A Publication from the Law Offices of Walkup, Melodia, Kelly & Schoenberger

WALKUP, MELODIA, KELLY & SCHOENBERGER

VOLUME XVI, NUMBER 2 FALL 2010

many pedestrian accidents [per pedestriancrossing] occur in marked crosswalks as inunmarked crosswalks.” Those results werereferenced in a later study sponsored byCaltrans. And that study reached the sameconclusions: marked crosswalks have ahigher frequency of pedestrian accidents

than unmarked crosswalks at uncontrolledintersections.

Then in 2002 the Federal HighwayAdministration analyzed more data in areport titled “Safety Effects of MarkedVersus Unmarked Crosswalks atUncontrolled Intersections.” That reportconcluded marked crosswalks should notbe used on roadways with four or morelanes and a raised median that see an aver-age of at least 15,000 vehicles a day. ElCamino Real, in the area where Liou wasstruck, has six lanes of traffic and a raisedmedian and sees an average of more than

A car versus pedestrian crash with tragicconsequences in San Mateo County maybring about safer crosswalks in California,after a Redwood City jury awarded morethan $12 million in damages to a 17-year-old girl struck in a marked crosswalk at anintersection without a traffic signal on StateRoute 82 (El Camino Real)in Millbrae. Emily Liou suf-fered extensive brain damageand is left in a permanentvegetative state, requiring24-hour care, from the timeshe was placed in the ambu-lance and will continue torequire such care for the restof her shortened life.

Walkup, Melodia part-ners Richard Schoenbergerand Douglas Saeltzerobtained this verdict in July.“We presented evidence thatCaltrans has known for years that markedcrosswalks at uncontrolled intersections aredangerous because they give pedestrians afalse sense of security. These intersectionsmay be safer without any marked crosswalk.This seems counterintuitive, but statistics,taken from study after study, bear this out,”said Schoenberger.

Rich and Doug found evidence ofknowledge of the dangers of such cross-walks dating back to a 1972 study commis-sioned by the City of San Diego. Thatstudy, which investigated 400 pedestrianaccidents over a five-year period in the1960s, concluded “approximately twice as

$12.2 Million Verdict HighlightsPedestrian Injury Risk

Walkup ProductLiability TeamLeading HipRecall Fight

On August 26, 2010, DePuy Orthopaedics,Inc. announced a formal recall of its ASR“metal-on-metal” prosthetic hip. Thesedefective hips were implanted in patientsworldwide starting in 2002 and continuingup to the date of the recall.

Johnson & Johnson, parent company ofDePuy, says a total of 93,000 patients wereimplanted with the ASR both in the U.S.and abroad. The Walkup, Melodia medicalproduct liability team, headed by MichaelA. Kelly, Matthew Davis and KhaldounBaghdadi, are at the leading edge of thecurve in prosecuting these cases nationwide.Mike, Matt and Khaldoun are representingclients across the country, and working withphysician experts in the U.K., Australia andthe U.S. They have acquired a thoroughunderstanding of the failure mechanismand the risks to patients presented by thesemetal-on-metal prosthetic hip components.

The product recall includes two defec-tive models: the ASR XL AcetabularSystem and the ASR Hip ResurfacingSystem. Walkup, Melodia filed the firstcase in the U.S. against DePuy based onits defective ASR hip implant in March,2009 – almost 18 months before thedevice was recalled.

The emerging consensus in the medicaland scientific community is that the poorlydesigned ASR generates excessive levels ofContinued on page fiveContinued on page three

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Walkup partner Michael Kelly was present-ed with the 2010 San Francisco TrialLawyers Association Trial Lawyer of the YearAward at a gala celebration before an over-flow crowd at the Parc 55 Hotel grand ball-room. The award capped a year in whichMike obtained a record breaking obstetricalinjury verdict, was elected President of theSan Francisco Chapter of ABOTA, waschosen as a finalist for the ConsumerAttorneys of California’s ConsumerAttorney of the Year award and selectedfor membership in the InternationalAcademy of Trial Lawyers (IATL). This wasthe fourth time Mike had been nominatedfor the prestigious SFTLA honor.

Also honored at the awards banquetwere Nancy Hersh (Lifetime Achievement)and Charlotte Venner (Mediator ofthe Year).

In his acceptance speech Mike thankedthe SFTLA Board and cited the positiveimpact that practicing with former SFTLAPresidents from the Walkup firm (JimDowning, George Shelby and Daniel Kelly)has made in his career. He also saluted thecontributions of the rank and file mem-bers of SFTLA in fighting to preservethe jury system, and undertaking theburden of representing those injured

through the carelessness of othersregardless of the size of the case.

In his remarks, Kelly quotedUniversity of Michigan Law SchoolProfessor John Reed as follows:

“As lawyers at the civil bar, we meet hereseeking to know and befriend and support oneanother, knowing that the world is too dangerousfor seeking anything but the truth. Sometimes weare frustrated that there is so much to be done andwe are so few. But think of the parable of thesmall child walking on the beach with hisgrandfather. As the child picked up a starfish tothrow it back in the water, the grandfather said‘There are millions of stranded starfish, what youare doing won’t make any difference.’ To this the

child replied ‘It makes a difference to this one.’”So is it with our clients. Our work on

each case matters to each client individu-ally, this one and the next, one at a time.While being honored as “Trial Lawyer ofthe Year” is a special tribute, Mikepointed out that every lawyer in theaudience had made a difference in someclient’s life during the year, and to oneextent or another, shared in his award as“Trial Lawyer of the Year.” “It is not thesize of the verdict that’s important”Mike said, “it is the amount of justicethat gets delivered.”

Mike spoke at length about the needfor those who represent victims of corpo-rate negligence to stick together. “Itseems that we are forever under attack fordoing nothing more than trying to makecertain that democracy works at the mostbasic and grassroots level. We shouldnever forget that trial is not a failure ofADR, it is a constitutional right, part ofour democracy and something that needsto be protected. It requires each of us tosee beyond ourselves, to take risks, alwaysknowing that the risk of loss is ever pre-sent. Although victory is not assureddespite our best efforts, defeat is assured ifwe do not join the battle.”

Dealing with the claimed reimbursementrights of the United States Governmentcan be one of the most frustrating aspectsof cases in which we represent Medicarebeneficiaries. Relying on its own internalmanuals, Medicare regularly claims that itis entitled to the full value of payments ithas made for medical bills (less procure-ment costs) even in cases in which theplaintiff is not made whole as a result ofinadequate liability insurance proceeds,comparative negligence, or other reasons.

The Eleventh Circuit recently conclud-ed that this interpretation of the law byMedicare is incorrect. In Bradley v.Sebelius (11th Cir. 2010) __ F.3d __,2010 WL 3769132, a decedent's ten chil-dren and his estate entered into a pre-liti-gation settlement against a nursing homein the full amount of the nursing home’sliability insurance policy limits of$52,500. Because the amount of insurance

Photo of Mike Kelly accepting the 2010 SFTLA"Trial Lawyer of the Year" Award. BehindMike from left to right, are the other finalistsRandall Scarlett, Donald Krentsa, Walter(Skip) Walker, and Daniel Dell'Osso.

value of the case resulted in the ratio ofestate damages (medical bills) to full valueof the case. That ratio was then multipliedby the full value of the settlement, givingMedicare a reimbursement of $787.50.

Beyond this mathematical approachbased on principles of equity, the Courtof Appeal also addressed Medicare’sunderlying substantive argument: thatits “field manual” was essentially con-trolling law. The Justices rejected thisargument out of hand, holding that themanual was neither controlling law nordid it deserve Chevron deference.

Looking forward, we are hopefulother Circuits will adopt this interpreta-tion. There is some hope for this possi-bility, as the mathematical approach usedin Bradley is consistent with that appliedby the United States Supreme Court inArkansas Dep’t of Human Servs.v.Ahlborn (2006) 547 U.S. 268.

was meager, it was clear that decedent’ssurviving heirs were not fully compensatedby the settlement. Nonetheless, Medicareclaimed that it was entitled to reimburse-ment for the full amount of all paymentsit made minus the procurement costs (adeduction for a pro-rata share of costs andfees), an amount which represented morethan half of the coverage.

The 11th Circuit held that Medicare’srecovery was not wholly superior to theright of recovery of the 10 children.Relying on conclusions reached by a Floridaprobate court, which heard evidence aboutthe damages suffered by each survivingchild, the 11th Circuit held that the fullvalue of the case to the plaintiffs was$2,538,875.08. It reached this figure bygiving each of the 10 children $250,000 ingeneral damages for the loss of a father plus$38,875.08 to reimburse Medicare.Dividing the Medicare payments by the full

11th Circuit Limits Medicare Reimbursement Claims

Mike Kelly Named SFTLA Award Winner

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When catastrophic injury is involved, accu-rately forecasting the present cash value oflost future wages, benefits and householdservices has always been critical. In makingsuch projections, most economists have tra-ditionally assumed that the averageAmerican worker has a work-life expectancysomewhere between ages 62 and 65. Newdata now suggests that such assumptionsgreatly understate the amount of probablefuture loss. Early retirement is no longerthe goal of most workers. Even retirementat age 65 seems unattainable to many peo-ple. The majority of Americans now expectto work until age 65 or later.

According to a May 2010 Gallup survey,the number of Americans planning to retirebefore age 65 has dropped from 50% in1996 to 29%. Meanwhile, the proportionof people planning to work until after age

65 has increased from 15% in 1996 to 34%.This is the first time in the 15 year old sur-vey that more workers plan to retire afterage 65 than before it.

Factors influencing Americans' willing-ness to work past the traditional retirementage of 65 include the progressively high-er age at which Social Security recipientsare eligible for full benefits and thefinancial insecurity that has accompaniedthe shift from pensions to personalretirement planning. Retirement accountbalances are still far from their peak of$8.6 trillion reached in 2007. ManyAmericans with their life savings in401(k)'s and IRA’s will need to worklonger to replace money lost in the stockmarket collapse of 2008.

The number of private sector workerswho participate in a traditional pension that

25,000 vehicles a day. Schoenberger andSaeltzer discovered Caltrans had never stud-ied the pedestrian accident rate on any of itsroadways. If it had, it would have realizedthe danger of the crosswalk where Liou wasstruck, crossing El Camino Real atLudeman Lane.

Four other pedestrians had beenkilled or injured in that same crosswalkover the previous ten years, and Caltransused that as evidence of the crosswalk’ssafety. “Their defense was, look at howmany cars went through that intersec-tion,” Saeltzer said. “They said there hadbeen 90 million cars. But you can neveradequately monitor pedestrian safety ifyou’re not actually monitoring pedestri-ans. And Caltrans has never systemati-cally measured pedestrian crossing rates.”

By never doing a study to determine thenumber of people using the crosswalk (whohad the potential to be struck), Caltrans wasin essence using the wrong denominatorto determine the accident rate. SoSchoenberger and Saeltzer did the studyCaltrans should have done, counting the

number of pedestrians using the LudemanLane crosswalk.

“We found there were only 70 peoplecrossing there every day,” said Saeltzer. “Soit was infrequently used. We found peopleworking at businesses in the area who toldus, ‘I won’t use that crosswalk because itscares me.’” Saeltzer and Schoenberger alsodetermined there had been similar pedestri-an injury rates at two similar crosswalks onEl Camino Real within one-third of a mile.

After hearing the evidence presented byboth sides, the jury awarded $12.2 millionin damages, most of which will cover thecosts of Liou’s medical care and her lostfuture income. Liou was found 20% at faultfor the accident because she was wearingdark clothing and did not see the oncomingvehicle in time to avoid impact.

Continued from page one

$12.2 Million VerdictHighlights PedestrianInjury Risk

The driver of the car was determined tobe 30% at fault even though she was soberat the time of the crash, was driving wellbelow the speed limit and had a cleandriving history. The jury found Caltransto be 50% at fault for the crash, for allow-ing the dangerous crosswalk to remain inplace and not even attempting to study orremedy the risk there. “Caltrans blamed ourclient and blamed the driver,” Schoenbergersaid. “They did their best to avoid anyresponsibility for their own crosswalk. Thejury didn’t agree.”

Rich and Doug, as well as our otherpartners, are available to consult on alltypes of government liability mattersincluding dangerous highways, structurefailures and defects, and negligent acts andomissions by public employees.

guarantees retirement income for lifedeclined by 33% between 1980 and 1996,from 30.1 million to 19.9 million, accordingto the Department of Labor. Although manyemployers contribute to 401(k) accounts, theamounts vary considerably. And there is noguarantee that employers will continue mak-ing 401(k) contributions – at least 267major employers reduced or suspended their401(k) matches in 2009 and 2010.

Finally, uncertainty over healthcarecoverage also mitigates in favor of laterretirement ages. Medicare eligibilitygenerally does not begin until anAmerican turns 65. Depending on theneeds of dependents, and the desire tocontinue pre-existing doctor patient rela-tionships, remaining at work is one wayto maintain group health coverage untilMedicare becomes a viable option.

Economic Meltdown IncreasesFuture Economic Damages

10 Year Pedestrian Accident Summary10 Year Pedestrian Accident Summary10 Year Pedestrian Accident Summary10 Year Pedestrian Accident Summary

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WALKUPDATESing internationally – sherecently traveled toMexicali, Mexico train-ing lawyers and judgesunder a grant fromUSAID. In October, for asecond consecutive year,Doris travelled to theRepublic of Kosovo towork with the KosovoJudicial Institute, train-ing judges from Kosovoand Albania in refiningtheir advocacy trainingprograms. She will serveas Treasurer of theSan Francisco Tria lLawyers Association in 2011…DougSaeltzer was elected to membership inABOTA, the most selective honorary soci-ety in the country recognizing civil jurytrial skills . Doug also skippered the“Mighty Mouthpiece Softball Co.” to yetanother San Francisco Lawyers League soft-ball title, winning a thrilling one rungame against the 9th Circuit…Matt Daviswas an invited presenter at The RutterGroup’s “Update” program on SummaryJudgment. Matt also spoke at the nationalDePuy/Johnson & Johnson ASR prosthetichip product liabil ity symposium inDurham, North Carolina…Sara Peters isserving as Assistant Coach for Stanford'sMock Trial Team. In addition, Sararemains busy as a Director with the non-profit she helped co-found: ABC(Attorneys Bettering the Community).The organization received its 501c(3) sta-tus, and completed seven community ser-vice projects in three Bay Area counties.The projects included distributing 250holiday necessity bags to the homeless,

Melinda Derish was appointed a memberof the Advisory Board for the East BayCommunity Law Center (EBCLC). EBCLCprovides free legal services to underservedpeople in the East Bay…Emily WechtPolcari i s teaching legal writ ingand research at Hastings…KhaldounBaghdadi is serving as co-chair of theNorthern District Representatives to theNinth Circuit Judicial Conference. Inaddition, he has been invited to speak tothe American Bar Association’s productliability section on the topic of EmergingIssues in Product Liability in Phoenix,Arizona…Conor Kelly is teaching SanFrancisco high school students trial advo-cacy through a program sponsored by theBASF. The program places volunteer attor-neys at 8 different San Francisco highschools tutoring them for participation ina statewide mock trial competition.Conor is working with a group of 16 stu-dents from Lowell High School. The pro-gram runs until February when trials willbe held at San Francisco SuperiorCourt…Rich Schoenberger was electedSecretary of the San Francisco Chapter ofABOTA…Rich has been extremely activein ABOTA’s Civility Project. He alsoreceived a faculty appointment at U.C.Berkeley Boalt Hall School of Law teach-ing Trial Advocacy with Alameda SuperiorCourt Judge Kenneth Burr who, likeRich, is a former Alameda County prose-cutor...Doris Cheng has been appointed tothe USF School of Law Board ofCounselors, a select group of advisors tothe Dean. Doris has also been busy teach-

assembling 600 craft kits for terminally illchildren, partnering with Architects forHumanity to raise $10,000 for Haitianschool rebuilding, refurbishing a home fora low-income family whose child is receiv-ing treatment at UCSF, and painting andlandscaping new displays at Oakland'sFairyland...Mike Kelly presented an exem-plar final argument at the “Masters inFinal Argument” program sponsored by SFABOTA in October and was a featuredspeaker at the CAOC “AutomobileDynamics” seminar at Infineon Racewaywhere he spoke on cross-examination ofdefense experts. Mike was also nominatedfor the prestigious 2010 ConsumerAttorneys “Consumer Attorney of theYear” Award…Spencer Pahlke completedthe 2010 NITA National Trial AdvocacyTraining Program. He also was appointedDirector of Trial Advocacy CompetitionTeams at Boalt Hall. Spencer will person-ally coach 3 teams and serve as a lecturerin Trial Advocacy at Boalt starting in the2010-2011 academic year.

Sara Peters and Spencer Pahlke (back row, third and fourth fromthe left) join other ABC volunteers at a community clean-up event.

New Non-Profit Showcases Legal Community GenerosityAttorneys Bettering the Community(ABC) is a 501c(3) non-profit that con-nects Bay Area attorneys with local caus-es, hands-on volunteer opportunities,and one another. Its growing member-ship consists of lawyers who want to getout of their offices and get their handsdirty serving their communities whileimproving the profession’s public imageand forming lasting connections withother similarly inclined lawyers.

In ABC’s first ten months, more than

55 volunteers distributed socks, scarves,and gloves to 250 homeless people, gavepersonalized craft kits to 600 hospitalizedchildren, raised $10,000 to rebuild aschool in Port-au-Prince, Haiti, land-scaped a Lake Merced lookout point,prepped Family House residences toreceive terminally ill children treated atUCSF, painted a new exhibit at OaklandChildren’s Fairyland, and staffedFairyland’s Halloween Jamboree.

ABC is looking for financial support as

well as interested volunteers. You can helpby donating to or volunteering for ABC’sDecember 9th (5:30 to 9:00 p.m.) HolidayBags for the Homeless event. For informa-tion, visit www.abcoutreach.org or emailthem at info@abcoutreach.org. To donate,use PayPal at www.abcoutreach.org/donate,or write a check to Attorneys Betteringthe Community, c/o Camerlengo,Johnson, Landman & Mazza LLP, 643Bair Island Road, Suite 400, RedwoodCity, CA 94063.

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metal debris (primarily chromium andcobalt) with foreseeable use, which in turnprompts a reaction in the patient’s bodythat leads to the progressive (and in someinstances) irreversible loss of bone and softtissue around the hip joint. There is alsoconcern in medical and scientific circlesthat excessive metal debris may causeother serious health problems in the ASRpatient.

Johnson & Johnson / DePuy pressreleases have suggested that the ASRwill fail in 12% to 13% of patientswithin the first five years, and that theinvolved patients “may need a revisionsurgery.” (Revision surgery is a painfuland expensive process in which thedefective ASR components are removedand replaced with a different device; therevision patient is required to undergo asecond, needless surgery to fix the mis-take.) This is an alarmingly and unac-

Continued from page one

may reach or exceed half of the devicesimplanted.

Walkup, Melodia clients with claimsagainst DePuy have experienced symptomsincluding pain, swelling, cup loosening,audible popping and difficulty walking, aswell as elevated levels of cobalt, chromiumand other heavy metals in the blood. SomeASR patients are asymptomatic; they donot feel any pain, but are nevertheless los-ing bone and tissue to metal debris reac-tion. These patients, if undetected anduntreated, face the prospect of a sudden andcataclysmic failure, i.e., the device suddenlycoming loose from the anchoring bone.ASR patients are advised to schedule animmediate appointment with their ortho-pedic surgeon. The surgeon will likely con-duct blood tests and radiographic imagingstudies of the hip to assess the viability oftheir implant.

The Walkup, Melodia team is repre-senting ASR patients from all over theUnited States. Consistent with Rule ofProfessional Conduct 2-200 we haveentered into referral agreements with anumber of counsel in California andelsewhere and welcome inquiries frominterested associate counsel.

ceptably high rate of failure, and it alsoalmost certainly understates the prob-lem. Based upon the Walkup medicalproduct liability team’s interaction withorthopedic specialists as well as ourwork with biomechanical engineers, bio-tribologists and epidemiologists, ourlawyers believe that the true rate of fail-ure will approximate 30% at the fiveyear point, at least twice that predicted

by DePuy, and that all of these patientswill need revision surgery. The ASR’shave only a five year track record.Unfortunately for ASR patients, the epi-demiological evidence strongly suggeststhat the device will continue to fail atpotentially higher rates in succeedingyears. Thus, the final ASR “failure” rate

A recent Court of Appeal opinion reaf-firmed the consumer expectation test inproducts liability cases. In Saller v. CrownCork & Seal Co. (2010) 187 Cal.App.4th1220, the 2nd District Court held that thelack of a specific expectation about the safe-ty of a product does not prevent the plain-tiff from using CACI 1203’s consumerexpectation test.

Saller was a mesothelioma matter in

which the decedent workedfor Standard Oil between1959 and 1967. He wasemployed in a plant wherepipes were wrapped withinsulation made of asbestos.In 2005 doctors diagnosedhim with mesothelioma. Hedied the next year.

At trial the court barredthe use of CACI 1203 andthe consumer expectationtest. Instead, the judge per-mitted the jury to beinstructed only on CACI

1204’s cost/benefit test. The trial court’srationale was that CACI 1203 was “notapplicable in this type of situation.” Thejury returned a defense verdict.

The plaintiffs appealed, arguing that itwas error to disallow the consumer expec-tation test. The defendant responded byarguing that consumers in the 1950’s and1960’s, when the decedent was exposed toasbestos, had no specific expectation about

the safety of asbestos. Because they hadno expectation about the dangers or risksof asbestos, the defense argued it was notpossible to say that any consumers “expec-tations” were violated.

The court pointedly disagreed, stressingtwo important concepts: first, it unequivo-cally held that the consumer expectationtest was appropriate in asbestos cases; sec-ond, and more broadly, it held that the lackof an expectation about a product’s danger-ousness does not bar use of the consumerexpectation test.

Specifically, the court wrote: “If knowl-edge of the hazardous nature of the productwere a prerequisite for the test to apply, thenno product would ever fail to meet the safetyexpectations of the reasonable consumer.”

The opinion is useful not only inasbestos litigation, but also in other prod-ucts liability cases. In light of Saller, defen-dants cannot argue that the lack of a specificexpectation regarding the safety of a prod-uct prevents use of CACI 1203’s consumerexpectation test.

Walkup Product LiabilityTeam Leading HipRecall Fight

CONSUMER EXPECTATION TEST REAFFIRMED

PREMISESLIABILITY

High School Student v. County School DistrictIn High School Student v. County School District (pre-litigation settlement),Richard Schoenberger and Matthew Davis obtained a confidential seven-figure settlement in a case that drew national and international attentionfollowing a gang rape on school premises during a Homecoming Dance. Thevictim was a 16-year-old teenager who sustained serious physical and emo-tional injuries after being assaulted on school grounds at a school sponsoreddance. Rich and Matt proved that the District knew for years that the court-yard where the rape occurred was dangerous, unlit and unprotected.Principals, teachers and parents had begged for the most fundamental ofsecurity measures: lights to illuminate “hot spots,” fences to keep non-stu-dents out, and working – as opposed to broken – surveillance cameras. TheDistrict made promises to install these items but none was kept. Matt andRich also demonstrated that the District had no written plans for how tosafely run events such as the dance and made no effort to take reasonable pre-cautions to protect its students. On the night of the assault, the school sentsite supervisors home early (about thirty minutes before the rape began) toavoid paying overtime. As a result, the rape continued unabated for morethan two hours. In an effort to spare the victim from experiencing furtheremotional trauma, Rich and Matt were able to put the case into a settlementposture at mediation before a lawsuit was ever filed.

Executive v. CCSF Municipal RailwayIn Executive v. CCSF Municipal Railway (S.F. Sup. Ct.), Matthew Davis andMichael A. Kelly obtained a $3,250,000 recovery against the San FranciscoMunicipal Railway arising from a pedestrian versus streetcar collision. Initialinvestigation by the San Francisco Police Department placed all blame on theinjured plaintiff for allegedly stepping in front of a moving MUNI F-Linetrain. Mike and Matt ultimately developed evidence suggesting that thestreetcar’s operator entered the accident crosswalk against a burned out redstreetcar signal at an excessive speed. The City highly disputed all claims ofnegligence and dangerous condition. The plaintiff sustained significant braininjury requiring extensive physical and cognitive rehabilitation. The case wasconcluded while the City’s summary judgment motion based on governmen-tal immunities was pending.

Pedestrian Nurse v. MotoristIn Pedestrian Nurse v. Motorist (S.F. Sup. Ct. No. CGC-09-484951),Sara Peters represented a young woman who was struck by a distractedmotorist while crossing Broadway Street inside a marked crosswalk andon a walk signal. Plaintiff sustained a lateral tibial plateau fracture anda meniscal tear, putting her in a wheelchair for three months andrequiring arthroscopic surgery. The plaintiff's wage loss was difficult to

prove since she had quit her job as a nurse one week before the inci-dent and was in the process of filling out employment applications.During her convalescence, the nursing market declined, leaving herless ideal options upon her return. With approximately $10,000 inpast medical bills, Sara negotiated a settlement in the amount of$187,000 including the defendant's $100,000 policy limits plus$87,000 in underinsured motorist (UIM) benefits from the plaintiff’sown automobile liability policy.

RECENT CASES

Tenant v. Building Owner & Elevator Maintenance Co.In Tenant v. Building Owner & Elevator Maintenance Co. (S.F. Sup. Ct.,confidential settlement), Richard H. Schoenberger and Conor M. Kellyconcluded a premises liability case in the amount of $2,100,000 on behalfof a 46-year-old professional who suffered traumatic brain injuries afterfalling fifteen feet into an open elevator shaft. The fall occurred in a com-mercial building where the plaintiff rented an office on the second floor.The building owner locked the passenger elevator on the weekends to pre-vent ground floor restaurant patrons from accessing other floors of thebuilding. The plaintiff was not given a key to the passenger elevator andhad to use the freight elevator on the weekends. On the day he wasinjured, he opened the freight elevator expecting the car to be there, butwhen he stepped inside, the elevator shaft was empty. Suit was broughtagainst both the owner of the building and the company that serviced andmaintained the freight elevator. The elevator was designed so that thedoors were not supposed to open unless the elevator car was present. Atdeposition it was revealed that the building owner’s uncertified “handy-man” performed negligent repairs to the elevator in violation of theCalifornia Labor Code. Rich and Conor proved that the elevator mainte-nance company should have recognized problems with the freight elevatorand taken remedial action months before plaintiff’s fall. The settlementincluded $1,000,000 from the building owner and $1,100,000 from theelevator maintenance company.

Pedestrian v. City and County of San FranciscoIn Pedestrian v. City and County of San Francisco (S.F. Sup. Ct. No.CGC-09-491579), Spencer J. Pahlke obtained a mediated settlement inthe amount of $270,000. The 39-year-old plaintiff, an accountant,tripped and fell on a piece of exposed rebar in Justin Hermann Plaza,suffering bilateral wrist fractures, each of which required surgery. Therebar stood in place of a bollard knocked out by an unidentified vehi-cle. In discovery, Mr. Pahlke found records indicating that the Cityleft the rebar exposed for approximately one month in an area withhigh pedestrian traffic. The City was therefore put in the position ofexplaining how its inspectors – who visited Justin Hermann Plazaweekly – could have repeatedly missed this pedestrian hazard. While ithad to acknowledge that its inspectors should have found and correctedthe condition, it did argue that the hazard was open and obvious.Medical specials were $88,000, and the lien of $24,800 was reduced to$5,500 through negotiation.

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VEHICULARNEGLIGENCE

GOVERNMENTLIABILITY

RECENT CASES

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TRANSPORTATIONNEGLIGENCE

MEDICATIONNEGLIGENCE

Passenger v. CCSF Municipal RailwayIn Passenger v. CCSF Municipal Railway (S.F. Sup. Ct. No. CGC-09-484208), Douglas S. Saeltzer and Spencer J. Pahlke reached a mediatedresolution of a common carrier negligence case against the San FranciscoMunicipal Railway in the amount of $2,095,000 on behalf of a visitorfrom Texas injured on the Powell Street cable car line. At the intersectionof Mason and Washington, the cable car lost momentum in the turn andbecame stuck. Instead of calling for assistance from a MUNI tow truck,the MUNI operators decided to leave the car and push it by hand. Oncethe cable car was free and moving, they re-boarded to discover that thefront door was jammed closed, blocking access to the car’s main brakes.The runaway cable car then picked up speed heading down WashingtonStreet before derailing in the turn onto Powell. The derailment ejectedplaintiff onto the street, causing a badly fractured right leg. Following theinjury, plaintiff required two surgeries and developed a non-union at thefracture site. The 52-year-old plaintiff was unemployed at the time of theaccident and was fluent only in Spanish. As part of the settlement, theCity and County agreed to pay plaintiff's outstanding $345,000 medicalbill owed to San Francisco General Hospital.

Continued on back page

Pedestrian v. Underinsured Motorist CarriersIn Pedestrian v. Underinsured Motorist Carriers (mandatory UIM arbi-tration), Spencer J. Pahlke obtained a global settlement in the amountof $550,000 from three underinsured motorist carriers on behalf of a62-year-old artist. On a quiet afternoon in north Berkeley, a passingmotorist struck the plaintiff as she crossed the street in a marked cross-walk, lifting her onto the hood of his car. She then fell backwards to theground. Witnesses saw the rear portion of her skull forcefully strike theground. The resulting brain trauma destroyed her sense of smell andsubstantially eliminated her sense of taste. Medical specials in the casewere only $29,500, and all liens were waived after negotiation. Thethird party defendant carried only a minimal $15,000 insurance policy,requiring an underinsured motorist claim. After substantial medicaldiscovery and analysis of the mechanism of the pedestrian’s brain injuryand resulting loss of the sense of smell, the three auto carriers whoinsured plaintiff’s own vehicles jointly contributed to fund a globalsettlement of $550,000.

Senior HMO Member v. National Health MaintenanceOrganizationIn Senior HMO Member v. National Health Maintenance Organization(arbitration, confidential settlement), Melinda Derish negotiated resolu-tion of a claim brought by a 76-year-old man who suffered brain damagedue to excessive anti-coagulation with Heparin. Originally hospitalized forsymptoms of a minor stroke, the plaintiff’s initial symptoms spontaneous-ly resolved but a staff physician at the hospital decided to treat him withhigh dose intravenous Heparin. By the next morning a blood test revealedthe patient was excessively anticoagulated. The ordering physician neverrepeated the blood test or discussed it with the treating neurologist. Thedrug was not discontinued until 24 hours later, when the patient com-plained of headache and confusion. The event was witnessed by the patient’sdaughter. An emergency head CT scan revealed a brain hemorrhage, whichultimately caused coma. After weeks of intensive care the client was leftwith global cognitive deficits that require 24-hour care. Plaintiff’s retainedexpert witnesses testified that high dose Heparin was contraindicated. Thedefendant health maintenance organization argued that the Heparin wasdosed according to a computer protocol which was used system-wide andthat the plaintiff senior would have needed 24-hour care because of his agein any event. The case was resolved for a seven-figure sum that includedgeneral damages, the cost of future care, and payment to the daughter forher emotional distress.

UNDERINSUREDMOTORIST

MEDICALNEGLIGENCE

Survivors v. Academic Medical CenterIn Survivors v. Academic Medical Center (S.F. Sup. Ct., confidential settle-ment), Paul Melodia, Doris Cheng and Melinda Derish concluded awrongful death claim against a teaching hospital in the amount of$5,000,000 on behalf of the husband, 6-month-old child, and depen-dent parents of a UCSF hematology/oncology fellow who tragically diedas a result of a cardiopulmonary arrest during the course of an ERCPprocedure. The decedent suffered a respiratory arrest 20 minutes into theprocedure as a result of claimed airway compromise and over-sedation. Thesedation was administered by a nurse rather than an anesthesiologist andthere were additional issues relating to her recognition of, and response to,the emergency that developed. The decedent was 32-years-old and sixmonths away from completing her fellowship. She had accepted a positionwhich would have paid her a six-figure annual income. The decedent’selderly parents also participated in the settlement, as the decedent wasproviding them with financial support.

Infant v. Obstetrics GroupIn Infant v. Obstetrics Group (arbitration, confidential settlement), DorisCheng settled a birth injury action on behalf of a mother and infant in theamount of $4,875,000. Following prolonged labor, the child was neuro-logically depressed at birth and required resuscitation. Her medicalproviders had induced labor with Pitocin for over 24 hours without anyprogress. Although nurses charted worrisome changes on the fetal heart

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monitor, they continued to increase the doses of Pitocin to unusually highlevels. The attending obstetrician ordered the mother to begin pushing inthe face of ongoing fetal heart rate decelerations. The mother’s contrac-tions were occurring too frequently giving the fetus little resting timebetween contractions. After pushing for more than 3 hours and depletingthe baby’s reserve, the attending obstetrician ordered delivery by Cesareansection. Delivery was finally accomplished almost an hour later. Head CTscans showed brain injuries consistent with hypoxic ischemic encephalopathy.The baby girl was diagnosed with cerebral palsy and right-sided hemi-plegia. The defendants disputed the extent of the baby’s injuries, claim-ing through experts that she had enough cognition to live with a measureof independence and would not require 24-hour attendant care.

Minister v. GastroenterologistIn Minister v. Gastroenterologist (Contra Costa Co. Sup. Ct., confiden-tial settlement), Michael A. Kelly and Emily Wecht Polcari concludeda failure to diagnose colon cancer case on behalf of a 37-year-old EastBay minister, in a confidential seven-figure amount equal to the defendantphysician’s insurance policy limits. The patient had complained to hishealthcare provider of blood in his stools for more than two years. InOctober 2007 he underwent colonoscopy which the defendant gastroen-terologist reported to be negative for polyps or tumors. Mike and Emilyproduced expert testimony that the tumor found in 2010 was present atthe time of the colonoscopy, and was missed because the gastroenterolo-gist’s technique was below the standard of care. They argued that if thegastroenterologist had correctly performed the colonoscopy in 2007, hewould have found the cancer and the patient would have been easilytreated with local excision. If the cancer had been found at that time itlikely would not have metastasized. Faced with a policy limit demandand a preferential trial date due to the patient’s health, the gastroen-terologist settled the case for his liability policy limit.

We are available for association and/or referral in all types ofpersonal injury matters. Fees are shared with referring counselin accord with Rule of Professional Conduct 2-200.

Additionally, if there is a particular subject you would like to seediscussed in future issues of Focus on Torts please contactMichael Kelly. Visit us on the web at www.walkuplawoffice.com.

PRODUCTLIABILITY

Heir v. Heater ManufacturerIn Heir v. Heater Manufacturer (San Mateo Sup. Ct., confidential settle-ment), Michael A. Kelly achieved a confidential seven-figure settlementon behalf of the surviving mother of a university student who was killedwhen the family’s pool heater generated excessive amounts of carbonmonoxide, which was thereafter transmitted into the child’s bedroom viaforced air heating ducts. Although advertised as including “fail-safe” com-ponents which would prevent generation of excessive amounts of carbonmonoxide, the heater malfunctioned when installed in a way contrary tothe instructions. The installer, who was uncertified, failed to comply withventing the unit to outside air. When the heater malfunctioned internally,burning a too-rich mixture of fuel and air, the improperly vented systemrecirculated co-filled air which had already become contaminated, furtherelevating the CO levels to ultimately fatal limits. Mike’s experts demon-strated that the heater could have been designed in an alternate mannerwhich would have prevented the too-rich fuel mixture; he also argued thatthe failure to include a CO monitor or kill switch also contributed to thetragedy. The manufacturer defended on the basis that no injury wouldhave occurred, even if the heater malfunctioned, had the installer ventedthe device correctly.

DEFECTIVEDRUG LIABILITY

Surgical Patient v. National Drug MakerIn Surgical Patient v. National Drug Maker (confidential settlement),Khaldoun Baghdadi and Emily Wecht Polcari negotiated a $2,000,000settlement on behalf of a man who suffered a heart attack after receiv-ing a drug intended to reduce bleeding during heart surgery. The drugwas subsequently taken off the market because it caused blood clots.The plaintiff had undergone four vessel cardiac bypass surgery (CABG)to treat multiple blockages in his coronary arteries. Intraoperatively hewas given the medication. Postoperatively, his physicians discoveredthat three of the four bypass grafts had clotted off, greatly impairing hiscardiac function. The plaintiff spent more than six months in the hospi-tal and ultimately required cardiac transplant. Khaldoun and Emilyargued that the clotting was caused by the administration of the drug.The pharmaceutical company’s attorneys argued that the clotting wascaused by poor surgical technique on the part of plaintiff’s surgeon.

Continued from page seven Further, the drug maker alleged that it could not legally be heldresponsible for graft clotting because it had warned physicians of thisrisk, and the plaintiff’s own treating physician chose to use the medica-tion in spite of knowing this risk. The case ultimately settled aftermore than three years of litigation.