News and Blog

Rick Friedman Named #1 Washington Super Lawyer

Friedman | Rubin is pleased to announce that Rick Friedman has been ranked for the second year in a row as the top Super Lawyer in Washington for 2023. Published each year, Super Lawyers selections are based on peer nominations and are validated by independent research. Rick is honored by this recognition of his work on behalf of the firm’s clients.

Special Focus: Products LiabilityA Lifesaving Standard Long Overdue in Commercial Vehicles

By Lincoln Sieler, Friedman | Rubin, PLLP

This article was reposted from the June 2023 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

Although commercial trucks are among the safest vehicles on the road per mile traveled because most of their miles traveled are on the highway, they are also the most dangerous vehicles to be involved in a collision with due to their massive size and weight. Collision avoidance technology, such as automatic emergency braking, lane departure warning, and adaptive cruise control, has been proven to significantly reduce the risk of accidents and improve road safety. These technologies use sensors, cameras, and other detection systems to monitor the vehicle’s surroundings and assist the driver in avoiding collisions or mitigating their impact. Unfortunately, such technology is still not standard on most commercial vehicles.

As a result, product liability litigation against manufacturers for failing to equip trucks and buses with collision avoidance technology has become a relatively new but rapidly expanding area of law in recent years. Manufacturers typically respond to such claims by arguing that plaintiffs’ lawyers are unfairly trying to hold them liable for failing to equip their vehicles with state-of-theart, cutting-edge technologies. But these technologies are quite mature and governmental agencies have been asking commercial vehicle manufacturers for years to make this technology standard on all new vehicles.

Collision avoidance technology has been commercially viable for decades

The development of collision avoidance technology in the commercial trucking industry has evolved significantly over the years to improve safety on the roads and mitigate the risks associated with driver errors when it is used.

1970s: early developments. The concept of collision avoidance technology started to emerge during the 1970s, primarily in the aviation and maritime industries. During this period, the basic concept of using radar systems to detect potential collisions was developed, although it was not yet applied to commercial trucks.

1980s: early adopters. In the 1980s, some truck manufacturers started to experiment with early forms of collision avoidance technology. These initial systems were primarily radar-based and could detect objects in front of the vehicle but were not yet capable of taking automatic corrective actions.

1990s: introduction of ABS. The 1990s saw the introduction of Anti-lock Braking Systems (ABS) in commercial trucks. While not a collision avoidance technology in itself, ABS improved the safety of commercial trucks and buses by preventing the wheels from locking up during braking, thereby maintaining steering ability and reducing stopping distances. This decade also saw the early development of more advanced driver assistance systems such as Automatic Emergency Braking (AEB), Electronic Stability Control (ESC), Adaptive Cruise Control (ACC) and Lane Departure Warning systems (LDW).

2000s: advancements in technology. The 2000s saw significant advancements in the more active collision avoidance technologies. Features like Adaptive Cruise Control (ACC), which automatically adjusts speed to maintain a safe distance from vehicles ahead, Electronic Stability Control (ESC), which reduces the risk of rollovers and loss of control, Automatic Emergency Braking (AEB) which detects potential collisions with pedestrians and cars, alerts the driver and automatically applies the brakes if the warning is not heeded, all began to be offered in commercial vehicles. These features, however, were often optional and limited to higher end models as manufacturers tended to use these technologies as a marketing tool for product differentiation.

2010s: broader introduction of Advanced Driver-Assistance Systems. This decade saw the introduction and maturation of ever more sophisticated Advanced Driver-Assistance Systems (ADAS). These systems use a combination of radar, cameras, and other sensors to detect potential hazards and to actually take corrective actions, such as automatic braking or lane-keeping assist. More major truck manufacturers started to offer these systems as optional features.

Government agencies have been begging manufacturers to make the technology standard

Since the late 1990s, government agencies have been asking manufacturers to make these safety features standard on all new commercial trucks and buses. For example, the National Transportation Safety Board (NTSB) held a Public Hearing in 1999 on Advanced Safety Technology Applications for Commercial Vehicles focusing on technologies that could reduce the number of commercial vehicle accidents.

In his opening remarks, the Chairman of the NTSB stated that a large percentage of truck crashes involved rear-end collisions that could have been mitigated or avoided with the use of collision warning and avoidance technologies that were commercially viable and available even then:

Rear-end collisions such as these comprise roughly 28 percent of all highway accidents reported annually, and the Trenton collision was the ninth accident at this interchange in one month. We are still investigating these accidents. However, we do know that advanced technologies available today may have prevented them from happening. If the trucks had been equipped with collision warning technology, the drivers would have received audible and visual warnings that the headway between their trucks and the vehicles in front of them was closing quickly, giving the drivers more time to react and perhaps avoid the accidents.

Or, if these trucks had been equipped with electronic braking systems, the brakes would have adjusted automatically and activated more quickly than air brakes, allowing the alerted drivers to stop their trucks in a fraction of the distance it would have taken to stop without this technology.

He went on to state that because these systems were so effective at preventing and mitigating collisions and injuries, many truck manufacturers and fleet owners were already making these safety features standard on all of their trucks:

I recently visited the manufacturer of a collision warning system and learned that several heavy truck fleets have made this equipment standard on newly purchased trucks, and the company estimates that they will sell more than 10,000 units this calendar year. In addition, they stated that a collision warning system is also standard equipment on newly purchased U.S. Army medium and heavy vehicles. The Army has at least 2,300 currently in its trucks, and has purchased 2,000 retrofit kits.

I also visited U.S. Xpress Enterprises, Inc. in Chattanooga, Tennessee. In 1996, this trucking company began installing a collision warning system in its vehicles. Eighty-five percent of their fleet, that’s over 4,000 trucks, currently has this important safety device, and the company is placing it in all newly purchased vehicles. I was pleased to learn that since installing this technology, the company’s rear-end accident rate has decreased by 75 percent, and costs due to accidents have decreased by two-thirds. The rest of the industry and DOT should take notice. The widespread use of this safety device would prevent injuries, save countless lives and, as demonstrated by U.S. Xpress’ experience, some millions of dollars each year.

Emphasis added. It bears repeating—these statements about the effectiveness, commercial availability and technological viability of these safety systems were made almost 25 years ago.

In the years following, numerous studies showed that human driving errors were inevitable and predictable, that such errors would lead to collisions, and that commercial vehicles would be less dangerous if they were equipped with forward collision warning systems. See, e.g., “Primary Pedestrian Crash Scenarios: Factors Relevant to the Design of Pedestrian Detection Systems,”, Jermakian, 2011; “Effectiveness of a Current Commercial Vehicle Forward Collision Avoidance and Mitigation Systems,” Woodroffe, 2013.; and “Shiny-side Up: Advanced Crash Avoidance Technologies That Can Reduce Heavy Truck Crashes,” Univ. of Michigan Transp. Research Inst. USA, Blower, 2015 Reasonable manufacturers should have been aware of these and the dozens of other similar studies demonstrating the effectiveness and viability of these safety systems.

In 2015, the NTSB issued a Special Investigation Report, The Use of Forward Collision Avoidance Systems to Prevent and Mitigate Rear-End Crashes, That report examined and summarized the results of a three-year investigation by the NTSB into collisions involving passenger and commercial vehicles and examined then technically feasible and commercially viable collision avoidance technologies that would have aided in their prevention. It also recognized that the ordinary and foreseeable use of passenger vehicles and heavy trucks includes driver mistakes and negligence, and concluded that collision warning systems, particularly when paired with active braking, could substantially reduce the frequency and severity of rear-end crashes.

Most importantly, the report concluded by recommending that all manufacturers install forward collision avoidance systems as standard features on all newly manufactured passenger and commercial motor vehicles.

To passenger vehicle, truck-tractor, motorcoach, and single-unit truck manufacturers:

Install forward collision avoidance systems that include, at a minimum, a forward collision warning component, as standard equipment on all new vehicles. (H-15-8)

Id. (emphasis in original); see also

To make sure that manufacturers were aware of this report, the Chairman of the NTSB then personally wrote to the CEOs of all major commercial vehicle manufactures, referenced the report and specifically asked them to install forward collision avoidance systems that include, at a minimum, a forward collision warning component, as standard equipment on all new trucks and buses. See, e.g.,

That same year, the NTSB also published a Safety Alert addressing the issue of deadly rear-end crashes in 2015:

Forward Collision Avoidance Systems Can Save Lives

The Problem

  • Between 2012 and 2014, almost half of all two-vehicle crashes were rearend crashes. These crashes killed more than 1,700 people each year.
  • A 2007 National Highway Traffic Safety Administration (NHTSA) study showed that 87 percent of rear-end crashes involved a driver failing to attend to the traffic ahead.

The Solution

  • Considerable research on forward collision avoidance systems (CAS) in both passenger and commercial vehicles has shown that these systems can prevent or mitigate rearend crashes.
  • Forward CAS typically consist of (1) collision warning that alerts a driver of the impending crash, and (2) autonomous emergency braking (also known as “crash imminent braking”) that automatically applies brakes.
  • NHTSA is recommending the use of forward CAS.
  • Broad deployment of forward CAS in all vehicles is necessary to reduce the severity of rear-end crashes.

Two years later, the NTSB published its Most Wanted List of Transportation Safety Improvements. That 2017 report stated that driver errors were foreseeable, should be anticipated by manufacturers, and should be mitigated with the immediate implementation of collision avoidance technologies on their new vehicles:

Humans make mistakes, even in transportation. Transportation operators must always walk a demanding line of alertness and vigilance, but collision avoidance technologies can provide a lifesaving safety net. Technologies such as collision warning and autonomous emergency braking in highway vehicles … will result in fewer accidents, fewer injuries, and fewer lives lost.

These technologies are available today. They should be implemented today.

Manufacturers blame purchasers for not optioning vehicles with CAT systems

As was mentioned above, manufacturers that offer these systems often make the technology optional, and when a products case is brought against them, defend by blaming the purchaser for declining the option. This defense has two problems.

First, the NTSB has strongly condemned the practice of making safety systems optional and/or using them for “product differentiation,” i.e. using a feature to differentiate high-end vehicles from mid-range and lower-end vehicles:

The NTSB believes that not only should more automakers offer collision avoidance technologies as standard features in their vehicles, but that consumers should not have to purchase a luxury option package to get the safety benefits of these technologies. And he stated, Many manufacturers only offer this safety system within a luxury option package. But safety should be a basic feature rather than an option that we have to purchase and that only the wealthier buyer can afford.

Emphasis added.

Second, in Washington, manufacturers may not delegate their duty to design products that are reasonably safe. Anderson v. Dreis & Krump Manufacturing Corp., 48 Wn. App. 432, 440 (1987) (“a manufacturer cannot delegate to the buyer its responsibility to equip an otherwise dangerous machine with safety guards”); Wagner v. Beech Aircraft Corp., 37 Wn. App. 203, 209 (1984).

These cases are vigorously defended and must be properly screened

This article is not intended to be a thorough review of all the issues one can anticipate encountering in a product liability case alleging that a commercial vehicle is defective because a manufacturer failed to equip it with an advanced driver safety system. Rather, the intent is to bring about a wider awareness of the existence of these types of cases so that more practitioners can identify and investigate them as potential claims. These cases are vigorously and aggressively defended and should not be undertaken lightly but, under the right circumstances and with the right presentation, can be quite compelling to a jury.

Lincoln Sieler is an EAGLE member whose practice focuses on product liability, commercial vehicle collisions, and insurance coverage and bad faith at Friedman Rubin PLLC in Seattle. He is also a member of the Trucking Injury Law Group.

Book ReviewStrong, Smart Female Protagonist in PNW Legal Series

By Rachel Luke, Friedman | Rubin, PLLP

This article was reposted from the May 2023 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

The Complication: A Camille Delaney Mystery
By Amanda DuBois
Girl Friday Books, 2022
306 pages, hardcover

ISBN: 978-1-954854-34-5

There are two types of lawyers: those who enjoy fictional depictions of the law and those who don’t. As a Law and Order: SVU fan, I consider myself in the first category. If you also enjoy legal fiction as a genre, you will love fellow WSAJ EAGLE member Amanda Dubois’s The Complication: A Camille Delaney Mystery.

When her dear friend Dallas dies of a complication from a routine but unexpected surgery, Seattle attorney Camille Delaney leaves her cushy family law practice to pursue the medical malpractice case. Often wondering whether the father-like relationship with Dallas is clouding her judgment, Camille proceeds down a dangerous path to determine the cause of his death in the pursuit of justice. Putting everything on the line—her finances, her reputation, her friendships, and her family’s safety, Camille’s tenacity is both questionable at times and inspirational. Camille’s investigation leads her to something much more sinister than the typical medical negligence case.

The primary cast of characters is strong, intelligent women who make choices to actively break down barriers. The protagonist, Camille, is a nurse and pilot turned attorney. Trish Seaholm is a private investigator who had left the Seattle Police Department after being harassed for being gay. Trish agrees to help Camille investigate, which unfortunately puts herself in danger. Gigi Roberts is a renowned research pathologist at the University of Washington whose research brought the school millions of dollars. Yet Gigi is reluctant to help Camille with her case due to a policy at the university prohibiting the doctors from consulting in litigation matters.

In The Complication, negligence unfolds in a different way from our typical cases—corruption and evil run deep with many twists, but I do not want to get into any spoilers. The Pacific Northwest culture is the perfect backdrop for this plot. The story takes place in Seattle and the San Juan Islands. Camille lives on a houseboat in Laurelhurst, the University of Washington is commonly mentioned, and there is even a trip to Arizona for Mariners’ spring training. From the float planes on Lake Washington to the Windermere Cup, Dubois has a way of making our region and customs come alive.

For those of us in the trenches of working on wrongful death or medical malpractice cases, it may be easy to get bogged down by whether depictions of the practice of law are accurate. For example, Camille is able to retain an expert in the case one day and the next day this expert is sitting for her deposition. There is a scene from a mediation which is fun to read, but I cannot say I have ever experienced a mediation like that. Negotiations with the insurance adjuster are similar to real-life conversations, but on steroids! On the other hand, Camille expresses many of the same frustrations that WSAJ members have with trying to get treating doctors to talk to us or to testify for their patients. The doctors’ distrust of lawyers and the legal system is palpable, even as Camille is friendly with many medical professionals due to her husband’s position as a doctor for the University of Washington. Although Dubois’s artistic license could be a negative for some, it makes for an exciting entertaining storyline in this legal medical mystery.

This is a fun and easy to read thriller that is perfect for a vacation or a book club. Of note, all of the profits from sales of this book are donated to the Full Circle Scholarship, which provides tuition assistance to students at Seattle University School of Law, and will support the work of social justice organizations. In March, Amanda Dubois published her second book, Deliver Them From Evil: A Camille Delaney Mystery.

Rachel Luke, EAGLE member, is an attorney at Friedman Rubin PLLP in Seattle, Washington. Rachel represents clients in personal injury, product liability, and insurance bad faith cases. She is currently the Diversity Committee co-chair for WSAJ.

Thar she blows!

What is big, grey, and just swam past our Bremerton office? A Grey Whale, that’s what!

Having an office NOT located in a downtown high-rise building can have its advantages.

The Statue of Limitation for Child Sex Abuse may be eliminated

A new Washington State House Bill may soon be passed that would eliminate the statute of limitation for child sex abuse lawsuits. House Bill 1618 is currently working its way through the Legislature. If passed, it would break down current statute of limitation barriers. This bill will have implications for child sex abuse victims who are seeking damages from past abuse. Currently in Washington State, the statute of limitations requires victims to file a lawsuit within three years of when the abuse occurred, three years after they turn 18, or three years from when they discover the full extent of the damage caused by the abuse.

Friedman Rubin Of Counsel attorneys Julie Kays and Cheryl Snow have spent a great deal of their careers advocating for victims of child sex abuse. Kays said, “If enacted into law, this legislation is a huge step forward to survivors of childhood sexual abuse. Over the decades, we have learned that it is common for survivors of childhood sexual abuse to delay reporting the abuse. This makes sense, because children can feel confusion, shame, and fail to appreciate that the abuse was wrong. Oftentimes the abuse is perpetrated by a loved one, or close family friend, and this makes it even more difficult for survivors to come forward. This Legislation takes what we have learned about childhood sexual abuse over the decades and preserves a victim’s right to pursue civil justice no matter how long it takes for a survivor to find their voice.” Snow adds, “There is no compelling reason to impose an arbitrary deadline on a childhood sexual abuse survivor’s quest for civil justice. We recognize that trauma from childhood sexual abuse may last a lifetime. We encourage survivors to consult with us about their case to assess whether the current or proposed law allows their case to go forward.”

In April 2023, the House passed HB 1618, and the legislation is currently being considered by the Senate. If the Senate passes the legislation it then goes to the Governor to sign the bill into law.

The Facts Are Not Neutral

By Ron Park, Friedman | Rubin, PLLP

This article was reposted from the February 2023 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

Several years ago, I read two opinions concerning the constitutionality of an injunction that enjoined individuals from participating in or encouraging parades without a permit. The opinions stuck with me for two reasons. One reason was the facts in the two opinions. In one opinion, the facts were as follows: (Note: the opinions were written in the 1960s and so contain language that would be considered inappropriate today.)

The next afternoon, Good Friday, a large crowd gathered in the vicinity of Sixteenth Street and Sixth Avenue North in Birmingham. A group of about 50 or 60 proceeded to parade along the sidewalk while a crowd of 1,000 to 1,500 onlookers stood by, “clapping, and hollering, and (w) hooping.” Some of the crowd followed the marchers and spilled out into the street. At least three of the petitioners participated in this march.

On Easter Sunday, April 14, a crowd of between 1,500 and 2,000 people congregated in the midafternoon in the vicinity of Seventh Avenue and Eleventh Street North in Birmingham. One of the petitioners was seen organizing members of the crowd in formation. A group of about 50, headed by three other petitioners, started down the sidewalk two abreast. At least one other petitioner was among the marchers. Some 300 or 400 people from among the onlookers followed in a crowd that occupied the entire width of the street and overflowed onto the sidewalks. Violence occurred. Members of the crowd threw rocks that injured a newspaperman and damaged a police motorcycle.

In the other opinion, the facts were the same in some respects, but also very different:

On April 12, Good Friday, a planned march took place, beginning at a church in the Negro section of the city and continuing to city hall. The police, who were notified in advance by one of the petitioners of the time and route of the march, blocked the streets to traffic in the area of the church and excluded white persons from the Negro area. Approximately 50 persons marched, led by three petitioners, Martin Luther King, Ralph Abernathy, and Shuttlesworth. A large crowd of Negro onlookers which had gathered outside the church remained separate from the procession. A few blocks from the church the police stopped the procession and arrested, and jailed, most of the marchers, including the three leaders.

On Easter Sunday another planned demonstration was conducted. The police again were given advance notice, and again blocked the streets to traffic and white persons in the vicinity of the church. Several hundred persons were assembled at the church. Approximately 50 persons who emerged from the church began walking peaceably. Several blocks from the church the procession was stopped, as on Good Friday, and about 20 persons, including five petitioners, were arrested. The participants in both parades were in every way orderly; the only episode of violence, according [to] a police inspector, was rock throwing by three onlookers on Easter Sunday, after petitioners were arrested; the three rock throwers were immediately taken into custody by the police.

If you haven’t guessed already, the reason these opinions stuck with me is that the facts are describing the same case: Walker v. City of Birmingham, 388 U.S. 307 (1967). One set of facts was written in the majority opinion, and the other was written in a dissenting opinion.1 It’s one thing for judicial opinions to disagree on the interpretation of the law. But aren’t the facts supposed to be the facts? Sure, the lawyers may have put their spin on the facts in the briefs, but isn’t there supposed to be the “neutral” statement of facts upon which the law is to be applied? Yet here we have two “neutral” statements of what had happened.

Each fact statement, considered alone, appears to be a reasonably neutral statement. Of course, the opinions are from the 1960s, and there’s certain language there that would not be acceptable in any legal writing today, but if you had seen only one of these fact statements rather than both, would either one have struck you as obviously slanted or biased?

The statements agree on many points. They agree that marches took place in Birmingham, Alabama on Good Friday and Easter. There was a large crowd of people gathered on both dates, although only about 50 were marchers and the others were onlookers. Several participants, including the petitioners, were arrested. At the end of the second march, some people threw rocks.

More remarkably, the statements don’t disagree with one another on the points where they diverge. In fact, neither opinion says that any of the facts stated in the other is wrong, false, or exaggerated. There does not appear to be any dispute that the onlookers numbered from 1,000 to 2,000, that they were making a lot of noise, and they filled the street and sidewalks. There does not appear to be any dispute that the rocks thrown injured a person and damaged a vehicle.

There also does not appear to be any dispute that the marches were planned, that the police had been given advance notice of the marches by one of the marchers, and that the police were therefore able to block the streets to traffic along the marchers’ route. There is also no dispute that the march began at a church in a Black neighborhood, that the marchers themselves walked peacefully at all times, that the rocks had been thrown by onlookers, and that was the only episode of violence across the two days.

Neither statement appears to be false. Yet, read together, they clearly convey very different impressions of the event and paint a very different picture in the mind of the reader of what happened. You could probably accurately guess which way each opinion came out on the legal question before the Court without reading any other part of the opinion.

Which gets to the title of this article: the facts are not neutral. This should be obvious once you give it some thought. Our evidence rules allow only the admission of “relevant” facts at trial. What’s a relevant fact? One that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”2 By this definition, relevant facts can’t be neutral. They have a tendency to either help or hurt your case! It’s the same in summary judgment proceedings. A “material” fact is a fact “upon which the outcome of the litigation depends, in whole or in part.”3 Again, by definition, material facts can’t be neutral if the outcome of the case depends on what those facts are.

But even when facts are not directly determinative of a legal issue, they can still drive an outcome one way or another. Does the constitutionality of an injunction enjoining parades on public streets without a permit depend on how orderly and peaceful any particular parade is? Despite the detail both opinions give about what happened during the marches, the conclusion of both opinions don’t turn on those details. Ultimately, the majority’s holding turned on what it considered to be the failure of the petitioners to make “any previous effort on their part to have the injunction dissolved or modified, or any attempt to secure a parade permit in accordance with its terms.”4

Then why spend so much time describing what the marches were like? Perhaps because even judges, like any other human being, can be drawn to certain conclusions based on what they perceive to be the truth of what happened on a particular day. Perhaps because judicial opinions are not just a court’s interpretation of a legal issue and application of the law to the facts, they are also explanations to the public for why the court ruled a certain way in a particular case. Jurors may be able to just fill out a verdict form, but judges have to explain and justify their decisions.

Which is to say that careful drafting of a fact statement in a motion or a brief can go a long way to persuading a judge to rule in your favor. That isn’t to say that the law doesn’t matter. You will need case law and other legal authority to support your points, but lawyers often get overly focused on finding the right case or cases to win the day for them. A powerful fact statement can often communicate what the proper ruling should be. As much as law school professors delighted in telling you all the ways in which the law does not lead to what we’d think are fair or just outcomes, most of us (including judges), in our heart of hearts desire the legal system to produce not just legally correct results, but fair and just ones.

A powerful fact statement doesn’t require embellishment or editorializing. Giving thought to the story you want to tell and just stating the facts that tell that story is often more than enough. The excerpts I quoted above do just that. Given the historical context of the Walker case, it may be difficult to disentangle that context from the excerpts themselves, but each one tells a story, and in telling that story each one silently calls you to draw certain conclusions about what happened, the people involved, and who was in the right or wrong. Many times, that silent call is more persuasive than anything we say out loud.

Ron Park, EAGLE member, is an associate at Friedman | Rubin PLLP in Seattle.

1 These aren’t the only facts in the case, but I chose to excerpt these parts because of the stark contrast in describing the same events.
2 ER 401.
3 Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974).
4 Walker, 388 U.S. at 315.

Please join Cheryl Snow and the rest of Friedman Rubin in supporting the Sexual Violence Law Center!

Fright Night Trivia Fundraiser

Friedman Rubin PLLP and especially Cheryl Snow are proud to yet again be sponsoring SVLC Plays: Fright Night Trivia, this year’s annual fundraiser for the law center. Please join us for a fun evening on Thursday, October 27th!

Alongside 80’s pop culture and thriller-themed trivia, the host will inform you about SVLC’s critical work in the community. Spaces of joy are necessary to make SVLC’s work sustainable – this event will be focused on playing and adventuring together. And we’re so excited to see you there with us.

In-person in Belltown, Seattle, or online from anywhere in the world.

Buy your tickets at Events | Sexual Violence Law Center ( Donation-only options also available.

Sexual Violence Law Center is the only legal aid program of its kind in Washington, providing holistic legal assistance and representation exclusively to victims of sexual violence, assault, abuse, harassment and stalking.

$15.3 Million Awarded to Family of Plane Crash Victim

July 6, 2022, Kent, WA.

A King County Superior Court jury returned a verdict of $15,392,523 in damages to the Estate and beneficiaries of Marc Messina, who was killed in a small plane crash on April 21, 2016.

The defendant pilot, Angus Walker, attempted to take off from the Woodland State Airport in a Mooney M20k model plane. Mr. Walker was unable to liftoff due to overloading and insufficient power. The airplane crashed into a fence and earthen berm at the end of the runway, killing passenger Marc Messina.

Mr. Messina left behind a wife and three children who were represented by Friedman Rubin.

Due to Covid-19 King County Superior Court Judge Brian McDonald ordered that the trial be conducted via Zoom. The trial began on June 9, 2022, and closing arguments were given on June 30, 2022. The jury reached its verdict six days later.

During the trial, Rick Friedman used his nationally recognized Rules of the Road method to identify important rules and principles that the defendant should have followed. The Rules of the Road in this case included:

  1. A pilot must ensure the plane is maintained and inspected properly.
  2. A pilot should choose a runway long enough for a safe takeoff.
  3. A pilot must ensure that the aircraft and its passengers and contents do not exceed the weight limit set by the manufacturer of the aircraft.
  4. A pilot must complete the pre-flight inspection of the aircraft and ensure the engine can make full power.
  5. A pilot should choose a go/no-go point and abort takeoff if the plane is not going fast enough to take off.

The jury found defendant Angus Walker negligent and solely responsible for the crash, returning its $15.4M verdict in favor of the Estate and beneficiaries of Marc Messina.

Richard Friedman, Bill Cummings, Rachel Luke, Ron Park, and Mike Angiulo of Friedman Rubin PLLP represented Ms. Messina and her three children.


Special Focus: Products LiabilityDowning Brings Ford’s Personal Jurisdiction Holding to Washington

By Ron Park, Friedman | Rubin, PLLP

This article was reposted from the June 2022 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

Last year, the U.S. Supreme Court decided Ford Motor Co. v. Montana Eighth Judicial District Court,1 a case in which the Court held that an out-of-state car manufacturer (Ford) can be sued in a state where the manufacturer extensively markets, sells, and services its cars, when one of its cars malfunctions and injures a person within that state. This year, in Downing v. Losvar,2 Division III of the Washington Court of Appeals issued the first opinion on personal jurisdiction that interprets and applies Ford in a Washington case.

The jurisdictional facts of Downing are materially identical to the facts in Ford. In Ford, there were two plaintiffs, one a resident in Montana and the other a resident in Minnesota, each of whom was injured in a car accident that happened in their respective states. The vehicles in both incidents were Ford vehicles, and Ford did extensive and substantial business in both Montana and Minnesota by advertising, selling, and servicing its vehicles there. However, neither plaintiff had purchased the vehicles directly from Ford within those states. Ford had sold and delivered the specific vehicles at issue to other customers in other states, and it was only through second-hand transactions that those vehicles ended up in Montana and Minnesota.

In Downing, the plaintiff was a resident of Washington who was injured in a plane crash in Washington. The plane was manufactured by Cessna Aircraft Co. (now Textron Aviation Inc.), and Cessna (now Textron) did extensive and substantial business in Washington by advertising, selling, and servicing its planes there. However, the plane that had crashed had not been purchased directly from Cessna in Washington. Rather, Cessna had sold the plane to a different customer in a different state, and it was only through second-hand transactions that the plane ended up in Washington.

Although Ford concerned cars and Downing concerned planes, the jurisdictional question was the same:

Can a court exercise personal jurisdiction over an out-of-state manufacturer who purposefully and systematically serves the market for its products in a forum state when one of its products malfunctions and injures a forum resident, even though the specific product that malfunctioned was not sold, delivered, or otherwise serviced by the out-of-state manufacturer in the forum state?

In Ford, the U.S. Supreme Court answered, yes. Unsurprisingly, the Washington Court of Appeals answered the same, stating that “Ford Motor Co. v. Montana Eighth Judicial District Court compels our ruling.”3

As simple as this may seem, Ford’s effect on Washington’s personal jurisdiction law is substantial. This is reflected in the Court of Appeals’ 50-page opinion, which reviews the law on personal jurisdiction from the U.S. Supreme Court’s International Shoe decision in 1945 all the way to the present (International Shoe v. State of Washington, 326 U.S. 310 (1945)). The Court of Appeals spends much of its opinion discussing how that law developed in the U.S. Supreme Court and Washington State, and what the Ford decision means for the law of personal jurisdiction in Washington going forward.

“But for” causation no longer necessary for personal jurisdiction

The consequences of the Court of Appeals’ opinion are too many to be covered in a single article. However, the most significant is the court’s rejection of the “but for” test for determining whether a plaintiff’s claims “arise out of or relate to” an out-of-state defendant’s contacts with the forum state.

For those who need a refresher on personal jurisdiction, federal law draws a distinction between “general jurisdiction” on the one hand and “specific jurisdiction” on the other.4 A state can exercise “general jurisdiction” over a defendant only when the defendant is “essentially at home” in the state.5 A corporate defendant is “at home” in its state of incorporation and in the state where it maintains its “principal place of business.”6 In any other state, a court can exercise only “specific jurisdiction” over the out-of-state defendant. For “specific jurisdiction” to apply, the plaintiffs’ claims must “arise out of or relate to” the out-of-state defendant’s contacts with the forum state.7

What it meant for a claim to “arise out of or relate to” a defendant’s forum contacts had been something of an open question before Ford. In 1989, in Shute v. Carnival Cruise Lines, the Washington Supreme Court attempted to bring some clarity to the standard by adopting a “but for” causal test to determine whether a plaintiff’s claims met the “arise out of or relate to” requirement.8 Under a “but for” test, plaintiffs in Washington had to show that their claims against the out-of-state defendant would not have arisen but for that de-fendant’s contacts with Washington State.

Although the Washington Supreme Court appeared to depart from the “but for” test in later opinions,9 it never expressly overruled its holding in Shute. And as long as the U.S. Supreme Court remained silent on whether the “arise out of or relate to” requirement was equivalent to a “but for” causal test, one could plausibly treat the two as the same.

Although simple in theory, the test had the effect of turning disputes over personal jurisdiction into a game where out-of-state defendants would slice and dice their contacts with the forum state in ways that would divorce those contacts from being a “but for” cause of a plaintiff’s claims. For example, a defendant might acknowledge it sells thousands of products in Washington but argue Washington courts have no jurisdiction because the one product that malfunctioned was sold out of state and brought into Washington by an unknown customer. Or a defendant might acknowledge it shipped the defective product into Washington but argue there is no jurisdiction because it only did so at the request of an out-of-state customer, not the Washington resident who was later injured by the defective product. The defendant’s goal in every case was to explain how its activities in Washington, no matter how numerous or substantial, did not cause the plaintiff’s harm. The end result was what Ford argued to the U.S. Supreme Court and what Cessna argued to the Washington Court of Appeals: that state courts are powerless to call an out-of-state manufacturer into court, even when the manufacturer extensively advertises, sells, and services its products within the state, if a strict causal link cannot be shown between those activities and the plaintiff’s injury.

In Ford, the U.S. Supreme Court flatly rejected this argument and in doing so rejected any “but for” causal requirement for personal jurisdiction.10 What the U.S. Supreme Court holds on matters of federal constitutional law is binding on all courts in our country. The Court of Appeals in Downing simply made the application of Ford to Washington law official.

Satisfying the “arise out of or relate to” standard

So now, how does a plaintiff show that their claims “arise out of or relate to” a defendant’s contacts with Washington? Showing a direct causal relationship between the plaintiff’s claims and the defendant’s contacts still satisfies the “arise out of” prong of that standard.11 Downing has not changed that, even as it holds that a direct causal relationship is no longer necessary to establish personal jurisdiction. But plaintiffs who cannot show that direct causal relationship can now establish jurisdiction by satisfying the “relate to” prong of the standard. This can be accomplished by showing “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.12

What does that look like? The Supreme Court’s Ford opinion gives some guidance:

In conducting so much business in Montana and Minnesota, Ford “enjoys the benefits and protection of [their] laws”—the enforcement of contracts, the defense of property, the resulting formation of effective markets. … All that assistance to Ford’s in-state business creates reciprocal obligations— most relevant here, that the car models Ford so extensively markets in Montana and Minnesota be safe for their citizens to use there.13

In addition, “[a]n automaker regularly marketing a vehicle in a State . . . has ‘clear notice’ that it will be subject to jurisdiction in the State’s courts when the product malfunctions there (regardless of where it was first sold).” This is why the Supreme Court has used “this exact fact pattern (a resident-plaintiff sues a global car company, extensively serving the state market in a vehicle, for an in-state accident) as an illustration—even a paradigm example—of how specific jurisdiction works.”15

Of course, not every lawsuit is against a global car company. But the Supreme Court’s reasoning is equally applicable in cases against any out-of-state manufacturer that engages in regular and substantial business in Washington. Plaintiffs seeking to establish personal jurisdiction over an out-of-state manufacturer in a products liability case should take care to show the manufacturer’s regular and substantial business to the court. The more extensive and systematic the conduct, the less ground the manufacturer has to claim that it cannot be subject to the jurisdiction of Washington courts.

Looming circuit split

Those who think Ford is going to put the seemingly never-ending battle over personal jurisdiction to rest are likely to be disappointed. As surprising as it may seem, a split is already forming between jurisdictions on the proper interpretation of Ford. Textron has already petitioned the Washington Supreme Court to review the Downing opinion based on non-Washington cases more favorable to its position.

Before our state Court of Appeals decided Downing, the Ninth Circuit considered the meaning of Ford in LNS Enterprises LLC v. Continental Motors, Inc.16 In LNS, the plaintiffs were involved in a plane crash in Arizona involving a Cessna aircraft.17 Like in Downing, Textron was included as a defendant in LNS as the successor company to Cessna. And like in Downing, Textron moved to dismiss for lack of personal jurisdiction arguing that it had not designed, manufactured, sold, or serviced the crashed plane in Arizona.18

Unlike the Court of Appeals in Downing, the Ninth Circuit held that Arizona could not exercise personal jurisdiction over Textron.19 The Ninth Circuit offered a number of reasons for its holding, but perhaps the most significant is its conclusion that Ford applies “only to those circumstances in which the same model of the product at issue was ‘advertised, sold, and serviced’ by the defendant.”20 In other words, the Ninth Circuit interpreted the Supreme Court’s Ford opinion as being about the Ford Crown Victoria and the Ford Explorer, not Ford vehicles generally.

One can already see how this opens the door to the next generation of arguments by out-of-state defendants against personal jurisdiction. Rather than argue about how each of their contacts did not cause the plaintiff’s harm, defendants will now pivot to arguing how each of their contacts relates to a completely different product from the one at issue in the case.

Fortunately, Downing squarely closed off this line of argument in our state courts and specifically rejected the Ninth Circuit’s analysis in LNS.22 The Court of Appeals reasoned that a “kind of product” test would lead to defendants making ever-finer distinctions between their products (not just by model, but by model year or even by color) with no obvious line where the distinctions would end.23

It remains to be seen what comes of the competing interpretations of Ford by our state Court of Appeals and the Ninth Circuit. Perhaps the Washington Supreme Court will weigh in. But for now, at least, plaintiffs can enjoy a broader application of Ford in Washington state courts than in Washington federal courts. For plaintiffs seeking to hold out-of-state defendants accountable in Washington, that is something to celebrate.

Ron Park, EAGLE member, is an associate at Friedman | Rubin PLLP in Seattle. He briefed and argued the appeal on behalf of the Downings.

1 141 S. Ct. 1017 (2021).
2 No. 36298-1-III (Apr. 14, 2022).
3 Downing v. Losvar, No. 36298-1-III, slip op. at 3.
4 See Daimler AG v. Bauman, 571 U.S. 117, 127 (2014).
5 Ford, 141 S. Ct. at 1024.
6 Id.
7 See id. at 1025.
8 113 Wn.2d 763, 772 (1989).
9 See Downing, No. 36298-1-III, slip op. at 45.
10 See Ford, 141 S. Ct. at 1026.
11 See Downing, No. 36298-1-III, slip op. at 42.
12 Ford, 141 S. Ct. at 1025 (quoting Bristol Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1780 (2017)) (emphasis added); Downing, No. 36298-1-III, slip op. at 40.
13 Ford, 141 S. Ct. at 1029–30 (citation omitted).
14 Id. at 1030 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
15 Id. at 1028 (citation omitted).
16 22 F.4th 852 (9th Cir. 2022).
17 See id. at 856–57.
18 See LNS, 22 F.4th at 857, 864.
19 LNS, 22 F.4th at 856.
20 Id.
21 See Downing, No. 36298-1-III, slip op. at 26–27.
22 Id. at 39.
23 See id. at 27.

Friedman Rubin sponsors the 2021 Brain Injury Art Show

Friedman Rubin is proud to yet again be sponsoring the Brain Injury Alliance of Washington’s annual Art Show. Treat yourself to a visit!

2021 Brain Injury Art Show

The Brain Injury Alliance of Washington’s 13th Annual Brain Injury Art Show is currently on exhibit at the Renton History Museum!

The Art show will be on exhibit until February 11, 2022.
Current Museum hours: Wednesday-Friday, 10am to 4pm
*Visitors must present proof of vaccination or a negative PCR test within the last 72 hours.
*Masks are also required.

Cannot make it during the week?
Renton History Museum will graciously have a special opening
at the Museum on
Saturday, January 22, 2022 from 10am – 4 pm just for BIAWA!

Reservations strongly recommended.
Capacity is currently limited to 15 guests at a time.
Contact the Renton History Museum directly for Reservations:
425-255-2330 or

Why are we doing this?

Friedman | Rubin supports BIAWA’s Brain Injury Art Show because we know art can be very helpful to people with brain injuries. We like both how BIAWA is creative with how it goes about helping its constituents but also the resulting art!

Friedman | Rubin supports BIAWA because we have seen first hand how devastating a brain injury can be, and understand the need for an organization that advocates on behalf of the people who have to live with this injury.

Sometimes, BIAWA constituents have sustained their injuries due to negligence of others. These were people or companies that broke rules. As a law firm we hold the rule-breakers accountable for what they have done, helping make the constituents whole again to the extent possible as well as encouraging everyone to be more careful.

What makes BIAWA unique is that they are there with resources and support at a time when people are vulnerable and often don’t know what to do. It is a source of support and comprehensive information for people learning to cope and adjust to life changing injuries. If BIAWA did not exist, there would be no place to turn for help and support. As is usually the case, those with few personal resources would be particularly hard hit.

We encourage you to attend the Brain Injury Art Show at the Renton History Museum. If you have ever come across a person with TBI you know they need all the help and support they can get. The art is worth supporting for its own sake, as well supporting people who have found creative outlets after their injury. The pieces are simply Inspired! Some of the pieces are truly magnificent. Each one will speak to someone.

~Friedman | Rubin Trial Lawyers

Law and Autonomous Vehicles

By Michael Angiulo, Friedman | Rubin, PLLP

This article was originally published on Dec. 6, 2021 Mich. St. L. Rev.: MSLR Forum.


The law is not ready for self-driving cars. While most of the anticipated legislation is concerned with questions of safety or privacy, the introduction and proliferation of autonomous cars will present novel legal questions in negligence and product liability cases, especially challenging the framework for agency. Although these are important issues for civil cases, the implications for criminal justice are the most urgent. Constitutional cases relating to automotive stops form the procedures and frameworks which protect our Fourth and Fifth Amendment rights.

Legal analogies can only be stretched so far before they break. The Court recognized this breaking point in Carpenter v. United States when it refused to extend the third-party exposure doctrine to cell site location information (CSLI) in the context of privacy. While the result was thoughtfully applied to a single scenario, the unwillingness to “embarrass the future” prevented the Court from creating useful, forward-looking rules of general applicability. In the absence of comprehensive legislation, we should expect to see a ruling attempting to analogize a runaway horse drawn carriage to a scenario involving a driverless car. And the ruling, at best, will be as disruptive as Carpenter, but will affect a broader range of fundamental rights.

Cars today already have some “autonomous” features like cruise control, and are controlled through many microprocessors and software. None of this progress has caused any significant legal issue. The move to fully autonomous vehicles, though, will cause discontinuities in both how cars work and how they are used. These changes will stretch existing legal analogies and doctrines to their breaking points which will yield to unpredictable application of criminal procedures, disproportionate impacts on both affluent and disabled operators, and will force unwanted tradeoffs between fundamental rights and convenience.


Cars of the future will not have steering wheels. They will be built on software platforms that capture information from a broad array of optical, radar, and ultrasonic sensors. Someone, typically a single operator, will command the vehicle to proceed to a destination. The software will use artificial intelligence, including unsupervised learning algorithms, to plan routes, navigate traffic, and respond to unforeseeable conditions. Usually, the car will operate perfectly—following speed limits and traffic rules with inhuman precision. At other times, it will operate unpredictably, at least as far as the occupants are concerned, choosing routes optimized for safety or efficiency, without explanation. Every moment of every trip, taken by every similarly designed car, will be captured in detail, and will be combined into training data to improve future performance.

These changes in how cars work will lead to changes in how cars are used. A vehicle that can operate autonomously does not need to wait in the parking lot while you sit at work all day. It can run errands or be shared with other drivers. Fleets of vehicles can be used in aggregate to reduce traffic and parking congestion while reducing the cost of ownership for individual drivers. Autonomous vehicles can drive through the night, allowing passengers to sleep, even during charging stops. While law enforcement has faced pushback in the use of drones for persistent surveillance, it is unlikely that the presence of unoccupied police vehicles, especially when unmarked, will even be noticed.


These changes in how cars work and how they will be used undermine the principles and logic that justified many controlling cases, especially those on which police rely when making pretextual traffic stops which disproportionately affect Black male drivers.1

Furthermore, these issues will have a disproportionate impact on different classes of people, whether they are affluent people able to be early adopters of expensive technology or disabled people who will be the first to rely on these as mobility-enhancing necessity.

A. Predictable Behavior

Police can generally find reasonable articulable suspicion to stop a vehicle by simply following it in traffic for long enough. In Whren v. United States, the Court explained that being followed by the police for fifteen minutes may feel like a seizure, but it is not—fifteen minutes is usually enough to establish the necessary suspicion for even a pretextual stop.2 However, what if an autonomous vehicle is incapable of making a mistake? An expensive vehicle capable of following traffic rules with precision can effectively create a shield from the most common police tactic for justifying a stop. This will inevitably lead to an increase in socioeconomic and racial disparities in stops.

In response, police might find ways to exploit the predictable behavior of vehicles to expose drivers to stops that would have otherwise been unlawful. For example, a vehicle could respond to police lights by pulling over and remaining there until the lights are turned off. In Illinois v. Caballes, the Court held that a traffic stop could not be unreasonably prolonged to wait for a drug sniffing dog.3 Imagine the officer verbally told the occupants they were free to go, but in leaving his police vehicle in position with the lights on, the autonomous vehicle would simply stay put indefinitely. Has the officer extended the stop? Would it matter if the Court was unwilling to consider the subjective intent of the police? A disabled occupant could be subject to a search that would have been unreasonable in absence of the technology. In an opposite example, the Court in Drayton has said even the most minor gesture in response to an officer’s request can constitute consent for a search. Imagine an officer approaches a vehicle and asks the passenger, “may I open the trunk?” If the trunk opens automatically in response to a voice command, is it consent?

Furthermore, in Navarette v. California, the Court held that information regarding a vehicle’s specific description, place, and time can be treated as reliable eyewitness knowledge.4 In that case, even with “unimpeachable” driving, the police had reasonable articulable suspicion to make a stop. If these new cars are predictable, it will likely increase the risk of revenge tips as Justice Scalia warned in his dissent.

B. Unpredictable Behavior

Autonomous vehicles will make countless momentary decisions that cannot be explained without deep forensic analysis. Some of these decisions may include simple tasks like traffic routing, but some will be completely new.

In Illinois v. Wardlow, the Court recognized that fleeing in a “high-crime” area affects the analysis of reasonable articulable suspicion.5 If a car chooses such a route, should it matter? Anyone who has taken a traffic optimized route using a product like Waze has found themselves driving in an unusual place for the first time. Having that be a component to support a reasonably articulable suspicion is problematic.

In addition, autonomous vehicles can negotiate with one another to yield right of way or can choose to follow each other extremely closely, creating an extremely efficient virtual train that minimizes aerodynamic drag. The propinquity argument established in Maryland v. Pringle was applied to a group of individuals in a car that contained drugs.6 Should a set of vehicles, obviously travelling in unison, be considered proof of a common enterprise? What if there were three, where the vehicle in the middle was unoccupied but full of drugs?

C. Data Retention

Autonomous vehicles will use arrays of sensors, both inside the vehicle and out, to inform the controlling software of every variable. These sensors will include cameras that capture high resolution visual images as well as radar and lidar sensors that can measure and detect movement. All this data is processed on board the vehicle and much of it will be transmitted back to the manufacturer. The data captured, processed, stored, and transmitted by an autonomous vehicle is many thousands of times more comprehensive than what phones can capture today. Some of the sensors may even fail the Kyllo v. United States test for not being in “general public use,” at least during the early adopter stage.7

In Riley v. California, the Court held that police need a warrant to search a cell phone, unless exigent circumstances apply.8 Certainly, the data stored in an autonomous vehicle would be considered extensive and personal, as it likely captures not only travel information, but also conversations that happen within the vehicle.

But the sheer quantity of the data means that the system will be constantly overwriting and deleting contents. Will the impending loss of data create an automatic exigency? The Court did not address this directly, as cell phones can be turned off or stored in transmission-resistant bags while obtaining a warrant (where cars cannot). Furthermore, it is common police practice to download the contents of the event recorder (“black box”) in an accident investigation. Is this practice still constitutional, given the new quantity and quality of captured data? If law enforcement is justified in gathering this data from accident vehicles, should that extend to nearby, but uninvolved, autonomous vehicles that could provide the testimony of a “super eyewitness?” The Court in California v. Byers held that compelling a hit and run defendant to stay at the scene was not a violation of compelled self-incriminating testimony because the need to regulate traffic safety must be balanced against constitutional protections.9 Perhaps that same logic could be extended to compel these new vehicles, as “super witnesses,” to testify. Or the state may argue that the safety risks posed by autonomous vehicles render their operation as a “closely regulated” industry as defined in New York v. Burger.10 In any case, given how comprehensive the data collection will be, there will always be a reasonable basis to believe that evidence of almost any traffic arrest will be in the car, thus supporting the Scalia prong of Arizona v. Gant.11

It is likely that this extensive privacy risk will first be exposed, if not tested, in a border crossing case. Under United States v. Flores-Montano, if the police can disassemble a gas tank without reasonable suspicion, they will likely be able to inspect the contents of the computing subsystems that expose every trip every passenger has ever taken in the car since it was built—and potentially even trips that other cars have taken which have been included in the vehicular training data.12 The safety risks involved in the vehicular data may be more “tethered to the government’s interests” and the contents are less likely to run afoul of the First Amendment protections articulated by the First Circuit in Alasaad v. Mayorkas.13

D. Fleet Uses

Because the cars will be able to reposition themselves without drivers, there will be new, and much more efficient ways to own and use them. These include shared pools of autonomous vehicles, including as public transit.

Under Chandler v. Miller, the Court explained that where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as reasonable if done for safety purposes.14 Lower courts have found that suspicionless searches in airports, on subways, and on ferries can be reasonable. None of these cases held that more than a single person needed to be in a public transit vehicle for a search to be reasonable. If the government operated a fleet of autonomous vehicles as a component of a mass transit program, would that mean that under Miller, every occupant in every vehicle, even if alone, could be stopped and searched? Would it matter if there was a credible threat that someone in a vehicle was carrying a bomb?

In the private sector, it is likely that these vehicles will either be shared as a pool or will be temporarily sub-leased by individuals to defray ownership costs. Under United States v. Matlock, where one party has joint access or control for most purposes, he can consent to a search for evidence against another.15 While that holding was applied to homes, could it extend to shared autonomous vehicles? Perhaps not, but there may be two lines of cases that intersect, causing a new problem. Under California v. Carney, the test for whether a vehicle is a home considers whether a vehicle is readily mobile, on public streets, and is being used as a home.16 But a new class of recreational vehicles, designed for long term sleeping and able to stay in unattended motion, may change the analysis. Will the owner be considered to only be like the hotel clerk in Stoner v. California17 or can he give consent to a search while a joint user is renting? While it may seem like a stretch to imagine a subscription to a shared fleet of autonomous homes, one only needs to think back a decade to realize what a stretch it would have been to consider the evolution of cell phones to where they are today.


In the absence of legislation, courts will have no choice but to stretch these existing analogies to fit new fact patterns. In United States v. Pritchard, the Seventh Circuit explained that a magistrate’s determination of probable cause should be “given considerable weight.” However, when dealing with technology, it may be unwarranted to rely on the common sense or judicial experience of a magistrate to determine what is reasonable. Just this year, the USPTO wrestled with the question of how to treat Artificial Intelligence (AI) in the cases of the DABUS Patents, where an applicant attempted to file a patent for an invention created by AI. Although the Agency held that AI had no “legal personality” enabling it to qualify as an inventor, these issues are only just being argued for the first time. Especially with respect to cases with criminal consequences, it is unlikely that the lowest level of our judiciary is the place to establish findings that deserve any deference at all.

In addition to magistrates who, as a class, do not tend to be on the leading edge of technology adoption, police officers will be excused for arrests where they can find alternative justifications after the fact, even when no law was violated, like in Devenpeck v. Alford.18 And under Heiein v. North Carolina, police can be excused for any reasonable mistake of law.19 Given the fact that each state will regulate autonomous vehicles differently, these mistakes will be common, if not inevitable, even though many of these cases should not be turning on the vagaries of state laws in the first place.20

Even less predictable are legal tests which rely on community standards, such as in the case of the reasonable expectation of privacy test in Katz v. United States, the court would still have to grapple with the question as to whether there is an “expectation that society is prepared to consider reasonable.”21 In the case where society at large has not experienced and does not understand the technology, this becomes challenging—if not impossible.

Autonomous cars will cause problems for cases even when they are not at the center of the controversy. Take, for example, the case where a sobriety roadblock is established, where the police are going to stop every fifth car. Under Michigan Department of State Police v. Sitz22, this program is permissible, as police are not engaging in a random suspicionless stop, which is prohibited under Delaware v. Prouse23. But what if, for example, the fifth car in line was autonomous, with only a sleeping passenger in the back. Assuming that the occupant cannot be guilty of a DUI, should the police stop it anyway? Or should they skip it and stop the sixth driver in line? Either decision may be problematic, and circuits will inevitably split. Or consider the use of a new stingray that allows communication—potentially even control—with a vehicle. Will that be a meaningful interference of the possessory interest of the car, as was the case in United States v. Jones24, or would it matter that the interception was just of metadata being shared with a third party?


Just as our constitutional rights should not turn on the vagaries of state laws or private contracts, such as the terms of use for the vehicle, they should not passively drift in reaction to the advancement of technology. In the absence of comprehensive litigation, the Court has found it necessary to declare limits to the erosion of constitutional protections when common behavior changes. Today, we often trade our privacy rights for convenience when we use mobile devices and internet services and the Court has responded with cases like Carpenter.

Autonomous vehicles will create the same issue, where safety and convenience are offered only in trade for infringements of our constitutional rights.

The worst way to adapt the law to new technology scenarios is to wait for the law to break down. Judge made law is too slow, too imprecise, and too difficult to apply to rapidly evolving fact patterns. The better way is through comprehensive legislation. There is a lot of effort being devoted to the regulatory frameworks for autonomous vehicles, but they prioritize safety issues before these second-order effects on criminal procedure. Legislation like Title II or the Stored Communications Act (SCA) are good examples that should be directly extended to cover the kind of data collected, processed, and transmitted by these cars. But it will not be enough. I think the patent office got it wrong, and we should do something more transformative. We need a legal framework to treat Artificial Intelligence as a person—capable of forming independent intent. While that sounds radical, it is less of a stretch of legal fiction than treating a corporation as a person, especially in the context of insulating the rights of citizens from encroachment from technology.

Michael Angiulo has certainly led an impressive career. Mr. Angiulo is a mechanical engineer and former Microsoft Corporate Vice President where he led the Microsoft Surface and Xbox hardware teams. After twenty-five years in product development, he earned his J.D. with High Honors from the University of Washington and joined Friedman Rubin PLLP as an attorney Of Counsel. Mr. Angiulo’s practice at Friedman Rubin PLLP currently focuses on litigating accidents involving complex mechanical, software, and systems failures. Mr. Angiulo is also a Senior Executive Advisor with Envorso, helping companies develop the software necessary to create the next generation of autonomous vehicles.

1 See generally, Kelsey Shoub et al., Race, Place, and Context: The Persistence of Race Effects in Traffic Stop Outcomes in the Face of Situational, Demographic, and Political Controls, 5 J. of Race, Ethnicity & Pol. 481 (2020).

2 See Whren v. U.S., 517 U.S. 806, 810–13 (1996).

3 See Illinois v. Caballes, 543 U.S. 405, 409–10 (2005).

4 See Navarette v. California, 572 U.S 393, 398–401 (2014).

5 See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

6 See Maryland V. Pringle, 540 U.S. 366, 372 (2003).

7 See Kyllo v. U.S., 533 U.S. 27, 34 (2001).

8 See Riley v. California, 573 U.S. 373, 387–88 (2014).

9 See California v. Byers, 402 U.S. 424, 428–31 (1971).

10 See generally New York v. Burger, 482 U.S. 691 (1987).

11 See Arizona v. Gant, 556 U.S. 332, 352–54 (2009) (Scalia, J., concurring).

12 See generally U.S. v. Flores-Montano, 541 U.S. 149 (2004).

13 See generally Alasaad v. Mayorkas, 988 F.3d 8 (1st Cir. 2021).

14 See Chandler v. Miller, 520 U.S. 305, 323 (1997).

15 See U.S. v. Matlock, 415 U.S. 164, 169–71, 179 n. 14 (1974).

16 See California v. Carney, 471 U.S. 386, 392–95 (1985).

17 See generally Stoner v. State of Cal., 376 U.S. 483 (1964).

18 See generally Devenpeck v. Alford, 543 U.S. 146 (2004).

19 See Heiein v. North Carolina, 574 U.S. 54, 57 (2014).

20 See, e.g., Virginia v. Moore, 553 U.S. 164 (2008).

21 Katz v. U.S., 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

22 See generally Mich. Dep’t of St. Police v. Sitz, 496 U.S. 444, (1990).

23 See generally Delaware v. Prouse, 440 U.S. 648 (1979).

24 See generally U.S. v. Jones, 565 U.S. 400 (2012).

National Pro Bono legal services week

Last week was National Pro Bono legal services week in the US. We are very proud of the many Friedman Rubin attorneys and paralegals who take time out of their busy day to provide those in need with this much needed help. Thank you for what you do!

Our friends at the Sexual Violence Law Center held their annual fall fundraising event last week. They hosted a very creative virtual heist adventure based on the still-unsolved 1971 D.B. Cooper airplane hijacking. In the special ‘inflight magazine’, a page was devoted to National Pro Bono Week and here, Friedman Rubin attorney Cheryl Snow was featured. Thank you Cheryl for what you do!

(In the United Kingdom, National Pro Bono legal services week is celebrated this week instead of last. Of course. Over there, they also insist ‘chips’ is something you eat, not gamble with. We rest our case.)

Michael Angiulo joins Friedman Rubin

We are thrilled to share the news that Michael “Mike” Angiulo, a recent graduate of University of Washington’s School of Law, has joined Friedman Rubin as of-counsel attorney.

What makes Mike an unusual law school graduate is that this is his second career although it was meant to be his first. Already as a teenager, he knew he wanted to be a product liability attorney. He went to engineering school with the intention of doing engineering law, but a summer internship at Microsoft where he got to work directly with Bill Gates made him change course and stay at the company. In just 9 years he rose from being a lowly summer intern to Corporate Vice President and stayed with the company for 25 years. During that time Mike led teams working on Office products, PCs and peripherals, tablets, gaming consoles, getting to preside over some of the biggest innovations in the history of personal computing. Most recently before law school he was Corp VP at Microsoft for a team working on cloud-based artificial intelligence (AI) projects.

And now he is where he originally intended to be – a product liability lawyer. It’s been a remarkable journey, but the consistent thread is Mike’s desire to work “at the intersection of technology and humanity”. As products and services will only continue to increase in complexity (think artificial intelligence) there are many questions about whether the law’s ability to keep people safe is keeping up with the speed of innovation.

Mike is uniquely positioned to understand this complex space and how the law makes it possible to act when highly sophisticated technology causes harm, holding the rule-breaking corporations behind them accountable.

Michael Angiulo

For a more in-depth article on Mike’s journey, please have a look at this Sept 2020 GeekWire article. His full biography is here.

In addition to being a freshly minted attorney, Mike is also an accomplished commercial pilot, rated in a wide range of single and multi-engine aircrafts, including landplanes, seaplanes, and gliders. He also enjoys sailing, scuba diving, and racing cars.

Friedman | Rubin PLLP attorneys recognized with awards from Washington State Association for Justice

Friedman | Rubin PLLP attorneys Peter Mullenix, Ron Park, Rachel Luke, David Roosa, and paralegal Caroline Olguin.

As plaintiff-side trial lawyers, Friedman Rubin | PLLP is a proud member of Washington State Association for Justice (WSAJ), the oldest and largest civil justice advocacy organization in the Pacific Northwest. By being dedicated to safeguarding the Seventh Amendment constitutional right to a trial by jury, WSAJ works with Washington’s top law firms, attorneys, legal professionals and consumer groups to protect the legal rights of wronged consumers, injured citizens, patients and workers.

Every year WSAJ presents a number of awards to recognize outstanding consumer activists, journalists, legislators, judges and lawyers. This year, we are thrilled to have two WSAJ award winners within the firm. We couldn’t be prouder to have Rachel and Ron as part of Friedman | Rubin PLLP!

Rachel Luke – Carl Maxey Diversity Award
At Seattle University, Rachel was the Managing Editor of the Seattle Journal for Social Justice and Vice President of the Black Law Student Association. She has co-chaired the WSAJ Diversity Committee, currently serves on the WSAJ Diversity and Inclusion Taskforce, and was instrumental in the decision to hire a Diversity and Inclusion consultant. She has mentored Fellows from the WSAJ Trial Advocacy Summer Fellowship program. Rachel has maintained leadership positions in the Korean-American Bar Association and the Lauren Miller Bar Association for several years. She volunteers her time pro bono for the Sexual Violence Law Center.

Click to watch Rachel being presented with her award.

Ron Park – New Lawyer “Ready to Soar” Award
After graduating Magna Cum Laude from the UC Irvine School of Law, Ron served as law clerk to the Hon. Josephine L. Stato at the U.S. District Court for the Central District of California and the Hon. Jacqueline H. Nguyen at the U.S. Court of Appeals for the Ninth Circuit. Ron is the current president of the Korean-American Bar Association and donates his time pro bono for their legal clinic. Ron has contributed significantly to numerous cases handled by Friedman | Rubin PLLP including trying two cases together with firm partner Peter Mullenix during the COVID pandemic. Internally at the firm Ron is known as “the kind of guy when you don’t know where else to turn you turn to Ron. He gives you the answer, quick, it’s always right, it’s well reasoned, and it’s supportive.”.

Click to watch Ron being presented with his award.

Cruise Ship Injuries and Damages Caps – It’s not who you know, it’s where you go

Cruising is an extremely popular activity, especially among seniors and retired persons, and cruise injuries are common and sometimes deadly. This is common knowledge to cruise line operators, but not necessarily to cruise passengers. Cruise lines require that all passengers agree to a “cruise contract” as part of their ticket purchase, yet most passengers do not read or understand this contract until it is too late. One of the more common features of a cruise contract is a damages limitation in the event of injury or death.

The ports you visit on your cruise may limit your legal right to recover for injuries or death:
Most cruise contracts contain damages limitations provisions that depend on where the cruise originates, terminates, and which ports the ship visits during its voyage. In general, there are three different categories: (1) cruises that call on a US port during its voyage; (2) cruises that stop at a port of a member nation of the European Union port during its voyage; and (3) cruises that neither touch a US nor an EU port during the voyage.

Cruises that touch a US Port – no limitations: If your cruise touches a US port during its voyage, then under U.S. Admiralty Law, no damages limitation may be imposed for personal injury or death. See 46 U.S.C.A. § 30509. Thus, as a practical matter, cruising on voyages that originate, terminate, or visit a U.S. port afford you the most security in the event of catastrophic injury.

Cruises that touch an EU member nation port – Athens Convention applies: If your cruise touches the port of an EU member nation (and not a U.S. port), then the Athens Convention and its terms will apply, and your right to recovery will be limited accordingly. The Athens Convention is a multi-national treaty that was signed in 1974 and applies to the carriage of passengers and their luggage at sea. The treaty provides for a limit of liability for injury or death that is measured in “Special Drawing Rights” (or SDR), which is a unit of currency created by the IMF that is determined based on a composite value of several currencies, including the U.S. Dollar, the Euro, and the Japanese Yen.

The limitation on liability fluctuates from year to year, as does the value of a Special Drawing Right. In 2020, the limitation was 400,000 SDR, which equaled approximately $551,000.00 USD.1 Courts may uphold this limitation in court, and passengers should be aware of its existence before booking cruises that do not touch U.S. Ports.

Cruises that touch neither U.S. nor E.U. member ports – buyer beware! If your cruise neither touches a U.S. nor an E.U. member nation port, then your cruise contract may contain a limitation on liability that will severely impede your rights in the case of an injury or death. These damages limitations are often stingy and extreme, and may be buried in the fine print so as to avoid detection. For example, one popular Seattle-based cruise line limits its liability to $75,000.002 for injury sustained on a cruise that does not originate, terminate, or call on any U.S. or E.U. port.

Cruise passengers need to be aware of severe limitation on damages when purchasing a cruise that does not call on any U.S. or E.U. port. These cruises may appear to be a “good deal”, but catastrophic injury or death can and does occur, and your right to recovery may be severely limited on these type of cruises.

This article is written by David Roosa, a Partner at Friedman | Rubin, PLLP. David has handled numerous cruise cases, including obtaining a jury verdict of $1,351,200 in Oct 2020 against Holland America Lines (details here) and settled another case against Holland America Lines for a confidential amount (details here). Read more about David on his profile page.

1 Source: Holland America Line Cruise Contract Section (E),

2 Source: Windstar Cruise Contract, as of March 29, 2021

Book Review Harnessing Moral Energy Rick Friedman’s new book teaches The Way of the Trial Lawyer

By Beth Bloom

This article was reposted from the July/August 2021 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

Law school teaches us to be tacticians. To think like a lawyer means to identify the relevant facts and apply the law to those facts in a way that supports our client’s interest. A skilled advocate can argue either side of a case. The personal values and emotions of the individual lawyer are irrelevant. Or so we are told. This is the zealous lawyer’s code. Yet after presenting a logical, rational, and compelling case, good lawyers still lose. Why? Rick Friedman knows why.

Rick Friedman

Now 41 years into a remarkable career as a trial lawyer and author, Rick Friedman answers this question in his latest book The Way of the Trial Lawyer: Beyond Technique. His new book speaks to the seasoned lawyer who is ready to put down the skills manual and take up the important conversation of moral advocacy. Friedman’s uncanny gifts—to see farther and look deeper into the heart and meaning of our work as trial lawyers—are on full display.

Friedman did not need to write another book to establish himself as master teacher in the art of advocacy. He is a prolific writer whose books include bestsellers Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability, and Polarizing the Case: Exposing and Defeating the Malingering Myth. All the books are among the most influential ever written on trial advocacy.

I sat down with Friedman in his Bremerton office to discuss his new book. Our meandering conversation covered everything from moral advocacy, therapy, and overcoming fear, to finding meaning in the practice of law.

From a large desk stacked with papers, Rick Friedman can see the water.

The ferry winds its way to downtown Seattle just beyond the inlet outside his small office building. Shelves filled with books, family photos, and art line the walls. He has been recording an audiobook and a large microphone sits on a nearby table. A cart in the middle of the room contains thick reference materials on toxicology and chemistry. He will soon begin the first of 23 trials against Monsanto, whose chemical products have poisoned America’s schoolchildren throughout the country.

Rick Friedman was a bookish kid. He absorbed himself in words. Books served as “owner’s manuals” guiding him to build a life of purpose and integrity. He expected to become an author. Attending law school was a detour. It is no wonder that he has spent much of his legal career generously writing and sharing what he has learned in guidebooks for other trial lawyers.

We lose when we ignore the moral force of our cases, says Friedman. Civil advocacy is not morally neutral. “We are feeling creatures,” he says. “It is feelings and emotions that give meaning to our lives. It is feelings and emotions that allow us to connect with others.” Is it any wonder then, that who we choose to represent and what we choose to do with our skills has an impact on whether we win or lose? Isn’t there a difference between representing a company that has marketed a defective product and representing the widow and the orphan of a man killed by that product? “A morally conflicted lawyer is an ineffective advocate,” Friedman continues. “But a lawyer who leads with the heart will have a power most lawyers never have.”

The key is moral energy, Friedman continues. “The first step in developing moral steadiness is allowing yourself to feel the power of moral energy in the courtroom.” But, what is moral energy and how can we tap into it, I wanted to know. Moral energy is like an “electrical charge” that exists inside the facts of every case. It just feels wrong. “A charge of moral energy can serve to attract or repel. It can help connect us to jurors, judges, or witnesses; or it can separate us from them.”

I thought of a recent trial where the owner of a car dealership ridiculed our client’s cancer and then fired him while he was on medical leave. It just felt wrong because it was wrong. Many people consider it morally reprehensible to attack the sick or weak in our community. It was no surprise when the jurors sent a strong moral message with their verdict.

And it just feels wrong when a paid courtroom doctor claims our client is faking her injuries to recover in a lawsuit after her husband, treating physician, and best friend all testified about her struggle to recover. Many people consider it disgraceful to falsely accuse someone of lying. It is much easier to use the moral energy of revulsion to unite the jurors and your client in defeating the uncaring boss or the accusatory courtroom doctor.

But moral energy goes both ways. Moral energy is also present when we consider the uncomfortable parts of our cases, Friedman warns. Many of us do not like to think too much about our “bad facts.” But how can we walk the jury through the emotional minefields of the case if we “have not walked through those minefields ourselves?” Without spending time with these uncomfortable issues, he says, “you are susceptible to being knocked off balance at trial.”

Then we started to talk about rocks. You can think of your case as a “bucket of rocks,” Friedman began. Each rock is a fact in your case. “It’s up to you to decide which rocks you pull out and how you arrange those facts to tell your story.” For instance, you can see a man who is undeserving because he has held over 15 jobs, never able to hold down any job for more than a few months. Or you can see a man given little opportunity in life but who “never gives up” because whenever life knocks him down, he gets back up again and keeps trying. How can jurors not like a person like this? Same facts. Different story. Different moral energy.

Lawyers are naturally obsessed with facts. But overfocus on facts can be dangerous. Moral energy depends on the facts, Friedman acknowledges. But the important moral energy is greater than the facts because it lives beyond the facts. “Too often, we are so focused on the facts that the moral energy in our case gets lost,” he warns.

I thought of every case I ever had in the first 15 years of my practice. I would obsessively catalog every fact, get lost in the details, and forget that most cases turn on only a few facts. And those important facts, Friedman reminds us, are the ones that generate the moral energy of the case.

Why does a defense attorney who can harness hundreds of facts, show countless PowerPoint slides, and deliver an exhaustive hour-long closing argument still lose her case? Yet I can give a shorter closing, with far less detail, and still win? The answer is moral energy: I am arguing that everyone should be given an equal chance to succeed. Who doesn’t want to support fair treatment?

It’s not that facts are unimportant, Friedman continues. “The moral energy comes from the facts, of course, but we need to organize the facts in a way to highlight the moral energy.” As Friedman observes in his book, “Facts don’t persuade, moral energy does.”

Rick Friedman hopes readers of his new book, The Way of the Trial Lawyer: Beyond Technique, will understand that, by opening to the moral energy in each case, we can become better advocates and better people. The practice of law is more than a business. Law school professors be damned: morality has everything to do with the practice of law.

When we act as amoral zealous technicians, Friedman warns, we are “abandoning our role as moral agents.” But when we turn inward to find strength and sort through the moral complexities of our cases to find the part we believe “down to our bones,” we are firmly rooted in fighting for something bigger than ourselves. And that, says Friedman, is The Way of the Trial Lawyer.

Special Focus: Products LiabilityFord Motor Reempowers State Courts Over Out-of-State Defendants

By Ron Park, Friedman | Rubin, PLLP

This article was reposted from the June 2021 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

Take two plaintiffs. Both live in Washington. Both purchase a car designed and made by a global corporation that advertises, sells, and delivers thousands of cars in Washington. Both get into crashes in Washington and are injured. In both cases, the crash appears to have been caused by a defect in the car. But there is one difference. One plaintiff bought her car directly from the corporation who manufactured and delivered it to her in Washington. The other plaintiff bought her car secondhand from a third-party in Idaho without ever interacting with the corporation directly. Should that second plaintiff be allowed to sue the corporation in Washington the same as the first?

As silly as that question might sound, the U.S. Supreme Court recently considered a variation of that question in two consolidated cases: Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer.1 One case arose out of Montana and the other arose out of Minnesota, but the relevant facts were the same. In each case, a state court held that it had jurisdiction over Ford Motor Co. in a products liability lawsuit stemming from a car accident. The accident happened in the state where the lawsuit was brought. The victim was a resident of the state. Ford did extensive and substantial business in each state, including advertising, selling, and servicing the car models at issue in each lawsuit. Nonetheless, Ford argued that the state courts had no jurisdiction over it because the particular car involved in the crash was not first sold in the forum state, and it was neither designed nor manufactured there.

To Ford, the proper jurisdictions for suit were the locations where the vehicles were assembled (Kentucky and Canada), where the vehicles were designed (Michigan), where the vehicles were first sold (Washington and North Dakota), where Ford is incorporated (Delaware), or where Ford has its principal place of business (Michigan). The place of accident and injury was immaterial.

In making its arguments, Ford relied heavily on two of the Supreme Court’s most recent personal jurisdiction cases: Bristol-Myers Squibb Co. v. Superior Court of California2 and Walden v. Fiore.3 Both cases had meaningfully narrowed the scope of personal jurisdiction for plaintiffs seeking to sue out-of-state defendants, and Ford wanted to use the Supreme Court’s recent decisions to narrow that scope even further. Ford may have felt confident pushing the boundaries of the law given that Walden was a unanimous 9-0 decision, and Bristol-Myers was almost as lopsided at 8-1 (Justice Sotomayor being the lone dissenter).

Other recent Supreme Court cases such as Daimler AG v. Bauman4 and Goodyear Dunlop Tires Operations, S.A. v. Brown5 had established a trend of opinions increasingly restricting personal jurisdiction. There appeared to be little, if any, resistance among the justices to steadily narrowing personal jurisdiction further and further. Goodyear was a unanimous 9-0 decision, and Daimler had all nine justices in agreement on the judgment (Justice Sotomayor filed a lone concurrence). As if to illustrate the unity of the Court on these matters, Justice Ginsburg authored one unanimous 9-0 decision (Daimler), and Justice Thomas authored the other (Walden). Ford had reason to feel good.

Yet apparently, Ford’s arguments were a bridge too far for the entire Court. In a stark reversal, the Court unanimously agreed, 8-06 , that Montana and Minnesota had personal jurisdiction over Ford. Although the justices could not agree on a single opinion, all of them emphatically rejected Ford’s arguments. Justice Kagan, writing for five justices and the Court, noted that “this Court has used this exact fact pattern (a resident-plaintiff sues a global car company, extensively serving the state market in a vehicle, for an in-state accident) as an illustration—even a paradigm example—of how specific jurisdiction works.”7 She refused to acknowledge that the question was at all close, declaring that Bristol-Myers and Walden “stand for nothing like the principle Ford derives from them.”8 According to the Court, it could “resolve these cases by proceeding as the Court has done for the last 75 years.”9

The concurring opinions were no kind¬er to Ford. Justice Alito wrote that both cases “can and should be decided without any alteration or refinement of our case law on specific personal jurisdiction.”10 He described Ford’s reading of the law as “unprecedented” and considered the standard for personal jurisdiction “easily met here.”11 Justice Gorsuch (joined by Justice Thomas) observed that “[t]he parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts.”12

If Ford’s vision of the law had prevailed, plaintiffs would have been severely hampered in being able to bring products liability lawsuits. In today’s economy, it is rare for consumer products to be designed, manufactured, and sold directly to end-user customers within the boundaries of a single state. Many times, the design and manufacture of a product is spread out all over the world, and the product itself passes through several intermediaries in different locations before arriving at the customer’s doorstep. Under these circumstances, most plaintiffs injured by defective products would have been unable to bring suits against manufacturers in their home state, even if they had purchased the product in-state based on advertising they viewed in-state. They would have had to go abroad to seek justice.

And per Ford’s analysis, there was no apparent limit to how finely a defendant could slice the relevant conduct to negate jurisdiction. For example, would Ford have accepted jurisdiction in Kentucky where the vehicles were assembled? If the claim were for design defect, one could easily imagine an argument that Kentucky was not a proper forum because the product was designed in Michigan. Or what if the car had stayed in North Dakota or Washington? Would Ford have accepted jurisdiction? Or would Ford have argued that, because the plaintiff bought the car secondhand from a third-party, Ford had not engaged in any particular conduct in those states that led specifically to the injury at hand? In many cases, Ford’s reading of the law would have limited suit to the manufacturer’s state of incorporation or the state where it keeps its principal place of business. Specific jurisdiction would have been a dead letter.

Fortunately, the Court’s holding conclusively rejects these scenarios and will hopefully diminish, if not stop, what has become a common practice of out-of-state defendants routinely filing motions to dismiss to avoid jurisdiction in this state. More fortunately still, the Court does so by relying on the existing analytical framework that it established in International Shoe Co. v. Washington13 and developed in subsequent cases. This means that parties can continue to rely on those cases, secure in their authority, rather than having to learn a completely new approach to analyzing personal jurisdiction. While the Supreme Court has not been favorable to plaintiffs on personal jurisdiction in recent years, this latest opinion can be considered a clear departure from that trend.

Ron Park, EAGLE member, is an associate at Friedman | Rubin PLLP in Seattle.

1 592 U.S. ___ (2021).
2 137 S. Ct. 1773 (2017).
3 571 U.S. 277 (2014).
4 571 U.S. 117 (2014).
5 564 U.S. 915 (2011).
6 Justice Barrett took no part in the consideration or decision of the cases.
7 Ford Motor, Nos. 19–368 & 19–369, slip op. at 12.
8 Id. at 15.
9 Id. at 7 n.2.
10 Id. at 1 (Alito, J., concurring).
11 Id. at 2 (Alito, J., concurring).
12 Id. at 11 (Gorsuch, J., concurring).
13 326 U.S. 310 (1945).

Celebrating Asian/Pacific American Heritage Month

In celebration of May being Asian/Pacific American Heritage Month, Friedman Rubin attorney Rachel Luke contributed to a Trial News article to share her personal story.

Read the full story at Trial News – May 2021 – Celebrating Asian/Pacific American Heritage Month (

“The AAPI community is not a monolith and has varying experiences. Growing up as a transracial international adoptee, I was introduced to Korean culture in the best way my parents knew how: samplings of kimchi and occasional campouts with other Korean adoptee families. I have always identified as Black, but it took me a while to also understand my Korean heritage. It was not until I went to the “Motherland” in 2009 that I truly began to appreciate Korean history and culture. My story is very different from my friends’ and their families’ immigration stories, struggles, and sacrifices, but we are part of the same diaspora of people who come to the U.S. for various reasons. These stories should be honored. I am proud to stand with the AAPI community in celebrating the diverse and rich cultures within.”

If you are interested in learning more or want to actively participate in stopping hate crimes against Asians, I encourage you to check out A 2017 study published by Yale Law School and the National Asian Pacific American Bar Association (NAPABA), A Portrait of Asian Americans in the Law, is a great read. This report is a systemic analysis of how Asian Americans are situated in the legal profession and can be found here:

Reposted with permission from Trial News, a publication from Washington State Association for Justice.

Book Reviews – The Way of the Trial Lawyer – Beyond Technique

Rick Friedman’s best selling new book, The Way of the Trial Lawyer – Beyond Technique, published by Trial Guides, is getting great reviews.

Randy Kinnard reviewed the book for the Tennessee Trial Lawyer magazine. His detailed review concludes: “I will keep Rick’s book on the shelf I call ‘My Favorite Books’ and pull this treasure down for another read often. Once you read it, it’s quite possible that you will think that this is the best book for trial lawyers you ever read.” Kinnard’s full review can be read here.

Stuart Zanville reviewed the book for CAALA, the Consumer Attorneys Association of Los Angeles. His review concludes: Trial lawyers can take much from this book, not the least of which are the words ‘Teiwaz Lawyer.’ Like the rest of the book, those words describe the characteristics of the ideal trial lawyer and how they can aspire to be better and increase their sense of purpose and satisfaction while traveling the way of the trial lawyer. The book may be for trial lawyers, but the lessons are for everyone.” Read his full review here.

The Way of the Trial Lawyer – Beyond Technique is available from the publisher, Trial Guides. For more reviews and ordering information on any of Rick’s books or videos, click here.

Puyallup School District to pay $7.75 million to settle suit claiming ex-teacher abused 7 boys

By Lewis Kamb | Seattle Times, 4/27/2021

Over more than a dozen years, former Puyallup junior high teacher and coach Tim Paulsen focused his attention on boys with troubled home lives and no father figures, according to interviews and court records. Paulsen openly gave his Kalles Junior High students hugs, held one-on-one meetings with them, wrote them personal letters of encouragement and talked about religion with them, a lawsuit filed last year contends. Sometimes, he’d take the boys on trips, bring them home for sleepovers, even shower with them after games and practices. Along the way, Paulsen sexually molested them, the lawsuit states. A year after seven former students sued the Puyallup School District for neglecting to prevent the teacher from his “repeated acts of grooming and sexual abuse” during a career that spanned from 1991 to 2004, the district has paid a $7.75 million settlement.

The former students — all men now ranging in age from 30 to 41 — separately came forward to attorney Julie Kays in 2019 to disclose Paulsen’s alleged abuse, and the role the district played in it, after seeing a KIRO TV news report about similar claims made by another ex-student that resulted in a separate $1.5 million settlement. Paulsen’s abuse was so brazen that “it should have set off alarm bells to any reasonable educator,” said Kays, with the Seattle law firm Friedman Rubin. “He was violating every kind of norm,” she said. “But he’d bonded with the school’s principal at church and had such close friendships with several faculty members that they turned a blind eye to the fact that he was a child predator.” The Puyallup School District did not respond to several messages left Monday seeking comment about the settlement. Before paying what Kays described as an “astronomical sum” to settle the latest case, the district had denied it was liable “because Paulsen’s alleged conduct was not within the course and scope of his employment,” according to legal filings. Paulsen, 54, who still lives in Pierce County, works for a real estate firm and had been active in ministry work as recently as 2018, did not return messages Monday.

The recently settled suit represents the latest of several civil cases in which at least nine former students have alleged Paulsen sexually abused them. That includes a 2010 divorce filing by Paulsen’s ex-wife involving restrictions on visitation with their three children due to his “past sexual abuse of minors.” Paulsen has not been criminally charged regarding any of the abuse allegations. The statute of limitations for such charges has long expired, said Kays, a former King County prosecutor who specialized in sexual assault cases. “That still keeps me up at night,” a 30-year-old Pierce County man, the youngest plaintiff in the latest case, said in a recent interview. “He’s faced no consequences. I would trade this [settlement] any day of the week to see him held accountable.” The man, and another plaintiff interviewed for this story — a 40-year-old King County resident — asked not to be named. The Seattle Times typically does not identify victims of reported sexual abuse without their permission.

‘A blind eye’

Hired in 1991, Paulsen, then 24, was assigned to Kalles Junior High to teach and coach several sports, and “began his predatory grooming and molestation of vulnerable young boys immediately,” the lawsuit states. During his first year as a full-time teacher, Paulsen found “his first male student victim” — who’s now 41 and the oldest of the case’s seven plaintiffs. But even after some teachers and parents raised concerns about Paulsen’s “intimacy with young male students,” the principal and many of his colleagues routinely “turned a blind eye to the numerous acts of grooming, boundary crossing, and inappropriate conduct,” according to the suit. In 1997, after a father complained about Paulsen’s relationship with his son, the district opened an investigation. It revealed Paulsen had been found hugging a boy behind closed doors and was seen tickling another student on his lap, records show. Other teachers “have been told” about Paulsen’s conduct with boys, typically those “from troubled homes,” according to notes from the investigation included in the suit. Still, the district didn’t report Paulsen’s conduct to state child welfare officials or police. “Instead the District swept Teacher Paulsen’s predatory behavior under the rug and merely advised [him] to not have one-on-one contact with the named student,” the suit states. Within a couple of weeks of that 1997 admonishment, “it was like it didn’t exist,” Kays said. “No one ever enforced it.”

Paulsen worked at the school for seven more years and became “emboldened … to continue grooming and molesting other young male students,” the suit states. Among them was the 30-year-old Pierce County man, who alleges Paulsen abused him as a seventh-grade basketball player. The man said he ultimately escaped Paulsen by convincing his single working mom to transfer him to a different school. He never gave her the true reason. That man, now in recovery from pain pill addiction, said he soon started drinking, taking drugs and running away to “numb the pain” of his youth. He never really connected his troubles to what Paulsen did to him until about 18 months ago, when he finally broke down and told his parents about the abuse, he said. A week later, the man saw the TV news story about the other student’s lawsuit against Paulsen. “I spent a lot of years pretending I was OK,” he said.

Another plaintiff, the 40-year-old King County man, who is a married technology professional with two preschool-aged boys, said he hadn’t fully recognized that Paulsen abused him until he watched the 2019 news story. “It really made me second-guess everything,” he said. When he entered junior high, his parents had just divorced and he was “really looking for a male role model,” he said. Paulsen used religion “to worm himself into our family and gain trust.” “He was very convincing,” the man recalled. “He told me he was my quote-unquote ‘brother,’ and that he loved me and we were doing things that brothers do.” For him, the legal settlement isn’t about money, he added. “I wanted to bring awareness, both about him as an abuser and the district for allowing this to happen,” he said. “Hopefully, it can stop this from happening to some other kid.”

Seattle Times news researcher Miyoko Wolf contributed to this report.


“What would it be like if the jury sees the real you?” – Rick Friedman discusses his new book

Listen to Rick Friedman’s terrific interview with Benjamin R. Gideon and Rahul Ravipudi. Rick covers his evolution as a lawyer, beginning in Sitka, Alaska, taking every case that walked in the door. Rick was largely self-taught as a trial lawyer and has spent a lifetime learning skills needed to win in the courtroom. “Ethos” is the final ingredient that Rick says is often overlooked by trial lawyers. Authenticity, integrity . . . being emotionally centered in your own way will help you make the right judgment calls in the heat of trial. Looking inward, we all have behaviors formed as children that we need to come to terms with. Most are in self-denial about their own shortcomings. Rick describes his own revelations about himself that allow him to connect emotionally with a jury. The first step is addressing your own fears. “What would it be like if the jury sees the real you?”  Rick has the answer in his inspiring new book which he discusses here:

See Rick’s page for links to all his books for trial lawyers.

Corrections System and Seattle Police Failed Rape Victim and Delayed Bringing Her Rapist to Justice

For more than a decade, a Friedman | Rubin client was forced to look over her shoulder, terrified that the stranger who dragged her off a downtown street and raped her in March 2007 would make good on his threat to kill her for reporting her sexual assault to Seattle police. It was not until October 6, 2020 that the rapist, Jonnie Lay, now 51, was found guilty of rape in King County Superior Court. This conviction, more than 13 years after the crime, should have come much sooner. Lay, a sex offender with a criminal history dating back to 1990, wasn’t in court to hear the verdict. Released from jail in April because of the COVID pandemic, Lay attended his trial but was then free for more than a month before he was arrested Nov. 23 on a $500,000 bench warrant, after he was found living in a tent near Woodland Park Zoo, according to court records and the victim’s attorney, Julie Kays of Friedman | Rubin. Lay is to be sentenced Feb. 5, with the state recommending he serve just over 11 years in prison, the high end of the standard sentencing range.

In a lawsuit filed earlier this month against the state and city, Kays alleges the Washington Department of Corrections (DOC) failed to properly supervise Lay in the years before the 2007 rape, thereby providing him the opportunity to rape her client when he should’ve been in jail. The suit also alleges the Seattle Police Department (SPD) failed to pursue investigative leads — including DNA evidence — that could have resulted in Lay’s arrest years before he was charged with rape in 2018 and extradited from Illinois. Instead, the lead detective originally assigned the case deactivated the investigation within weeks of the initial report without even interviewing the victim, according to the suit. According to Kays, the client “feels such a sense of betrayal from the Seattle Police Department for not testing her rape kit back in the day. It’s an institutional betrayal,” said Kays. “She doesn’t want another woman or man to go through what she’s had to go through, waiting for more than a decade for justice.” Citing DOC records that say Lay’s adherence to the requirements of his community supervision were “abysmal,” the lawsuit alleges DOC’s negligence resulted in Lay treating supervision as a joke as he continued to rack up criminal charges, including for domestic-violence assault, before he raped Kay’s client.

Lay had been on active DOC supervision since 1995. In 1999, he was charged with third-degree rape of a child for raping a 15-year-old girl in the back seat of a car in Montesano, Grays Harbor County; he later pleaded guilty to the lesser charge of third-degree assault with sexual motivation and was classified as a Level 1 sex offender. “Time and time again, DOC looked the other way, failed to seek warrants in a timely manner for his arrest and on countless occasions, not at all, and generally failed to make Lay’s supervision look like anything other than a joke,” Kays wrote in the lawsuit. Citing DOC records, Kays quoted a DOC officer, who in 2002 wrote: “Lay is a man with no remorse, who blames his many victims, and smokes crack cocaine on supervision.” In 2006, a year before the rape, a DOC community-corrections officer noted, “Mr. Lay’s behavior demonstrates his attitude to the rule of law and his requirements to register [as a sex offender]: he could not care less.”

The client was walking near Second Avenue and Pike Street when an old white Cadillac pulled up beside her on March 14, 2007. A man — Jonnie Lay — got out and pulled her into the backseat. The Cadillac’s driver dropped them off in a wooded area, where Lay pinned her to the ground and raped her, threatening to stab her with a screwdriver if she continued to fight him. She later told police her rapist made derogatory comments about women and told her, “If she was going to be out walking around, she should expect this type of treatment,” the charges say. After calling the Cadillac’s driver to come pick him up, Lay raped her again in the vehicle’s backseat. During the assault, Lay dropped his ID card and she read his name. Lay threatened to kill her if she told anyone about the rapes, telling her it would be easy to find her because he knew she was homeless and living at a shelter. She nevertheless reported the rape and provided the responding police officer with a suspect description and Lay’s name, and she agreed to go to Harborview Medical Center, where she underwent an hours-long sexual-assault examination during which her body was photographed and swabbed for DNA evidence. The forensic evidence was packaged in what is commonly known as a “rape kit.” On the drive to the hospital, the officer said her case wouldn’t go anywhere because she was a homeless drug user, according to her lawsuit.

When a detective phoned her a few days later to schedule a follow-up interview, he assured her that her rape kit would be tested. But he never submitted it to the State Patrol Crime Lab for testing. The lawsuit alleges the detective did “the bare minimum” to follow up with the victim, leaving her a voice message and sending her a letter, neither of which she received. A few weeks later, the detective marked the rape case as inactive, the lawsuit says.

Given Lay’s lengthy criminal history that predated this rape, his DNA profile was already in the Combined DNA Index System (CODIS), a law enforcement DNA database operated by the FBI. Had the victim’s rape kit been sent to the crime lab for testing, male DNA from victim’s body would have quickly been matched to Lay’s profile in CODIS, the lawsuit says. Instead, she had to live with the fear that her rapist could find and kill her, Kays wrote in the lawsuit. “For over a decade, (the client) felt degraded, dismissed and that the cruel words of the responding officer were true: she did not matter, she was just a homeless rape victim.”

Until legislation went into effect in July 2015, it was up to individual officers or detectives to decide whether to submit a rape kit for testing. Often, the decision to request testing hinged on whether police believed a victim’s account, or considered her credible enough to testify at trial, according to a Seattle Times report in 2016. The Legislature revoked that discretion, requiring every new rape kit be submitted for testing and dedicating funds to test rape kits that had sat untouched in police evidence storage facilities, sometimes for decades.

As of November, there were 5,096 of the 10,311 previously untested rape kits found across the state had been submitted for DNA analysis: Of the 1,959 DNA profiles entered into CODIS from the newly tested kits, 869 of them — or just over 45% — resulted in CODIS “hits” to known offender DNA, according to information provided by the state Attorney General’s Office. It is unknown how many of the CODIS hits have led to criminal charges. Charging documents filed against Lay blame the delay in testing the rape kit to the statewide rape-kit backlog. But court records also show the state successfully argued a pretrial motion, barring the jury from hearing any evidence about why it took so long for Lay to be criminally charged.

Kays, a former prosecutor, said she’s grateful for the work done by the SPD detective who reopened her client’s rape case but said it’s concerning that police initially may have been biased against her client. “Just because someone is homeless and maybe they struggle with substance abuse issues does not mean they are not as deserving of a rigorous investigation as somebody who lives in a nice home, in a nice neighborhood, and is stone-cold sober,” she said.

Julie Kays and Friedman | Rubin thank reporter Sara Jean Green at the Seattle Times for her thoughtful article on our client’s case, which provided content for this blog post.

Rick Friedman’s New Book is a Best Seller

Rick Friedman’s new book, The Way of the Trial Lawyer – Beyond Technique, is the best selling book at the publisher, Trial Guides, since its release. In the new book Rick argues that there is something beyond technique. Something beyond biased jurors and judges or difficult facts. And this something often makes the difference between winning or losing.

Friedman argues that there is “another model available to us. It is that of a lawyer leading with heart; the lawyer as teacher… the lawyer who can stand solid in the courtroom—amid chaos, confusion, and unfairness—pointing toward the moral truth.” Friedman demonstrates how to find that moral truth, the clarity and strength that comes from it—and how it can make the difference between finding justice and losing your case.

Friedman offers concise, practical examples for sorting through the complexities and maps out a path to rooting your advocacy in your case’s moral issues. He guides you on how to explore the moral aspects involved and then apply them—from voir dire to closing—to strengthen your case. Friedman offers lessons on the following and more:

  • case selection
  • how to analyze your case’s moral issues
  • how to earn credibility with the jury and the judge
  • how to co-create a moral framework with the jury during voir dire that will apply to your case
  • how to address common issues in voir dire
  • how to deal with uncomfortable facts or elements in your case
  • how to avoid letting opponents distract or manipulate you
  • how to frame the defense’s position
  • examples for soft-tissue injury cases or cases where there is no objective evidence of injury
  • examples for opening statement, and how to bring moral issues clearly into focus
  • examples of direct examination, and how to use it to build the plaintiff’s moral case and methodically destroy the defense’s
  • examples of cross-examination, and how to use it to directly address the moral aspects of the parties’ respective positions—including how to cross-examine the IME doctor
  • how to use closing to easily show the jurors the respective moral positions of the parties, focus on the power of your case, and show the jury why it is right and fair that they give the verdict to your client

In The Way of the Trial Lawyer, Friedman seeks to offer you a new, and more effective, model of advocacy.

The book is available from the publisher, Trial Guides. For reviews and ordering information on any of Rick’s books or videos, click here.

Student Sexually Assaulted in Ballard High School All-Gender Bathroom Sues Seattle School District

Friedman | Rubin attorney Julie Kays has filed suit on behalf of a former student at Ballard High School against Seattle Public Schools, alleging the district failed to protect her from the “reasonably foreseeable dangers” of being attacked in an unsupervised, all-gender bathroom. The lawsuit also claims the school district did nothing to support or protect the then 18-year-old senior after she reported the assault to Seattle police. Instead, a faculty member accompanied the student’s assailant, star football player Demonte Rigney, to court when the victim was seeking a sexual-assault protection order (SAPO) that led to Rigney’s removal from Ballard High School, according to Kays. “I was floored, absolutely floored that a member of the high school faculty would show up at a SAPO hearing and rally around the assailant,” said Kays, who represented the student victim at the hearing. “It was devastating for my client and her family.”

Gender-neutral bathrooms are intended to support transgender and gender nonconforming students, and research from the UCLA School of Law in 2018 found there was no link between transgender rights laws and crimes taking place in bathrooms. A 2019 study found that transgender and gender-nonbinary teens are at greater risk of sexual assault if their schools deny them access to bathrooms or locker rooms that match their gender identity. The lawsuit asserts that Ballard High’s bathroom was unsafe regardless of gender. “Unsupervised, unmonitored and poorly designed bathrooms at schools are notorious for providing a secreted location for misconduct, bullying, assault and sexual assaults,” . . . “Washington Courts have long held that an unsupervised and unmonitored bathroom presents a general field of danger for students that schools must protect against.”

In the criminal case against the student’s attacker, Rigney was originally charged with third-degree rape. But after reaching a plea agreement with prosecutors, he pled guilty in September to the lesser charge of fourth-degree assault with sexual motivation, a misdemeanor, court records show. He was convicted of the same crime in 2015 when he was a juvenile and sentenced to six months of community supervision, according to court records. Now 21, Rigney admitted he intentionally assaulted the woman “by touching her without her consent for the purposes of my sexual gratification,” says his guilty-plea statement. In October, he received a 364-day suspended sentence, two years of unsupervised probation, and was ordered to complete 24 hours of community service, according to court records. He was also ordered to participate in a boundaries and consent program and provide proof of completion, the records say.

Kays said that at Rigney’s sentencing, school administrators and a security guard all spoke on his behalf. “No one is expressing any empathy for the victim of a crime of violence that occurred on campus,” she said. “The district couldn’t have handled it any worse.”

Now a college student, Kays’ client was harassed and followed to class by Rigney’s friends following the rape, the lawsuit says. The suit alleges the school district was negligent in upholding its “special protective relationship” to students to protect them from reasonably foreseeable dangers, failing to implement design and safety measures to protect students in all-gender bathrooms, and inflicting emotional distress on the victim.

According to the lawsuit and court records in the criminal case against Rigney, he lured the woman to the bathroom on March 28, 2018, under the guise of urgently needing to talk to her. Once inside the bathroom, Rigney used his body to block the door and raped the woman; she told her parents about the attack that evening and they called Seattle police, the records say.

Police later found semen on the bathroom wall and DNA from the sample matched Rigney’s DNA, according to the lawsuit. The woman is seeking unspecified general and special damages and payment of attorney’s fees, according to the suit. Kays said her client continues to be fearful about being alone with a member of the opposite sex. “It’s really impacted her, psychologically and emotionally. Talking about it is very painful,” Kays said. “She really wants the school district to rethink this (all-gender bathrooms) and design it so they’re safe. That doesn’t seem too much to ask.”

For more information, see past news reports on this incident from Seattle Times and Kiro7.

Breaking the CycleContemplating how we can show up for Black lives in our practice

By Rachel Luke, Friedman | Rubin, PLLP

This article was reposted from the December 2020 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

As I write this, we are just over two weeks out since a grand jury came back with the decision not to indict the police officers who killed Breonna Taylor. Like many others, I was not surprised by this decision. The message to Black women was clear—our lives do not matter. This was most powerfully expressed by Brittany Packnett Cunningham when she appeared on MSNBC.[1] Black women’s contributions to this country have been devalued for over four hundred years. After Attorney General Daniel Cameron made his statement about the grand jury decision, I could not help but consider my role in all of this. We cannot talk about systemic racism without talking about our justice system, and systemic racism could not continue without the help of lawyers and judges. If we are being honest, our system was never meant to protect or honor Black lives as well. While I do not practice criminal law, our civil justice system is not immune to devaluing Black lives. As a Black woman and an attorney, the last year has forced me to consider how I am contributing to institutionalized racism and our justice system’s failure to address racial disparities in the law.

Our country is rife with systemic inequities that exist in health care, voting, housing, education, pay, environment, and wealth. This year has put these issues on full display as we see racial and ethnic minority groups at increased risk of getting sick and dying from COVID-19 due to lack of healthcare access, being disproportionately represented in “essential work settings,” and inequities in access to high-quality education, leading to lower paying and less stable jobs, and housing barriers.[2] … Continue reading Many of these areas of systemic inequity are also areas where we, as plaintiffs’ attorneys, are blindly accepting that our Black clients’ damages are devalued due to these systems.

In calculating economic damages in our cases, forensic economists are reviewing life expectancies, work life, education attainment, average earnings, earnings growth, and consumption. Within each of these socioeconomic factors are embedded racial and gender disparities that are known. However, damages are calculated without any recognition of discrimination, the current racial and gender disparities, and without acknowledgment of the steps that are being taken to close the gaps in many of these areas.

For example, every April 10th, I see dozens of Equal Pay Day posts on my social media. Equal Pay Day is a symbolic date that represents how far into the new year the average (white) woman needs to work to make what her male counterpart did the year before. However, it isn’t the catch-up date for all women. Today, a white woman working full time earns 79 cents on the dollar compared to men; Asian women earn 87 cents; Native American women are at 60 cents; Black women earn 63 cents; and Latinas earn 55 cents compared to the earnings of white men.[3] … Continue reading I am sure most of us remember the first piece of legislation that President Barack Obama signed as President was the Lilly Ledbetter Fair Pay Act, which made it easier for employees to challenge unfair pay practices. Since then, the wage gap has only marginally closed for some groups of women.[4] Some studies show that Black women are the most educated group in the workforce,[5] but why is that not showing up in the wage data? In cases where our client or the decedent has earnings history to rely on, I am not sure how we can calculate future lost earnings and lost earning capacity without having absorbed gender and race-based gaps.

All of this pay disparity adds up. Black women are at risk of losing $941,600 in wages over a 40-year career due to the pay gap; Native American women and Latinas are at risk of losing over $1 million.[6]∼:text=New%20data%20released%20by%20the,every%20dollar%20earned%20by%20men. Today, we see women of all races leaving the workforce as COVID-19 has left families under pressure to school children at home. In many cases, women are leaving because they are the lower wage earner of a two-parent household.[7] How will this further affect the calculation of damages for women in the future?

Calculations of future lost earnings for children reflects the most discriminatory impact because children do not have actual earnings data for forensic economists to rely on. Without earnings data, economists look to the earnings by education tables from the Bureau of Labor Statistics, which are based on historical data. Some experts will rely on the population average,[8] some rely on the specific demographics (race and gender) of the plaintiff or decedent,[9] and some will rely on the white male’s earnings. Reliance on race, ethnicity, and/or gender-specific tables preserve systemic and structural inequities in our society. Without challenging the status quo, we are reinforcing wage gaps and workforce discrimination.

In G.M.M. v. Kimpson, the court was tasked with deciding whether statistics based on the ethnicity of a child could be relied upon to find a reduced likelihood of his obtaining higher education. 116 F.Supp.3d 126 (E.D.N.Y. 2015). The defense argued that damages should be reduced because the child’s Hispanic ethnicity meant that he was statistically unlikely to obtain a college or graduate degree. The child’s father held a baccalaureate degree, the mother had a master’s degree in Fine Arts. Both parents were employed and the family was stable. Prior to the child’s injury, the court found that there was a high probability of superior educational attainment and corresponding earnings. The court held that the use of race[10]In McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y. 2008), the court held that statistical evidence used to prove that a spinal cord-injured “African American” was likely to survive … Continue reading and ethnicity-based statistics to obtain a reduced damage award is unconstitutional: violating due process because it creates arbitrary and irrational state action, and equal protection because it subjects claimant to a disadvantageous estimate of damages solely on the basis of ethnic classification. Id. at 152. Judge Weinstein further explained,

Race and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American dream, denigrating minorities’ chances of climbing the socio-economic ladder. Using these statistics to calculate future economic loss reinforces the rigid racial and ethnic barriers that our society strives to abolish.


Outside of the handful of decisions on this subject, it appears that the status quo is to utilize tables that reduce damages based on our clients’ race, ethnicity, and gender. We cannot continue to use these metrics when there is so much disparity built in. Do we need to fully dismantle our system? Are reforms going to be sufficient? Last year, California passed S.B. 41 which expressly prohibits reductions of damages for lost future earnings in personal injury and wrongful death cases when those reductions are based on race, gender or ethnicity. Parties can no longer rely on life and wage expectancy tables that are race or gender based.[11] … Continue reading Indeed, last year, several prominent groups including the American Association for Justice, American Civil Liberties Union, and NAACP Legal Defense and Education Fund signed onto a letter asking the National Association of Forensic Economists to discontinue use of damages tables that discriminate against women and people of color.[12]

In July, Washington D.C. Councilmember Trayon White proposed the Stormiyah Denson-Jackson Race and Gender Damages Temporary Amendment of 2020.[13] The emergency legislation sought to prohibit the use of race, ethnicity, or gender to reduce estimations, measures, or calculations of lost earnings or impaired earning capacity in personal injury and wrongful death actions. The bill does not appear to have passed.

I suspect that it is not only the economic damages that are decreased due to the race or ethnicity of our clients. Introspection is warranted. We operate on contingency fee basis and in valuing cases, some attorneys may not pursue cases where the damages award will not be high enough to make litigation worthwhile. We will want to keep an eye on the courts’ application of California’s S.B. 41 and look at our own legislative agenda for fixes. Talk to your experts about what assumptions and data they are using for the damages calculations in your cases. For defendants’ experts who are relying on this data, question them on it. Racial, ethnic, and gender disparities in the United States are undeniable, but let them try to deny the inequities. Finally, we should be reviewing our own firms’ wages to determine whether the women or minorities are being paid less than their white or male counterparts for the same work. Let us not be part of the problem.

In reviewing all of this, I come back to the family of Breonna Taylor. Her family settled their wrongful death lawsuit with the city of Louisville, Kentucky for $12 million in addition to a commitment from the city to institute several reforms to policing practices.[14] This is by no means a criticism of the settlement, because it is a good outcome for the family and for Louisville. However, I couldn’t help but compare it to the 2019 $20 million settlement between Justine Ruszczyk’s family and the City of Minneapolis. Ms. Ruszczyk, a white woman, was shot and killed by a Minneapolis police officer after she called 9-1-1 to report a possible assault of a woman in an alley behind her house. In that case, the police officer was a Somali-American Black man. I wonder how the damages were assessed in these seemingly similar cases with reversed racial roles. And, even if the disparate amounts are justified, you can imagine how it looks to the public at large.

You may disagree with me. However, we are perpetuating systemic racism when we rely on data that reflects the discriminatory aspects of our society. To put it another way, our white male clients and their families are in a more privileged position when calculating economic damages. I am not someone who can just ignore that, and I don’t think WSAJ and its members should either.

Rachel Luke, EAGLE member, is an attorney at Friedman Rubin PLLP in Seattle, Washington. Rachel represents clients in personal injury, product liability, and insurance bad faith cases. She is currently the Diversity Committee co-chair for WSAJ.


3 .
10 In McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y. 2008), the court held that statistical evidence used to prove that a spinal cord-injured “African American” was likely to survive for fewer years than others with similar injuries violated the equal protection and due process clauses of the United States Constitution, and was inadmissible in computing life expectancy and damages.

Trial Is Still Trial

by Ron Park, Friedman | Rubin, PLLP

This article was reposted from the November 2020 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

For trial lawyers, one of the biggest ways COVID-19 has impacted our lives is in putting trials of any kind on hold for several months. Now, trials are resuming here and across the country in different forms. Some courts have conducted trials in a completely virtual format. Some have resumed in person trials with many adjustments to protect the health of all participants. Others have opted for a hybrid approach, doing some parts of trial virtually and other parts in person.

Last month we had the opportunity to try a case in the King County courthouse in downtown Seattle. As with other trials in King County, it took a hybrid form; voir dire was done virtually on Zoom, the rest was done in person. Jurors wore masks and sat in the gallery where they could be socially distant. Unable to move counsel table, the attorneys wore masks and sat facing the jurors with our backs to the judge and the witness stand. The judge, courtroom staff, and witnesses wore masks as well. The witnesses wore clear masks so the jurors could see their faces. Two witnesses, who could not appear in person, appeared by Zoom. Screens were installed, not just for jurors, but for the attorneys at counsel table and for the witnesses on the witness stand as well, so that exhibits and demonstratives could be shown electronically without handing paper from one person to another.

It certainly was not normal, and it certainly was not comfortable. It is awkward, to say the least, to look up from your notes and always be face-to-face with a juror, constantly and unavoidably in his line of sight. Maybe it was more awkward to always have to twist and turn to address the judge for any matter. But the truth is, both during trial and reflecting on it afterward, my mind never dwelt on these peculiar procedures or adjustments. Which is to say that it never felt, and it still does not feel, as if the outcome of that trial and the effectiveness of our case came down to the masks on our faces, the distance between the jurors, or the myriad other ways in which this trial was not a “normal” trial.

My mind was occupied instead with the story of our case, how to present it to the jury, and how to incorporate or deflect the defense’s story. Should I ask this question? Maybe I should ask it a different way? Should I call this witness? Maybe in a different order? Should I explore this topic? Should I use this exhibit? Object? Not object? Should I have said this in opening? Should I have left that out of opening? Maybe we should have worked this whole thing up differently from the very beginning? The mask on my face never crossed my mind. Nor did it cross my mind after-wards, as I sat marinating in a defense verdict.

I must confess that my first opportunity to try a case in COVID conditions was also my first opportunity to try a case at all. I have no way to compare this first experience to any other, much less a “normal” trial. Perhaps if I could, the differences imposed by COVID would loom in my mind as the culprit for the result. But I do not think so. At the end of the day, trial was still trial (at least, as I had always observed it). We still had voir dire, opening statement, direct examinations, cross-examinations, and closing argument. The work remained the same. The facial accessories and novel seating arrangements did not change that.

Which is not to say that these COVID accommodations are unimportant or do not matter. It goes without saying that every attorney about to go to trial should familiarize themselves with those accommodations and adjust accordingly. I only mean to say that after you do, trial will be trial. And I hope that gives some comfort to those who have yet to step back into the courtroom.

Ron Park, EAGLE member, is an attorney at Friedman | Rubin PLLP in Seattle.

$1.3 Million Awarded by Virtual Jury to Woman Injured on a Cruise Ship

Seattle, WA
In what may be the first Federal civil jury trial to be conducted entirely online via Zoom, a remote jury in the Western District of Washington returned a verdict of $1,351,200 for a San Diego woman who was injured on a Holland America Lines cruise ship in 2018.

84-year-old Margaret Dallo was nearing the end of her 17-day round-trip cruise to Hawaii from San Diego when a terrible event occurred on November 26, 2018. As she was walking down a hallway a crew member suddenly opened a door knocking her down and causing her head to strike a wall. She developed a brain bleed, known as a bilateral subdural hematoma. Following a craniotomy to evacuate blood from within her skull, her friends and family noticed a sudden and dramatic decrease in her mental functioning and emotional changes that have persisted.

The trial of this simple personal injury case was unique. Because of the Covid-19 pandemic, US District Court Judge Thomas Zilly ordered that the entire trial be conducted via Zoom. The Court’s detailed Order for Remote / Virtual Civil Jury Trial insured a fair and efficient presentation of evidence and deliberations by jurors. Each juror participated from their homes, as did witnesses from throughout the country. The trial began on September 29th, and closing arguments were October 5th. After a day and a half of secret deliberations with each other via Zoom, the jury returned a unanimous public verdict in favor of Mrs. Dallo.

Ken Friedman and David Roosa of Friedman Rubin PLLP represented Mrs. Dallo. Commenting on the proceedings, Ken Friedman commended Judge Zilly and the court staff for their thoughtful preparation for a virtual trial. “They thought of everything,” Friedman said. “The jury was also terrific. They were quickly able to learn the special Zoom program used by the Court and to focus on the evidence.” Friedman noted that there were some minor problems with a virtual trial, “like jurors losing connection and not having an opportunity to meet or talk to other jurors prior to deliberations,” but he feels that the experience was on balance an overwhelming success, regardless of the verdict. “Winning is also a plus,” he added. Commenting on the verdict, attorney David Roosa said, “the Dallo family suffered a serious loss when Margaret was injured. The verdict can’t make her healthy or whole again, but it is a measure of justice and recognition by the jury that she deserved compensation.”

Student Sexually Assaulted by West Seattle High School Coach to Sue Seattle School District

Friedman | Rubin attorney Cheryl Snow has given notice that a former student at West Seattle High School will bring suit against the School District for the actions of its girls’ basketball coach. The notice of claim alleges that the coach engaged in sexual misconduct against the student and other female basketball players.

According to attorney Snow, the sexual harassment and misconduct started in March 2017 when the student was a freshman on the West Seattle basketball team. It began with inappropriate electronic communication via Snapchat with the girl and other female players. It progressed to presents, private practices, and professions of affection and love. From March 2017 to February 2019, the coach’s sexual misconduct evolved from classic grooming behavior to illegal sexual contact at the school which included massaging, hugging, kissing, spanking and groping.

The claims alleged include sexual misconduct, harassment, and abuse by a school employee in violation of Washington law. It is further alleged that the school failed in its duty to protect its female basketball players and instead placed a heavy burden on that student to come forward to hold the coach accountable. The adversity faced by a high school student in disclosing sexual abuse by a popular coach was described by Snow as overwhelming and dreadful. She describes her client as brave and courageous for coming forward.

Snow further alleges that red flags pointing to the coach’s behavior were brought to the school’s attention by another player’s parent in March of 2018. Notwithstanding this knowledge, the school failed to adequately investigate the allegations or take corrective action. Instead, the coach was allowed frequent unsupervised and unfettered access to West Seattle High School’s weight room, gym, coach’s office, and locker rooms where he continued to hold private practices, coaching sessions, and “grade reviews.” A school district must “exercise reasonable care to protect its students,” and according to Snow, it failed in that duty.

There is evidence that the coach improperly communicated with other high school and middle school students during his tenure and there may be additional victims who have yet to come forward. Other victims may contact Friedman Rubin for a confidential interview. Witnesses who can corroborate evidence of grooming conduct or sexual contact by the coach should likewise contact the firm at (206) 501-4446 or

30 Nobel Laureates Demand that Chevron Face Justice for Amazon Pollution and Call for Freedom for Environmental Lawyer Steven Donziger

Steven Donziger with his clients in the Amazon in 1993.

30 Nobel Laureates* have signed a petition to bring attention to the plight of environmental lawyer, Steven Donziger, who has suffered under house-arrest for an unheard of eight-months.

Friedman Rubin is proud to be providing pro bono legal services to Steven Donziger, helping him defend against false attacks by Chevron’s and its allies, while he helps Ecuadorian inhabitants of the Amazon collect on their court judgment requiring Chevron to clean up the pollution it intentionally left in the jungle. Donziger and his Ecuadorian colleagues have faced a sustained legal assault by Chevron and its army of lawyers and operatives after winning a $9.5 Billion judgment in 2011 against the company and its predecessor, Texaco, for despoiling sections of the Amazon rain-forest with oil waste. Donziger has spent almost his entire career seeking environmental justice for his clients and the last nine years fending off Chevron’s attacks on the hard won judgment and upon him personally.

Donziger has refused to give up the fight to see justice done on behalf of the Amazonian victims. He is a tremendous advocate and champion, but he is only one man. Chevron and its powerful allies pursued various charges to discredit Donziger over the last decade. Most recently, they brought “contempt” charges against him after he refused to turn over confidential client communications on his computer and phone, something no ethical lawyer ever wants to do. For this charge of contempt, Donziger has been placed under house arrest for an unheard of eight months — far longer than the longest sentence ever imposed on a New York lawyer for any contempt. He now finds himself and his family nearly destitute from Chevron’s ongoing attack. According to one of the oil company’s hired PR firms, Chevron’s long term strategy is to “demonize Donziger.”

Please join with us and 30 Nobel Laureates to support Steven Donziger in his quest for environmental justice. His fight is our fight.

Please visit to demand the U.S. Department of Justice and Members of the U.S. Congress take action.

Eric Chivian, United States (1985)
Shirin Ebadi, Iran (2003)
Adolfo Perez Esquivel, Argentina (1980)
Leymah Gbowee, Liberia (2011)
President Jose Ramos Horta, East Timor (1996)
Tawakkol Karman, Yemen (2011)
Mairead Maguire, Northern Ireland (1976)
Rigoberta Menchu Tum, Guatemala (1992)
Kailash Satyarthi, India (2014)
Jody Williams, US (1997)

Finn Kydland, Norway (2004)

Philip W. Anderson, US (1977)
Barry C. Barish, US (2017)
Sheldon Glashow, US (1979)
Michael Mayor, Switzerland (2019)
Frank Wilczek, US (2004)
Robert W. Wilson, US (1978)

John M. Coetzee, South Africa (2003)
Elfriede Jelinek, Austria (2004)
Alice Munro, Canada (2013)

Louis Ignarro, US (1998)
Richard Roberts, UK (1993)

Joachim Frank, German-American (2017)
Dudley Herschbach, US (1986)
Roald Hoffman, Polish-American (1981)
Roger D. Kornburg, US (2006)
William E. Moerner, US (2014)
John Polanyi, Hungarian-Canadian (1987)
George P. Smith, US (2018)
John E. Walker, UK (1997)

7 Year-Old Sexually Assaulted on School Bus will Bring Suit Against North Kitsap School District

Friedman | Rubin attorney Cheryl Snow has given notice that the family of a 7 year-old girl will bring a lawsuit against the North Kitsap School District for negligence in assigning a physically aggressive boy to a school bus for special needs students where he sexually assaulted the young girl on multiple days in December, 2019.

R.B. is seven years old. She has significant cognitive impairment, physical disabilities, and is non-verbal. R.B, attends Gordon Elementary in Kingston, WA, where she is in the second grade in a Special Education Program.

In December of 2019, R.B. rode a North Kitsap School District special education bus to and from school.

On the afternoon of December 2, 2019, when the bus driver dropped R.B. off at her home where she resides with her grandmother, the bus driver told her that R.B. had taken her pants off while on the bus. The bus driver told the grandmother that he had not seen R.B. do this. The grandmother was shocked by this claim as R.B. typically requires some assistance from others to dress and undress. She expressed her concern to the bus driver and he promised her that he would report the incident to his supervisors and obtain and watch the bus’s surveillance video to see what had happened to R.B on the bus.

The next day, on the afternoon of December 3, 2019, when the bus dropped R.B. off at her home, the bus driver told the grandmother that R.B. had again undressed from the waist down. The driver described discovering R.B. naked from the waist down after a male student reported that she had taken off her clothes. He told the grandmother that when he checked on R.B., he found that her shoes, socks, leggings, and underpants were off. The bus driver claimed that he had not seen how this occurred.

R.B.’s grandmother brought her into their home and removed R.B.’s clothing. She collected R.B.’s underwear, diaper pad, and some wipes that she had used to clean R.B.’s privates and brought R.B. to the hospital for a sexual assault examination and reported the incidents to Gordon Elementary School Principal.

Kitsap County Sheriff’s Deputy Joe Hedstrom was assigned to investigate. Deputy Hedstrom obtained and reviewed surveillance video from the bus that R.B. rode on December 2nd and 3rd. Deputy Hedstrom detailed his observations of the bus video in his investigative report. According to Deputy Hedstrom, the bus video from December 2nd, showed a male student removing R.B.’s boots and pants. The male student then appears to touch R.B.’s bare genitals and crawl on top of R.B.

A separate incident on December 3rd shows the same male student crawling across the school bus’s aisle and sliding on his belly under R.B.’s seat. It is unclear what exactly the male student does to R.B. at that time. After a brief period, the male student returns to his seat. Shortly thereafter, the male student shimmies back under R.B.’s seat and crawls on top of R.B. With R.B. facing forward in her seat, and the male student on top of her facing backwards, the male student appears to repeatedly make “thrusting motions” for over a minute. The male student then climbs off of R.B. and returns to his seat with his pants down around his knees. Once back in his seat, the male student pulls his pants up and appears to be “adjusting himself”. He then leans forward and tells the bus driver that R.B. “took her pants off again.” The bus driver (eventually) checked on R.B. and observed that she had “nothing on”. R.B.’s tights and underwear were “jumbled up on the floor.”

The investigation revealed that the male student who sexually assaulted R.B. originally rode a regular (not special needs) North Kitsap School District bus. Because of his continual behavioral issues, including fighting another student, the School District removed the male student from that bus. What was the School District’s solution to this disruptive, physically aggressive boy? The School District placed him on a Special Ed. bus. Despite the obvious vulnerability of the students who rode the special education bus, the School District provided absolutely no warning about the boy’s aggressive, troublesome behavior to the parents of children who rode the bus.

The action of the North Kitsap School District of removing a male student because of a pattern of concerning behavioral issues and placing him on a bus for special needs students is particularly troubling considering the School District’s recent settlement in a lawsuit involving similar misconduct – a student, who had been removed from his bus and placed on a special education bus, sexually assaulted three special needs students on that bus.

Attorney Cheryl Snow’s Notice to the North Kitsap School District concludes that “a child with disabilities, should have been able to ride the bus to and from school in safety. The negligence of the North Kitsap School District in this case resulted in the sexual assault of a little girl, who used to enjoy riding the bus to school.”

Friedman | Rubin Welcomes New Partners

Friedman | Rubin, PLLP has promoted two of its associates, Sean J. Gamble and David P. Roosa, to partners effective January 1, 2019.

Sean Gamble joined Friedman | Rubin in 2009 after graduating from the University of Washington School of Law, where he earned the Juris Doctor degree. Sean handles traumatic brain injury (TBI) cases in Washington and across the country in teamwork with other attorneys. He manages the firm’s extensive library on TBI science and research. In addition to brain injury cases, Sean has works on a variety of matters including toxic exposure cases, medical malpractice, burn trauma, maritime law, aviation law, insurance bad faith disputes, and nursing home abuse or neglect. Super Lawyers named Sean a Washington Rising Star, in 2015-2016, an honor limited to no more than 2.5 percent of attorneys practicing in Washington. Sean is also an Eagle member of the Washington State Association for Justice and a member of the American Association for Justice. To contact Sean, you can email him at


David Roosa joined Friedman | Rubin in 2012 after graduating from Seattle University School of Law. David primarily handles civil cases involving serious personal injury, traumatic brain injury (“TBI”), insurance bad faith denial of benefits, and nursing home abuse. David also occasionally tries criminal cases, and has obtained multiple defense verdicts for wrongfully accused citizens. David was the firm’s first “Moe Levine Fellow of Trial Advocacy.” The award honors one of the greatest trial lawyers of the 20th Century and is given to interns showing great promise as future trial lawyers. David is an Eagle member of the Washington State Association for Justice and a member of the American Association for Justice. To contact David, you can email him at

Special Focus: DiversityIncreasing Diversity in the Plaintiffs’ Bar

By Rachel Luke, Friedman | Rubin, PLLP

This article was reposted from the December 2018 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

Last summer, Liz Berry wrote in the Trial News that diversity is everyone’s responsibility. The WSAJ Diversity Committee’s primary charge is to recruit diverse members to WSAJ, but we need your help. For various reasons, this year was a call to action for me personally. I wanted to come off the sidelines, so I jumped in. I joined the Equity and Inclusion committee at my daughter’s public school, I volunteered for the Loren Miller Bar Association’s Judicial Evaluation Committee, and I happily agreed to cochair the WSAJ Diversity Committee with Catherine Fleming. At the same time, I openly question the usefulness of diversity committees. I do not question the importance of diversity in our profession, but from my perspective, it appears that we are not making much headway in recruiting and retaining attorneys from diverse backgrounds.1 Somewhere along the way, “diversity” became a buzzword with diluted meaning and purpose.

In my first months of law school in 2006, I sat in on my first diversity panel of many—where a Black attorney, an Asian attorney, and a white attorney (all women) spoke about their experiences—typically in big law firms or as in-house counsel. Still today, law schools and bar associations are having the exact same discussions about attorney recruitment and retention. It is exhausting, and I know these discussions began well before my first exposure to them in 2006. Why is it that our attorney population doesn’t match the general population in the area?2 Why are historically underrepresented attorneys, particularly women, leaving the practice of law in such great numbers?3 What can we do to change things? The answers to these questions are complex and involve current and historical inequities and exclusion. In trying to determine ways to move the needle, I sought the help of someone who has seen a drastic increase in diverse attorneys during his lifetime and who could lend me some perspective.

Lem Howell and I met when we were evaluating judicial candidates, and I soon found out what a supportive and gracious mentor he is.4 I also learned that Lem is happy to give advice. We are still brainstorming, but together we came up with some ideas for diverse attorneys who want to do plaintiffs’ work and law firms looking to hire diverse attorneys. Both groups are necessary for us to recruit new diverse attorneys to WSAJ. Below, I summarize our discussion and ideas into ten concrete action items:

1. Employers should consider participating in the WSAJ Fellow ship Program. The WSAJ Fellows are a diverse group of second-year law students who gain invaluable experience during this summer-long program. Once the Fellowship is over, consider hiring a Fellow who participated at your firm, or recommend the candidate for other attorney openings.

2. Law firms should consider participating in the Northwest Minority Job Fair.5 Currently, the job fair employers are primarily comprised of defense firms, nonprofits, and public service organizations. This is an excellent opportunity to meet and interview many diverse candidates for summer internship positions and/or employment. Employer registration is in the spring. Mark your calendars!

3. Attorneys who want to do plaintiffs’ work should not reinvent the wheel. Associate yourself with a good firm. If you are in law school and cannot find a job in a firm, try to get into a public defender or prosecuting attorney’s office for trial and courtroom experience. Become a trial lawyer. This experience will make you attractive to plaintiffs’ law firms in the future.

4. Hiring law firms should recognize the student loan burden that many attorneys carry. If feasible, offer a loan forgiveness or repayment program as part of your compensation package.

5. Most minority bar associations have their own job postings.5 Consider reaching out to those minority bar associations so that their members are aware when you are hiring. Go to a meeting and introduce yourself. Attend a minority bar association’s banquet or consider sponsoring a table as a firm. Start building relationships with attorneys from historically underrepresented groups.

6. Law firms should make sure that they are providing mentoring to diverse attorneys. Mentoring attorneys should be assuring that the mentee attorney is receiving high-quality work assignments, has access to networking and marketing opportunities, and is receiving fair performance evaluations and fair pay. If you do not have a mentor at your firm, find one. In addition, reach out to someone you respect who does not work in your firm. These relationships are invaluable.

7. Hiring law firms might consider that defense firms have pressure from their corporate clients to hire diverse attorneys. The future business of your firm will depend on having diverse attorneys with varying perspectives and experiences. In 2012, the Washington State Bar Association reported that 31% of racially diverse active members are in solo practice.7 Consider associating with these attorneys or hiring them as lateral associates or partners.

8. Underrepresented attorneys should get involved. Become the go-to person in an area of law that interests you. Write articles, speak at CLEs, join all professional organizations relating to your practice. Be visible. Get yourself a seat at the table, and make it at the head of the table.

9. Hiring law firms should acknowledge and appreciate that diverse attorneys are pulling a lot of weight. In WSAJ alone, women comprised 47% of the 2017-2018 WSAJ Board, and only 23.5% of the WSAJ membership, while men comprised 53% of the Board and 69% of membership. Attorneys who self-reported as Black and African American/African descent made up 1.9% of the Board and only 1.3% of total WSAJ membership. Multiracial attorneys comprised of 9.8% of the Board and 2% of total WSAJ membership.8 In all, underrepresented attorneys are taking leadership roles at high rates, and this should be recognized.

10. Consider referring cases to diverse attorneys. Almost every time I am asked for a referral, I am sending that person to a diverse attorney.

I also recommend reviewing the American Bar Association’s 2018 Executive Summary on Interrupting Racial & Gender Bias in the Legal Profession.9 The executive summary may be eye-opening to some, and the Bias Interrupters Tools are a great start to best practices for any firm in hiring, assigning work, performance evaluations, and partner compensation. These tools are actionable steps that you can take in addition to some of the ideas that Lem and I brainstormed above.

The only way to achieve diversity in our profession is through equity and inclusion at all levels—from education through partnership opportunities. Let’s level the playing field and remove barriers at every avenue. Let’s create inclusive cultures at our firms. Let’s recognize achievements and create opportunities for advancement. Let’s take meaningful and purposeful steps to dismantle the systemic inequities in the law and our profession. This will take some work. I’m up for the challenge. Are you?

Rachel Luke is an EAGLE member and associate at Friedman | Rubin in Seattle. She is co-chair of the Diversity Committee and vice chair of the Products Liability Section.

1; see also
2 As reported in 2015, 89% of the Washington State Bar Association’s members are white, compared to 72% of the state’s population.
3 See 2015 WSBA Diversity Research Project Literature Review: “approximately 50% of female associates left their firms before they become partners, with many entering public service or solo practice.”; New York City Bar’s Diversity Benchmarking report;.
4 You can read about a part of Lem Howell’s civil rights legacy as showcased on the Washington Secretary of State’s website:
8 2018 WSAJ Diversity Report – for a copy, please contact

Friedman | Rubin Wins $67.5 Million for Coal Miners Injured by Defective Respirators

April 23, 2018, Hindman, KY

A Kentucky jury has awarded $67.5 million in damages to two former coal miners, brothers Leslie and Michael Cox, who alleged defective dust masks (a/k/a “respirators”) led to their black-lung disease. The jury awarded compensatory damages for past and future pain and suffering, but the bulk of the award, $62.5 million, was awarded as punitive damages against the manufacturer, 3M Company. The judgment is thought to be one of the largest ever reported in Eastern Kentucky.

Coal miners wear respirators to filter out coal dust. Breathing in coal dust causes black lung, an incurable condition that chokes off breathing and often leads to death.

After a three-week trial, the jury ruled that the model 8710 respirator manufactured by 3M was in a “defective and unreasonably dangerous condition” and “that an ordinarily prudent manufacturer of similar products, being fully aware of the risk, would not have put it on the market for use in coal mining.”  The jury also ruled that 3M acted with “reckless disregard” for the safety of the Cox brothers and others, justifying the extraordinary punitive-damage award.

The jury did blame the Cox brothers in part because both men were smokers, reducing their compensatory damages by 60% for Leslie Cox and 70% for Michael Cox. However, 3M remains liable for the entire punitive damage award, if the judgment stands.

The Cox brothers were represented by Friedman | Rubin lawyers Rick FriedmanHenry Jones and Bill Cummings of Friedman | Rubin and by co-counsel Adam Collins, Nathan Collins and Patrick Conley of Hindman, KY. During the trial, Rick used his nationally recognized Rules of the Road method to identify important rules and principles that a defendant should have followed. Among the rules identified in this case were:

  1. A manufacturer should not sell a respirator and say it provides protection against black lung when it does not provide protection against black lung;
  2. A respirator manufacturer should promptly inform users about safety risks that it learns about; and
  3. Even if the government allows an unsafe practice, a respirator manufacturer should not engage in that unsafe practice.

Given their award, the jury understood the rules of the road that applied to 3M’s conduct and arrived at an appropriate verdict.

Jury Verdict for Girl Pulled From Bike, Tasered and Arrested Outside Tacoma Mall

March 22, 2018, Tacoma, WA

After a two week trial in Federal Court in Tacoma, a jury awarded Monique Tillman $500,000 and her brother Eric Branch $50,000 against the City of Tacoma for the actions of an off-duty Tacoma police officer. Surveillance video of the 2014 incident shows a 15-year-old girl and her younger brother pedaling their bikes through the Tacoma Mall parking lot. The officer’s SUV pulls up from behind and he orders them to stop. Monique asked the officer why the pair had been stopped and the officer said that she and her brother “were causing a disturbance” — something that Tillman disputed. Tillman, who is black, asked the officer if she was being harassed because of the color of her skin. The officer then erupted and began brutalizing the teen. He tossed Tillman around like a child’s doll, slamming her into parked vehicles, forcefully shoving his hand and forearm into her chest, grabbing her by the hair and body slamming her into the pavement. The events were caught on surveillance video which subsequently went viral on YouTube:

At trial, additional cell phone video evidence from a bystander was offered into evidence. It is even more compelling.

Monique and her brother were represented at trial by Rick Friedman, Alex Ackel and Vito De La Cruz.  Friedman stated, “I am hopeful that this verdict will give some financial security to Monique and her brother and also lead to better police/minority interactions. The videos were certainly powerful evidence at trial. I believe they will be helpful as teaching tools for police officers in the future.”

Local news reports of the verdict include the following: KING5KIRO7, Seattle Times.


Partner Ken Friedman Joins the American Board of Trial Advocates

Congratulations to Friedman Rubin partner Ken Friedman for his election to the American Board of Trial Advocates (ABOTA). This organization was founded to protect the right to jury trial, the 7th Amendment, when it was under siege during the mid-20th century. Today, ABOTA nominates attorneys who are exemplary guardians of this important civil institution.

Friedman Rubin Achieves the 6th Highest Verdict In the State of Washington

According to, Friedman Rubin secured the 6th highest plaintiff and cross-claimant jury verdict in the State of Washington for the 2016 year. The case making the list was Robert Harmon v. Michael Hughes, a medical malpractice case, in which Friedman Rubin achieved a $6,291,380 verdict.

The Top 50 verdicts include state and federal court cases.

A link to the verdict list is available here.

Rick Friedman To Host Trial Guides CLE in Miami

On Friday, May 19, Rick Friedman will join a panel in Miami to teach aspiring trial lawyers the skills they need to win complex and difficult trials. The panel puts together some of the most renowned trial lawyers in the country. Rick Friedman will be joined by Roger Dodd and Randi McGinn for the event.

A link to the event is available here.

$3.55 Million Settlement in Vehicle vs. Pedestrians in a Crosswalk Collision

Friedman|Rubin and Farber Law Group clients Zachary and Ashley Adair settled all claims in a car vs. pedestrians in a crosswalk case for $3.55 million. The Adairs were walking to see a theater performance on Stone Way North when they crossed N. 41st Street, and were hit in the crosswalk, suffering serious injuries. The driver who struck the Adairs claimed she could not see them until just before impact. Multiple witnesses, including responding police officers, noted that the western portion of the crosswalk was very dark. In addition to inadequate lighting, a required advance crosswalk warning sign was missing, and the painted stripes marking the crosswalk were substantially obliterated in the lane where the collision occurred.

(A picture of the street where the incident occurred prior to crosswalk improvements.)

Local community members had been calling for a traffic signal or some kind of improvement to the crosswalk for years. Several serious collisions had happened in the years prior to the Adairs being struck. It was only after the Adairs were injured that the City made substantial improvements to the crosswalk, including the addition of a new street light, a flashing beacon, new painted stripes, and additional signage. Superior Court judge Beth Andrus ruled as a matter of law that the Adairs, who were walking within a marked crosswalk, were not at fault for the collision. A settlement was reached shortly after the Division One Court of Appeals denied the City’s motion for discretionary review of the Summary Judgment Order. David Roosa and Ken Friedman of Friedman|Rubin litigated the case alongside co-counsel Herb Farber of Farber Law Group.

This is the second pedestrian-in-a-crosswalk case that Friedman Rubin has resolved in 2017. The other settled for $5.6 million. A link to information about that case can be found here.

Peter Mullenix to Participate in New England Journal of Medicine Panel Discussion on Medical Errors

From today until March 11, a group of about 25 patient safety experts – including doctors, RNs, patient advocates, and patients who have been injured themselves – will be discussing the topic of medical errors.  Peter is the author of and represents patients injured by medical negligence or defective medical devices.  You can view the discussion at

$5.6 Million Settlement Reached During Trial on Behalf of Pedestrians injured in Kitsap County Crosswalk

February 15, 2017, Tacoma, WA

After more than four weeks in trial, the parties reached a settlement in a case involving severe injuries to a 21-year-old Bremerton woman. Regina Monzon, then 17 years old, was hit by a pickup truck while she was walking her younger brother James to school in the early morning hours of December 12, 2012.

Monzon 01

The children were in a marked crosswalk in an active school zone at the time of the collision on Central Valley Road in unincorporated Kitsap County:

Regina was pulled under the truck and her hair became entangled in the truck’s drive shaft resulting in a degloving injury that ripped away 85% of her scalp. She also suffered sacral fractures, a left pelvic fracture, left dorsal foot degloving, multiple rib fractures, pulmonary contusions, acute contusions, and lacerations on her lower lip. Following extensive hospitalization and corrective surgeries, she continues to suffer many residual problems including brain injury and emotional and psychological issues and impairments. Her brother James Monzon witnessed his sister run over and the terrible aftermath. He suffered severe emotional distress.

The siblings were plaintiffs in a suit filed against the driver of the pickup and Kitsap County, alleging that the County failed to provide adequate lighting at the school crosswalk. Other pedestrians had been hit in this crosswalk in 2005 and 2009, also during early morning in the winter months. The driver, Sandra Bloechl, testified that she couldn’t see Regina and her brother in the crosswalk because of the lighting conditions. There was no evidence of drug or alcohol use, cell phone use, or other distractions by Ms. Bloechl.

The location of the existing street light provided sufficient light only for northbound drivers, and it silhouetted pedestrians to southbound drivers. Experts testified that the lighting conditions were unreasonably dangerous and did not provide enough light or contrast to make pedestrians sufficiently visible to southbound drivers. As a condition of the settlement, Kitsap County has agreed to put a second light at the crosswalk to improve visibility for southbound drivers.

Regina and James were represented at trial by Ken Friedman and Henry Jones, partners in Friedman|Rubin’s Bremerton, WA office.  Friedman stated, “I am glad that this resolution allows some financial security for these young people, whose lives have been forever altered by a tragic collision.  It was especially important to them that the County agree to improve the lighting at this crosswalk. We would not have settled this case without an agreement by the County to fix the lighting.”

The county’s insurer will pay $5 Million to Regina and $500,000 to James Monzon. (The County has coverage for claims up to $20 Million per accident victim). The County has 3 months from the date of settlement to add lighting that will illuminate pedestrians to southbound drivers.

The public safety issues at issue and the trial were covered by various news organizations. The most comprehensive reporting was provided by the Kitsap Daily News. Read their story here.

FR’s Appeal Victory Sets Important Precedent in Product Defect Cases

taylor appealFebruary 9, 2017 Olympia, WA.

The Washington Supreme Court handed down its long awaited decision in Taylor v. Intuitive Surgical, Inc., finding in favor of Friedman Rubin’s client, Josette Taylor whose husband Fred died following botched surgery at Harrison Hospital in 2008. The lawsuit, which Friedman | Rubin co-counseled with attorney Carol Johnston of Bainbridge Island, focused on the “da Vinci” surgical robot made by Intuitive Surgical, Inc. Intuitive marketed its expensive robotic system to Harrison just like it did to other hospitals around the country. But Intuitive did not explain to Harrison that the learning curve for using the robot is extremely steep, requiring at least 20 surgeries for “basic competence.” Instead, Intuitive pushed Harrison to allow its surgeons to operate without supervision after only two supervised surgeries. Harrison followed their advice and permitted one of its surgeons, Scott Bildsten, to operate on Fred Taylor as his first unsupervised surgery using the da Vinci robot. Various complications developed during the robotic prostatectomy as Bildsten struggled to make progress using the robotic controls. Eventually, the surgery had be converted to open surgery and another surgeon called in to assist in making repairs. Fred suffered terribly following the botched surgery and he died four years later. Claims against Harrison and Dr. Bildsten were eventually settled, leaving the claim against the robot maker.

The jury trial against Intuitive was widely covered by the media, including the NY Times, as it was the first of many “da Vinci” claims that were pending against the company to go to trial. The law in Washington, however, was not clear with respect to the liability of a manufacturers of medical devices. This eventually led to an erroneous trial outcome and an appeal. The Washington Supreme Court’s decision grants Josette Taylor a  new trial and clarifies the law in ways that will benefit all patients. The Court held that manufacturers of medical devices have a duty to adequately warn hospitals about their inherently dangerous products and if they fail to do so they will be subject to strict liability for any harm to patients. Warning the hospital is important because only the hospital can make sure that adequately trained doctors are allowed to perform robotic surgeries. Doctors need to be given “credentials” from hospitals before they are allowed to perform robotic surgeries.  If hospitals are not given adequate information about the learning curve, they can’t set their credentialing process in a way that protects patients. The Supreme Court’s opinion can be found here. FR acknowledges and thanks Ken Masters of the Masters Law Group for his outstanding work on the appeal.

FR Settles Michigan No-Fault Insurance Bad Faith Case for $25 Million

Friedman | Rubin has obtained a $25 Million settlement in the Southwest United States involving Michigan no-fault insurance benefits on behalf of a former resident of Michigan catastrophically injured in a motor vehicle accident. (The confidentiality terms prohibit further identification of the parties or settlement terms).

Since, 1972, Michigan law has provided for unlimited medical expenses to individuals insured under Michigan’s no-fault automotive insurance law and catastrophically injured in a motor vehicle accident. Medical expenses may include attendant care for those requiring some level of assistance with daily living, whether that assistance is provided by friends, family members, nurses or attendant care providers. When injured individuals have been unreasonably denied benefits after moving to other states, the insurance company may be responsible for resulting harms or subject to punitive damages. Friedman | Rubin assists individuals in obtaining the benefits to which they are entitled and punishing insurers who do not follow the rules.

Friedman | Rubin has unique experience in litigating cases against insurance companies, obtaining some of the largest verdicts and settlements in the country. See our Verdicts and Settlements for more information. Attorneys at Friedman | Rubin are licensed in some but not all states. In states in which we are not licensed, we are specially admitted to practice under court rules and we co-counsel such cases with respected local attorneys and firms. We encourage clients and attorneys to contact Friedman | Rubin to evaluate their insurance bad faith claims.

Friedman | Rubin Sponsors Brain Injury Event

Friedman | Rubin is proud to be a sponsor of the Brain Injury Alliance Washington (BIAWA) 10th Annual Gala, Dinner & Auction on Saturday, October 29th, 2016 at the Westin Seattle Hotel. We invite you to join us for the largest Brain Injury Fundraiser in the country to help us further their mission to increase public awareness and provide hope and support for those affected by Brain Injury through education, assistance and advocacy. RSVP by clicking here.


Jury Awards $6.2 Million Against Chiropractors for Failure to Refer TBI Patient to MD

Seattle, WA

A King County jury awarded $6,291,379 to Friedman | Rubin’s client in a unique case involving the duty of chiropractors to refer patients who need medical treatment. The case was brought on behalf of Robert Harmon, who fell at work in January of 2012 and sought treatment at the Meridian Valley Chiropractic Clinic, owned by Dr. Michael Hughes and Dr. Rita Hughes. Despite telling the chiropractors that he hit his head when he fell and was knocked unconscious, the doctors never referred Mr. Harmon to a medical doctor for evaluation of his head injury or ordered an MRI or CT scan of his head. Over the next six months of chiropractic treatment, Mr. Harmon complained of progressing symptoms of a brain injury, such as dizziness, headaches, balance problems, and visual disturbances. The chiropractors continued to treat Mr. Harmon, primarily with a technique known as sacro-occipital technique (SOT), but did not inform Mr. Harmon that he should be evaluated by a medical doctor. The Washington Department of Labor and Industries eventually ordered an independent medical examination for Mr. Harmon, which revealed the existence of a large subdural hematoma that required two brain surgeries to remove. Mr. Harmon’s experts testified that the delay in diagnosis and treatment of the hematoma caused permanent brain damage that could have been avoided with prompt treatment after the fall. The jury awarded economic damages of $585,379, past non-economic damages of $1,000,000 and future non-economic damages of $4,706,363. FR’s trial team included Ken Friedman and Sean Gamble, supported by co-counsel Elizabeth Quick and Matt Quick of the Quick Law Firm.

Road Rage Incident Leads to $2M Verdict

Las Vegas, NV

A Clark County jury awarded $2 million to a woman run over in a road rage incident in a Target parking lot in Las Vegas.  Jean Kohl suffered a traumatic brain injury (TBI), spine and ankle injuries when she was run over by a pickup truck owned by a local business, Dakem and Associates, driven by its employee, Edward Reed.  Mr. Reed left work in the company truck and spent several hours drinking with a friend before getting into the Dakem truck and driving around the streets of Las Vegas.  Prior to running down Ms. Kohl, at least one witness called 911 to report that Mr. Reed was driving drunk. Mr. Reed and his friend decided to stop to buy more beer.  While the friend was in the store, Mr. Reed drove recklessly through the parking lot almost hitting a car being driven by Jean Kohl’s boyfriend who honked and swore at Mr. Reed.  Mr. Reed jumped from the Dakem truck ripped his shirt off and began hitting and kicking the car Ms. Kohl was in. The altercation escalated when Ms. Kohl’s boyfriend parked and got out of his car to confront Mr. Reed. Ms. Kohl attempted to get between the two men to deescalate the situation. Mr. Reed climbed behind the wheel of the Dakem pickup truck, hit the gas, and ran Ms. Kohl down. Without stopping, Mr. Reed fled the scene nearly hitting an off duty police office and his wife head on in the process.  Mr. Reed avoided apprehension by law enforcement, and hid throughout the night. Once sober, the next morning Mr. Reed went to the police and attempted to explain his conduct by claiming that he was acting in self-defense.

At trial the defense argued that Mr. Reed was justified and acting in self-defense, and that Ms. Kohl and her boyfriend were at fault and caused Ms. Kohl’s injuries because they decided to get out of their car and continue the confrontation. The jury rejected these arguments and found Mr. Reed at fault, the cause of Ms. Kohl’s injuries, and responsible for her damages. The jury found Dakem liable for the conduct of its employee, Mr. Reed. The jury awarded $522,086 in past and future medical costs and $1.5 million in past and future pain and suffering.  Additionally, the jury found that punitive damages were warranted.  Just before the start of the punitive damages phase of the trial, the case settled for a confidential amount.

FR’s trial team, Roger Davidheiser and Ken Friedman, were supported by co-counsel Gabriel Martinez of Las Vegas.

WGN Investigation of the “Boeing Papers” Sheds Light on Firm’s Suit Against Boeing (Video)

Chicago, IL

An investigative report by WGN sheds further light on the firm’s suit against the Boeing Company exposing a “dirty little secret” in the commercial airline industry: cabin air breathed by passengers and flight crew can become contaminated with toxic by-products from jet engine oil. Click here to watch the WGN Report, including the interview with Sean Gamble of Friedman Rubin. Since 1954, Boeing, the leading manufacturer of commercial airplanes, has used a “bleed air system” for cabin air on the vast majority of its planes. This means that the air breathed by passengers and the flight crew comes from the outside, then through the heated jet engines and into the cabin. If the jet engine leaks oil (for one of a number of reasons), the toxic by-products of that oil get into the cabin air system. Known as “fume events,” studies estimate that one such air contamination event occurs every day. See our June 22, 2015 news release below for more information on the initial suit filed against Boeing.

Firm Sues Medical Device Manufacturer and Hospital After Patient Suffers Brain Damage From Malfunctioning Device Meant to Treat Aneurysm

Bellevue, WA

In 2013, Dennis Montgomery, a software designer, had a brain aneurysm that doctors said could be treated safely by surgically inserting into the aneurysm a special device – the Penumbra Coil 400. During the surgery at Overlake Hospital in Bellevue, the surgeon placed 90 percent of the coil into the aneurysm, but the last 10 percent got stuck in the intracranial artery. If the device had worked properly, the surgeon should have been able to remove the coil and try a different approach. Instead, the coil detached prematurely, becoming lodged in the artery and caused Dennis to suffer a stroke. The lawsuit, filed by Friedman | Rubin attorney Peter Mullenix, names the manufacturer Penumbra, two of its employees who were present during the surgery, and Overlake Hospital. Media coverage of the claim includes this report by the Seattle Times.

Friedman Rubin Win’s $7.2 Million Verdict for Coal Miner

Hindman, KY

A trial team led by Rick Friedman obtained a $7.2 million verdict in Kentucky on behalf of a coal miner, James Couch, who is suffering from Black Lung disease. This is believed to be the first coal-dust respirator case to go to trial in the country. Couch filed suit against the manufacturer of the mask, Mine Safety Appliances, after being diagnosed with black lung.

Officials say several entities (including OSHA) called for the ban of these coal masks in the 1970’s, but Mine Safety Appliances continued to sell them. The plaintiff wore the masks for fifteen years, unaware that they were not effectively filtering the air he was breathing while in the mine.

During trial, Rick used his Rules of the Road method to identify important rules and principles that the company should have followed. Among these were: 1) A respirator manufacturing company should promptly inform users about the safety risks of its products that it learns about; 2) A manufacturer should not sell a respirator as providing protection against black lung when the respirator does not provide protection against black lung; and 3) Even if the government allows an unsafe practice, a respirator manufacturer should not engage in that unsafe practice.

The case was tried by Rick Friedman with assistance of Lincoln Sieler, Henry Jones and Bill Cummings of Friedman | Rubin and with co-counsel Adam Collins and Nathan Collins, Hindman, KY.

Friedman | Rubin Scores $3.8 Million Insurance Victory for State’s Taxpayers

Seattle, WA

When the State of Washington had an insurance problem, its attorneys called Friedman | Rubin’s Richard Dykstra. The problem? The State was being sued for a particularly tragic highway crash. The State wanted to settle the lawsuit, but the State’s insurance company (James River Insurance) was denying coverage. Worse, the insurance company was trying to force the State into private, non-reviewable arbitration. Dykstra teamed up with Friedman Rubin’s Peter Mullenix and petitioned the case to the Washington Supreme Court, which unanimously agreed that insureds cannot be forced into arbitration of coverage disputes.  Dykstra and Mullenix then requested the superior court judge to rule that the claim against the State was covered. Rather than see that ruling, the insurance company agreed to pay the State $3.8 million to settle the State’s claims. The money goes back to the taxpayers, where it can be used to increase highway safety.  Richard Dykstra argued the appeal before the Washington Supreme Court, and the decision can be found here.

Lawsuit Filed Against Boeing Over Toxic Fumes in Airplanes

Chicago, IL

Friedman | Rubin has joined with Littlepage Booth, Power Rogers and Smith, and Brodkowitz Law, to bring suit against the Boeing Company exposing a “dirty little secret” in the commercial airline industry: cabin air breathed by passengers and flight crew can become contaminated with toxic by-products from jet engine oil. Since 1954, Boeing, the leading manufacturer of commercial airplanes, has used a “bleed air system” for cabin air on the vast majority of its planes. This means that the air breathed by passengers and the flight crew comes from the outside, then through the heated jet engines and into the cabin. If the jet engine leaks oil (for one of a number of reasons), the toxic by-products of that oil get into the cabin air system. Known as “fume events,” studies estimate that one such air contamination event occurs every day.

Announcement of the lawsuit was featured on national news shows on June 23, 2015 (Click link to watch):

1. Today Show


Fume events can be very dangerous to the health of passengers and crew members, causing both short and long-term injuries.


Air from the outside environment is pulled into the plane through the jet engines. This “bleed air system” permits contaminated engine oil by-products to enter the cabin air.

Over the past several decades, Boeing was put on notice – at least 40 times – that contaminated bleed air was a serious health hazard and safety measures were sorely needed. As Boeing documents confirm, the aircraft manufacturer knew fume events were occurring and causing toxic air to enter the cabin. Boeing also knew contaminated air could cause serious health problems for flight crew and passengers. Yet, despite this knowledge, Boeing never designed, installed or retrofitted its aircrafts with either alarms or sensors so the flight crew could receive immediate warnings of a fume event and take counter-measures (such as stopping air coming into the cabin from the affected engine); or put into the cabin air system appropriate filters to remove oil by-products. Boeing documents routinely discuss the need for such sensors, alarms or filters but upper management showed little interest in actually providing solutions to this safety problem. As one Boeing engineer noted, it was probably going to take “a tombstone before anyone with any horsepower is going to take interest.” (Ex. 1).

In 2005, at an International Aero Industry Conference, a team of experts from various fields (including executives for the British Airline Pilots Union, physicians, researchers and lawyers), focused on a safety issue that “has been under the radar in this industry for a number of years: the problem of oil leaks in aircraft.” (Ex. 2). The panel concluded that contaminated cabin air was causing a danger for passengers and “a workplace problem resulting in chronic and acute illness amongst flight crew” resulting in “significant flight safety issues.” The panel “urgently call upon Government, Industry and Regulators to work in partnership with cabin environment medical and analyst specialists and representatives from flight crew unions to analyze, quantify and remedy the cabin air quality problems” identified. (Ex. 3).

The newly filed lawsuit, Woods et al v. Boeing, is venued in Chicago where Boeing has its headquarters. The suit was brought on behalf of four flight attendants who, on July 12, 2013, suffered debilitating injuries from a “fume event” on board a Boeing 737 aircraft. These women ask that Boeing take responsibility for its actions and implement safety measures to protect future passengers and flight crew from such injuries. In this and other cases under investigation, Friedman | Rubin and the litigation group represent people injured by toxic cabin air. These clients developed aerotoxic syndrome after exposure to contaminated cabin air, including short and long term injuries and cognitive impairment. Reported toxic cabin air injuries include: nausea, vomiting, rashes, dizziness, shortness of breath, loss of consciousness, headaches, blurred vision, gastrointestinal difficulties, decreased motor skills, numbness and tingling in arms, hands and feet, joint and muscle pain, tremors, balance problems and residual cognitive impairment such as memory loss, trouble concentrating and difficulty with reading or writing. (Ex. 4).

If you or a loved one developed injuries following a flight where you believe the cabin air was contaminated, please contact Friedman | Rubin at 206-501-4446 or email

$8.3M Settlement for Family of Inmate Tased and Beaten to Death by Prison Guards

Oakland, CA

After a week of trial, Alameda County and Corizon Health, Inc., a national for-profit jail healthcare corporation, have agreed to pay $8.3 million dollars to four adult children of Martin Harrison. Mr. Harrison was tased and beaten to death while suffering from delirium tremenscaused by Corizon’s failure to provide medical care to him at the Santa Rita Jail in August 2010.

The lawsuit revealed that Corizon allowed licensed vocational nurses (LVN) to do the intake medical assessments only registered nurses are allowed to do under California law.  When Mr. Harrison was arrested and taken to jail, he told the Corizon LVN that he drank every day, his last drink was that day, and he had a history of alcohol withdrawal. The LVN nevertheless decided not to provide Mr. Harrison with life-saving alcohol withdrawal protocols, and she sent him to the general jail population with no medical follow-up. Over the next three days, Mr. Harrison descended into severe alcohol withdrawal — delirium tremens – and was having hallucinations. Guards who came to subdue him tased and then beat him until he was unconscious. He died of his injuries.

In addition to the record compensation, Corizon and the County agreed to sweeping reforms (injunctive relief), to be overseen by the Judge Jon S. Tigar of the United States District Court for the Northern District of California. The injunction seeks to correct institutional failures that led to Mr. Harrison’s unnecessary death. Corizon agreed to implement major changes in how it staffs jails throughout the entire state as a part of this settlement. This was an important part of the settlement for Mr. Harrison’s children. They wanted to make sure a tragedy like theirs does not happen to someone else.

The case was tried by Rick Friedman with co-counsel Michael Haddad and Julia Sherwin of Oakland, CA.

$2.4M Verdict for Public Works Contractor Against Insurer for Unreasonable Denial of Claim Under Builder’s Risk Policy

Seattle, WA

MKB Constructors, a public works contractor involved in school construction, obtained a “Builder’s Risk” policy from American Zurich Insurance Company that included an “earth movement endorsement,” covering damage caused by “earth sinking.” While only 2 inches of settling of the building pad was contemplated by prior geotech analysis, actual settling during construction of the pad was much greater, leading to increased construction costs. MKB then brought a claim under the policy. Zurich’s initial investigation corroborated MKB’s claim, but they did not tell that to MKB. Instead, Zurich looked for ways to unreasonably deny the claim. In their verdict, the jury found that Zurich was unreasonable and awarded $2.4 Million to MKB. This award included an $862,000 penalty against Zurich under Washington’s Insurance Fair Conduct Act (IFCA). This is believed to be the largest penalty ever levied against an insurance company under the IFCA statute. MKB is also entitled to an award for attorney fees, expert fees and costs as a further penalty for Zurich’s misconduct.

Friedman | Rubin Trial Lawyers: Ken Friedman, Peter Mullenix and Richard Dykstra.

$12M Verdict Against County for Interfering with Contract

Chehalis, WA

Experienced gravel mine operators purchased land from Port of Tacoma with an existing 20-year permit to mine gravel in Thurston County. Enviromental opponents of the mine gained control of county commission and placed numerous hurdles in the way of the mining operation. The commission arbitraily ordered additional environmental studies and hearings even though County’s hearing examiner had already ruled that the gravel mining operation was complying with all rules applicable at the time the permit was issued. As a result of the delay, uncertainty and legal expenses, the mine failed and the property reverted to the seller, Port of Tacoma. After a four week trial, the jury awarded $4 Million for the gravel mining firm and $8 Million for the port authority against County. This was the largest land-use verdict in Washington history.

Friedman | Rubin Trial Lawyer: Don Bauermeister – Bremerton, WA
Co-counsel: Jed Powell – Seattle, WA; The Port was represented by co-counsel Pat Schneider and Steve Gillespie of Seattle.

$4M Verdict for Injured Motorcyclist

St. Paul, MN

Brad Gniffke was riding his motorcycle to the grocery store when he was cut off by a delivery truck which had pulled into the left turn lane before making a hard right turn. Brad was forced to stop short and he suffered a severe head injury when his head hit the pavement.

The case was a difficult one inasmuch as Brad did not collide with the truck and he was not wearing a helmet. In Minnesota, a motorcycle rider with a permit (rather than a license) is required to wear a helmet, and failure to wear a helmet can be considered by the jury in reducing its verdict. The truck driver disputed Brad’s version of events and the defense attacked Brad’s credibility relentlessly. Brad suffered from traumatic brain injury, but the defendant disputed its severity and claimed that it could have been avoided by wearing a helmet. Fortunately, there were upstanding witnesses to the accident, including a state trooper and local business owners who helped set the record straight. Lay witnesses provided strong support for Brad’s damage claims and experts hired by Friedman | Rubin effectively blunted the no-helmet defense.

The jury determined Brad’s damages as follows: $1.1M for past pain, disability and emotional distress, $450,000 for loss of earnings, $1.5M for future pain, disability and emotional distress, $800,000 for future lost earnings. The jury determined that Brad’s wife Shirley suffered $230,000 damages for loss of consortium. The jury attributed 35% fault to Brad which may reduce the recovery by that percentage. Post trial motions for prejudgment interest and costs are expected.

Friedman | Rubin Trial Lawyers: Rick Friedman and Sean Gamble – Seattle, WA
Co-counsel: Ken White – Mankato, MN

Peter Mullenix Presents CLE on da Vinci Robot Litigation

Friedman | Rubin attorney, Peter Mullenix, recently spoke at the WSAJ Tort Law Seminar, at the Washington State Convention Center in Seattle. His topic, Unraveling the da Vinci Code – Litigating Robotically-Assisted Surgery Claims is one that Friedman | Rubin knows well. Here is a summary:

Intuitive Surgical, Inc.’s da Vinci robot is a four-armed, remote controlled surgery system used to perform laparoscopic surgery. It is one of the most rapidly adopted medical technologies in history. Though the robot was not even cleared for use until 2000, more than 450,000 da Vinci procedures were performed in 2012, including 80 percent of U.S. prostatectomies. This growth has been driven by a hyper-aggressive marketing style that involves the setting of surgical quotas for individual surgeons by the manufacturer and direct-to-patient advertising. Though the robots can cost upwards of $2 million, they are being purchased nationwide by even the smallest hospitals. In fact, as of December 2012, there were da Vinci Systems installed in 2,025 hospitals. The hospitals, many of which are already struggling financially, use ISI-provided marketing materials in hopes of attracting new patients. Many hospitals also turn to ISI for aid in setting doctor credentialing criteria, which ISI’s representatives work to keep artificially low, endangering patients.

The primary danger is that the surgeons using the robot have inadequate training and inadequate volume to maintain their skills even after learning to perform the surgery. The medical literature is fairly uniform in showing (a) no overall benefit to use of the robot over traditional open or laparoscopic techniques, and (b) actual detriment to patients during the surgeon’s daunting initial learning curve. Recently, new concerns have arisen concerning a mechanical defect that leads to unintended (and often unobserved) burns of organ tissue.

Intuitive Surgical has been extraordinarily successful in keeping these claims from being heard by juries. Even so, on March 25, 2013, Friedman | Rubin and co-counsel Carol Johnston became the first legal team in the country to survive one of ISI’s motions for summary judgment. Below is a link to the brief Friedman | Rubin filed in Kitsap County Superior Court, which summarizes much of ISI’s aggressive and reckless conduct and explains the legal reasons for why ISI should be held liable for the injuries its reckless choices caused. The case was also the subject of a feature story by the New York Times.

Summary Judgment Opposition Brief

New York Times article

Rick Friedman Named President of Inner Circle of Advocates

Aspen, CO

Rick Friedman began his two year term as President of the Inner Circle of Advocates at the group’s 2013 annual meeting in Aspen, Colorado.  The Inner Circle of Advocates is an invitation-only group of the top plaintiff lawyers in the United States. Since its inception in 1972, the Inner Circle’s mission has been to promote the highest standards of courtroom competence and the mutual fellowship and exchange of knowledge among outstanding trial lawyers. Membership is limited to 100 attorneys of exceptional qualifications who are respected among their peers and who are experienced and skillful in the handling of courtroom litigation. Rick stated, “It’s an honor to serve an organization of such exceptional attorneys who do so much to fight for injured people and hold individuals and corporations responsible for the harms they cause.”

Kitsap County Jury Awards $565,000 to Victims of Sexual Harassment

Port Orchard, WA

A Kitsap County jury awarded $565,000 today to two Kitsap County women who brought claims of sexual harassment against their former employer, Star Westsound, LLC, operator of the now closed Bremerton Lanes & Casino. The women alleged that a manager at Bremerton Lanes, Roy Pierce, engaged in sexual harassment over a period of years directed at numerous female employees. Pierce was accused of propositioning female employees and having planted hidden cameras to spy on women as they changed clothes for work. Pierce is presently incarcerated after being convicted on child molestation, child pornography and voyeurism charges. There was evidence that other managers were aware of Pierce’s activities at Bremerton Lanes and did nothing to stop him. The principal owner of the corporate employer, Frank Evans, was present throughout the trial but did not testify.

Following five days of trial, the jury deliberated briefly on Tuesday and then through lunch on Wednesday, reaching their unanimous verdict just after two o’clock p.m. Their verdict holds the employer liable for sexual harassment in the workplace and awards damages for the emotional harm caused to the women involved.

The women’s attorneys expressed gratitude for the jury’s award. “This jury recognized that although my clients were young and poor, they deserved fair treatment and respect,” said Henry Jones of Friedman | Rubin in Bremerton. “This jury did both in protecting these young working women.” Terry Venneberg of Gig Harbor, Washington, who also represented the women, noted the significance of the verdict, saying, “The jury spoke loud and clear in this case, making plain with their verdict that sexual harassment in the workplace will not be tolerated in our community.”


Coeur D’Alene, Idaho

The Washington State Association for Justice (WSAJ) presented Rick Friedman with the Tom Chambers Trial Lawyer of the Year award. Retired Washington State Supreme Court Justice Tom Chambers says Friedman exemplifies the long tradition of this award, recognizing those whose skills and dedication use the courtroom to level the playing field and provide equal justice for all. Not only has Friedman time and time again represented the little guy in groundbreaking litigation, but he also shares, teaches and brings honor to all Trial Lawyers.

The Trial Lawyer of the Year Award reads: In recognition of your remarkable talent as a trial lawyer, your commitment to advancing the art of trial advocacy, and your selfless dedication to helping your fellow trial lawyers.

Friedman | Rubin Settles Tragic Case of Houseboat Carbon Monoxide Poisoning

Las Vegas, Clark County, NV

Estate of Murphy v. Seven Crown Resorts and Westerbeke Corporation, 10-A-612210-C, District Court for Clark County, Nevada (Las Vegas).

11 year old Joshua Murphy was playing on a raft beside the houseboat his family rented for a vacation on Lake Mead. A few minutes after answering his father’s request that it was time to come in for dinner, Josh was found floating face down in the water. Joshua had been overcome [or rendered unconscious] by carbon monoxide from the houseboat’s generator which was exhausted to the side of the houseboat at the water level. Houseboat generators are used to power air conditioners and other appliances. Unlike modern cars, marine generators typically emit very high concentrations of deadly carbon monoxide. According to some estimates, this type of generator produces as much Carbon monoxide as 300 automobiles, causing potentially deadly conditions even outdoors.

The danger of houseboat generator exhaust has been well established over the past 15 years, and solutions have been designed to reduce the risk to passengers on and around houseboats. The National Institute of Occupational Safety and Health (NIOSH) has repeatedly recommended venting houseboat generator exhaust through a vertical stack above the upper decks, as “a viable, low-cost, engineering control that will dramatically improve the safety of houseboat users.”

According to a 2003 article published by the Society of Automotive Engineers (“SAE”), “[a]ll organizations concerned with boating safety should immediately endorse the vertical stack, as evaluated in this study and by NIOSH, as the only technique which provides adequate protection against carbon monoxide poisonings associated with houseboat gasoline generator exhaust.”

Manufacturers have also developed “low CO” generators, that reduce carbon monoxide from gasoline generators by more than 99%.

The owner of the rental houseboats that the Murphy family was on, however,  had installed neither of these safety features.

A lawsuit was brought by Joshua’s mother against the houseboat rental company and the manufacturer of the generator.  The case was settled for a confidential amount one week before the scheduled start of trial.

Mrs. Murphy was represented by Las Vegas Attorney Sam Harding, and Ken Friedman, William Cummings and Donna McCready of Friedman|Rubin. Following settlement, Joshua’s mother and attorneys honored Joshua’s memory by placing advertisements warning of the danger of houseboat exhaust. To see an example advertisment, click here.

Partner Donna McCready Accepts Judgeship

Anchorage, AK

Friedman | Rubin partner Donna McCready has accepted appointment as a Magistrate Judge in the Alaska Court system. The Honorable Donna McCready’s chambers are located at 825 W. 4th Avenue, Anchorage, Alaska 99501-2004, (907) 264-0439.

Friedman | Rubin Receives Award From Family of Earthquake Victim in Quest to Save Lives of Others

San Luis Obispo, CA

In 2008, a jury returned a verdict in favor of the families of two women killed in the collapse of a building in the 2003 San Simeon Earthquake, saying the building owners were negligent in failing to reinforce it. The owners of this building, which housed several retail shops in the town of Paso Robles, California had received an engineering report that the building was unsound, and would be dangerous in an earthquake. The report recommended that retrofitting work be done to ensure the safety of customers and workers in the shops, but the owners did not follow the recommendations.

Jennifer Myrick, 20, and Marilyn Frost-Zafuto, 55, died while trying to flee a dress shop in the unreinforced building during a magnitude-6.5 quake. In finding for the plaintiffs, the jury decided that the property owners were responsible for the building and were negligent in its maintenance and operation. Following the verdict, the parents of Jennifer Myrick said they hoped it would set an example for other owners of unreinforced buildings. Indeed, the extraordinary verdict is believed to be the first case in California holding a building owner liable for personal injuries sustained in an earthquake. There was significant publicity following the verdict and successful appeal. See, 185 Cal.App.4th 1082 (June 2010).

The Myricks have worked tirelessly to tighten legislation regarding such structures. Their efforts led to the passage of the Jennifer Lynn Myrick Memorial Law or “Jenna’s Law” requiring owners of unreinforced masonry structures to post warning notices. Their legal and legislative efforts have encouraged California building owners and their insurers to be proactive in retrofitting dangerous masonry structures in earthquake zones throughout California and beyond.

Rick Friedman and Friedman | Rubin had the honor of representing the Myrick family and bringing about positive change in California. Much to the firm’s surprise, the Myrick family has honored us with the presentation of the “Jennifer Myrick 2012 Justice Advocacy Award” and a testimonial letter:

We sincerely thank the Myrick family for this tribute.

Friedman | Rubin Wins $104 Million Verdict Against Drug Manufacturer and Distributor

Las Vegas, NV

Having awarded $14 Million in compensatory damages to a Nevada couple on Monday, a Clark County jury added $90 Million in punitive damages today.

Friedman | Rubin’s clients, Michael and Josephine Washington, a 71 year old retired U.S. Air Force mechanic and his devoted wife, were each awarded $7 million for his contracting Hepatitis C at a Las Vegas endoscopy clinic and for her resulting loss of consortium. It was alleged that the defendants, Teva Parenteral Medicines Inc. (Teva), a division of the largest generic drug manufacturer in the world, and its distributer Baxter Healthcare Corp. (Baxter), had recklessly marketed Propofol, a drug used to sedate patients for surgical procedures. Internal documents and company filings with the FDA showed that the companies knew the larger vial sizes of 50 and 100 mL of Propofol were often mistaken by health care practitioners as multi-dose vials and that multi-dosing from these vials carried a extraordinary risk of spreading disease from patient to patient due to the drug’s unique properties. Recognizing there were safer, practical alternatives to the larger vials, Teva and Baxter nevertheless steered its marketing toward 50 and 100 mL vials, discontinuing less profitable, but safer, alternatives. Teva and Baxter even encouraged misuse by distributing Propofol with a multi-dose spike. Over the years, reports of multi-dosing and the spread of disease from these large vials continued, but Teva and Baxter did nothing to address the problem, despite agreement in the medical community that multi-dosing from large vials was to blame. Compounding the problem, Baxter largely discontinued its force of sales reps and the direct doctor consultations regarding safety that they provided in favor of more profitable direct marketing over the internet.

In 2007, a large outbreak of Hepatitis C occurred in Las Vegas, which health authorities traced to the multi-dosing of Propofol at two endoscopy clinics. Over 50,000 people were placed at risk, and over 100 contracted Hepatitis C including Michael Washington.

At trial, Teva and Baxter insisted that they had no responsibility beyond labeling the vials “single use only.” They contended that the healthcare practitioners at the now defunct Las Vegas clinics were entirely to blame. However, as Rick Friedman argued to the jury, the label was simply not big enough to hide their reckless decisions. Both companies were well aware that endoscopy centers had a propensity to multi-dose and had no need for vials over 20 mL. Both companies could have easily avoided harm simply by limiting sales to endoscopy clinics to 20 mL vials or less. Teva could have continued to produce smaller safer vials and prepackaged syringes. Choosing profits over patient safety was the wrong choice, as the jury’s verdict made clear. The jury ordered Teva to pay punitive damages of $60 Million and Baxter, which no longer distributes Propofol, was ordered to pay $30 Million. This award was # 7 in the Top Ten Jury Verdicts for 2011.

Washington v. Endoscopy Center of Southern Nevada LLC, 07A572224, District Court for Clark County, Nevada (Las Vegas). Plaintiff’s trial team was led by Rick Friedman, and included Lincoln Sieler and William Cummings, all of Friedman | Rubin, and also Nevada co-counsel Patti Wise of Edward M. Bernstein and Associates and Matt Sharp.

Friedman | Rubin Supports U.S. Military Families with Jobs and Charitable Giving

The firm is proud to employ spouses of active duty members of the U.S. Military as well as former servicemen and women. These employees bring many positive attributes to their roles at Friedman | Rubin.

The firm is also proud to support two charities that help military families:

 The Fisher House at Joint Base Lewis-McChord provides military members and their families a comfortable, nurturing and secure environment while they receive medical care at Madigan Army Medical Center.


 The Navy-Marine Corps Relief Society provides financial, educational and other assistance to members of the U.S. Navy and Marines and their families, including:


  • Interest-free loans and grants
  • Scholarships and interest-free loans for education
  • Financial Counseling
  • Budget for Baby Workshops
  • Thrift Shops
  • Visiting Nurse Services

We recommend these charities to our clients and business partners. Please click the links above to learn how you can help. Thank you!

Friedman | Rubin Obtains Ruling Denying Settling Defendants’ Demand For Indemnification by Plaintiff’s Counsel

Anchorage, AK

An Alaska Superior Court Judge ruled from the bench today that a settling defendant could not demand indemnification by Plaintiff’s counsel of Medicare Set-Aside Allocations intended to cover a claimant’s future Medicare qualified medical expenses. Friedman | Rubin Partner Donna McCready had argued that such indemnification was an additional term not agreed to at the time of settlement and that it was unethical for Plaintiffs’ counsel to agree to indemnify defendant (and unethical for defendant to request Plaintiffs’ counsel to enter into such an agreement), citing a growing list of ethics opinions from around the country. Donna’s briefs with attached opinions are linked here (Response, Reply) for the benefit of other attorneys faced with similar unethical demands from insurers or settling defendants.

Richard Dykstra and Lincoln Sieler Join the Firm’s Seattle Office

Seattle, WA

On behalf of the firm, Rick Friedman is pleased to announce that two experienced Seattle attorneys, Richard Dykstra (formerly of Stafford , Frey & Cooper) and Lincoln Sieler (formerly of Mosler, Schermer, Jacobs & Sieler) have joined Friedman | Rubin at its new Seattle office location.

Friedman | Rubin® Offices now include:

51 University Street, Suite 201
Seattle, WA 98101
T: 206-501-4446
F: 360-782-4358

1126 Highland Avenue
Bremerton, WA 98337
T: 360-782-4300
F: 360-782-4358

1227 W. 9th Avenue
Anchorage, AK 99501
T: 907-258-0704
F: 907-278-6449

Mr. Sieler’s practice emphasizes catastrophic personal injury, wrongful death, insurance bad faith and insurance coverage. Lincoln is a past chair of the Insurance Law Section of the Washington State Association for Justice.

Mr. Dykstra’s practice is focused on issues of insurance coverage and insurance claims handling. He has been involved in many of the noteworthy Washington cases that established the standards for coverage determinations and insurance company conduct.

Friedman | Rubin ( is a dedicated joint venture litigation firm, focused on bringing civil cases to trial and maximizing recovery for our clients and co-counsel nationwide.

District Court Prohibits Insurer From Claiming Policyholder’s Disability was Caused by Sickness

Los Angeles, CA

Following a skiing accident in March of 1995 and orthopedic surgery in 1996, Dr. Stephen J. August found himself unable to perform as an eye surgeon due to a loss of proprioception in his hands. He had no choice but to wind down and close his medical practice. Fortunately, he had maintained disability insurance since 1980 that would replace at least a portion of his lost earnings. Moreover, his policy with Provident Health & Life Insurance Co. (a Unum Group company) provided for lifetime benefits if the disability was caused by an accident, but only until age 65 if due to sickness or disease.

In January of 1997 Dr. August submitted his claim to Provident, indicating on his claim forms that his disability was caused by the ski accident. The surgeon who operated on Dr. August also submitted forms certifying the ski accident as the cause of disability. Following an investigation into the accident claim and the extent of his disability, the company began paying full benefits without any reservation of rights or any assertion that the company had only accepted the claim based on the sickness provision of the policy. Benefits were paid for the next ten years, largely without incident. However, as Dr. August approached his 65th birthday, the company asserted, without explanation, that his benefits were ending at age 65. When Dr. August pressed the company for an explanation, the Unum adjuster explained that his claim had been “administered under the sickness provision” of his policy (even though he was never told of this) and that therefore benefits would terminate at age 65. When Dr. August protested that his disability was caused by an accident, the company promptly lined up its in-house doctor, Joel W. Saks, M.D., to opine that Dr. August’s condition was in fact caused by sickness rather than accident. When Dr. August appealed the initial denial, the company brought in two more in-house doctors, Charles Sternbergh, M.D. and Richard Tyler, M.D., to support Dr. Sak’s opinion. Dr. August’s benefits were terminated on his 65th birthday.

Dr. August went in search of experienced legal counsel and was referred to Friedman | Rubin. On March 23, 2009, the firm brought suit on behalf of Dr. August in U.S. District for the Central District of California alleging breach of contract and bad faith, seeking policy benefits, general and punitive damages. Following more than a year of intense discovery, FR moved for summary judgment on the contract claim contending that Provident and Unum should be estopped from asserting a “sickness” defense given their ten year silence and payment of benefits without any reservation or qualification. The District Court, Dolly M. Gee presiding, granted the motion, issuing a strongly worded 22-page opinion concluding as follows:

It is undisputed in this case that Defendants failed to promptly provide information to Plaintiff necessary for him to protect his right to bargained-for benefits under the Policy. To allow Defendants now to defend against Plaintiffs breach of contract claim on the basis of their 2007 sickness determination would be “intolerably unfair” in light of their more than ten-year silence. For ten years, Plaintiff reasonably believed that Defendants accepted his claim, which he submitted on the basis of an accident, and was not notified by Defendants of any reason to believe otherwise.

[E]ven when viewing the evidence in the light most favorable to Defendants, the Court finds incontrovertible evidence that Defendants’ dilatory conduct caused Plaintiff to suffer a disadvantage and that Defendants should not be permitted to exploit the disadvantage they inflicted on Plaintiff.

August v. Provident Life & Acc. Ins. Co., CV09-01951 DMG SHX, ___F.Supp.___, 2011 WL 1097461 (C.D. Cal. Mar. 23, 2011).

Following the Court’s decision, Dr. August’s benefits have been reinstated. More importantly, with breach of contract established as a matter of law, the issues for the upcoming jury trial have been narrowed to consideration of the insurer’s bad faith, compensatory and punitive damages. The Federal Court decision also has important implications for other Provident and Unum policyholders with similar accident/sickness provisions in their policies. The decision establishes that insurers may not secretly administer a claim under the sickness provision, nor may they seek to determine that issue long after an accident claim is submitted.

Rick Friedman, James Hertz and Henry Jones of Friedman | Rubin and Mike Bidart of Shernoff, Bidart, Echeverria LLP, are counsel of record for Dr. Stephen J. August in the pending action.

Providence “Strikes Out” in Fight to Keep Money Belonging to Injured Employees

Seattle, WA

After he was severely injured in a motorcycle accident, David Benson received a demand from his health insurer, Providence Health & Services (“Providence”), for 100% of any settlement he obtained from the other driver to reimburse itself for health benefits it paid to cover David’s hospitalization and medical treatment. Given the small liability policy carried by the other driver, David would have received nothing for his lost wages, pain and suffering or disability. While Washington law requires an injured party to be “made whole” before an insurer can demand any reimbursement, Providence argued that Washington law did not apply because David’s health coverage was provided as an employee benefit through his wife’s job at Providence Hospital and Providence had elected to be governed by ERISA, a Federal law which supersedes many state laws protecting workers and insureds.

David’s attorney, David Dawson, resisted Providence’s demand relying on US District Judge Ronald B. Leighton’s holding in Rinehart v. Life Insurance Company of America, obtained by FR’s Ken Friedman and Lincoln Sieler. In April, 2009, Judge Leighton had held that Providence’s health plan was an ERISA exempt “church plan”. Providence countered that despite the Rinehart decision, which it claimed was wrongly decided, its health plan was governed by ERISA because it had since formally elected to be governed by ERISA and further argued that its election operated retroactively. Providence then challenged David’s attorney to have his case be the one to test Judge Leighton’s holding in Rinehart. David’s attorney contacted FR attorneys Ken Friedman and Lincoln Sieler, who happily accepted Providence’s challenge.

After an initial adverse ruling in King County Superior Court, Providence removed the case to Federal Court to press its ERISA argument. On November 30, 2010, after more than a year of litigation, US District Court Judge Thomas S. Zilly ruled in David’s favor finding that the employee welfare plan sponsored by Providence was indeed a “church plan”, that Providence did not elect to have the plan governed by ERISA until after David’s claims against it arose, and that Providence’s ERISA election did not operate retroactively. Judge Zilly concluded:

The defendants in this case come before the Court with a two-strike count. On two previous occasions, the applicability of ERISA’s church plan exemption to PN 501 has been decided against the defendants. Judge Leighton called the first strike in Rinehart, 2009 WL 995715 at *3, holding that PN 501 was a church plan. Although not parties in that action, the defendants were “at-bat.” Prior to removal in this case, State Superior Court Judge Doyle called thesecond strike. See King County Superior Court Cause No. 09-2-35792-7 SEA. Benson has delivered the third pitch, arguing that ERISA does not apply because PN 501 is a church plan. For the reasons set forth above, the Court agrees. Strike three! ERISA does not apply and the defendants have failed to meet their burden to show that this Court has subject matter jurisdiction on removal. (Emphasis added).

Judge Zilly’s ruling permits the lawsuit to return to King County Superior Court, where FR will ask the court to certify Mr. Benson’s lawsuit as a class action for the benefit of all persons from whom Providence wrongfully received reimbursement. To read Judge Zilly’s entire opinion click here.

This decision has important implications for employees with prior injury claims at all facilities run by Providence. Plan members generally include employees, spouses and dependents of any Providence entity. Providence Health & Services was founded and continues to be sponsored by the Sisters of Providence, a religious order of the Catholic Church. It includes 26 hospitals, more than 35 non-acute facilities, physician clinics, a health plan, a liberal arts university and a high school. It includes approximately 45,000 employees. The system office is located in Seattle, Washington.

Ken Friedman and Lincoln Sieler of Friedman | Rubin and Jeff Thomas of Gordon, Tilden, Thomas & Cordell, LLP, represent David Benson in the pending action.

Safeco Required to Pay $530,000 For Herniated Disk

Everett, WA

A Snohomish County Superior Court Judge today awarded $530,000 today to Terry Buholm, a fourth generation fisherman turned commercial painter. Mr. Buholm, was 42 years old and married with young children, when he was injured in a rear-end collision. The accident caused an L2-3 herniation, which required a subsequent laminectomy surgery.

Lincoln Sieler, of Friedman | Rubin’s Seattle office, and Joe Cunnane of Edmonds, Washington, tried the case after Safeco refused to tender its insureds’ $280,000 policy limits to settle Mr. Buholm’s claims. Safeco’s top settlement offer prior to trial was $97,000. Because Safeco failed to adequately protect its insureds from an excess verdict, it was required to pay the full amount of the judge’s award.

Rick Friedman Wins $3.5M Jury Verdict Against Continental Western Insurance

Denver CO

A Denver federal court jury today concluded that Continental Western Insurance Companybreached its obligations under the insurance policy and acted in bad faith when it failed to timely pay benefits following a fire which destroyed a grain elevator and feed mill in Johnstown, Colorado in 2005. The owners, Wayne and Rhonda Spreng, were unable to rebuild due to delaying tactics used by the insurance company that also provided coverage to welders who had accidentally started the fire. The evidence demonstrated that Continental Western put its own financial interests ahead of its policy-holders when it withheld payment to the Sprengs. The jury awarded $3.5 Million dollars in compensatory damages and Continental Western may also be required to pay up to $1.5 Million in interest on the award as well as court costs.

Ken Friedman Wins Jury Verdict Against Northwestern Mutual

Tacoma, WA

A federal court jury today concluded that Northwestern Mutual Life Insurance Companybreached its contractual obligation to pay disability benefits to a Tacoma dentist, Dr. Richard Koch, who had paid premiums for more than 14 years. Although Northwestern Mutual admitted that Dr. Koch was totally disabled from his profession due to a condition that affects vision known as bilateral vestibular hypofunction, the company refused to pay Dr. Koch disability benefits alleging that he had failed to disclose an unrelated health condition in his application in 1994. The jury rejected Northwestern Mutual’s contentions, finding that the company had not proven it was entitled to rescind Dr. Koch’s policy and further finding that the company had breached the contract of insurance.

As a result of the jury’s verdict Northwestern Mutual is obligated to reinstate Dr. Koch’s benefits and may be required to pay his attorney fees and court costs.

Dr. Koch was represented by Ken Friedman of Friedman | Rubin.

Jury Awards $3.1 Million for Brain Injury

Golden, CO

A Jefferson County jury awarded just under $3.1 Million today to Friedman | Rubin’s client, a Conifer, Colorado man injured in an August 24, 2008, rear-end collision. Scott Martin, the married father of five, was stopped on Highway 285 waiting for traffic to clear to make a lawful left turn when a vehicle struck him from behind. It was undisputed that the other vehicle was traveling an estimated 60 miles per hour and that the other driver’s negligence caused the accident.

Martin suffered what was characterized as a “mild” brain injury, but among other deficits, he was no longer able to handle work dispatching trucking cargoes as he had in the past. His attorneys, Rick Friedman of Bremerton, Washington, and Richard Kaudy of Denver, tried the case after failing to resolve the case with Allstate Insurance Company, which insured the other driver. The issues decided by the jury were the seriousness of Scott Martin’s brain injury and the amount of damages needed to compensate him.

The multi-million dollar award is one of the biggest personal injury verdicts ever recorded in Jefferson County, Colorado. The attorneys expressed gratitude for the jury’s award. “This verdict vindicates Jefferson County values of thrift, hard work and family values,” Kaudy said, adding that “the jury worked hard to protect this working family from suffering undeserved economic hardship.” According to judicial observer James Chalat, the verdict stands as the largest personal injury verdict in Jefferson County.

The Martin family, some of whom are shown in this pre-injury photo with Scott Martin (Trial Exhibit 21), are very thankful.

Friedman | Rubin Sets Important Precedent for Arizona and Nation

Phoenix, AZ

The Arizona Court of Appeals issued a landmark decision today, agreeing with FR on every issue presented for review. The decision in Mendoza v. McDonald’s Corp., addresses important issues that arise in almost every bad faith case involving the delay or denial of a workers compensation claim. These issues include: 1) the scope of damages available; 2) implied waiver of privilege when defense counsel influence claims decisions; 3) respondeat superior liability of insurer for defense counsel misconduct; and 4) the preclusive effect given to compensability determinations made in administrative proceedings.

To see a copy of the Court of Appeals’ decision, click here.

Jury Awards $3.8 Million Against Insurer

Louisville, KY

A Jefferson County jury awarded $3.8 Million to a Paducah woman for an insurer’s unreasonable delay in settling her medical malpractice claim against a doctor who had performed an unorthodox surgical procedure he described as a “modified abdominoplasty” at Lourdes Hospital in July of 2003. The surgery on Deborah Daniels, a respiratory therapist, resulted in life-threatening complications requiring multiple and extended hospital stays. She brought suit against the surgeon, Dr. David Grimes, in June of 2004. By May of 2005 her doctor reported she would never be able to work again.

Although the insurer had information indicating that Dr. Grimes’ liability for Daniels’ injuries was reasonably clear, American Physicians Assurance Corporation made no meaningful attempt to settle Daniels’ claim until July and August of 2006. Even after their own board-certified medical consultant told them that Dr. Grimes surgery was “inexcusable and indefensible,” they continued to delay settlement efforts and offered only $75,000 to settle the case at a court ordered mediation. These delays left Daniels destitute and under severe financial stress. Ms. Daniels testified that the day of mediation made her feel like her entire life and 20 year career were worth nothing in the eyes of the insurer. The financial and emotional stress, and AP’s threat to void coverage, compelled her to settle her claim against Dr. Grimes for significantly less than the policy limit of $1 Million.

After settling the claim against the doctor, Daniels brought suit directly against American Physicians alleging that its delay in settling the claim and its refusal to pay a fair sum for her injuries violated the Kentucky Unfair Claims Settlement Practices Act. Her Louisville attorney,Hans Poppe, foresaw that he would need to be a witness at trial. Therefore he sought out attorneys specializing in “insurance bad faith” litigation. He hired the Friedman | Rubin firm with offices in Alaska and Washington. According to attorney Ken Friedman who tried the case, “AP Assurance said they did nothing wrong or unusual in this case and that every claim was handled in this same manner.” Friedman continued, “I don’t think they realized until the end of trial that it was their ‘business as usual’ tactics that were on trial in this case.” The jury heard evidence that the claims adjusters were given financial targets to pay less in claims to injured patients in 2006 and adjusters had goals to push more claims to trial rather than settlement. The jury awarded Daniels $350,000 compensatory damages and $3,479,277 in punitive damages. Friedman said “the jury deserves a lot of credit for analyzing a complicated set of facts and understanding what went wrong, and why. They also deserve credit for rendering a verdict that will send a message to all insurers in Kentucky that they have serious obligations to make a good faith effort to pay valid claims promptly and fairly.” The jury wanted the company to get the message — the punitive award was the exact sum that the claims adjuster was told to cut from her block of claims in 2006.

On June 6, 2009, the LOUISVILLE COURIER JOURNAL ran an in-depth story on case. Click this link to read the story: Woman who sued doctor’s insurer awarded $3.8 million

Jury Awards $5.86 Million for Brain Injury

Seattle, WA

A King County jury awarded $5.86 Million to a Washington man injured in a head-on collision. FR’s client suffered a fractured leg, various contusions and a traumatic brain injury (TBI) causing him to remain in a coma for several days following the accident. The seriousness of plaintiff’s brain injury was the central issue in the claim.

Defendant’s vehicle was insured by PEMCO with a policy limit of $1.25 Million. Plaintiff made a policy limit demand at mediation but it was rejected by the insurer. At the same time, PEMCO assured its driver that in the event of an excess verdict, it would pay “any amount awarded.”

Plaintiff’s attorney, Ed Harper of Kirkland, recognized that PEMCO’s assurance to its driver meant that there was no cap on potential recovery. He asked Rick Friedman of Friedman | Rubin to join him for the trial.

Friedman recognized that the difficulty with the case was getting the jury to recognize the seriousness of the client’s brain injury despite his retained intellectual capacity and communicative skills. At the same time, it was necessary to counter the defense strategy which sought to blame the client.

Friedman’s strategy was straightforward. In addition to the medical and psychological experts, the focus at trial would be the testimony of friends, family, and others, who could shed light on the client’s mental deficits. In-depth interviews of parents, friends and others revealed telling examples of the client’s mental abilities before and after the accident. These stories supported the expert testimony indicating that while the client substantially retained his native intelligence, he now has great difficulty with memory, concentration, and multi-tasking.

Facing Harper and Friedman at trial caused PEMCO to re-evaluate its settlement position. Having previously rejected plaintiff’s $1.25 Million demand at mediation, PEMCO offered $2 Million as the trial got underway. As the trial proceeded, PEMCO upped its offer to $2.5 Million. These offers were considered but were allowed to expire as Harper and Friedman concentrated on delivering a better result. After a two week trial, the jury returned a fair verdict.

U.S. District Court Finds ERISA Does Not Apply to Hospital Employees

Tacoma, WA

U.S. District Court Judge Ronald B. Leighton ruled today that FR’s client, Edward Rinehart, an employee of Providence St. Peters Hospital, a division of Providence Health & Services (PH&S), is not subject to ERISA limitations which would have precluded his state law claims brought to seek redress for alleged mishandling of his disability claim by Life Insurance Company of North America.

Judge Leighton ruled that the long term disability (LTD) plan sponsored by PH&S is a “church plan” and that PH&S did not effectively elect to have the LTD Plan Governed by ERISA. This decision has important implications for employees with disabilities at all facilities run by PH&S.

PH&S was founded and continues to be sponsored by the Sisters of Providence, a religious order of the Catholic Church. PH&S includes 26 hospitals, more than 35 non-acute facilities, physician clinics, a health plan, a liberal arts university, a high school, approximately 45,000 employees and numerous other health, housing and educational services. The system office is located in Seattle, Washington.

The court’s decision permits Mr. Rinehart to pursue his state law claims including breach of the implied covenant of good faith and fair dealing. The decision will undoubtedly be relied upon by other LTD claimants with pending claims. To see a copy of the Judge Leighton’s decision, click here.

Mr. Rinehart is represented by Ken Friedman and Lincoln Sieler of Friedman | Rubin.

Court of Appeals Affirms Verdict for Victims of Bus Beating

Seattle, WA

The Washington Court of Appeals, Division 1, today affirmed the verdict in favor of two teenage bus passengers who had been attacked and beaten aboard a Metro bus by a group of youths in May of 2005. The December 6, 2007 jury verdict awarded in excess of $250,000 to plaintiffs Carmen Rollins, represented by Ken Friedman, and Will Hendershott, represented by Andy Schwarz. In its appeal, King County claimed that the victims were themselves to blame. The Court rejected this claim finding that no evidence supported this argument. To see a copy of the Court’s decision click here.

From a legal perspective, the Court of Appeals decision made important clarifications to the doctrine of joint and several liability in Washington. Indeed, the appeal drew amicus briefs from the Washington Defense Trial Lawyers, the Washington Transit Insurance Pool, Pierce Transit, as well as the Washington Association for Justice (f/k/a Washington State Trial Lawyers Association). Thankfully, the Court of Appeals reached the correct decision. The victim’s awards were affirmed and vexing legal uncertainties were finally put to rest.

The jury trial and resulting verdict were well covered by the SEATTLE TIMES in 2007. The story was featured on the front page during trial and after the verdict. It was also the subject of a lead editorial the week following the verdict. See the following links to the Seattle Times stories:

Story # 1: Beating on a bus: Driver didn’t see or didn’t act?

Story #2: Metro must pay victims of beating on bus

Editorial: Bad night on bus results in justice

Hawaii Court Says Insurer Acted in Bad Faith when it Denied Death Benefits to Mother of Fatally Injured Worker

Kauai, HI

Chief Judge Randal Valenciano of Hawaii’s Fifth Circuit Court (Kauai) today announced a verdict in favor of the plaintiff, Esmeralda Ordonez, following a September, 2008 trial. Ms. Ordonez, an elderly widow who lived in Venezuela, filed suit against Hawaii’s dominant workers compensation insurance carrier, Hawaii Employer’s Mutual Insurance Co. (HEMIC). Ms. Ordonez alleged delays in payment of her survivor’s benefits after her daughter, Mayra Rodriquez, was fatally injured while working at Gay and Robinson Tours in 2005.

Mrs. Ordonez’s attorneys presented evidence at trial that she lost virtually all her income when her daughter died. She was forced to survive on meager handouts from neighbors for over a year. Under the law, Mrs. Ordonez, as the sole surviving parent, was entitled to at least $48,000 in death benefits from HEMIC. HEMIC, however, delayed payment and forced the case to a hearing before an Administrative Law Judge, claiming that it wasn’t clear that the death was “compensable” under the statute. The Judge noted that HEMIC’s attorney had concluded in a matter of weeks that the claim was probably compensable, and acted without legal justification over the next 9 months when it refused to contact Mrs. Ordonez or offer her the benefits flowing from her daughter’s death.

Mrs. Ordonez eventually hired attorney David Robinson of the Honolulu firm of Robinson & Chur to pursue her claim. A year after her daughter’s death, a Hearing Examiner ruled that the claim was indeed work related and that the long overdue death benefits should be paid to Mrs. Ordonez. After payment was finally made, Robinson & Chur filed a civil lawsuit in Circuit Court alleging HEMIC acted in bad faith in seeking to avoid payment to Mrs. Ordonez. Plaintiff’s attorneys presented evidence at trial that the employer (G & R Tours) and the Insurance agent (Marsh USA) unsuccessfully tried to prod HEMIC into making payments after Ms. Rodriquez’s accident.

The Court awarded Mrs. Ordonez $75,000 in compensatory damages and $250,000 in punitive damages from HEMIC, finding that the insurer’s conduct was motivated by a desire to avoid paying a legitimate claim. Judge Valenciano also stated that HEMIC’s conduct during the workers compensation claim was oppressive, willful, and in reckless disregard to the rights of the claimant.

Mrs. Ordonez was represented at trial by Ken Friedman, of Friedman | Rubin (Bremerton, WA) and Dan Chur of Robinson & Chur (Honolulu, HI). To see a copy of the Findings of Fact, Conclusions of Law and Judgment entered by the Court on April 9, 2009, click here.

U.S. District Court Affirms $50 Million Punishment of Unum Group

Las Vegas, NV

U.S. District Court Judge James C. Mahan in Las Vegas has affirmed $50 Million in damages awarded by a jury in June against Paul Revere and Unum Group in the partial retrial of a lawsuit first tried to verdict in 2004. In the 2004 trial, the first jury awarded $1.6 Million in compensatory damages and $10 Million in punitive damages to G. Clinton Merrick in connection with the insurers’ denial of his disability claim. The insurers appealed and the punitive award was ultimately sent back for retrial before a new jury. Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, C.A.9 (Nev.), 2007.

In the June retrial, the second jury ordered Paul Revere to pay $24 Million and Unum to pay $36 Million for a total award of $60 Million. Today’s decision by Judge Mahan, while reducing the punitive award to $50 Million, affirmed the jury’s findings that both insurance companies had engaged in improper claims practices designed to cheat people out of their disability benefits. Judge Mahan found that the insurers engaged in a scheme to deny claims of their disabled policyholders, they were motivated by profit at the expense of their disabled insureds, and they profited enormously, going “from a company with little financial flexibility to a company with over $8 billion dollars in total stockholder equity.” Judge Mahan concluded that “much of this accumulation in value came at the expense of Defendants’ policyholders.” Although Judge Mahan agreed with the jury’s findings that both companies acted reprehensively, he was required to reduce the jury verdict against Unum on constitutional grounds to $26 Million, bringing the total award to $50 Million.

“The jury heard evidence of a fifteen year scheme to cheat disabled people,” said Rick Friedman, Merrick’s lead trial attorney. “Jury after jury and regulator after regulator have condemned their practices, but still they continue to cheat people.” Friedman expressed gratitude at Judge Mahan’s decision saying, “Judge Mahan is a very conservative judge. He presided over two trials, listening to the evidence and studying the exhibits that documented breath-taking corporate misconduct.” According to Friedman, “Judge Mahan’s detailed decision reflects a firm grasp of the facts and the law that must be applied to those facts. Given the present state of the law, Judge Mahan had no choice but to reduce the award. However, we are gratified that he did so in a way that makes clear how strongly the law condemns cheating the disabled.”

To see a copy of the Judge Mahan’s decision, click here. The decision has been formally published by West Publishing using the following citation: Merrick v. Paul Revere Life Ins. Co., 594 F.Supp.2d 1168 (2008).


In his third book, Becoming a Trial Lawyer, Rick Friedman addresses the inner barriers that prevent many trial lawyers from reaching their full potential. Combining practical advice with inspirational insights, he guides you on the journey every trial lawyer must take, from the struggle to gain trial experience to the search for happiness in a career fraught with conflict and frustration. While the book does discuss how Rick went from being a solo lawyer with no legal experience in a small town in Alaska, to one of the most acclaimed trial lawyers today, the book isn’t an autobiography. It’s about the steps you can take to develop your full potential as a trial lawyer.

The book is available from the publisher, Trial Guides. For ordering information and reviews, click here. It is the perfect gift for yourself—or for any other trial lawyer in your life.

Firm Wins $60 Million Verdict Against Unum Group

Las Vegas, NV

A federal court jury in Las Vegas returned unanimous verdicts today against Paul Revere Life Insurance Company and UnumProvident Corporation (Unum Group) in the partial retrial of a lawsuit originally tried to verdict in 2004. In the 2004 trial, the jury awarded $1.6 Million in compensatory damages and $10 Million in punitive damages to G. Clinton Merrick in connection with the insurers’ denial of his disability claim. The insurers appealed and the punitive award was ultimately sent back for retrial before a new jury. Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, C.A.9 (Nev.), 2007.

In today’s verdicts, the jury ordered Paul Revere Life Insurance Co. to pay $24 Million and UnumProvident Corporation was ordered to pay $36 Million. The punitive award of $60 Million is six times the previous award that had been appealed by the insurers following the 2004 trial.

As vice president at General Foods in the 1970s, Merrick was instrumental in the development of the Kool-Aid Man and Country-Time Lemonade advertising campaigns and had thereafter become a successful venture capitalist. Merrick was a founder and managing director of Consumer Venture Partners of Greenwich, CT, and also a founding investor and director of Samuel Adams Brewing Co. He purchased a Paul Revere disability insurance policy in 1989. In 1991, Merrick began to suffer the affects of Lyme disease with chronic fatigue syndrome, though it went undiagnosed for a period of time. His work performance suffered and he tried to continue working. By 1994 he could not meet the grueling business travel and analytic requirements of a venture capitalist and he moved to Summerlin, NV, for his health. He put his insurer, Paul Revere on notice of claim in 1994 and filed his claim in 1995. Paul Revere accepted liability in 1995 and continued to pay benefits until December 1996. At that time, Paul Revere was in the process of being acquired by Provident Companies, Inc. which in 1999 became, UnumProvident Corp., which subsequently changed its name to Unum Group in 2007.

Merrick’s lawyers alleged that improper claims handling practices begun at Provident were brought to Paul Revere and influenced its claim handling with respect to Merrick’s claim both before the initial denial and afterward. These practices at the Unum Group of disability insurers have been the subject of media scrutiny including exposés on 60 Minutes and Dateline NBC as well as in multiple governmental investigations. “The jury heard evidence of a fifteen year scheme to cheat disabled people,” said Rick Friedman, Merrick’s lead trial attorney. According to Friedman, “The verdicts will keep coming until their practices change.”

For further details, click on any underlined item above. This includes the prior 9th Circuit Opinion discussing the facts in detail, the actual jury verdicts against the respective defendants and the biographical information of plaintiff’s lead trial counsel, Rick Friedman. To see the Judgment entered by the court on July 3, 2008, click here.

Merrick’s attorneys included Rick Friedman, Jeff Rubin and James Hertz of Friedman | Rubin and Julie Mersch of Las Vegas.

Rick Friedman Authors Second Book — POLARIZING THE CASE: Exposing and Defeating the Malingering Myth

In his acclaimed new book for trial lawyers, Polarizing the Case, Rick Friedman teaches you not to fear allegations or insinuations that your client is malingering or exaggerating injuries. Instead he provides, “a guidebook for wrapping the malingering defense around the neck of the defense lawyer and strangling him with it.” The book is available from the publisher, Trial Guides. For ordering information and reviews, click here. To read the Introduction to this book and Rick’s prior best selling book for lawyers, The Rules of the Road, click here.

Rick Friedman Receives the Alaska Bar’s Robert K. Hickerson Public Service Award

Anchorage, AK

The Alaska Bar Association presented Rick Friedman its prestigious 2008 Robert K. Hickerson Public Service Award. The award recognizes “outstanding dedication and service to the citizens of the State of Alaska in the provision of Pro Bono legal services.” Past recipients included:

  • 2007: Robin Bronen
  • 2006: Don McClintock
  • 2005: Galen Paine
  • 2004: Susan Orlansky
  • 2003: Christine Pate
  • 2002: Robert Hickerson (posthumous)

Earthquake Victims’ Families Awarded $2 Million From Building Owners Who Failed to Retrofit Historic Building

San Luis Obispo, CA

A jury awarded nearly $2 million in damages Monday for the families of two women killed in the collapse of a building in the 2003 San Simeon Earthquake, saying the building owners were negligent in failing to reinforce it. The verdict in the civil wrongful-death trial included an award for each for the surviving parents of Jennifer Myrick and for the surviving daughter and husband of Marilyn Frost-Zafuto.

Myrick, 20, and Frost-Zafuto, 55, died while trying to flee the historic Acorn Building in downtown Paso Robles during the magnitude-6.5 quake. In finding for the plaintiffs, the jury decided property owner Mary Mastagni and several trusts and businesses owned by her family were responsible for the 111-year-old Acorn Building and were negligent in its maintenance and operation.

The surviving family members attended nearly all of the two-month trial. All expressed satisfaction with the outcome. “It won’t ever bring my mother back or Jen; it won’t ever close that door for us,” Phillips said. “But the jurors have spoken, and there is accountability. That does give us the closure we were looking for.” Dennis Zafuto said the amount of money was not an issue to him, and he felt justice was served. “The price on someone’s life is impossible to determine,” he said. The Myricks said they hope the verdict will set an example for other owners of unreinforced buildings. The couple has worked to tighten legislation regarding such structures. “This has nothing to do with money,” Leroy Myrick said. “They could have given us $50 million, and it could never replace our daughter.”

Under state and local laws, the property owners had until 2018 to renovate the building for seismic safety. This fact came up frequently during trial and during the protracted jury deliberations. According to Plaintiff’s attorney, Rick Friedman, the biggest hurdle in the case was overcoming the owners’ claim that they were reasonable in postponing needed retrofitting. “The owners had notice of the danger and ignored it for years, therefore they bore a measure of responsibility.” According to Friedman, the jury’s decision will motivate building owners to make needed repairs sooner rather than later. “Unreinforced masonry buildings in earthquake prone areas are an invitation to disaster.”

State of Alaska Agrees To Pay $2.4 Million to Settle Foster Care Lawsuit

Anchorage, AK

The state of Alaska has agreed to pay FR clients $2.4 million to settle a civil lawsuit that claimed the state failed to protect two boys who were abused and neglected in state foster care. The settlement comes after several days of disturbing testimony in a case that scrutinized the actions of the state agency. Over the boys’ childhood, the state received about 40 reports of abuse or neglect. Almost all were mishandled. The worst incident happened in 1999 when the boys saw their foster mother kill another child and the boys were forced to help cover up the crime.

The $2.4 million is in addition to a settlement already paid by the state to the family of the child killed. The money is not enough to make things right for the boys, their lawyers said. Their childhoods were lost. Their ability to hold jobs and live on their own is questionable. They both are emotionally shattered. But advocates for A.J. and D.D., now 17 and 18, agreed to accept the money because the state threatened to tie up any jury award with years of appeals, said Ken Friedman, an attorney based in Bremerton, Wash., for Friedman | Rubin. “Frankly they can’t wait years. They are about to turn 18 and 19 and they need the money to get on with their lives,” Friedman said.

Anchorage Superior Court Judge Sharon Gleason approved the settlement, which will be paid in two weeks. Plaintiffs were represented by Ken Friedman of FR and Chris Schleuss of Anchorage.

Morgan Stanley Settles Gender Discrimination Case for $750,000

Tacoma, WA

On December 11, 2007, financial services firm Morgan Stanley agreed to settle claims of gender discrimination and defamation made by a former Financial Advisor in its Tacoma Branch for payment of $750,000. Deborah Dodson, who had worked as a Financial Advisor for Morgan Stanley from 1996 to 2005, filed suit in 2006 alleging that she was denied a lucrative joint production agreement with a senior advisor when the partnership was given to a less experienced and less qualified male broker in the office. Ms. Dodson’s suit also alleged that when she left Morgan Stanley, the broker who was able to enter into the joint production agreement called many of her clients in an attempt to retain their business and falsely claimed that Ms. Dodson had been fired for poor sales, and that she had been “overcharging” her clients.

In pleadings before the court, Ms. Dodson alleged that she was denied the partnership in part because of the social relationship between the Manager of the Tacoma Branch and the male broker who received the partnership, and what was described to her as the “good old boy” way of doing business.

Ms. Dodson, who now works as a financial advisor at H & R Block FA, hailed the settlement. “The Tacoma Morgan Stanley branch has been dysfunctional for years, and a very unpleasant place for female brokers. I hope this settlement is a recognition by the Company of the problem and I hope there will be a commitment to address the issues.”

The case originated when Ms. Dodson filed a complaint with the U.S. Equal Employment Opportunity Commission in August of 2004. After an investigation, the EEOC found reasonable cause to believe that Morgan Stanley’s policy of allowing established financial advisors to subjectively choose partners for lucrative agreements resulted in Dodson being unlawfully denied such a partnership in November of 2003 because of her sex.

Ms. Dodson was represented by attorneys Terry Venneberg and Ken Friedman, both of Bremerton. According to Venneberg, “Discrimination based on gender has unfortunately been a serious problem for many years in the financial services industry. It is our hope that this settlement, which follows on the heels on several settlements of class action lawsuits for gender discrimination against Morgan Stanley, will help rid the industry of unlawful discrimination, and give women the opportunity to succeed in what has traditionally been a male-dominated business.”

Trial was scheduled to begin December 17, 2007.
Further information: Terry Venneberg 360-377-3566
Ken Friedman 360-782-4300

Ken Friedman Wins Verdict Against Seattle Metro — Bus Authority Required to Pay Victims of Beating on Bus

Seattle, WA

King County Metro was negligent when a bus driver took no action while two teenage riders were attacked and beaten aboard a bus by a group of youths, a jury ruled Thursday. The Superior Court jury voted to award in excess of $250,000 to plaintiffs Carmen Rollins, represented by Ken Friedman, and Will Hendershott, represented by Andy Schwarz.

After the verdict was read, Rollins, now 20, sobbed in the arms of her father. “I really do hope this helps promote bus safety,” she said.

Attorneys for King County had argued that the driver behind the wheel of the Rainier Valley-bound No. 7 did not see the assaults on the articulated bus on May 22, 2005. However, while the driver testified that he did not see the beating, his trial testimony was inconsistent with the report he filled out the night of the incident and his testimonial account was disputed by witnesses from the bus.

Ken Friedman argued that the driver was to blame. “The driver could have called for backup or advice when he saw the rowdy group trying to board. He could have called for police help once the beatings began. He has an emergency button that he can press and police would have come at once. Instead, he did nothing.”

Rollins and Hendershott were both 17 and dating at the time. They boarded the bus just after midnight with another friend. Rollins had just gotten off work at a movie theater. She noticed a raucous group waiting as the bus approached the Rainier Avenue-Alaska Street stop. The driver stopped and the group, described by the plaintiffs as about 30 male and female youths shouting profanities and exchanging punches, boarded the bus.

According to testimony, one of the men moved next to Rollins and caressed her leg, then others, including one who said he had a gun. They then began calling the couple names. Just before the bus made its next stop at South Graham Street, Rollins testified, the group “jumped” her and her boyfriend, threatening to rape her, and punched both of them in the face. The assault continued as the bus traveled through downtown Seattle. When the bus finally stopped, the driver opened all the doors and the group dragged the couple out through the rear door. The beatings continued just outside the bus until the couple’s friend called 911 from a cell phone, and the bus drove away. When police arrived (only two minutes after the call) the bus had already left the stop. The assailants also were gone. No one was ever arrested.

The jury trial and resulting verdict were well covered by the SEATTLE TIMES. The story was reported by Natalie Singer and was featured on the front page during trial and after the verdict. It was also the subject of a lead editorial the week following the verdict. See the following links to the Seattle Times stories:

Story # 1: Beating on a bus: Driver didn’t see or didn’t act?
Story #2: Metro must pay victims of beating on bus
Editorial: Bad night on bus results in justice

Ninth Circuit Court of Appeals Upholds FR’s Bad Faith Verdict Against UnumProvident and Paul Revere

San Francisco, CA

In 2004, FR obtained an $11.6 million verdict against UnumProvident and Paul Revere on behalf of Clinton Merrick, a disabled venture capitalist. Merrick submitted his disability claim in 1995 after testing at the Mayo Clinic revealed a diagnosis of chronic fatigue syndrome, an illness that prevented him from performing his duties. After paying benefits for a year, Paul Revere stopped paying the claim asserting “lack of objective medical evidence” in 1996. At the time of benefit termination, Paul Revere was being acquired by UnumProvident which had begun imposing its claims handling philosophy on Paul Revere even before the acquisition was complete.

The jury found that neither company had any reasonable basis to deny Merrick’s claim and returned a verdict for Merrick, awarding him $1,147,355 in unpaid benefits and $500,000 for mental and emotional distress, to be paid by the insurers jointly and severally. The jury also imposed $2,000,000 in punitive damages on Paul Revere and $8,000,000 on Unum Provident.

The Ninth Circuit’s August 31, 2007 decision, Merrick v. Paul Revere Life Ins. Co. , (No. 05-16380), affirmed the jury’s award of compensatory damages and the trial court’s finding that the insurance companies had withheld documents in violation of prior court orders. The Court found that the evidence was more than sufficient to support the jury’s bad faith verdict and that the insurers should be liable for punitive damages. The Court pointedly noted that the it had “previously found that these defendants’ improper claim-scrubbing supports a finding of bad faith claim denial,” citing Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1010-11 (9th Cir. 2004). However, due to changes mandated by the U.S. Supreme Court’s recent decision in Philip Morris USA v. Williams, 127 S. Ct. 1057, 1063 (2007), the Court found that a new trial is necessary to determine the amount of punitive damages to be assessed against these companies.

With the Court’s decision, Merrick will now be able to collect the underlying compensatory award plus interest ($2.3M). The parties will return to Las Vegas and another jury will be empanelled to decide solely the amount of punitive damages to be paid by Paul Revere and UnumProvident. With all of the other issues already decided in Merrick’s favor, the focus of that trial will be on the reprehensible claims handling philosophy employed by these companies that have come to dominate the disability insurance industry. FR is confident that a significantly larger punitive damage award can be obtained in the retrial.

FR Obtains Settlement of $610,000 for Breach of Fiduciary Duties by Conservator

Bethel, AK

In a case involving the loss of minors’ assets which were sought to be protected by the appointment of a professional conservator, Ken Friedman of Friedman | Rubin and Chris Schluess of Anchorage successfully recovered $610,000 on behalf of two children who’s father died with a life insurance policy earmarked for them. Two trusts were set up in 1995. The grandparents were named the co-conservators of the children and co-trustees of the trusts. In July of 1999, Professional Guardian Services (PGSC) was appointed as conservator and trustee because the grandmother was deemed unstable. PGSC never took control of the funds. By June of 2001, the grandmother had depleted the accounts of approximately $200,000.

During the course of discovery in the case, Plaintiffs learned that David Schade, President of Professional Guardian Services, failed to file an inventory of the children’s assets within 90 days as required by Alaska law, or file the required annual reports. Plaintiffs argued that PGSC’s and Schade’s failure to realize that the bank accounts were not protected, together with other violations of its fiduciary duties, amounted to a gross deviation from its obligations to the children and thus justified economic, non-economic, and punitive damages. PGSC filed a third party complaint against First National Bank, which contributed to the settlement. Ken Friedman of Friedman | Rubin and Chris Schleuss of Anchorage, Alaska, represented the plaintiffs.

FR Teams Up With Paul Zebrowski to Win $3.3 Million Verdict Against State Farm

Macomb County, Michigan

A Macomb County jury returned a verdict of $3.3 million against State Farm Insurance Company today for denying insurance benefits to a Harrison Township woman.

Pat Paquette, 60, has been caring for her son Richard, since 1985 when he suffered severe brain injuries in a automobile accident. She is required to provide 24-hour care to help keep him alive. Michigan law requires insurers to pay family members who care for catastrophically injured policyholders. The jury found that State Farm failed to inform Pat Paquette of these benefits or fully pay them. The jury also found State Farm had violated the Michigan Consumer Protection Act by failing to make prompt, fair and equitable settlement on the claim.

“Many families don’t know that they are entitled to be paid by their insurance company for caring for injured loved ones,” said Paul Zebrowski, Paquette’s Michigan attorney. “State Farm relies upon this lack of knowledge to withhold benefits their policyholders have paid for.”

As he has in the past, Zebrowski teamed up with Rick Friedman for the trial of the case. The combination of Zebrowski’s expertise in Michigan attendant care litigation and Rick Friedman’s proven trial experience, made for a good team and another outstanding result.

Zebrowski believes this may be the largest attendant care jury verdict in the state’s history. In addition to the $3.3 million award, State Farm may be required to pay attorney fees, costs and must continue to pay Pat Paquette full attendant-care benefits in the future. To see a copy of the jury’s verdict, click here. To read local media accounts, click here.

National Education Association Pays $750,000 to Three Anchorage Women to Settle Gender Harassment Claims

Anchorage, AK

The National Education Association and its Alaska affiliate have agreed to pay $750,000 to settle claims of gender discrimination and harassment brought by the U.S. Equal Employment Opportunity Commission on behalf of three female employees of the teachers’ union. Carol Christopher, Carmela Chamara and Julie Bhend filed complaints alleging that their supervisor, Thomas Harvey, who was then Interim Assistant Executive Director of NEA-Alaska, engaged in abusive behavior towards them because of their gender, including screaming, yelling and physically threatening actions. In September 2005, the Ninth Circuit Court of Appeals reinstated the claims brought by the women, which had been dismissed in 2003 by U.S. District Court Judge James K. Singleton. The Ninth Circuit held that, because the female plaintiffs had presented evidence that they were treated differently than the men in the workplace, the lawsuit under Title VII could go forward. 422 F.3d 840 (9th Cir. 2005)

As the Ninth Circuit noted, the record in the case revealed “numerous episodes of Harvey shouting in a loud and hostile manner at female employees. The shouting was frequent, profane and often public.” In addition to the “shouting” and “yelling” described by the appellate court, it was recognized that “Harvey’s verbal conduct also had a hostile physical accompaniment.”

Christopher testified that Harvey regularly came up behind her silently as she was working, stood over her, and watched her for no apparent reason. Bhend testified that at an evaluation meeting where Harvey accused her of taking breaks with Christopher and another employee in order to talk behind his back, Harvey “lung [ed] across the table” at her and shook his fist at her. She also testified that on another occasion when she was comforting a local union president about an unrelated matter, Harvey came up behind her, grabbed her shoulders, and yelled “get back to your office.” Chamara testified that in one instance, Harvey “pump[ed] his fist in [her] direction, trying to make a point, as was his custom. Stepping toward me to make the–make the point. I stepped back. I told him that he was being physically threatening.” She went so far as to call the police and file a report on one occasion, on her therapist’s advice that she document physical threats. The physical manifestation of Harvey’s anger was also confirmed by other witnesses, including male employees. For example, Jeff Cloutier, another UniServ director, testified to Harvey’s regular invasion of Christopher’s and Bhend’s “personal space.”

One of the women testified to being in a “state of panic” as a result of Harvey’s behavior, and to feeling “physically threatened most of the time.” Another testified that Harvey created an atmosphere that was “like working with a ticking time bomb because you’re sitting by and you’re waiting for your turn to be next.”

During the discovery phase of the case, NEA-Alaska claimed that Harvey raised his voice in the workplace because of a problem with his hearing, however there was never any evidence offered by the defendants documenting such a problem. Nor was there any explanation offered as to how any alleged hearing problem caused Harvey’s targeting of women for abuse, or his loud use of profanity in the workplace.

Although Christopher, Chamara and Bhend originally filed their complaints only against NEA’s Alaska affiliate, as that was their employer, evidence uncovered during the course of the case revealed that the national organization had been primarily responsible for assigning Harvey to work in management in Alaska. The evidence revealed that the national organization did this in spite of knowledge that Harvey had engaged in abusive conduct towards women in the workplace at other NEA-affiliated organizations. While working at an NEA-affiliated organization in Maryland, the Teachers Association of Baltimore County, Harvey was charged with physically assaulting one woman, and causing two more women to file complaints concerning his verbally abusive and physically threatening behavior. Following those incidents, the National Staff Organization published a notice in its newsletter to NEA employees warning about Mr. Harvey’s harassing behavior. After this, NEA hired Harvey to work at its Mississippi affiliate, where his abusive conduct continued. NEA subsequently made arrangements for Harvey to be transferred out of Mississippi, and into management of NEA’s Alaska affiliate.

“The parallels between the actions of the national NEA, in passing Tom Harvey from one affiliate to another in spite of knowing of his abusive behavior, and the actions of the Catholic Church in transferring known abusers from parish to parish, are striking,” said Terry A. Venneberg, one of the attorneys for the plaintiffs in the case. “It was shameful for the NEA, an organization that prides itself in advocacy for employees in abusive situations, to send Tom Harvey to Alaska, knowing of his capacity for destroying lives and careers.” Kenneth R. Friedman, who also represented the plaintiffs, said, “NEA-Alaska was almost as much a victim of Tom Harvey as the three abused employees. NEA put this time bomb in their midst, and the organization has suffered from top to bottom. Good employees have left, morale is low, and the mission of advocacy on behalf of teachers has been derailed. The full human and financial cost of sending Tom Harvey to Alaska will never be known. The teachers of Alaska have a right to be angry and upset over this drain on their union.”

Tom Harvey is currently the Executive Director of NEA-Alaska. He was promoted to that position after the EEOC filed this lawsuit.

Ken Friedman of Friedman | Rubin and Terry Venneberg represented the individual plaintiffs. Carmen Flores and Jennifer Goldstein represented the EEOC.

For more information, click here to see the EEOC Press Release. Click here to listen to the story broadcast by PBS.

FR Obtains Bad Faith Verdict for California Fire Loss Victim in Ivers v. Allstate Insurance Co.

Cameron Park, CA

A jury found in favor of Thomas Ivers in his 9-year struggle with Allstate Insurance Company over the loss of his home. Mr. Ivers lost his dream home on 10 acres in El Dorado County in January 1997 due to a fire of undetermined origin. Allstate, his homeowner insurer, claimed that the fire was Arson and that Ivers was responsible. Allstate also claimed that Mr. Ivers fraudulently inflated the value of his personal property lost in the fire, and failed to cooperate with Allstate’s investigation of the claim.

Last summer a South Lake Tahoe jury rejected all of Allstate’s defenses and found that the claim was indeed covered under the policy. The jury specifically rejected Allstate’s defenses of arson, non-cooperation, and fraud. That jury awarded Ivers $676,532 for the cost of rebuilding his home and replacing the contents.

This recent trial addressed the question of whether Allstate’s actions amounted to more than a simple mistake-or “honest dispute” in the words of their attorney. The jury found that the denial for the reasons claimed was improper and breached the implied covenant of good faith and fair dealing. Although no damages were awarded by the jury in this trial, the court will now be allowed to award attorney fees to Mr. Ivers for his nine year struggle for justice.

Ken Friedman, of Friedman | Rubin, along with Glenn Guenard, Guenard & Bozarth, LLP, represented Mr. Ivers. “Allstate never thought this day would come,” said Ken Friedman, “they believed the mud they threw at their customer would stick. But at the end, we proved it wasn’t arson, it was a covered claim, and it wasn’t an honest mistake.”

Ken Friedman’s Upcoming Ivers v. Allstate Bad Faith Trial Draws Media Attention

On February 20, 2006, the Sacramento News and Review published an article discussing one of Ken Friedman’s cases, Ivers v. Allstate.

The article by reporter Amanda Dyer entitled “Goats, arson and gag orders”, features a photograph of Ivers’ anti-Allstate pens and stickers and observes that “Tom Ivers has so far thrashed Allstate in court. Now the insurance company wants him to shut up.” The full text of the article can be found by clickinghere.

In the first trial, Ken obtained a $676,000 verdict for Mr. Ivers on his homeowner’s policy. (Clickhere to see our earlier press release on the Ivers verdict.) The second trial, addressing bad faith and punitive damages, is set to commence on February 27, 2006 in Cameron Park, CA.

FR Sets Precedent in Sex Discrimination Law With Federal Court of Appeal Victory in EEOC and Christopher v. National Education Association

San Francisco, CA

The U.S. Court of Appeals for the Ninth Circuit handed down a landmark decision today expanding the reach of sex discrimination claims under Title VII. This appeal presented the novel question whether harassing conduct directed at female employees may violate Title VII in the absence of direct evidence that the harassing conduct or the intent that produced it was because of sex. The Court held that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees. To read the Court’s opinion in its entirety, click here.

Press reports about this victory are appearing in print and online publications around the country. To read one such article, by Justin Scheck of The Recorder, addressing the ramifications of this decision click here.

Ken Friedman of Friedman | Rubin and Terry Venneberg represented the individual plaintiffs. Carmen Flores and Jennifer Goldstein represented the Equal Employment Opportunity Commission.

FR Obtains Verdict for California Fire Loss Victim in Ivers v. Allstate Insurance Co.

South Lake Tahoe, CA

In January of 1997 Thomas Ivers lost his 5,500 square foot dream home to a fire. With over $650,000 in homeowner’s insurance, Ivers was expecting to rebuild. Instead, fourteen months later Allstate denied his claim, accusing Ivers of arson, fraud, and non-cooperation. After years of expensive litigation, Ivers finally had his day in court.

On August 26, 2005 a South Lake Tahoe jury awarded Ivers $676,000. This amount represented the benefits under the Allstate policy that Ivers should have been paid following the fire. The jury rejected each of Allstate’s defenses, finding that the insurer did not prove the fire was caused by Ivers, that Ivers did not materially overstate the value of his contents, and that Ivers did not refuse to cooperate with Allstate’s investigation of the claim.

The three week trial included testimony that an investigator for Allstate’s lawyer attempted to hire a burglar to break into Ivers’ home to search for information to incriminate him. Unfortunately for the investigator, he was speaking to an undercover Sacramento Police officer who was wearing a wire. In the recorded transcript, Allstate’s investigator is heard saying: “We all want this case to go away, and it ain’t going to go away until, uh, you know, we catch Ivers doing something he shouldn’t be doing, but we don’t want him to catch us doing something we shouldn’t be doing.”

Having finally obtained an award of his policy benefits, Ivers is entitled to an award of interest to compensate him for the long delay. Another trial against Allstate, for its bad faith claims handling and for punitive damages, will follow.

Ken Friedman of Friedman | Rubin and Glenn Guenard of Guenard & Bozarth, LLP, represented Mr. Ivers.

Ninth Circuit Court of Appeals Affirms FR’s $14.3 Million Judgment in Ceimo v. General American Life Ins. Co., Paul Revere Life Ins. Co. and Provident Life Ins. Co.

San Francisco, CA

The Ninth Circuit Court of Appeals affirmed the trial court decision today in the matter involving a Phoenix cardiologist whose disability benefits were terminated in bad faith by her insurer. The jury’s original verdict of $84.4 million in April of 2003 was the 7th largest jury verdict in the United States that year and largest ever verdict faced by Paul Revere or its parent UnumProvident. The Ceimo verdict was reduced post-trial by the trial court to $14.3 million with the court adding over $600k in attorney fees and costs. Today’s decision, rejecting the insurance company’s arguments, lets the district court’s determination stand in all respects. To see a copy of the 9th Circuit’s summary opinion, click here.

FR Teams Up with Paul Zebrowski to Win $10 Million Settlement from State Farm in Michigan

Detroit, MI

State Farm Mutual Automobile Insurance Co. has agreed to pay $10 million to a Michigan man paralyzed in a 1977 accident who claimed the Bloomington, Ill.-based company didn’t tell him his insurance policy covered lifetime attendant care.

State Farm paid Kenneth Tyson nothing for nursing care for more than 10 years and limited benefits for another 15 years, even though Michigan’s no-fault auto insurance law required lifetime coverage of such expenses. Ken Tyson was forced to pay many of these expenses himself. Fortunately, Ken had family, friends, and other competent and loving care givers. Without them, Ken would never have survived to see justice done.

In addition to the $10 million settlement, State Farm must continue to pay Ken full attendant-care benefits in the future.

FR’s co-counsel in Michigan, Paul Zebrowski, has been doing an outstanding job for clients deprived of attendant care benefits under Michigan’s unique no-fault law. In Ken Tyson’s case against State Farm, Paul teamed up with Rick Friedman. Their teamwork paid off, resulting in the largest known attendant care recovery in Michigan history.

Michael White and Rick Friedman Receive ATLA’s Prestigious Steven J. Sharp Public Service Award

Detroit, MI

The Association of Trial Lawyers of America (ATLA) presented its prestigious 2004 Steven J. Sharp Public Service Award to FR attorneys Rick Friedman and Michael White, and to co-counsel Mike Abourezk and Peter Kahana, as well as client Kay Bergonzi, for their effort in bringing justice to thousands of cancer patients.

Kay Bergonzi, a breast cancer survivor and single mother, agreed to be the representative plaintiff in a class action against Central States Health & Life Company of Omaha (CSO) on behalf of all the cancer patients the company had shortchanged, even though she would have gotten more money from an individual lawsuit.

From left to right: attorneys Mike Abourezk, Peter Kahana and Michael White, client Kay Bergonzi and outgoing ATLA President David Casey. Michael White accepted the award for both himself and for Rick Friedman who was unable to attend.

The award reads as follows:

The Association of Trial Lawyers of America hereby confers the Steven J. Sharp Public Service Award upon Michael N. White/Richard H. Friedman.

In recognition of his contribution toward a safer; more just America and his advocacy on behalf of the late Carol Abourezk, lead client Kay Bergonzi, and other cancer patients. He made it his mission to find out how many cancer patients were being cheated by their insurance company, and he succeeded in securing justice for them now and into the future. His perseverance, in the face of overwhelming odds against a major insurance company, is inspirational. His fight for justice will help present and future cancer patients get the support they need in their battle with this deadly disease. His work has sent a clear message about the importance of the civil justice system and its role in securing fairness for all Americans.

July 6, 2004.