If you've experienced health problems from using one of these supplements, feel free to contact our office (951-549-9400) for a consultation, or visit our website for additional information (www.tiedtlaw.com)

(The link to the Consumer Reports post is: http://news.consumerreports.org/health/2011/10/20-weight-loss-supplements-contain-undeclared-drug-fda-warns.html)

Trial Tips-Cross-Examination

With court back logs and the emphasis in litigated matters on "alternative dispute resolution," it seems that trial lawyers just don't get into trial as often as we once did. That could explain, in part, why the "art" of cross-examination has (IMHO) suffered some in recent years. To "stay sharp", I'm always on the lookout for material that allows me to stay on top of my litigation game. In that effort, I came across some trial tips from Judge William Rylaarsdam in a recent CEB publication (link below) that addresses, fairly succinctly, some ground rules for cross-examining a witness in trial that I thought I'd share.

In Mastering the Art of Cross-Examination: Tips from a Judge Judge Rylaarsdam offers useful insights for a successful cross.

Don’t confuse cross-examination with a deposition. The purposes of each are completely distinct: the purpose of a deposition is to find out what information the witness has and nail the witness down to a particular version of the facts, and the purpose of cross-examination is to ascertain the truth of alleged facts.

Consider whether to cross-examine at all. The answer to this depends on whether the witness has testified to anything that injures your case.

Control your own demeanor during cross-examination. When counsel speaks pleasantly and frankly, shows confidence, refrains from acting surprised, and stays focused on the real issues, he or she projects credibility and adds to the credibility of his or her case.

Keep it simple. Always keep cross-examination questions short and simple. Convoluted questions will lead the jury to conclude that you are trying to confuse witnesses rather than to get to the true facts.

Keep it short. A long cross-examination may lead the jury to conclude that the witnesses’ testimony must be of particular significance.

Only ask questions that help you. Never ask a question on cross-examination unless (1) you know what the answer will be, and (2) the answer aids your side of the case.

Avoid open-ended questions. Open-ended questions give the witness too much latitude to answer. They are particularly harmful when asked of an expert witness who will then look toward the jury in a very professorial manner and explain the matter yet again to the dummy lawyer who didn’t get it the first time.

Know when to quit. Always quit while you are ahead. When a cross-examination question elicits a helpful answer, don’t elaborate by asking a further question on the same subject because the witness will likely use those further questions to try to explain away the earlier answer.

Make good use of deposition answers. Having the witnesses’ sworn answer to a question means that you can safely ask that question during cross-examination as long as it advances your position. If the answer is the same as that given during the deposition, then favorable information is before the jury, and if it differs, then you can impeach the witness with the deposition testimony.

Get the court’s help with a recalcitrant witness. Each time the witness gives an evasive answer, politely ask the court to instruct the witness to answer the question. Each time the witness’s answer goes beyond the scope of the question, ask the court to strike the offending portion of the answer and to instruct the jury to disregard it.

To these I would also add "Be Balanced." By this, I mean that in the heat of trial an attorney can get "tunnel-vision" and focus too dramatically on one area, at the expense of others. Even after nearly 25 years of trial experience, I am constantly surprised by at least one "piece" of a case that jurors find important. If you spend too much time on that "one thing" that you thought was key, you may "gloss over" others that jurors may find decisive in your case.

In the end, trial lawyers have to be themselves and "tips" like these should be used as ways to improve what you already do, not replace your style.

(These tips can be found in their original form at blog.ceb.com/2011/10/17/mastering-the-art-of-cross-examination/ )

Recoverable Medical Damages-The Howell v. Hamilton Meats Case

Well, the California Supreme Court has finally spoken on the apparent conflict between the so-called "Hanif Rule" and the long-established "Collateral Source Rule." The Court succinctly framed the issue in its opening paragraph, and provided:

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.

I'll have more on this as I digest the full measure of the 18 page decision.

Howell v. Hamilton Meats Saga

The long-awaited decision in the Howell v. Hamilton Meats case [Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805 (Howell), Supreme Court Case Number S179115] is expected to be published on Thursday August 18, 2011. I will provide my assessment of what that decision means for the future handling of personal injury cases as soon as I can after the decision is available.

The Importance of Jury Trials

There has been a lot of talk in recent years about "tort reform" and attempts by the US Chamber of Commerce (i.e. "big business") to minimize our rights to trial by jury. With this background, I came across this Slate article on the importance of jury trials in our country. The article focuses on the recent high profile cases (one criminal and one civil) of the Casey Anthony murder trial and Janet Leigh Jones' case against Halliburton. It's a good read. (See link below...)

As noted in the article, the framers of the Constitution "understood that trial by crazed mob, by the media, or by the crown, did not produce justice. The jury system was their best guarantee of something to mitigate those powerful forces." As a trial lawyer I have come to embrace jury trials and, at the same time, to live with the "inconsistencies" that they sometimes may generate. Thomas Jefferson said the jury trial was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Though we each may, through our own personal political, social or moral lenses, disagree with the outcome of certain cases, our system of justice in the US, including the right to trial by jury, is the best in the world, and these rights should be protected, or they will be abridged at our peril.


http://www.slate.com/id/2299039/pagenum/all/

The "Dirty Dozen" of Legal Writing

I saw an article from the June Issue of the ABA Journal called "Dirty Dozen: 12 Ways to Write a Really Bad Brief" (see the link below), describing 12 "Donts" of legal writing, and thought I'd share. Looking at this from a more "positive" standpoint, I think that if you take anything away from these 12 "Don'ts", it is the following "Dos":

(1) Be brief;
(2) Be reasonable; and
(3) Be real.

Something that we may all, from time to time, forget is the "Golden Rule" of being an effective lawyer: Avoid the temptation to "sound like a lawyer." If you're too long-winded, too much of an advocate, and use too much legalese, you lose your audience (and in the case of legal brief, you lose the judge you're trying to convince). I also find that these 3 simple rules work well in trial when talking with jurors.

http://www.abajournal.com/magazine/article/dirty_dozen/

Thoughts on Mediation- 3 "O"s of Success

At some point in your personal injury case, you may have to consider whether to mediate the matter. Mediation can be defined as a voluntary negotiation process by which an impartial neutral assists opposing parties in resolving their dispute. It is designed to be a non-adversarial approach to conflict resolution, where the Mediator facilitates communication between the parties and assists them in finding a mutually agreeable solution. But, what tools do you need to be successful in mediation? I refer to these tools as my three "O's" of clear Objectives, Open-mindedness, and Open discussion.

Objectives. A party cannot go into mediation without clear objectives in mind and expect to reach a settlement. Whether your goal is purely monetary, or something else, that goal should be clear in your mind before you spend the time, energy and money participating in mediation. Here, preparation is the key.

The lawyer and the client should have assembled all the information necessary (i.e. medical records, expert opinions on causation) to assess the value of the case. You will also need to assess the costs of proceeding with the case to trial. Experts are often needed to testify at trial (and they are not cheap) and litigation costs will also include jury fees, court reporter fees, costs of additional depositions, etc. Often, a settlement that is reached earlier rather than later can be better result financially for the parties than a jury's verdict. (For example, from the defense side, paying a little more now, may be "cheaper" in the long run, even if you do better at trial, simply because of greater litigation expenses; conversely, for a plaintiff, taking less now may result in more money in your pocket than a greater verdict, after you factor in the additional costs involved for taking the case to a judgment.)

Also, on the plaintiff's side of the equation, if there are liens that need to be paid out of a settlement (from medical providers or medical insurers), those have to be been fully identified. Further, your lawyer should have been in contact with the adjuster or claims rep. dealing with those liens, to determine if those liens can be reduced and, if so, to what amounts. In the end, we all want to know our "bottom line" and the only way to get there is to know costs need to be covered.

Thus, having the proper sense of your objectives involves proper preparation in terms of knowing "all the angles" to obtain your objectives. Having these fully formed and informed objectives is essential to a meaningful settlement discussion.

Open-mindedness. While having a clear goal in mind in important, you also need to remain open-minded. One of the common mistakes litigants make is coming into the mediation process with a stubborn attitude or a firm "floor" or "ceiling" settlement figure in mind. Mediation, by definition, is a process that requires at least some compromise from both parties. Although most cases that go to mediation do actually settle, it is also true that to be successful at mediation you have to be flexible. If you are the plaintiff, you have to be open-minded to the possibility that you may have to take less than you were initially willing to, or from the defense side, you may have to be open to the possibility of giving up more than you initially wanted. (My more pessimistic colleagues describe a successful mediation as one where both sides walk out grumbling just a little bit.)

Open Discussion. As noted above, proper preparation is key to a successful mediation, and that means having a clear understanding of not only the strengths of your case, but also your weaknesses. To successfully mediate your case, you have to be honest with yourself and with the mediator. Dealing directly with the perceived "weaknesses" in your case when discussing it with the mediator will give you greater credibility with that mediator when he tries to argue the strong points of your case to the other side. This also better equips you to understand the "down-side" to proceeding with the case to trial.

Now, as a lawyer that specializes in litigation (and particularly in my "younger days"), my initial reaction in dealing with opposing counsel was to "play it close to the vest" and not disclose much more than what was absolutely required. However, if you truly desire to reach a settlement, you have to be able to provide enough information to the other side and to the mediator to convince them that you are likely to succeed at trial.

Further, and perhaps more importantly, in the mediation context there are certain confidentiality rules that make such honest and open discussions more palatable. Under Evidence Code § 1119, "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation ... shall remain confidential." Further, in Cassel v. Superior Court (2011) 51 Cal.4th 113, 119 Cal.Rptr.3d 437, the California Supreme Court recently extended mediation confidentiality to preclude the subsequent use of any evidence of "mediation-related" communications and that protection included even include pre-mediation conversations between a lawyer and client. [Cassel, supra, 51 Cal.4th 113, 118, 119 Cal.Rptr.3d 437, 440] Thus, it is far less likely that parties to mediation will be "burned" by disclosures in mediation, since "evidence" discussed in the process cannot be used against them later, should they not actually resolve the matter.

In addition, the concept of being "open-minded" also includes the idea that you have to be able to see the other side's arguments, whether it be on liability, or damages, or a realistic assessment of "what a jury might do" with your case. Thus, being "open-minded" also means that you cannot "take it personally" if some aspect of your case is questioned by the mediator. In the end, the mediator is not your "adversary" and may only just be trying to suggest alternative outcomes to your case that you should be fully aware of when you decide on whether an offer or demand is reasonable.

Conclusion. Not every mediation will be successful, but the odds of reaching a mutually agreeable settlement increase if both sides keep in mind these three principles. If you walk into mediation with these concepts of the "3 O's" in mind, you are much more likely to find yourself walking out of mediation with a settlement agreement in hand.

Faster Jury Trials??

Can tort attorneys representing injured parties co-exist with "tort reformers" seeking to reduce access to the courts? Well, in the area of attempts to reduce court backlogs, the answer to that question may be "yes", as evidenced by the recent passage of AB2284.

The Plaintiffs' personal injury bar in California is largely associated with the Consumer Attorneys of California ("CAOC"), who have a credo of "preserving and protecting the constitutional right to trial by jury for all consumers and championing the cause of those who deserve redress for injury to person or property and resisting efforts to curtail the rights of such injured persons." On the other end of the philosophical spectrum is the Civil Justice Association of California ("CJAC"), which is "dedicated solely to improving California’s civil liability system" by working the Legislature and the courts to reduce what it sees as "the excessive and unwarranted litigation that increases business and government expenses, discourages innovation, and drives up the costs of goods and services for all consumers." Yet these two groups appear to have worked together to see that AB 2284 was passed.

This bill (entitled the “Expedited Jury Trials Act”) provides a pilot program for quicker, streamlined jury trials in California that insurers, the plaintiff’s bar and defense attorneys all appear to be praising. Introduced by Noreen Evans, D-Santa Rosa, the bill allow litigants to agree to format of faster, simpler trials in civil cases, that resembles a hybrid between a “high-low” arbitration and a traditional jury trial.

Under the act, the parties can agree to an eight-person or smaller jury (both sides would be limited to three peremptory challenges), with a three-hour time limit for both sides to present their cases. Before trial, both sides would agree to confidential "floor” and “ceiling” for damages, such that plaintiffs would be guaranteed at least the minimum payment and defendants would be assured a payment cap, regardless of the jury's verdict, to limit potential exposure. The jury would have no alternates and the courtroom would have no court reporter, unless a party agrees to pay for one. The jury's decision would be final and binding, unless the litigants discover fraud or misconduct.

Proponents say the voluntary system would not only cut litigation costs for plaintiffs, defendants and insurance carriers, but also help to ease the burden on courts.

Christopher Dolan, President of CAOC, described the bill to Law.com as an "unusual constellation of parties coming together" over the legislation. Meanwhile, CJAC President John Sullivan said the expedited jury trials would offer a middle path between arbitration or mediation and a laborious trial. "This fills the gap between the two," he said. "It has the benefits of a trial and more vigorous presentation of information, but is far more efficient than it would have been in a full-blown trial."

If the bill is signed by Governor Schwarzenegger, the new rules could take effect next January. Under the terms of the bills, however, it is set to expire in January 2016, which should allow analysts to assess the relative success or failure of the process.

My read: this sounds like a great way, in smaller cases, for clients to all “have their day in Court”, at a much reduced cost.

[For a complete copy of the bill, click on this link: http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_2251-2300/ab_2284_bill_20100818_amended_sen_v96.pdf ]

Recoverable Damages (An Update)

We continue to track developments related to what damages are recoverable by an injured plaintiff when that party is covered by insurance. More specifically, we have been interested in the apparent conflict between the "Collateral Source Rule" [as articulated in Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1, 84 Cal.Rptr. 173, 465 P.2d 61 and, later, in Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 9, 1 Cal.Rptr.3d 412, 71 P.3d 770 (Lund)] and the “Hanif” line of cases that reduced a plaintiff's recovery where the plaintiff's medical bills were "reduced" by insurance payments. [See e.g. Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 246 Cal.Rptr. 192 (“Hanif”), and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861 (“Nishihama”).

Possible resolution of that conflict is currently pending before the California Supreme Court in the matter of Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805. If you have followed other posts on this blog, you will know that the Howell court relied on the "Collateral Source Rule" to trump Hanif, and reversed a trial court ruling that reduced the plaintiff’s recovery based on Hanif and reinstated the jury’s verdict to include the full amount of the medical charges that were originally billed. As noted in previous posts, the Howell case is not presently "citable", based on the fact that the Supreme Court has accepted it for review.

[The status on Howell is that various amicus curia (“friends of the court”) have filed briefs outlining their opposition to the Appellate Court’s conclusions, and Ms. Howell’s lawyers have until September 15, 2010 to file their response to these amicus curia briefs. Thus, without oral argument even yet scheduled, it is unlikely that we will have a decision before sometime in 2011.]

However, while we all wait for the decision in Howell, there are now TWO new cases, from separate appellate districts, that appear to endorse the Fourth District’s approach. These cases are from the 1st District (Alameda County) [Yanez v. Soma Environmental Engineering, Inc. (2010) 185 Cal.App.4th 1313, 111 Cal.Rptr.3d 257, decided June 24, 2010 ("Yanez")], and King v. Willmett (Cal. App. 3 Dist.-August 9, 2010) ___ Cal.Rptr.3d ___, 2010 WL 3096258. These two cases step into that void to shed some new light on the issue.

In Yanez, Plaintiff Ana Yanez sued defendants SOMA Environmental Engineering, Inc., Mansour Sepehr, and Brian Tims (collectively SOMA) for injuries she suffered in an automobile accident. A jury found that SOMA's negligence caused Yanez’s injuries, and returned a special verdict awarding her $150,000 in damages, including $44,519.01 in damages for past medical expenses. After judgment was entered, SOMA moved, pursuant to the Hanif line of cases, to reduce the award for medical expenses to $18,368.24, which was the amount actually accepted by Yanez’s medical providers as payment in full under their contracts with Aetna and Healthnet, her private health insurers. The trial court granted the motion and entered an amended judgment reducing Yanez’s damage award. Ms. Yanez appealed.

The First District reversed and remanded the case back to the trial court to enter a new judgment restoring the original amount of damages awarded by the jury. In a fairly long, reasoned opinion, the Court in Yanez concluded that:

In our view, the trial court erred in reducing Yanez’s damages to the amounts actually paid by her insurers. Although the court reasonably relied on case law extending Hanif to the private insurance context, we find Hanif used overly broad language and the extension of its holding to private insurance by Nishihama and other cases is inconsistent with the collateral source rule. Consistent with the view taken by the appellate courts in a great majority of the jurisdictions that have considered the issue, we conclude the amounts written off by Yanez’s health care providers constitute collateral benefits of her insurance. [Yanez v. Soma Environmental Engineering, Inc. (2010) --- Cal.Rptr.3d ----, WL 2527483]

Thus, the First District appellate court invoked the Collateral Source Rule, which says damages shouldn't be reduced simply because the victim receives benefits from other sources, such as insurance companies. Per Justice Sandra Marguiles, "[t]he rule ... reflects a policy preference favoring the tort victim over the wrongdoer since not applying the rule allows the wrongdoer to profit from the victim's investment in purchasing insurance or from the generosity of those who come to the victim's aid."

This reasoning was adopted by the Third Appellate District in “King.” There, the plaintiff sustained a neck injury in an accident in August 2004. Mr. King (who is, ironically, a defense attorney working for Farmers as "house counsel") later underwent cervical discectomy surgery and introduced expert opinion testimony that the 2004 accident aggravated plaintiff's preexisting asymptomatic condition of degenerative cervical disk disease. He then introduced medical specials related to totaling $169,499.94. It was also undisputed that plaintiff's medical providers accepted $76,286.32 as full payment for their services.
The jury found defendant negligent, that her negligence was a substantial factor in causing harm to plaintiff and that plaintiff sustained damages in the amount of $169,499.94 for past medical expenses. The trial court then granted defendant's post-trial motion for reduction of medical billings and reduced the amount of past medical expense damages to $76,286.32, thereby reducing the plaintiff’s judgment by nearly $100,000 ($93,213.62).

The 3rd District reversed, in relevant part. It found that the Trial Court erred in reducing the jury's award of damages for past medical expenses since the California Supreme Court has declared that the public policy interests favor the Collateral Source Rule. It further found that “the collateral source rule precludes the reduction of the amount of medical expenses plaintiff incurred ($169,499.94) for the rendered services to the cash amount ($76,286.32) accepted by plaintiff's medical providers.”

The Court in King specifically endorsed the Collateral Source Rule stating:

The collateral source rule was adopted based on recognition that “a person who has invested years of insurance premiums to assure his medical care should receive the benefits of his thrift. The tortfeasor should not garner the benefits of his victim's providence .” (Helfend, supra, 2 Cal.3d at pp. 9-10, fn. omitted.) Our Supreme Court has adopted the collateral source rule (Lund, supra, 31 Cal.4th at pp. 9-10; Hrnjak, supra, 4 Cal.3d at pp. 729-730; Helfend, supra, at p. 6), expressing the public policy judgment that a tortfeasor should not be allowed to mitigate damages based on the fortuitous circumstance that the plaintiff is covered by insurance. (Helfend, supra, at p. 10.) The Supreme Court has concluded the public policy interests in favor of the rule justify its continuation despite the possibility that it results in some cases in overcompensation of the plaintiff. (Id. at pp. 10-14.) The Supreme Court has expressly recognized that even in circumstances where subrogation or reimbursement is inapplicable, the collateral source rule performs a needed and appropriate function. ( Id. at pp. 11-13.) The collateral source rule reflects a policy choice in the calculation of tort damages that permits a victim to retain a benefit, rather than to confer a benefit on the tortfeasor. (Helfend, supra, at p. 10; Smock, supra, 138 Cal.App.4th at p. 888.) [King, supra. (Emphasis added)]

As we have noted in previous posts, the 4th District came to a similar conclusion in Howell. At the time of that decision, Justice Gilbert Nares wrote "Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift," and that "...the party liable for Howell's injuries, should not garner the benefits of Howell's providence."

Defense lawyers have argued that basing damages on the full cost of medical services -- rather than just for the amount actually accepted by doctors -- would give plaintiffs an undue windfall. However, this appears to be the trade-off the Appellate Courts are willing to accept since, as Justice Margulies in Yanez, noted, however, the Collateral Source Rule applies "even when it unquestionably does confer a windfall benefit on the tort plaintiff."

In the end, for the time being, Howell cannot be cited (per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115). Yet, these new cases of Yanez and King, will likely be used during Howell's pendency by the plaintiffs' bar, to achieve the same result as the 4th District opinion in Howell.

Update-Recoverable Medical Damages

We have been tracking the recent developments related to what damages are recoverable by an injured plaintiff when that party is covered by insurance. More specifically, we have been interested in the apparent conflict between the "collateral source rule" and the line of cases that reduced a plaintiff's recovery where the plainitff's medical bills were "reduced" by insurance payments. [See e.g. Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 246 Cal.Rptr. 192 (“Hanif”), and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861 (“Nishihama”). Possible resoultion of that conflict is currently pending before the California Supreme Court in the matter of Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805.

If you have followed other posts on this blog, you will know that the Howell court relied on the "collateral source rule" to trump Hanif, and reversed a trial court ruling reducing the plaintiff’s recovery based on Hanif, and reinstated the jury’s verdict to include the full amount of the medical charges that were originally billed. As noted in previous posts, the Howell case is not presently "citable", based on the fact that the Supreme Court has accepted it for review. However, a new case from the 1st District (Alameda County) [Yanez v. Soma Environmental Engineering, Inc. (2010) --- Cal.Rptr.3d ----, WL 2527483, decided June 24, 2010 ("Yanez")], steps into that void to shed some new light on the issue.

In Yanez, Plaintiff Ana Yanez sued defendants SOMA Environmental Engineering, Inc., Mansour Sepehr, and Brian Tims (collectively SOMA) for injuries she suffered in an automobile accident. A jury found that SOMA's negligence caused Yanez’s injuries, and returned a special verdict awarding her $150,000 in damages, including $44,519.01 in damages for past medical expenses. After judgment was entered, SOMA moved, pursuant to the Hanif line of cases, to reduce the award for medical expenses to $18,368.24, which was the amount actually accepted by Yanez’s medical providers as payment in full under their contracts with Aetna and Healthnet, her private health insurers. The trial court granted the motion and entered an amended judgment reducing Yanez’s damage award. Yanez appealed.

The First District reversed and remanded the case back to the trial court to enter a new judgment restoring the original amount of damages awarded by the jury.

In a fairly long, reasoned opinion, the Court in Yanez concluded that:

In our view, the trial court erred in reducing Yanez’s damages to the amounts actually paid by her insurers. Although the court reasonably relied on case law extending Hanif to the private insurance context, we find Hanif used overly broad language and the extension of its holding to private insurance by Nishihama and other cases is inconsistent with the collateral source rule. Consistent with the view taken by the appellate courts in a great majority of the jurisdictions that have considered the issue, we conclude the amounts written off by Yanez’s health care providers constitute collateral benefits of her insurance. [Yanez v. Soma Environmental Engineering, Inc. (2010) --- Cal.Rptr.3d ----, WL 2527483]

Thus, the First District appellate court invoked the collateral source rule, which says damages shouldn't be reduced simply because the victim receives benefits from other sources, such as insurance companies. Per Justice Sandra Marguiles "The rule ... reflects a policy preference favoring the tort victim over the wrongdoer since not applying the rule allows the wrongdoer to profit from the victim's investment in purchasing insurance or from the generosity of those who come to the victim's aid."

As we noted in our prior posts, the 4th District came to a similar conclusion in Howell v. Hamilton Meats & Provisions Inc., 179 Cal.App.4th 686.
At the time of that decision, Justice Gilbert Nares wrote "Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift," and that "...the party liable for Howell's injuries, should not garner the benefits of Howell's providence."

Defense lawyers have argued that basing damages on the full cost of medical services -- rather than just for the amount actually accepted by doctors -- would give plaintiffs an undue windfall. Margulies noted, however, that the collateral source rule applies "even when it unquestionably does confer a windfall benefit on the tort plaintiff."

In the end, for the time being, Howell cannot be cited (per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115). Yet, this new Yanez case will likely be used during Howell's pendency by the plaintiffs' bar, to achieve the same result as the 4th District opinion in Howell. I suspect, however, that the defense, like they did in Howell, will seek to "de-publish" this opinion while Howell is on review.

Hanif/Howell Update

The latest news on the California Supreme Court's review of the Howell v. Hamilton Meats case is as follows. On June 7, 2010, counsel for Plaintiff and Appellant, Rebecca Howell, filed their Answer Brief on the Merits. On June 10, 2010, Respondent's counsel requested an extension of time to submit their Reply Brief, and that request was granted. This Reply Brief is now due July 27, 2010. Thus, it looks like we will have a wait a good deal longer for the Supreme Court to decide this issue regarding the conflict between the "collateral source rule" and the holdings of Hanif, Nishihama etc.

We will keep you posted.

Effective Law and Motion

I recently reviewed an excellent article by Judge Jacqueline A. Connor of the LASC in the May issue of Advocate Magazine. In that article, entitled "The 12 best ways to sabotage your motions", her Honor provides several (well, 12 actually...) well thought out guidelines for effective law and motion work. The following is my humble summary of those "Do's" and "Don'ts" guidelines along with my thoughts as well.
(1) DON'T mis-cite cases- your credibility to the court is paramount, and if a case you cite doesn't say what you offer it for, you're fighting an uphill battle;
(2) DO explain your cases- Space permitting, explaining the cases and their applicability to your position shows the Judge that you have a greater understanding of the issues (again, your credibility is at stake).
(3) DON'T get personal- avoid personal attacks. In the "heat of battle" and in our sincere effort to be advocates for our clients, especially with an adversary that you find to be obstreperous, lawyers can get overcome by that adrenaline push. However, I personally find that you can diplomatically make your point ("the argument is misguided" or "the reference to 'X' case is misplaced"), rather than resort to attacks on the lawyer who made the "misapplied" argument. Further, if you honestly feel like your opponent is being churlish, or even childish, taking the higher road works better and may even "bait" the other guy into demonstrating in front of the judge just how unreasonable he is being.
(4) DO pinpoint your citations- if you're referring to a particular passage, tell the judge exactly where it is; don't make the judge look for it. (E.g. 123 CA 345 at 348, not simply 123 CA 345) Further, if you're "dead on" with your assessment of the meaning of a case, making it easier for the Judge to confirm that fact can only serve you well.
(5) AVOID overusing bold, underlines and highlighting. (Ironic huh, that I bolded the "don't") Judge Connor feels that this can be viewed as insulting to the Judge reading your papers. Personally, I have used (and still use) such devices (though I have resisted that urge more as I got older), to try to focus attention on the passage that is important. I think that it is important to put in more complete citations, with the portion that you want to highlight in some type of underline, since that shows that you want to give the Court the complete picture of what the case you're relying on is about (see items 2 & 4 above), while still specifically addressing the part that supports your point. But, if every other word is highlighted, I can certainly see the judges point.
(6) AVOID unfocused arguments- don't use the "kitchen sink" approach. If it doesn't really fit, leave it out. Also, after you've finished a draft, come back to your work later and see if it still makes sense. If not, get out your red pen. I would also suggest that the argument be well-organized; use headings, in your notice say that you will address points A, B, C etc., and then use those as guideposts throughout the body of your points and authorities. It's a "L&M" version of the essay writing technique we learned in school: Tell 'em what you're going to say (succinctly, one paragraph), tell 'em; and conclude with "see, I told you what I was going to prove."
(7) AVOID boiler plate motions in limine ("MIL")- When I did mostly defense work, motions in limine were "de rigueur". The decision of Kelly v. Nu-West (1996) 49 Cal. App. 4th 659, did little to convince my partners to curb the practice. But, most of what you can say in such a boiler plate MIL can probably be addressed at the Final Status Conference with a couple of sentences. Reserve your MILs for truly important issues for which you really need the Court to review legal precedent. (Again, your credibility with the Judge is of paramount importance, so if you don't waste his/her time at the outset of your case, he/she will likely be more inclined to listen to you later, when key issues are at stake.)
(8) DO be consistent with numbering in Complaints- If you have a face page that lists 5 causes of action, labeled 1-5, make sure your complaint has those same numbers of causes of action, in that order. It also helps to label them with the same titles. This sounds simplistic and basic, but if the Court needs to quickly find a specific cause of action and can't because you've mislabeled it, it wastes the Court's time, irritates the judge, and as a result doesn't serve your client well.
(9) AVOID boilerplate arguments. With the use of computers, I think we've all "borrowed" arguments from our past work, or from that of colleagues. But, if you're filing a motion in the Smith case, and it refers to "Mr. Jones", the Judge will likely believe that you didn't put that much effort into the project. If you don't approach your task with enough dignity to be technically correct (and this includes typos and spelling errors), the Judge may likely assume that the entire effort just simply isn't that important to you. If it's not that important to you, why should it be that important to the Judge?
(10) DO attach proposed amended complaints- Not only is this required by the Court Rules [CRC 3.1324(a)(1)], but if you can't be bothered to show what it is that you want the Court to approve, why should the Court do so? Judge Connor also notes that if you're going to file an amended complaint in response to a demurrer or motion to strike, do it before the due date for opposition. This (a) shows your professional courtesy, and (b) saves court time, since a Court will be reviewing the moving and opposition papers in preparation for the hearing and filing an amended complaint the day before the hearing only serves to tick off a Judge and/or his/her research attorney who needlessly spent time reviewing all of that.
(11) DO know the rules- If you have a "5 in 1" on your desk, put a tab on CRC 3.1300 et. seq. Make sure you know page limitations, time constraints/deadlines and other formatting requirements. Don't forget to include a Table of Contents and Table of Authorities where required. (I know I sound like a broken record here, but remember that credibility with the Judge is paramount and if you can't keep the formatting rules straight, how can you expect the judge to accept your substantive legal arguments as gospel?)
(12) Related cases- Judge Connor points out that attaching a copy of the "face sheet" from the related case(s) is not required when you file a Notice of Related Cases, but you get extra "brownie points" for doing so.

Bottom line: When doing law and motion, your credibility with the Judge hearing your matter is supremely important. You may have the best argument in the world to represent your client, but if it gets lost in a sea of spelling errors, typos, and improper citations, or is otherwise overshadowed by bile spewed at your opposing counsel, that argument may get lost and your client suffers as a result. My thanks to Judge Connor for her great reminder, provided from the judicial perspective.

Howell Matter-The Saga Continues

On April 28, 2010, Plaintiff and Appellant, Rebecca Howell, associated new counsel in this case, who promptly filed a request for an extension to brief the matter on her behalf. On April 30, 2010, the Supreme Court granted Plaintiff and Appellant, Rebecca Howell, an extension to file her brief. That brief is now due June 8, 2010. I will continue to monitor this important case as it progresses through the review process in the Supreme Court and update this blog on those developments as they arise.

Is Hanif Dead? (Part 3)

On March 11, 2010, the California Supreme Court granted review in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686. This decision was the focus of my prior blog entitled Is Hanif Dead? As we discussed in that article, that decision rejected Hanif and its "progeny" and confirmed the collateral source rule espoused in Helfend v. Southern California Rapid Transit District (1970) 2 Cal.3d. 1.

The Howell decision relied on the "collateral source rule" to affirm that the injured party in a personal injury case should recover the amount charged by the medical providers, not what the injured party's insurance company actually paid for those services (as had been held in Hanif and Nishihama). In response to this decision, the defense bar (joined as "friends of the court") had requested that the Supreme Court "de-publish" this decision. That request was denied.

So, what does the Supreme Court's decision to review this case mean?

Insurance companies, defense lawyers and so-called "tort-reformers" may view this decision to review Howell as a victory. But, as I posited in my article, it appears that the Supreme Court has simply recognized the split of authority amongst the various California Courts of Appeal and has opted to clear the air. Further, as colleagues in the CAOC have observed, if the Supreme Court had agreed that Howell was just plain wrong, it could simply have granted the requests to depublish the case. It did not.

In the short term, the Supreme Court's decision to review the Howell case means that it is no longer "citable" in briefs per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115. In the long term, this means that for those of us who deal with these medical damages in personal injury cases, we will need to wait on the "final word" from the California Supreme Court who, after all, gave us the Helfend decision in the first place.

The defense bar has long advocated for a repeal of the "collateral source rule", citing dicta in Helfend itself. Meanwhile, the plaintiff's bar has long adhered to the argument that Helfend was properly decided by the state's highest court, but simply ignored by the appellate justices in Hanif and Nishihama. Until Howell, the "Supremes" simply had no reason to directly address this issue.