News and Blog

“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. https://www.trialnewsonline.org/trialnews/december_2020

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]https://www.facebook.com/MsPackyetti/videos/396308054689369/. 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]https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2015/08/lilly_ledbetter_fair_pay_act_of_2009_01.07.2013.pdf. Some studies show that Black women are the most educated group in the workforce,[5]https://nces.ed.gov/fastfacts/display.asp?id=72 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]https://www.cnbc.com/2020/09/18/new-census-data-reveals-no-progress-has-been-made-closing-the-gender-pay-gap.html#:∼: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]https://www.nytimes.com/2020/10/03/us/jobs-women-dropping-out-workforce-wage-gap-gender.html. 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]https://www.bls.gov/charts/usual-weekly-earnings/usual-weekly-earnings-over-time-total-men-women.htm some rely on the specific demographics (race and gender) of the plaintiff or decedent,[9]https://www.bls.gov/charts/usual-weekly-earnings/usual-weekly-earnings-current-quarter-by-race-and-sex.htm 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.

Id.

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]http://justicecatalyst.org/wp-content/uploads/2019/04/2019.04.26-Letter-to-NAFE.pdf.

In July, Washington D.C. Councilmember Trayon White proposed the Stormiyah Denson-Jackson Race and Gender Damages Temporary Amendment of 2020.[13]https://www.dccouncil.us/legislative-requests-for-july-21-2020-legislative-meeting/stormiyah-denson-jackson-race-and-gender-economic-damages-temporary-amendment-act-of-2020-signature-07062020/. 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]https://www.nytimes.com/2020/09/15/us/breonna-taylor-settlement-louisville.html. 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.

References

References
1 https://www.facebook.com/MsPackyetti/videos/396308054689369/.
2 https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fracial-ethnic-minorities.html.
3 https://nwlc.org/press-releases/in-2019-number-of-uninsured-women-spiked-to-10-million-being-a-woman-still-raised-the-odds-of-being-poor-in-america-and-the-wage-gap-for-black-women-and-latinas-closed-by-one-penny/. .
4 https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2015/08/lilly_ledbetter_fair_pay_act_of_2009_01.07.2013.pdf.
5 https://nces.ed.gov/fastfacts/display.asp?id=72
6 https://www.cnbc.com/2020/09/18/new-census-data-reveals-no-progress-has-been-made-closing-the-gender-pay-gap.html#:∼:text=New%20data%20released%20by%20the,every%20dollar%20earned%20by%20men.
7 https://www.nytimes.com/2020/10/03/us/jobs-women-dropping-out-workforce-wage-gap-gender.html.
8 https://www.bls.gov/charts/usual-weekly-earnings/usual-weekly-earnings-over-time-total-men-women.htm
9 https://www.bls.gov/charts/usual-weekly-earnings/usual-weekly-earnings-current-quarter-by-race-and-sex.htm
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.
11 https://law.stanford.edu/2019/11/13/california-bars-the-calculation-of-tort-damages-based-on-race-gender-and-ethnicity/#:∼:text=Gavin%20Newsom%20recently%20signed%20another,on%20race%2C%20gender%20or%20ethnicity.
12 http://justicecatalyst.org/wp-content/uploads/2019/04/2019.04.26-Letter-to-NAFE.pdf.
13 https://www.dccouncil.us/legislative-requests-for-july-21-2020-legislative-meeting/stormiyah-denson-jackson-race-and-gender-economic-damages-temporary-amendment-act-of-2020-signature-07062020/.
14 https://www.nytimes.com/2020/09/15/us/breonna-taylor-settlement-louisville.html.

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. https://www.trialnewsonline.org/trialnews/november_2020

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 info@friedmanrubin.com.

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 makechevroncleanup.com to demand the U.S. Department of Justice and Members of the U.S. Congress take action.

*PEACE
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)

*ECONOMICS
Finn Kydland, Norway (2004)

*PHYSICS
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)

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

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

*CHEMISTRY
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.”

Ethiopian Airlines Flight 302

March 10, 2019, Seattle, WA

Ethiopian Airlines Flight 302

We are here. We can help. In our experience helping victims and families of plane crashes, we have developed the following shared goals. Our law firm is located a short drive from Everett, WA, where the Boeing 737 Max is manufactured. We have are currently suing Boeing for defects arising from the 737 series aircraft.

Read more here…

 

 

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 sgamble@friedmanrubin.com.

 

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 droosa@friedmanrubin.com.

$40 Million Settlement in Seattle Helicopter Crash

May 22, 2018, Seattle, WA

$40 Million Settlement obtained for Helicopter Crash Near Space Needle

Two men injured in the 2014 KOMO helicopter crash obtained a $40 million settlement yesterday. The settlement was reached during a trial spread over the course of five weeks. Plaintiff Guillermo Sanchez and his wife were represented by aviation attorney Alisa Brodkowitz of Friedman | Rubin and Plaintiff Richard Newman was represented by David Beninger of Luvera Law Firm. The two firms worked together to bring about this substantial recovery.

Alisa Brodkowitz represents victims of helicopter and plane crashes both nationally and internationally. “Seattle’s skies are now safer. Anyone operating a helicopter in downtown Seattle should be warned, risk public safety and you will pay dearly,” said Ms. Brodkowitz. Plaintiffs presented a case that the helicopter operator provided KOMO with a pilot who lacked promised training and was asked to fly the wrong helicopter.

The KOMO news helicopter crash fatally injured both the pilot and his passenger, a local photographer, after it crashed on takeoff from a helipad next to the space needle. A Seattle jury heard evidence that to save money on fuel, the pilots were required to land and take off from the helipad multiple times each day, over the congested city streets. The pilots were not permitted to refuel at Renton Airport, where the helicopter was hangered. This refueling practice continued despite safety concerns for the public down below.

During the trial, hundreds of pages of new, long overdue emails, surfaced from the defendants. One of the documents, an email chain from the now deceased pilot, documented his new safety concern raised just six weeks before the fatal crash. A crane located near the 75-foot elevated helipad created complications. Pilots were told they must fly an approach and departure over Broad Street, the very street where the crash occurred. They were also advised to land only on the top three-quarters of the helipad, leaving less room from the edge of the pad in the event of an emergency.

Both Sanchez and Newman, the plaintiffs, were on their way to work when the crash occurred. They were stopped at a red light on Broad Street near the space needle when the helicopter suddenly crashed on their vehicles and erupted in a series of explosions. Doctors testified regarding the injuries suffered by both, including blast injuries, traumatic brain injuries, burns and PTSD. Both continue to undergo treatment for their injuries.

“At the end of the day, the evidence was clear: it was the wrong pilot in the wrong place with the wrong aircraft,” said David Beninger of Luvera Law Firm, the attorney representing Newman who suffered catastrophic injuries. “Safety can’t just be a paper policy, it has to be job one and it must start at the top; when you cut corners, you can cost lives– and that’s always unacceptable.”

Throughout the case, Beninger and Patricia Anderson worked alongside Alisa Brodkowitz of Friedman Rubin, who represented Sanchez. According to Brodkowitz, “It was an honor to represent a ground victim of this terrible helicopter crash and to present this case to a Seattle jury. Although the settlement will allow for future treatment of these men, their lives will never be the same.”

Additional Press Releases and News Articles:

PRNewswire

The Seattle Times

 

 

 

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.

 

FR Attorney Sean Gamble Files Suit on Behalf of Families and Staff of Sky Valley Education Center

Every Washington family has the right to send their children to a safe school. We all agree that safe schools do not poison children, teachers, and parents. That is exactly what Monsanto did when it contaminated the schools with some of the most poisonous chemicals on earth, PCBs.

Monsanto knew the PCBs would be put in school buildings, and the school district and the health department had every reason to know. None of them stepped up to protect the children, teachers, or parents.  All of them had an obligation to do so. We are suing to make sure the poisoning of our kids, teachers, and parents is never allowed to happen again.

Find more information on our in-depth page on the Sky Valley Education Center case.

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Friedman | Rubin Partner Alisa Brodkowitz Discusses Amtrak Payout Cap on KIRO 7

Alisa Brodkowitz, Partner and expert Transportation Attorney for Friedman | Rubin was asked to interview on local channel KIRO 7 evening news regarding the Amtrak derailment in Seattle.

While actively partnering with law firms that fought for the victims of the 2015 Amtrak crash, Alisa believes that by removing the $295M damages cap placed by Congress, Amtrak will only increase its passenger safety.

She explained, “ The thought is that because Amtrak is a private company that receives Federal funding, that it is a company that would not be able to exist if it was open to liability without a cap, however, we know that by removing the cap they will only increase the safety for passengers.”

 

 

 

 

 

 

 

 

 
Alisa went on to say “There is no cap on damages for domestic airlines. Private air carriers invest in safety and we have not had a major crash of a domestic carrier in years. So, we need to ask ourselves what is really happening here?”

See the full interview here

Find more information on our in-depth Amtrak Derailment FAQs

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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 TopVerdict.com, 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 SafePatientAdvocate.com and represents patients injured by medical negligence or defective medical devices.  You can view the discussion at https://medstro.com/groups/nejm-group-open-forum/discussions/336

$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.

FR to Lead Suit for Passenger Injuries on JetBlue Flight 429 to Sacramento

Friedman | Rubin is leading litigation against JetBlue Airlines for passenger injuries suffered when its Flight 429 encountered severe turbulence on August 12, 2016. The flight was traveling from Boston to Sacramento and was over South Dakota when it flew directly into the top of a massive thunderstorm. The plane was forced to land in Rapid City, South Dakota. 22 passengers and two crew members were hospitalized. The suit will address information available to pilots to avoid storms or give adequate warning to passengers of likely turbulence. News media coverage of the case includes: Kiro 7.

If you were injured on a flight, anywhere in the United States, contact Friedman | Rubin and tell us your story. We may be able to help.

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.

fr-shares-mission-with-biawa

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 Files Suit on Behalf of KOMO Chopper Crash Survivor

Seattle, WA

On March 18, 2014, the KOMO News helecopter lifted off from the roof of the KOMO building in downtown Seattle but then crashed in the city street adjacent to the building, killing KOMO pilot Gary Pfitzner and KOMO photographer Bill Strothman. The chopper crash destroyed two vehicles on the ground including a pickup truck driven by Guillermo Sanchez. Sanchez was on his way to work and was stopped at a red light when the chopper came down. He managed to get out of his pickup but then witnessed the helicopter explode into flames and kill the crew. Sanchez injured his shoulder and ankle and was traumatized by the experience.

Media coverage of lawsuit includes an interview with Alisa Brodkowitz who leads Friedman Rubin’s aviation injury section. That interview can be viewed here.

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.

Alisa Brodkowitz to Lead Firm’s Aviation Practice

Seattle, WA

Effective January 1, 2016, Alisa Brodkowitz joins Friedman | Rubin as a partner and will lead the firm’s aviation practice. See the announcement on her website. Alisa has extensive experience representing victims of plane and helicopter crashes as well as personal injuries suffered during air travel. Alisa and Friedman | Rubin firm broke new ground representing passengers, flight attendants and pilots exposed to toxic fumes on airplanes. (See June 22, 2015 story below).

Alisa has fifteen years of experience working on plane and helicopter crashes and she is adept at navigating the federal aviation regulations and international aviation treaties which are particular to aviation law. Working together with Friedman | Rubin’s pre-eminent trial lawyers, Alisa will be able to obtain maximum value for clients with aviation wrongful death claims and for passengers injured by airlines.

The firm welcomes contact from clients and prospective co-counsel regarding all types of aviation claims.

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

2. CNBC

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 info@friedmanrubin.com.

$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.”

Rick Friedman Named WASHINGTON TRIAL LAWYER OF THE YEAR!

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 (www.friedmanrubin.com) 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).

Rick Friedman Authors Third Book — RICK FRIEDMAN ON BECOMING A TRIAL LAWYER

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.