THE MAGAZINE FOR NORTHERN CALIFORNIA PLAINTIFFS’ ATTORNEYS

A walker’s paradise − lost! — Natalie Burdick

The not-so-obvious defendant: Fully investigating the car vs. pedestrian incident — Casey A. Kaufman

Humanizing the “cyclist” The Magazine for — Nathaniel Leeds Northern California Plaintiffs’ Attorneys The defense “expert”

with a badge July 2015 issue — Sara Peters and Valerie Rose

Reproduction in whole or Five tips on handling the adverse TCR in bicycle and in part without express Bicycles, pedestrian cases written permission is prohibited. Pedestrians & — Greg Schaffer Copyright 2015by Marijuana use, comparative Neubauer & Associates, Inc. negligence and the jury trial Urban Environs — Alan Van Gelder

Trial Practice & Procedure Appellate Reports Bicycle accidents: Overcoming initial EEOC v. Abercrombie & Fitch findings of comparative fault Employer cannot make religious practice a factor Defense often claims that the cyclist was in employment decisions inattentive or distracted

Liability as a roadblock to the era of driverless cars — Chris Dolan

Profile

A C , Y R T S U D N I F O Y T I

C Mark Fong d e t s e u q e R e c i v r e S e g n a h C

3 8 0 4 T I M R E

P Accomplished trial attorney, avid cyclist, relishes D I A P E G A T S O P S U

3 0 7 2 - 3 2 1 4 9 A C , o c s i c n a r F n a S

L I A M D R A D N A T S a diverse trial practice and says

t e e r t S d r a b m o L 9 2 2 2

D E T R O S E R P that to a client, “you’re their knight…”

JULY 20 15

4 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com Features Humanizing the “cyclist” Profile: Mark Fong 7 Many potential jurors are not in our tribe and they 44 Veteran trial attorney, avid cyclist says that to a client, bring anti-cyclist prejudices to the jury box. “you’re their knight…” NATHANIEL LEEDS STEPHEN ELLISON Five tips on handling the adverse TCR in 46 Marijuana use and the jury trial Humanizing the “cyclist” 10 bicycle and pedestrian cases If the cyclist or pedestrian used marijuana before the accident, be certain you know the rules before evidence Many potential jurors are not in our tribe The officer and witness say in the Traffic Collision of marijuana use is put before the jury. Report that your guy was at fault – but that doesn’t ALAN VAN GELDER make it so. and they bring anti-cyclist prejudices to the jury box

GREG SCHAFFER K “Other” is the great “them,” the barbar - BY NATHANIEL LEEDS C O

T ians over the hill, or terrorists, or anyone

Department S I / else. When taking on a case involving U A walker’s paradise−lost! L Trial Practice and Procedure someone injured while riding a bicycle, it G The people who are part of the

26 O One out of every four trauma cases at San Francisco I “Self” are part of our society, so we natu - is important to recognize an undeniable, C 18 Beating comparative fault L General involves a pedestrian hit by a vehicle; a look A rally recognize our obligation to them

regrettable fact: many people do not like B

at ways to reduce accidents and share the roads. “cyclists.” N and expect that they will reciprocate. The

in a vehicle vs. bicycle trial A NATALIE BURDICK Effective voir dire, thorough accident reconstruction Only about 10 percent of people in a C same is not true of the “Other.” When someone is part of the “Other” we do not and careful study of the vehicle codes can overcome recent survey reported riding a bicycle expect them to play by our rules, and initial findings of comparative fault. more than once a week; over 50 percent Fully investigating the car vs. pedestrian because they do not follow our rules, we MICHA STAR LIBERTY , W ILLIAM L. V EEN reported never riding a bike. When you 32 start looking at the number of senior do not believe that we need follow those incident AND JEREMY CLOYD norms when interacting with these When the obvious, primary defendant is underinsured, citizens who serve on juries the numbers are probably even worse; many people “Other” people. a thorough investigation of the accident scene can yield For a stark example: George W. surprising evidence of negligence by other parties. Appellate Reports and Cases in Brief injured riding bicycles are unlikely to get a jury of their peers – and claims Bush brilliantly exploited the concept of 49 EEOC v. Abercrombie & Fitch Stores CASEY A. K AUFMAN adjusters know it. “terrorist” as shorthand for a policy nar - An employer may not make an applicant’s religious Although I applaud the efforts of rative. We cannot negotiate with “terror - practice a factor in employment decisions. The defense “expert” with a badge our bar and community organizations to ists” because they will not follow our 36 JEFFREY I. E HRLICH change perceptions, I think it is useful to social norms, and we do not need to fol - Jurors may too readily accept the testimony examine the uphill battle many of our low any rules when dealing with “terror - of a hostile investigating officer. Back Story clients face. ists”– like due process, or limits on state SARA PETERS AND VALERIE ROSE violence – because “terrorists” are not 52 Relax, I’m a professional There are no “cyclists,” just part of us. people who ride bikes Understanding bicycling experts in the context of Commuting in San Francisco This dialectic is important for any 41 Liability in the driverless era urban riding’s evolution. As in any case, it is useful to think of attorney. If your client is seen as the Liability could be a roadblock to the era of driverless MILES B. C OOPER which client’s and witness’s daily life “Other,” jurors will assume that they were cars. Trial lawyers need to play a role as new laws activities jurors may believe are represen - even sure if being called a “Brooks not following “Our” rules and the same are forged. tative of that person’s identity, which are Brotharian” would be a compliment jurors will not empathize with your ON THE COVER: client’s injuries; they will not think “that CHRIS DOLAN Torbakhopper/The West Mission, San Francisco/Creative Commons License of no significance – and which will con - or criticism. sume our client’s identity to the point Advertisers love to play with the could happen to me.” that the jury will struggle to look past dynamic between the “telling” detail and Even if you can get a begrudging their prejudices. Appreciating the signifi - the mundane. My personal favorite is verdict in your favor, it may not reflect Vol. 9 No. 7 JULY 2015 ADVERTISING SALES cance and implications of prejudices is a Volkswagen’s “Drivers Wanted” campaign the damage your client sustained. Plaintiff is the magazine for plaintiffs’ attorneys throughout Northern No. California: 415.431.1117 part of every plaintiff attorney’s practice, which effectively suggested that owners of California. Plaintiff is an independent magazine, not affiliated with any So. California: 760.721.2500 Cyclists will always be “rule- legal professional association. We support those who protect the and must be considered from client their cars are desirable, assertive, serious E-mail: [email protected] Rate card online at www.Plaintiffmagazine.com breakers” individual’s right of access to the civil justice system. Copyright © 2015 intake through theme development and in control as they move through life. by Neubauer & Associates, Inc. All rights reserved. Reproduction in Plaintiff is published monthly by Neubauer & Associates, Inc. Mail subscriptions are free to plaintiffs’ attorneys in whole or in part without written permission is prohibited. Northern California; $50 annually for others. Send requests to [email protected]. and trial. “Traffic Sitters Wanted” probably did not We need to recognize that for most people who drive cars, and walk, the PUBLISHER EDITOR SUBMITTING ARTICLES FOR PUBLICATION For example, it is widely acknowl - do as well in focus groups. Richard J. Neubauer Maryanne B. Cooper, Esq. Plaintiff welcomes your submissions. Articles on all appropriate subjects are edged that evidence of an arrest or con - For many jurors, the fact that a cyclist is the “Other.” This is because CONTRIBUTING EDITORS considered throughout the year. Query us, or send your completed article as a viction reflects on that person’s testimony plaintiff rides a bike makes them a many people who ride bicycles disregard WordPerfect, Word or RTF file attachment to: [email protected] Donna Bader, Esq. Jeffrey Ehrlich, Esq. William L. Veen, Esq. and character. So we have rules about “cyclist” and many of the connotations the rules that apply to either pedestrians or motorists. SALES MANAGER ART DIRECTOR 2229 Lombard Street, San Francisco, CA how this evidence can be used. On the associated with cyclists are not good. A defense-hired bicycle expert Christopher S. Neubauer David Knopf Mail to: P.O. Box 470368, San Francisco, CA 94147 other end of the spectrum are the unin - Traffic tribalism and empathy 415.431.1117 866.838.2353 Fax teresting details that we would not think explained to me how he had been hit COPY EDITOR SUBSCRIPTIONS Eileen Goss Jean Booth POSTMASTER: Change Service Requested to highlight in a trial, because nobody People often divide humanity into when riding his bicycle against traffic. would care. I buy all my shirts at Brooks two groups “Self” and the “Other.” He then went on to explain that my VICE PRESIDENT - ADMINISTRATION Send address changes to Deborah L. Neubauer Neubauer & Associates, Inc., P.O. Box 2239, Oceanside, CA 92051-2239 Brothers. But nobody would ever call “Self” in this formulation are “our peo - client was at fault in a road-edge-defect me a “Brooks Brotharian” – I am not ple,” or those who we are a part of; the case because my client had not ridden in

6 Plaintiff | July 2015 | plaintiffmagazine.com plaintiffmagazine.com | July 2015 | Plaintiff 7 Humanizing , continued from Previous Page

the middle of the lane “like a car.” When the injured person is a cyclist, even if my former cycling team might have more I asked him if he thought following the that is how they see themselves. It is resonance. “rule” might have gotten my client hit, important to look for those characteris - Cast the roadway environment as a “recre - and possibly killed, he gave me a rules- tics of our clients which make them part ational” environment : People hate cyclists are-rules and cycling-is-risky response. of the juror’s “Self.” who interfere with their commute – those The expert’s view created an impos - are the rule-breakers – but understand Here are some ideas: sible double standard: if you cannot family outings and children riding in the behave like a 150hp car, you are not fol - Downplay cycling experience : Although park. If your client was riding in an area lowing the rules. If you are not following being an experienced cyclist can be help - outside the flow of serious traffic, you can the rules, you are liable for your injuries. ful in some cases, it can be more useful to cast them as someone out for a relaxing However unfair these expectations emphasize that they are not. pedal – not a cyclist. are, this belief that cyclists consistently do A person who has just taken up bicy - Even if they did not get struck on a not follow the rules (however impossible cle-riding is just like the jurors – but with bike-path in Golden Gate Park, look for it is for them to do so) is why police offi - a different hobby. And, as an added ben - context cues that make the environment cers often assume liability for the cyclist, efit, typically, people will get into cycling appear recreational. Bicycle-route desig - defense attorneys insist on pursuing for reasons that jurors can relate to: to nations, school zones, and the bucolic ridiculous defenses, and jurors under - solve a commuting problem; health; to nature of a particular road can all help. compensate cyclists. spend time with their children; social No spandex or courier bags : When you are activism (AIDS rides); tourism. selecting pictures of your client, empha - What does it mean to be a Emphasize the defendant’s conduct, not the size that they have a life off the bike – a cyclist? cyclist’s : Recently, a driver who had had life similar to the life of your future As an avid cyclist, I am often tempt - an epileptic attack due to medical non- jurors. Try to avoid those photos and ed to talk about my clients as cyclists. I compliance hit me from behind, landing cameo stories that emphasize your do this naturally because when I refer to me in the hospital for three nights. If I client’s life as a cyclist. Cyclists love how someone as a cyclist I think of that per - were handling my case, I would focus on they look in the slimming kits, helmets, son as part of my tribe and entreat those how frightening it is that an uncontrolled courier bags, and the other armor of around me to offer them the same epileptic was on the roadway – I just hap - their tribe. But be careful − tribal armor respect and empathy that I would. pened to be the object he hit, it could will do more to emphasize that your But, I am not your juror, opposing have been school children. client is a member of the cyclist tribe − counsel, or claims adjuster. Also, see if you can develop facts to which is counter-productive if your goal For people who see the cyclist as show that the driver did not think the is to make them seem like a human who “Other” the cyclist has a number of asso - cyclist was just another human. Often with - was riding a bicycle. ciations beyond being a scofflaw that are out much prodding in deposition, a defen - not helpful to our cases: dant will tell you exactly what they think of Nathaniel Leeds handles • Often middle, or upper-middle class bikes in their roadway. Listen to 911 tapes. a broad range of civil cases on (“They don’t need the money.” “They Flesh out how quickly the defendant will behalf of consumers and small have good insurance.”) “blame the victim” of their own negligence businesses for Calloway and • Youthful (“They’ll work through their – just because they were on a bicycle. Wolf , including personal injuries and recover.”) Emphasize social, professional impact of the injury, medical malpractice, • Accident-prone/Reckless (Cyclists fall off injury : Although cycling may be an and business litigation. He their bikes all of the time; why does the important feature of some people’s lives, started out as a Deputy Leeds defendant need to pay for injuries that jurors might not understand it and it District Attorney in Merced the cyclist was going to get anyway?”) runs the risk of backfiring by painting County where he tried numerous jury trials • Individualistic (“They weren’t contribut - your client as a cyclist. Also, even after a including third-strike felonies, juvenile sexual ing that much to the family, otherwise cyclist’s injury, their cycling may be more assaults, and manslaughter. He brings this they would have been driving the kids vigorous than any physical activity that extensive trial experience to his civil practice. around instead of off riding their bike.”) the jurors do. He is a University of Chicago graduate. He Using me as an example, after being received his law degree from UC Hastings in How to humanize the bicycle- badly injured I have cut my weekly San Francisco. His sincere hope is that this riding client mileage from 150+ to 60, and cut out article will be obsolete as attitudes towards In every case I handle, my goal is to most high-intensity intervals – hardly sta - the bicycle-riding public changes, and he explain that our clients are people tistics that will garner much understand - applauds the efforts of those in the bike- (“Self”), not plaintiffs (“Other”). Often ing or sympathy. However, the fact that advocacy groups who are making it safer that means counteracting the idea that I no longer socialize with the people on to ride in more places for more people.

8 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com Five tips on handling the “Serving the community since 1992” adverse Traffic Collision Report in bicycle and pedestrian cases The officer and the witness say in the TCR that your guy was at fault – but that doesn’t make it so Plastic/Reconstructive Surgery . . . .Los Gatos Neurologists ..Culver City | Thousand Oaks | Valencia BY GREG SCHAFFER The second hurdle in handling a Financial District, you’ll see them looking San Jose | Sherman Oaks | Thousand Oaks bike or pedestrian case is to understand toward oncoming traffic. Cyclists and Beverly Hills The first hurdle in handling a bicy - the unique vehicle dynamics of a two- pedestrians know that challenging a car Neurosurgery ...... cle case is overcoming what I call “bike wheeled vehicle or pedestrian collision. is a sure loss for them. Keep this in mind Maxillofacial Surgery ...... Beverly Hills bias.” As a cyclist, I have seen firsthand Bikes are not cars, so the standard acci - when you put yourself in the shoes of General Surgery ...... North Hollywood drivers who fail to share the road with dent reconstruction we are used to does your client. Toxicology/Pathology ...... Reseda Thousand Oaks cyclists. I can’t tell you how many times not translate in a bike case. You must This approach was useful in a wrong - cars have aggressively sped around me, arm yourself with knowledge about rela - ful death case I handled in which a peeved that I’m seemingly slowing tive bike speeds, hazard perception, gear - propane truck hit the decedent pedestri - Opthalmology ...... Reseda Pain Management ...... Arcadia them down as I bike along Page Street ing, and the forces at work when a cyclist an near Rainbow Grocery at 13th and Bakersfield | Camarillo | Covina | Encinitas | Encino on my way to work. Drivers do not like or pedestrian is hit by a vehicle. With Folsom in San Francisco. The investigat - Orthopedic ...... Apple Valley Fullerton | Fountain Valley | Glendale | Huntington Beach it when riders split lanes through traffic this knowledge, you can obtain beneficial ing officer determined that the north - in the Financial District. Drivers think it evidence from the scene and statements bound pedestrian was jaywalking across Anaheim Hills | Bell Gardens | Chino Hills | Glendale Huntington Park | Lancaster | Los Angeles | Long Beach is reckless when riders pass on the left from witnesses when investigating your 13th Street because his body was found Huntington Beach | La Mirada | La Puente | Lancaster Newport Beach | North Hollywood | Pasadena | Pomona of a long line of cars waiting for a traf - case. 20 feet outside of the crosswalk. The Long Beach | Los Alamitos | Los Angeles | Los Gatos Rancho Mirage | Riverside | Ridgecrest | Rosemead fic light. In urban areas, drivers per - 1. Use common sense propane truck had turned right from Mission Hills | Monterey Park | Ontario | Palmdale Santa Ana | Signal Hill | Thousand Oaks | Van Nuys ceive the cyclist to be “winning,” while northbound Folsom onto 13th, a busy the driver is stuck in the car behind We have all seen cyclists behaving roadway with three eastbound lanes. Pomona | Riverside | Santa Clarita | Valencia | West Covina Westminster traffic. The attitude of these drivers badly – not fully stopping for stop signs, We retained an accident reconstruc - may not be reasonable, but to combat running red lights and not yielding the tion expert to evaluate the evidence and General Medicine ...... Bonita | Brentwood | El Monte | Encino | La Mirada the bias you must understand it exists right-of-way. I have even paid my own opine that the impact threw the pedestri - Los Angeles | Marina Del Rey | Mission Hills | Palmdale | Panorama City | Santa Clarita and attempt to change the narrative ticket for rolling through a four-way stop an’s body out of the crosswalk. But, the early. on my bike. overwhelming commonsense argument The unfortunate bias against cyclists While cyclists (and pedestrians) may in my view was that no reasonable person translates into bad witness statements, violate the vehicle code, they usually do would jaywalk across six lanes of traffic sloppy collision analysis by investigating not purposefully place themself in dan - (there are also three westbound lanes on Liens Accepted officers and incorrect findings of fault, all ger. If you watch cyclists on Market Street 13th) when there’s a perfectly good cross - of which make their way into the Traffic in San Francisco during the morning walk 30 feet away, and if he had jay - Collision Report (TCR). If your practice commute, you will notice they are atten - walked he was not looking at the ground. involves bicycle cases, you have seen your tive to what is going on around them. If jaywalking, he would have looked west - fair share of unfavorable TCRs. Similarly, They are not on their phones, fiddling bound to make sure the coast was clear, CENTRALIZED APPOINTMENTS, deference is often given to a driver in with a radio, or drinking coffee like many and he would not have missed a propane many pedestrian collision reports. At the drivers. Cyclists actively scan the road, truck coming at him. A common sense BILLING AND COLLECTIONS outset, you know you will be dealing with looking for dangers like train tracks, evaluation was that my pedestrian was an investigating officer or witness who opening car doors, or a merging vehicle. crossing northbound, in the crosswalk, PROMPT AND THOROUGH MEDICAL REPORTS will favor the defendant driver. With an Active scanning is even more present to a looking north. When the propane truck adverse police report or witness state - cyclist or pedestrian who is bending the came up from behind him, he did not COMPLETE PATIENT FOLLOW THROUGH ment, the chances of pre-litigation settle - rules. see the truck because he had a walk sign ment drop significantly. You can set your - If you watch cyclists rolling through and was not expecting danger. INSTANTANEOUS STATUS self up for success, however, if you prop - a four-way stop, you see them looking at The moral: if you have a TCR with a erly investigate the collision and gather the cars in the intersection to make sure police officer or witness who says your CALL TODAY! 661-266-8700 evidence as soon as the case comes to they are staying put. Similarly, if you cyclist or pedestrian was riding or walking you. watch a pedestrian jaywalking in the See TCR, Page 12 www.TOTALCAREMEDICAL.com

10 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com TCR , continued from Page 10

in a dangerous manner, do not take it at that a defendant did not have her turn image taken one month before the “guar - face value. Be critical, do the digging, signal on for long enough. antee inspection.” Google map images change the story. In several dangerous condition cases, show the date and year the photos are 2. Use Google maps Google maps have been pivotal. One taken, which I highlighted in the to investigate your case case involved a large pothole caused by a demand package to the City. I did not sloppy asphalt patch after a utility dig on end up taking the inspector’s deposition, If you are not already using Google Broadway Street in San Francisco. My but it would have been fun to ask him maps to initially evaluate your cases, you cyclist hit the pothole, was ejected from how he missed a massive pothole in the should start. I use Google maps for every his bike and injured both wrists. By the newly paved road during his “guarantee collision case. It is not a substitution for time the client came in, the pothole was inspection.” going to the scene to observe, but it is an fixed and the City claimed they did not In another case, my client’s bicycle extremely invaluable tool. When I take a have prior notice of it. The City had tire went into a dangerous sewer grate client intake over the phone, I have recently paved the road, and in discovery and I used the prior street view photos to Google maps open so I can visualize the responses pointed to a “guarantee show that someone had crudely spray scene. I take screen shots to put in my inspection” two months prior to the acci - painted an arrow by the sewer grate, pre - demand letters. I check parking signs to dent date where the City had signed off sumably to warn cyclists of the danger. see if cars were likely parked in the area on the paving project. Using the street Google maps showed that the arrow had at the time of collision. I use aerial pho - view function, I checked the past Google been present for at least six months prior tos to determine car lengths. I have used photos of the roadway, and the photos to the accident. It was hard for the City the distance function to show an adjuster clearly showed the pothole in a Google See TCR, Page 14

12 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com TCR , continued from Page 12

to dispute notice and that the grate was For many roads, these historical pho - condition has been present and cross- dangerous when their employee had tos go back 10 years. You can use them to reference those dates with maintenance painted a warning arrow on the ground. demonstrate how long the dangerous or inspection records obtained in discovery. 3. Quickly go to the scene and observe You must spend time at the scene watching cyclists (or pedestrians) interact with traffic, the roadway, and traffic sig - nals. Watch how cyclists, pedestrians and vehicles interact with one another. Does the scene fit with what your client is telling you, or is it closer to what the investigating officer determined or what the witness stated? In one case, my client was riding south in a dedicated bike lane along the Embarcadero during rush hour. The bike lane is adjacent to the curb, and he was passing the slow rush hour traffic on his left. Near the large crosswalks by Justin Herman Plaza, a front passenger door opened and took him out. While he was going to the emergency room in an ambu - lance, the driver of the vehicle and the exiting passenger told the investigating officer they had pulled over to the curb to let the passenger out when the cyclist tried to “squeeze” by the car to pass on the right. The investigating officer adopted this statement in his conclusion, and determined the cyclist was at fault. As a rider, this seemed like an odd cycling deci - sion. I went to the scene with my client during rush hour, and spent 45 minutes observing and discussing what happened. While there, I noticed a smooth and relatively quick pace in the unobstructed bicycle lane. Vehicle traffic was heavy. Many cars stopped to let out passengers who were going to the ferry building. Because traffic was slow, the cars were stopping in their lane and the passengers exited quickly, opening their door into the bike lane, so the car could proceed on its way down the Embarcadero with - out pulling out of traffic. Is it more plau - sible that my client, a regular commuter cyclist, saw a car pull over to the curb in front of him and tried to squeeze by it on the right, or that the driver and passen - ger were lying about pulling over? Of course the driver was lying, but I may not See TCR, Page 16

14 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com TCR , continued from Page 14

have known that if I had not taken the was probably not going faster than the number for the adjuster. The insurance time to go observe the scene. 25 mph speed limit. If the insurance adjuster could not get a hold of her, and company had talked to this witness first, she stopped returning my calls. When 4. Talk to witnesses before the I would have heard about how my client the insurance company did not put pre- insurance company does was “flying” down the Embarcadero for litigation money on the case, I filed the If you have a witness in a TCR say - the duration of the case. lawsuit wishing I had taken the time to ing your cyclist did something wrong, call While you have a witness’s coopera - get a declaration from her. Lesson them. Ask them what they observed, and tion, get something tangible. In that learned: when you have someone willing how they observed it. The conversation same case, the witness told me he catches to help, take them up on it and get should be cordial: “I represent a cyclist the ferry home every day, so I asked him something in writing. They may get busy who was injured in a collision you wit - if he’d be willing to meet me at the sub - with other things and change their mind nessed and I’d appreciate your help so I ject crosswalk so I could understand the about wanting to participate in your case. can understand what happened.” But event better. We watched as several taxis 5. He who waits, loses treat these conversations like a nice dep - let passengers out near the crosswalk, osition. It can also be helpful to meet without pulling over to the curb. The We are all busy. Much of our atten - with a witness at the collision scene so witness agreed to allow me to take pic - tion is focused on cases in litigation or you can get their precise vantage point. tures of him standing in the roadway those with approaching deadlines. In the case with the cyclist on the where the potential defendant’s car had Rather than jumping on a new case Embarcadero, the TCR contained a state - been. He wasn’t standing next to the quickly, you may find yourself scrambling ment from a witness who reportedly saw curb. I included those pictures in the around six months before a lawsuit must the car pull to the curb with its flashers demand letter, and the case settled pre- be filed to work on settlement. on, saw the bicyclist going 25 mph, and litigation despite a bad police report that If you wait, you lose important infor - saw the cyclist trying to “squeeze” contained an unfavorable statement from mation and positioning. Most significant - between the car and curb. I called him, that witness. ly, you lose witnesses’ interest. Even wit - and the first thing he told me was that In another case, I had a Good nesses who believe your client is at fault my guy was “flying,” going so fast that he Samaritan who had chased down a car are commonly sympathetic to your was worried he might have killed him - that left the scene after the driver hit my client’s injuries and want to help. Talking self. In discussing his observations, it cyclist. There was no TCR so there were to witnesses early establishes the relation - became apparent that the speed he no written statements of the event. I ship, and makes you credible. A year and attributed to my cyclist was a product of talked to the witness twice on the phone a half later, they wonder why they are the suddenness of his recollection of the early on and she was extremely helpful being bothered so late in the game and impact. After speaking with him, he and cooperative. Thinking that she they may question your motivations. agreed that my cyclist was going the wasn’t the type to disappear, I sent out In the face of a bad traffic collision same pace as the rest of the cyclists and my pre-litigation demand with her phone report, gathering evidence and witness testimony early will vastly improve your chances of settling your case early. The ripple effect of this practice is that you will have fewer cases in litigation, fewer cases approaching statutory deadlines, Kevin Kearney and fewer fires to put out. Expert Witness Greg Schaffer is an asso - ciate at Rahman Law PC. Over 35 years of Construction His practice focuses on per - sonal injury cases involving Over 20 years of Consulting motorcycle and bicycle acci - dents, medical malpractice, Construction Litigation and Management wrongful death, catastrophic injuries, defective products, Schaffer BAY AREA/NORTHERN CALIFORNIA premises liability and elder/dependent adult abuse. He lives in San 415.819.1157 Francisco and is an avid bicyclist, motorcycle www.kearneyobanion.com [email protected] rider, climber and runner.

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ATTORNEY CARE PROGRAM CLIENT CARE PROGRAM Regular bi-monthly report on status of referred 12 local offices state wide means convenient cases offices near your referrals and clients Highest possible referral fees pursuant to State All cases are handled by Steve Danz and local Bar rules co-counsel Reciprocal referrals where appropriate Clients kept informed of all significant developments in their case Getting the squeeze on Market Street Referral fees paid religiously at case closure with a complete distribution report to you Full discovery and complete trial preparation including expert retention where appropriate Regular email updates on new significant Beating comparative fault developments in employment law We vigorously oppose illegal arbitration demands in a vehicle vs. bicycle trial Recently a friend of mine contacted me because I was the only lawyer she knew. Her sister was being pushed out of her job because of her age. With complete confidence, I referred her to Le Moullac v. Daylight Foods Stephen Danz, who immediately met with her and gave her an honest assessment of her legal “options. Steve informed me when he met with her and sent me an unexpected, but much bicyclists. Even after the video was discovered, the district attor - appreciated, surprise – a referral fee. I hadn’t realized it beforehand, but referral fees are a standard BY MICHA STAR LIBERTY , W ILLIAM L. V EEN , part of his practice. My friend’s sister was extremely satisfied with Steve, which of course made ney’s office – the same office that prosecuted a bicyclist for neg - AND EREMY LOYD me look good too. It’s important for me to know attorneys like Steve, who I know will do a great J C ligently killing a pedestrian the year prior − declined to prose - job for the people I refer to him. cute the driver that killed Amelie as a result of a traffic violation. Twenty-four-year-old Amelie Le Moullac was bicycling to Our jury pool demonstrated bias covering all points of the — David L. Fleck, Esq. work a couple years ago on San Francisco city streets when a love/hate spectrum for and against bicyclists. The prospective delivery truck driver turned right across her bike lane, propelled jurors that came in from their commute with helmets under arm her from her bike, and then ran over her twice. Her parents’ ® ” or Velcro straps on their legs were easy targets for the defense. REAL OFFICES, REAL ATTORNEYS REPRESENTING EMPLOYEES ONLY wrongful death claims went to trial a year-and-a-half later in the But those carrying biases against bicyclists did not wear them so case of Le Moullac v. Daylight Foods. plainly. The delivery company denied any responsibility throughout To get jurors to start discussing their views on bicyclists, we Please contact Stephen Danz to discuss your potential referrals at and asked the jury to deliver a defense verdict. The defense the - welcomed the concept that not all bicyclists are all good or all orized that Amelie was unsafely passing a right-turning delivery 877-789-9707 and visit us for more information at bad. “Has anyone had a negative interaction with a bicyclist? truck on the right, either because she was distracted by head - Tell me about that.” “Has anyone seen a bicyclist roll through a www.employmentattorneyca.com/referral phone music or because she was in a hurry to get to work. This stop sign?” In addition to exposing negative views about bicy - article looks at three strategies that were effective in dealing clists, these questions played the foil to our clients’ daughter − with the comparative fault arguments before, during, and after one of the “good ones” who was following traffic laws when she the presentation of evidence. was run over. Voir dire exposed juror biases We also wanted to expose beliefs that Amelie might share some responsibility simply because she chose to ride a bike in We were concerned that jurors would apportion some the City. “Does anyone feel that a bicyclist assumes some degree degree of fault simply because Amelie was a bicyclist. After all, of risk by choosing to ride on San Francisco city streets? What Amelie’s case made news when surveillance video surfaced show - about a bicyclist who stays in the bicycle lane? Can that person ing that the San Francisco Police Department had wrongly fault - assume they will be safe and others will not enter their lane?” ed Amelie for the collision. Some felt this discovery revealed a LoS ANGELES oRANGE CouNty PASADENA SAN BERNARDINo SAN DIEGo FRESNo SAN FRANCISCo SANtA RoSA SACRAMENto glimpse of a systemic bias – or rush to judgment − against See Comparative Fault , Page 20 11661 San Vicente Blvd., Suite 500, Los Angeles, CA 90049 18 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com THE CIFARELLI LAW FIRM, LLP Comparative Fault , continued from Page 18 Why you should refer your child sexual abuse

We were surprised to learn that not They argued all jurors felt that Amelie’s use of the bike that she had or adult sexual abuse case to us: lane was necessarily a good fact for us. plenty of time Some jurors felt that the bike lane should to see the truck be a zone of safety for bicyclists. Others turning ahead We have un-matched experience handling child sexual abuse cases for nearly twenty years. felt that a bike lane is a shared area of her. They where bicyclists need to be alert and argued she We have re-defined the value of Childhood Sexual Abuse cases and Sexual Abuse cases involving adults. ready to yield to motorists. This turned should have out to be a central tenet of the defense merged to the VICTORIES FOR CHILDREN SINCE 2012 case. We therefore knew that we needed left around the to hammer throughout trial the concept truck rather HIGH SEVEN-FIGURES PAID Teacher touching two students in the classroom that a bike lane should be a safe area for than continue bicyclists. traveling in the MID SEVEN-FIGURES PAID Teacher sexually assaulting student athlete bicycle lane at Accident reconstruction twice the SEVEN-FIGURES PAID Teacher putting student on lap in classroom showed the bicyclist was truck’s speed. where she was supposed to be SEVEN-FIGURES PAID 5-year-old girl molested by 5-year-old boy They were allowed to show the jury train - Amelie was in fact one of the “good The defense tried to depict Amelie ing videos with examples of bad bicycling ones” and was following all traffic laws as reckless – one of the “bad ones” the behavior. Plaintiffs’ accident reconstruc - at the time she was run over. VICTORIES FOR ADULTS SINCE 2012 jurors had discussed during voir dire. tion was thus essential to show that See Comparative Fault , Page 22 HIGH SEVEN-FIGURES PAID Patient improperly touched by physician during exam SEVEN-FIGURES PAID Patient fondled by physician before surgery

GROUNDBREAKING PRIVACY RIGHTS VICTORY FOR CHILD SEXUAL ABUSE VICTIMS Orthopedic Expert Witness M.G. v. Time Warner, Inc., (2001) 89 Cal.App.4th 623 Dr. Steven R. Graboff, M.D. Generous referral fees paid pursuant to state bar rules.

Dr. Graboff is a board-certified orthopedic surgeon and THOMAS CIFARELLI forensic-medicine specialist offering: Best Lawyers in America, Lawyer of the Year, • Orthopedic medical-legal consultation Orange County, 2014 – 2015 • Medical exam of client Best Lawyers in America, 2011 – 2015 • Review of medical records and radiologic Southern California Super Lawyers, 2004 – 2015 studies • Expert testimony at mediation, arbitration Southern California Top 50 Super Lawyers and trial National Trial Lawyers, Top 100 • Flexible schedule for medical exams, Trial Lawyers in California meetings, depositions and telephone conferences Martindale-Hubbell, AV Preeminent Rating since 2001 Law Dragon, Top 500 Unparalleled experience: Plaintiff Lawyers in America Supporting the Medical Legal Community for Over 20 Years

(714) 843-0019 THE CIFARELLI LAW FIRM, LLP DrGraboff@gmail.com • www.DrGraboff.com • Huntington Beach, CA www.cifarellilaw.com 1.888.703.7833 • 949.502.8600 20 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com Comparative Fault , continued from Page 20

The reconstruction of bicycle colli - of the San Francisco Bicycle Coalition and the truck all interacted with each sions, generally, poses different chal - found video surveillance of the collision other through the entire chain of events. lenges than motor vehicle versus motor from an auto body shop’s security system. For example, a tread pattern on Amelie’s vehicle collisions. The bicycle and rider The police department had overlooked helmet matched up to the unique markings are not attached and may come to rest at the video and it was saved just before the of the truck’s rear tire. And a scuff mark on different locations. Bicycles are more eas - security system’s DVR would have erased her shoe suggested an initial point of con - ily moved following a collision than cars it forever. To its credit, however, the tact with the truck’s right front tire. and thus evidence of its resting place police department took abundant high One of the things we wanted to may be lost. There is also often less evi - resolution photographs of the scene and know was where the truck driver started dence of the point of impact such as skid evidence from all angles. The importance his turn. Did he merge into the bike lane LAW OFFICES OF MICHELS & LEW marks or damage to the motor vehicle. of these photographs was highlighted before turning or did he suddenly turn MEDICAL MALPRACTICE & PERSONAL INJURY And bicyclists of course are more suscep - when the intersection underwent a lane across it in violation of the Vehicle Code? tible to death or serious brain injuries reconfiguration shortly after the collision. In order to figure out the truck’s path we that would prevent them from providing Preservation of Amelie’s clothing, needed to know enough of the points evidence about how the collision helmet, bicycle and backpack also helped along that arc. Whereas a straight path of occurred. reconstruct the collision. Our biomech - travel may only include two points, the These difficulties require a prompt anist evaluated the nature of the damage path of a turning movement, i.e., an arc, review and preservation of the scene of a to these items to help remove uncertain - contains at least three. Fortunately, bicycle collision. In this case, a member ties about how the bike, asphalt, Amelie, See Comparative Fault , Page 24

22 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com michels-lew.com Visit us in Vegas at the CAALA Convention 310.444.1200 Comparative Fault , continued from Page 22 EEsssseennttiiaall OOnnlliinnee enough evidence had been preserved to indicated a mandatory requirement for careful jury evaluate the evidence and draw the path of the truck’s turn, and the Amelie to leave the bike lane to avoid find their daughter shared no responsi - reconstruction showed the truck’s path turning vehicles. bility for her death. We hope that our during the turn. We found a slightly different statute own experiences in reaching this result VVeerrddiicctt The most visually stunning aspect that applied for circumstances involving for her parents can also help other vic - of the reconstruction, though, was put - bike lanes. California Vehicle Code sec - tims of bicycle accidents find justice. ting all of the evidence collected into tion 21208 provides pertinently that a 3-D reconstruction of the intersec - “Whenever a bicycle lane has been estab - Micha Star Liberty is a Reports tion in order to show the relative lished on a roadway … any person oper - civil rights attorney specializ - Reports times, speeds and distances. The ating a bicycle upon the roadway at a ing in litigating serious reconstruction showed that whereas speed less than the normal speed of traf - injury, civil rights, sexual Amelie would have been visible in the fic moving in the same direction at that abuse, and employment mat - BECAUSE VERDICTS ARE NEWS. truck’s mirrors at the time the driver time shall ride within the bicycle lane, ters in both individual and began his turning movement, Amelie except that the person may move out of class actions. She is a certified would not have detected the truck’s the lane…” in the same circumstances set mediator with over 40 hours Liberty change in course until just nine-tenths forth in section 21202. We felt that the of training who performs of a second before impact. Thus, even permissive “may” language not found in mediation for the Contra Costa Superior if the jury bought into the theory that the more general statute was very impor - Court. She is also a frequent lecturer and bike lanes are intended to be shared tant and emphasized that Amelie had a widely published author. Ms. Liberty is a zones rather than zones of safety, our right to remain in her bike lane – to treat graduate of the University of California at accident reconstruction showed that it as her safety zone. Los Angeles and the University of California, Hastings College of the Law. She was recently Amelie was never given an opportuni - When statutes conflict ty to share. elected to serve an unprecedented third one- California Code of Civil Procedure year term on the California State Bar Board Specific jury instructions on the law section 1859 provides that where a more of Governors, and was also elected to be a Vice specific statute is inconsistent with a President of the State Bar of California. She The defense argued that Amelie was more general statute, the more specific actively serves on the boards of the Consumer required by law to slow for the truck, statute controls: Attorneys of California, the Alameda-Contra leave the bike lane and merge to the left In the construction of a statute the Costa County Trial Lawyers Association around the turning delivery truck. The intention of the Legislature, and in the (President 2010, Former Secretary and Treasurer, defense attorneys told the jurors that this construction of the instrument the Former Editor of The Verdict magazine ). was the case throughout trial and even intention of the parties, is to be pur - hired a bicycle expert who stated that sued, if possible; and when a general William Veen founded Amelie was required to follow this law. and particular provision are inconsis - The Veen Firm, P.C. as a We undermined this defense strategy with tent, the latter is paramount to the for - sole practitioner in 1975, Get the attention your verdict deserves specially drafted jury instructions setting mer. So a particular intent will control a gradually developing it into a Verdict alerts are sent by e-mail to 11,500 California trial attorneys in both Northern and forth the specific rights and responsibili - general one that is inconsistent with it. firm of talented attorneys and Southern California. Each case summary includes a link to the full verdict report on ties of bicyclists found in California This is also the common law. (See e.g., staff who represent severely Vehicle Code sections 21200-21212. Woods v. Young (1991) 53 Cal.3d 315, 324.) injured workers and con - our Web site. Defendant requested a negligence We therefore argued that the defense’s sumers. He is a member of the per se instruction based upon California proffered instruction incorrectly stated the American Board of Trial Veen Report your verdicts Vehicle Code section 21202 to support its law because a more specific statute con - Advocates and honored as the Unlike traditional print verdict reporters, we will send a verdict alert as soon as theory. That statute provides that “Any trolled. The Court agreed and refused to Trial Lawyer of the Year by the San Francisco practical. It’s a 24-hour news cycle. Why should verdicts be any different? person operating a bicycle upon a road - instruct on the more general statute the Trial Lawyers Association in 2003. way at a speed less than the normal defense had promised to the jury. During http://www.veenfirm.com Sign up – it ’s free speed of traffic moving in the same deliberations we were pleased to receive a direction at that time shall ride as close jury question asking about its absence. Jeremy Cloyd is a member There is no charge to receive the verdict alerts or for viewing the full verdict reports. as practicable to the right-hand curb or of the Label Trial Team at Conclusion Go to the Web site and add yourself to the list. edge of the roadway except…When over - The Veen Firm, P.C. He liti - taking and passing another bicycle or Amelie’s parents felt that police gates complex catastrophic vehicle proceeding in the same direc - investigators, a district attorney’s office, injury cases involving negli - tion…” and “when approaching a place and an insurance company had all failed gence, wrongful death, prod - www.juryverdictalert.com where a right turn is authorized.” them. A civil jury trial was their last ucts liability and industrial The defense argued that this language hope. They were very grateful to have a accidents. Cloyd [email protected] • From the publisher of Plaintiff • Richard Neubauer, Publisher • Jean Booth, Editor 760.721.2500 So. California • 415.431.1117 No. California 24 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com A walker’s paradise−lost! At least three pedestrians are hit by cars each day in San Francisco E Y ATALIE URDICK S Last year, 31 people lost their lives

B N B N E

C in traffic crashes. Twenty-one of those I L

With more than three dozen parks S people were walking when they were N packed into fewer than 49 square miles, O struck and killed. People like little two- M

M year-old Mi’yana Gregory; a 78-year-old

it takes almost no time to walk to green, O C

open space in San Francisco. While not E grandmother of eight; music teacher, Pei V I

T Fong Yim Lee; and 27-year-old Zach

quite as well known as its East Coast A E

R Watson, who was walking his bicycle counterpart, Golden Gate Park is actually C / R

20 percent larger than New York’s famed E on a sidewalk when he was hit. P P

Central Park. Moreover, as a peninsula O What accounts for such dispropor - H

K tionate number of injuries and deaths in famous the world over for its hilly terrain A B – by some counts there are as many as 57 R a city that welcomes one of the highest O hills – the city (and most often its public T walking rates in the country? And more parks including Buena Vista, Lafayette importantly, is there anything that can be Square, MacLaren, and Alamo) is graced done to make the city’s streets safer for with breathtaking views of the Pacific people to walk here? Ocean to the west, the Golden Gate and How to make streets safer for Marin Headlands to the north, the San Street memorial to Emily Dunn, a pedestrian walkers Francisco Bay and Contra Costa Hills to killed in the Castro District in 2011. the east – and not to mention the city’s The good news for San Francisco is own ever-changing, fog-wrapped shores of pedestrians with Sunday Streets, a only six percent of its streets account for and skyline. monthly weekend event that highlights more than sixty percent of the total different neighborhoods from March to crashes involving those who walk. As The hills are alive October. San Francisco also innovated part of a Pedestrian Strategy released by In between the 48 (named) hills dot - the “parklet,” which literally transforms a the Mayor’s Office in 2013, these high- ting the city’s scant seven by seven miles, parking space into a small public park. injury corridors and intersections its rich patchwork of intimately-scaled There are now over forty of these were identified using years of collected and distinct neighborhoods, the unique parklets throughout San Francisco (the data from the San Francisco Police Victorian and Edwardian architectural most of any city), offering spaces where Department and the Department of heritage, and San Francisco’s turbulent people can stop to sit or rest. They are Public Health. The City has detailed economic, geologic and social history, designed by a local community partner information on both the most common ensure there’s no end to a walker’s and provide greenery, art or some other locations for injuries and deaths, and the delight. Search Google for “walk san visual amenity to enhance the experience top five illegal driving behaviors that francisco” and page after endless page of of traveling by foot. lead to these collisions. walks are returned – pick from your Indeed, the shining city on the hill Understanding that speeding, not choice of historic, cultural or nature- seems to be a walker’s paradise. Which is yielding to pedestrians in a crosswalk, focused outings. There are also walks why many are surprised to learn: each running a red light, making an improper about chocolate, beer, public and street day, at least three people are hit by turn, and not stopping at stop signs are art, and a seemingly endless list of niche cars, while they walk in San Francisco. the leading causes behind crashes, and interests from hidden stairways to ghost Annually, 20 people are killed and at least knowing where these collisions are con - haunts – there’s even an annual, all-day 100 suffer serious, life-changing injuries. centrated, offers the City a unique oppor - urban trek that stretches 12 to 14 miles For every victim of gun violence, there are tunity to focus engineering, enforcement, across at least ten of the city’s hills each five people who are hit by cars in the city. and even education efforts to successfully September called Peak2Peak. In fact, one out of every four trauma addressing its traffic violence. With its mild climate, compact geo - cases at San Francisco General Hospital A quick look at the list of the most graphic area, and second highest-ranked involves a pedestrain hit by a vehicle. dangerous corridors (See Figure A or map transit access in the U.S., San Francisco San Francisco is literally California’s at http://sfgov.maps.arcgis.com/apps/ was the obvious choice to be the first most dangerous city for pedestrians, mak - OnePane/basicviewer/index.html?appid=33 American city to host Walk to Work Day, ing up fifty percent of all traffic deaths in 5c508503374f5d94c95cb2a1f3f4f4) shows and to reclaim its streets from car traffic San Francisco – four times the national most crashes involving pedestrians happen by opening them up to tens of thousands average of around twelve percent. See Walker’s Paradise , Page 28

26 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com Walker’s Paradise , continued from Page 26 the ppainain detectivesdetectives

on wide arterials and/or fast, one-way like they’re on a freeway, despite the fact streets, including Geary Boulevard, Sunset they are in dense, urban neighborhoods, Boulevard, Mission Street, 19th Avenue, are disproportionately concentrated in Polk Street, and along Market, cross-streets communities of concern including SoMa, like 6th and 8th. Roads where drivers feel Chinatown and the Tenderloin.

Orthopedic Surgery Figure A: Map of the most dangerous pedestrian corridors in the City of San Plastic Surgery | Neurology Francisco General Vascular Surgery

Vision Zero Pain Management | General Medicine In 2014, a coalition of community Maxillofacial Surgery groups, led by the pedestrian advocacy nonprofit Walk San Francisco in partner - Toxicology | Psychology | Physical Therapy ship with the San Francisco Bicycle Chiropractic | Diagnostics (MRI/CT Scan/X-Ray) Coalition, launched Vision Zero – a goal to eliminate ALL traffic-related deaths in ten years. The high-injury corridor maps have ALHAMBRA COMMERCE GLENDORA LOS ANGELES OAKLAND SACRAMENTO SUN CITY isolated not just where crashes involving ALTADENA CORONA GRANADA HILLS (18 LOCATIONS) ONTARIO SAN BERNARDINO SUN VALLEY those walking are clustered, but also ANAHEIM COVINA HACIENDA HEIGHTS LOS GATOS ORANGE SAN DIEGO TARZANA collisions which involve bicyclists and APPLE VALLEY CULVER CITY HAWTHORNE LYNWOOD OXNARD SAN FERNANDO TEMECULA motorists. Layering all three high-injury ARCADIA DALY CITY HAYWARD MARINA DEL REY PACOIMA SAN FRANCISCO THOUSAND OAKS maps together, it turns out over 70 percent BAKERSFIELD DANA POINT HOLLYWOOD MENIFEE PALM DESERT SAN GABRIEL TORRANCE BALDWIN PARK DEL MAR HUNTINGTON BEACH MERCED PALMDALE SAN JOSE TRACY of all the serious and fatal traffic injuries BELL GARDENS DIAMOND BAR HUNTINGTON PARK MILPITAS PALO ALTO SAN LUIS OBISPO UPLAND occur on only 12 percent of city streets. BEVERLY HILLS DOWNEY INGLEWOOD MISSION HILLS PANORAMA CITY SAN MARCOS VALENCIA Targeting this subset of streets with the BONITA EAGLE ROCK IRVINE MISSION VIEJO PASADENA SAN MATEO VAN NUYS right mix of interventions, San Francisco BRENTWOOD EAST LA LA CRESCENTA MODESTO PETALUMA SAN RAFAEL VENICE BURBANK EL CENTRO LA HABRA MONROVIA POMONA SANTA ANA VENTURA could effectively reach a zero traffic fatali - BURLINGAME EL MONTE LA MESA MONTCLAIR POWAY SANTA CLARITA VICTORVILLE ties goal for preventable collisions. CAMPBELL EL SEGUNDO LA MIRADA MONTEBELLO RANCHO CUCAMONGA SANTA FE SPRINGS WALNUT The effort would require the City to CAMARILLO ENCINITAS LA PUENTE MONTEREY RANCHO MIRAGE SANTA MONICA WALNUT CREEK commit to funding and implementing CANYON COUNTRY ENCINO LA QUINTA MONTEREY PARK REDLANDS SANTA ROSA WEST COVINA proven engineering, enforcement, and tar - CARLSBAD ESCONDIDO LADERA RANCH MORENO VALLEY REDONDO BEACH SEAL BEACH WEST LA CARSON FONTANA LAKEWOOD MORGAN HILL REDWOOD CITY SHERMAN OAKS WESTCHESTER geted education solutions within a ten-year CHATSWORTH FOUNTAIN VALLEY LANCASTER MURRIETA RESEDA SIGNAL HILL WESTMINSTER period to bring the number of motorist, CHINO HILLS FRESNO LAWNDALE NEWBURY PARK RIALTO SIMI VALLEY WESTWOOD bicyclist, and pedestrian deaths to zero. CHULA VISTA FULLERTON LINCOLN HEIGHTS NEWPORT BEACH RIDGECREST SOUTH PASADENA WHITTIER While certainly an aggressive goal, the CITY OF INDUSTRY GARDEN GROVE LOMITA NEWHALL RIVERSIDE SOUTH SAN FRANCISCO WOODLAND HILLS results are achievable and well worth pursu - CLOVIS GILROY LONG BEACH NORTH HOLLYWOOD ROSEMEAD STANTON YUBA CITY COLTON GLENDALE LOS ALAMITOS NORTHRIDGE ROWLAND HEIGHTS STOCKTON YUCCA VALLEY ing to eliminate preventable losses of life. Sweden, where Vision Zero originat - ed in 1997, has already demonstrated Liens Accepted success in bringing down their road fatali - ties, even as overall car ownership and driving has doubled since 1970. Fatalities 250 Facilities in California involving pedestrians in Sweden have See Walker’s Paradise , Page 30 (661) 266-8700 28 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com www.totalcaremedical.com Walker’s Paradise , continued from Page 28

fallen by almost 50 percent in the last five safety enforcement cameras, changing the car. These safety amenities also annual financial costs in health care and lost wages? Why By meeting the city’s Vision Zero goal of eliminating all years. Most strikingly, road deaths of chil - signal timing for longer crossing inter - enhance the walkability, sustainability, shouldn’t we, if we can? traffic deaths by 2024, San Francisco could become a veritable dren under the age of seven have plum - vals, and, one of the most effective strate - and vitality of San Francisco’s public The same questions were asked in 1970, when automobile walker’s paradise – and so much more. meted: in 2012 only one child was killed, gies, implementing road diets (the spaces, making it more inviting and manufacturers fought the requirement to install automatic compared with 58 in 1970. In the U.S., process of removing traffic lanes and enjoyable for everyone. restraint systems in all their vehicles. As recently as 1981, only Natalie Burdick directs Walk San Francisco ’s cities like New York, Chicago, and Seattle reusing that space for other modes of It’s worth noting that San Francisco’s 11 percent of U.S. drivers wore seatbelts, reflecting the accept - membership, volunteer, community events, and outreach have begun adopting Vision Zero as well. transportation, like bike lanes, transit streets and public rights-of-way make up ance at the time of preventable deaths resulting from car crash - programs. Walk SF (walksf.org) has been San In San Francisco, driving at unsafe only lanes, or wider painted sidewalks). 25 percent of the city’s land area; more es. But, starting in 1989, the cultural pendulum began to shift Francisco’s only pedestrian advocacy organization since speeds is responsible for five times as In addition to the increased enforce - space than all of its many public parks and seatbelt use became mandated. In 2013, seatbelt use 1998. She partners with community members, nonprofit many collisions as driving or bicycling ment for the most lethal, illegal driving combined. Reclaiming these streets to cre - reached a high of 87 percent – a cultural (and legal) shift, which groups, and agency and elected staff, to build awareness under the influence of alcohol or drugs. behaviors like speeding, not stopping at ate safe, shared spaces will not only pro - has saved an estimated 147,246 lives (Donna Glassbrenner, and support for pedestrian safety, including advancing Burdick Yet, despite the lethal impacts from lights and stop signs, unsafe turns, and tect lives, it will enhance the overall health Estimating the Lives Saved by Safety Belts and Air Bags (Washington Walk SF’s Vision Zero effort, a campaign to end all speeding, driving faster than is safe not yielding to people in crosswalks, the of the community members, increase the DC: National Center for Statistics and Analysis National traffic-related deaths in ten years. for a given road is a cultural norm. most important and lasting changes economic vitality of neighborhoods, and Highway Traffic Safety Administration, Paper No. 500). She joined Walk SF in 2012 after five years in marketing and development at Santa Monica’s Heal the Bay. She earned a Bachelor A triple threat involve street designs that prioritize safe - support a more sustainable environment. It’s time for the next major cultural shift on the roads that ty over vehicle volumes and speed. As the City works towards imple - take us to and from our jobs, shops, schools, and homes – one of Arts in Economics from the University of California Los Angeles and While most people understand intu - In a dense, urban environment like menting Vision Zero, visitors and resi - where no preventable loss of life is acceptable, one where mis - has experience in executive marketing, product marketing, and project itively that speeding can be more danger - San Francisco there are proven solutions dents alike will be able to continue to takes don’t end inevitably in tragedies. management roles in customer relationship management. ous, very few know that speeding is a that will dramatically increase safety. delight not only in San Francisco’s triple threat. Traveling at a higher speed They’re often low-cost and easy to unique bounty of scenic views, its treasure increases the severity of any crash: 9 out implement. Here are some of the most trove of hidden gems discoverable only of 10 people hit by a car going 20 miles effective treatments: from a walker’s perspective, and all the per hour will survive; if the car is travel - • Countdown signals for pedestrians tremendous health, environmental, and ing at 40 miles per hour, just 2 of 10 can • “Daylighting” near crosswalks that social benefits of travel by foot – but they hope to survive. The faster the car is push parking back from the intersection will finally be able to do so without the moving, the longer the driver’s reaction to open up lines of sight between both unnecessary risk of having to navigate time and the car’s braking distance (at 20 people and cars fast, dangerous and unwelcoming streets. mph the braking distance is less than a • Sidewalk extensions at intersections Meeting the Vision Zero goal requires hundred feet, at 40 mph it is nearly three called “bulb-outs” to shorten the crossing another cultural shift; a change from the hundred feet), making it harder to stop distance and make the intersections more commonplace acceptance (and in fact, res - in time or even swerve to avoid crashes. human-scaled ignation) that accidents simply happen. Lastly, at speeds greater than 20 mph, • Well-marked crosswalks It requires city planners, traffic engi - drivers lose their peripheral vision, pre - • Lower speed limits (Walk San Francisco neers, law enforcement (including the venting them from spotting people who led and won an effort to make San police and the District Attorney), the may be stepping off a curb and into the Francisco the first major city in the state public, and the elected officials, to crosswalk, as they innately look farther to adopt slower 15 MPH speed limits understand that most traffic collisions are down the roadway ahead. around schools in 2012.) not random acts of God or uncontrol - With speed being the key factor in • Turn restrictions where unsafe turns lable accidents. Instead, it requires refo - safety, particularly for the most vulnera - are known to be the cause of crashes cusing efforts to analyze how crashes ble road users – seniors and children – • The use of pedestrian scrambles (where happen and evaluate how they can be there are proven interventions that would all vehicle traffic stops to allow people to prevented. But rather than the tradition - make San Francisco more walkable. safely cross intersections in all directions) al finger-wagging approach towards Given that seniors are five times more at Sharing the road changing personal behavior, thinking risk of injury or death than the general needs to shift to emphasize the need for adult population, and that here in San Safety solutions can also serve to designing a smarter road and traffic sys - Francisco, although seniors make up only make our streets more livable. Crossing tem, one which effectively takes into 17 percent of the total population, they islands (also know as medians and account the inevitability of human error. account for 50 percent of pedestrian refuges), parklets, and sidewalks can After all, if we can create a road sys - fatalities, targeting speed reduction solu - include stormwater gardens, trees and tem where people can be safe, why tions around senior centers would go a other greenery, which all work together shouldn’t we? Why shouldn’t we work to long way to reducing the city’s traffic to slow drivers down and reinforce the end the tragic and devastating loss of 1-888-838-31551-888-838-3155 | CalAttorneyLending.comCalAlAttorneyLending.com deaths. These solutions include lowering idea that roads are public spaces to be life, and the untold emotional toll to speed limits in combination with shared by motorists, bicyclists, and family, friends, and communities? Why increased enforcement using automated pedestrians – not the exclusive domain of shouldn’t we end the tens of millions in

30 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 31 Fully investigating 3.75 seconds before the driver entered the intersection (at 25 mph). Under nor - the car vs. pedestrian incident mal conditions, the right traffic light was open and visible for over 500 feet before the intersection. When the primary defendant is underinsured, a On the following page are Google Streetview pictures showing the left light thorough investigation of the accident scene can yield sightline impediments as the driver approached the intersection. surprising evidence of negligence by other parties On the day of our incident, though, the right traffic light was completely H

T blocked from all westbound traffic on

BY CASEY A. K AUFMAN R A

E Turk for at least 1,000 feet before the

E L intersection by the position and height G

In many seemingly clear liability O

O (11 feet tall) of the concrete truck. This incidents, pedestrian- or bike-versus-car, G blockage left the already obscured left we are faced with hurdles. A common traffic light as the only usable light for hurdle is a badly injured person and traffic. The driver testified at deposition very little available insurance. That’s that he did not live in San Francisco and why it is important to completely inves - never saw any traffic lights prior to hitting tigate the incident. Complete investiga - This frame-grab was taken from a security camera on a nearby building just seconds before impact. the pedestrian. tions include a visit to the location – preferably by you, although sometimes through a private investigator. This can yield crucial evidence like surveillance video that would otherwise be overwrit - ten or disappear. This article demon - strates how we were able to locate anoth - TM er responsible party despite all the wit - Saaltylty SSezez nesses indicating the defendant driver had run a red light and struck our client in a crosswalk. “ Failing to refer to or associate with a During discovery, it became clear that a contractor had improperly nar - Maritime Lawyer in any ‘boating-accident’ case rowed the lane of travel to less than 10 Facts was a sidewalk repair project on Turk, feet, in violation of San Francisco con - east of its intersection with Laguna. struction regulations. The concrete At the intersection of Turk and is like going to sea without a chart and truck that was on-site and legally parked Laguna in San Francisco, our client was Concrete truck is liable for within the coned area also caused/ struck while northbound within the cross - ® impeding sightlines even if compass: too many detours, too long walk on the western side of the street. contributed to this incident because it parked legally blocked the line of sight for drivers to Turk is a two-lane, one-way westbound see one of the two traffic lights as they street and Laguna is a two-lane, two-way Notice that the concrete truck was a voyage and you can hit a reef. ” approached the intersection. The north/south street. Driver is traveling parked toward the front of the construc - California Court of Appeal has held westbound on Turk and strikes the pedes - tion site, but fully within the construction ARNOLD I. BERSCHLER that it is reasonably foreseeable for a trian after she has gone more than site. In this intersection, there are two traf - legally parked commercial vehicle to halfway across the street. All eyewitnesses fic lights: one on each side of the intersec - AT TORNEY AT LAW block the views of passing cars and say that the driver ran the red light and tion, on the opposite side of the street at cause a collision ( Lawson v. Safeway that the pedestrian entered the crosswalk about 10 feet off of the ground. There is ERSCHLER.com 800.338.1441 (2010) 191 Cal.App.4th 400 ). on her green. no center traffic light positioned directly B Normally, that would be the end in front of westbound traffic on Turk. Using these theories of liability info@berschler .com we were able to establish liability well of the analysis, but the severity of the After a visit to the scene of the inci - beyond the driver, which was necessary, pedestrian’s injuries required a full inves - dent, it became clear that the left traffic Lawful referral fees paid. given that the driver had minimal insur - tigation into any other potentially liable light was completely obscured from west - Member of the Maritime Law Association of the United States ance. entities. At the time of the incident there bound traffic until about 165 feet, or

32 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 33 Car vs Pedestrian , continued from Previous Page

California case law provides that “it more than enough “room” for the driv - regulation, paving the way for a negli - Conclusion is readily foreseeable that parking a large er’s car, it was narrower than the mini - gence per se argument, leaving only Our duty to our clients requires full commercial truck near an intersection mum lane width at or near construction causation to prove. investigation into all of the possible par - may obstruct the views of passing sites in San Francisco. Causation ties that may be liable to them. In many motorists and cause them to collide.” All street construction projects in situations, further investigation may not (Lawson v. Safeway (2010) 191 San Francisco are governed by The In order to show causation, plaintiff yield additional liable parties, but the Cal.App.4th 400.) The Lawson Court Regulations for Working in San Francisco argued that the narrowed lane and posi - only way to find out is to fully under - engaged in a detailed analysis before Streets (also known as the Blue Book tion of the concrete truck combined to stand the mechanism of the incident extending liability to legally parked [https://www.sfmta.com/sites/default/files/ create a complete bar to seeing the right from each party’s perspective. vehicles: pdfs/BlueBook8thEd_Accessible.pdf ]) . It traffic light. The narrow lane required First, this case involves an extremely states, “This manual establishes rules and him to pay more attention to avoiding Casey A. Kaufman is an large commercial truck. Such trucks guidance so that work can be done both the cones and also created a concern that attorney with the Brandi create a greater than normal risk safely and with the least possible interfer - he would strike workers or heavy equip - Firm , San Francisco. He is because by sheer size they obstruct ence with pedestrians, bicycle, transit and ment immediately within the cones. a member of the California, more of the view than smaller vehi - vehicular traffic.” These close proximity hazards reasonably Arizona, Nevada, cles. Second, expert testimony was Blue Book § 3.2B requires lanes to drew the driver’s attention towards the Washington State and presented that the drivers of such be no less than 10 feet, including any right as he traveled next to the construc - Washington, D.C., bars, 165 Feet; 3.75 seconds before intersection – left traffic light blocked by tree. trucks receive professional training cones placed at a construction site. At tion zone. Once the driver’s attention was Kaufman where he represents clients that includes, or should include, the deposition, the Contractor PMQ testified focused on his right, the location of the in personal injury, product need to take other drivers’ sight that they never measured the width of concrete truck blocked his sightline of liability, and wrongful death actions. He is the right traffic light. This argument tied lines into account when parking. … the lanes affected by their cones, there Martindale-Hubbell AV Preeminent rated and the contractor and concrete subcontrac - Third, …[t]he risk of serious injury is was no policy regarding these minimum was named as a Super Lawyer Rising Star for tor’s conduct together and made it rea - greater than normal at the intersec - widths, and that the number 2 lane was Northern California, 2009-2013 . tion because of the speed of the less than 10 feet wide. The contractor sonable for the driver to miss the traffic traffic and the nature of the traffic… essentially admitted that it violated City light altogether. Fourth, Wilburn had other places to park without creating a hazard. … ‘If the actor reasonably can accomplish the same result by other conduct which involves less opportunity for harm to others, the risk incurred in the manner of doing business which resulted in injury is clearly unreason - able.’ 130 feet; 3 seconds before intersection – first glimpse of left traffic light. (Internal citations omitted) We make establishing With this legal backdrop, the analy - SPECIAL NEEDS sis is clear. Despite being legally Special Needs Trusts easy parked, there was a valid argument as CPT T RUSTS to the liability of the concrete subcon - “If ssomeoneomeone I’mI’m fightingfighting forfor reliesrelies onon governmentgovernment tractor by virtue of where the concrete asssistance,istance, isis elderly,elderly, disabled,disabled, oror I havehave a questionquestion aboutabout Protect SSI and Traditional MediCal truck was parked. Given the truck pprotectingrotecting themthem wwhenhen I wwinin ttheirheir ccase,ase, I ccallall WWill.ill. HHe’se’s aann height, the position of the right traffic expertxpert andand I ttrustrust hhim.”im.” No Minimum Funding light, and the already present sightline - Joe Barrett, CAALA 2015 President Elect issues with the left traffic light, it was reasonably foreseeable that the con - Clients of Any Age crete truck was blocking the driver’s We go to your firm to the client to facilitate signing. sightline and could contribute to a Trust can be set up in days Will Lindahl, MBA, CLPF collision. Enrollment Director “CPCPT pprovidesrovides a wonderfulwonderful service.service. WillWill iiss hhighlyighly ccompetentompetent [email protected] Construction site violations andnd professional.rofessional. HHee eevenven ttookook tthehe timetime ttoo ppersonallyersonally aHendaHend 877-695-6444, Ext. 2 Plaintiff was able to determine that thehe hhearinearing ttoo ggetet tthehe seHlementseHlement fifinalized.”nalized.” the cone placement in the road left Michelle West Robinson Calcagnie Robinson Shapiro Davis 95 feet; 2 seconds before intersection – traffic light about to be obscured by Laguna traffic between 8 and 9 feet available to traffic light and pole. in the number 2 lane. While this was 34 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 35 The defense “expert” with a and identify where the officer is relying officer can identify the error rate or cite witness. (Cal. Code Civ. Proc., § 2034.300 on subjective interpretation of the vehicle to studies supporting the reliability of (a).) code, as well as what standards are being that methodology. Obviously, even if the officer is dis - badge may have a lot to say, but applied (i.e., is any objective standard Armed with this deposition testimo - closed as an expert, this does not make used to determine whether a speed is ny, you are better poised to exclude him one. He must qualify as an expert in “safe” or is that just a gut feeling or ret - improper opinions. the relevant field. (Cal. Evid.Code, § much of it should be inadmissible rospective analysis?); 720.) In almost every case, the investigat - Precluding officer from testifying • With respect to training and expertise: ing officer’s expert qualifications are as an expert How to neutralize the hostile investigating officer explore in detail the officer’s training dubious. Armed with deposition testimo - (or, more likely, lack thereof) in accident When evaluating admissibility of an ny regarding the extent of the officer’s K

BY SARA PETERS C We trial lawyers must proactively reconstruction, physics, engineering, bio - officer’s opinion, the first question to ask training and expertise, you can make a O T

S undermine and exclude such testimony. mechanical engineering, human factors, is whether the officer will be testifying as credible argument he is unqualified to I

AND VALERIE ROSE -

E The potential unfair prejudice to our an expert.

I and accident investigation; testify as an expert in any relevant field. M

You are representing a cyclist in an A clients is too great to ignore. • With respect to methodology: explore If defense counsel failed to disclose Once it is established that the officer R E

auto-versus-bicycle trial. You watch as H any scientific standards, equations or lit - the officer as a non-retained expert, the may only testify as a lay witness, the offi - C

Deposing the investigating defense counsel calls the investigating H erature relied upon, and ask whether the officer is limited to opining as a lay cer may only offer opinions based on

A officers officer. The officer strides confidently R O B to the stand. All eyes are on the crisp E It may be necessary to depose each D uniform, gun and badge. You know the investigating officer, including the lead officer is hostile. Her one-sided traffic investigator, the report author, and any collision report summarily found your officers who took measurements or other client at fault. witnesses that gave statements. In addi - But you are not overly worried. After tion to exploring percipient knowledge all, the judge granted your motions in (including measurements, physical evi - limine. Neither the traffic collision report dence, and statements taken at the nor any legal opinions regarding “negli - scene), the deposition should explore gence” are coming into evidence. potential expert testimony. However, over your objections, the Consider covering the following examination – and your case – begins to areas: go off the rails. The Q&A runs some - • Confirm the officer does not intend to thing like this: express any opinions other than those contained in the police report. This Q. Are you familiar with this intersec - would include opinions regarding fault tion? (aka “primary factor”), causation, vehicle A. Oh, yes, very. code violations, accident reconstruction Q. Would a driver approaching the inter - (i.e., times, speeds, distances, and/or section be able to see a cyclist in the bike there any requirement that the driver point of impact), and human factors (i.e., lane? making the turn look back to make sure visibility or perception/reaction time); A. No. nobody is trying to pass them on the • For each opinion or conclusion Q. If a vehicle started to merge into the right? expressed in the police report, identify bike lane, as if to make a right turn, what A. No. At that point, they’ve fulfilled all the bases, including (a) facts and is the obligation of the bicyclist? Vehicle Code 21717, which requires them witness statements relied upon, (b) law A. Oh, the bicyclist should be looking to merge safely. They’ve already merged. applied, (c) training and expertise, and from way back to see what the vehicle is Sadly, the above example is taken, (d) methodology; doing. If you have an experienced bike almost verbatim, from a real trial tran - • With respect to facts and witness state - rider, which the plaintiff here likely is script. It is one of many such examples. ments relied upon: Confirm a lack of since he had a very nice bike, he’s look - In such cases, the police officer – who is personal knowledge where applicable, ing to see whether the vehicle is merging neither judge, nor jury, nor engineer – verify which portions of the report con - to make a right-hand turn. Once the car becomes a sort of super expert. In one tain verbatim witness statements versus starts to merge over, that tells the cyclist breath she may interpret the law, form summaries, and identify where the officer to merge left and go around. unsupported accident reconstruction is assessing witness credibility or making Q. In terms of your expertise enforcing opinions, serve as a mouthpiece for inad - assumptions; the Vehicle Code, once the vehicle had missible hearsay, deliver a closing argu - • With respect to the law applied: identify merged 50 percent into the bike lane, is ment and supplant the jury’s role. code sections the officer failed to consider,

36 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 37 Expert with Badge , continued from Previous Page

facts she personally observed. (Cal. Evid. Even if the testimony is on a proper The Police Report their opinions as to the various factors Q. … [Y]ou can cause an accident by fac - applied, we can lay the foundation for Code, § 800; see also Stickel v. San Diego subject, it must be reliable. Keep in mind involved in such accidents, based upon tors that don’t amount to violations of the court’s exclusion of all fault and cau - Cal. Veh. Code, § 20013 expressly Elec. Ry. Co . (1948) 32 Cal.2d 157, 165 that “because I say so” testimony is not their own observations” (internal cita - the Vehicle Code, precise code sections. sation opinions from hostile officers. prohibits the admission of traffic collision (opinion regarding cause of accident admissible. Testimony – whether expert or tions omitted). Right? reports at trial. (See Box v. California Date inadmissible where officer did not percipient – must have evidentiary value. When an officer opines regarding A. I would beg to differ. Opinions about the point of Growers Assn. (1976) 57 Cal.App.3d 266, impact or “safe speed” observe accident); ( Hodges v. Severns The applicable standard requires the “cause” of a collision, this is usually . . . . 270 (collecting cases).) The policy behind (1962) 201 Cal.App.2d 99, 108 (it was that an officer’s expert opinion must not code for assigning fault. Insist, in deposi - Q. …Your job in determining fault was to section 20013 is to protect against the Courts will usually admit expert tes - error for the trial court to admit the be speculative and must be based on tion, that the officer define exactly what determine whether or not a specific danger that a jury may consider an acci - timony from an officer regarding the investigating officer’s point of impact matter of a type on which an expert in she means when she says “X caused the Vehicle Code violation occurred? dent report an “official” document and point of impact or safe speed under the opinion where the officer was not pre - that field may reasonably rely, as well as collision.” A. Correct. consequently give it undue weight. circumstances. But admissibility depends sented as an expert and the opinion on reasons supported by the material on For example: She assigned fault to the (decedent) (Sherrell v. Kelso (1981) 116 Cal.App.3d on the basis for the opinion. was in part based on hearsay witness which he relies. (See Sargon Enterprises, • When the officer says the collision was bicyclist for riding on the “wrong” side of Supp. 22, 31.) In Zelayeta v. Pacific Greyhound Lines statements).) Inc. v. University of Southern Cal. (2012) 55 caused by the bicyclist riding on the side - the road, but admitted she had no frame - The contents of the report are a dif - (1951) 104 Cal.App.2d at 721, the court Cal.4th 747, 771-72.) This means that walk against traffic, does she mean the work for evaluating comparative fault properly admitted point of impact opin - Opinions from officer qualified ferent matter. (See id. (Section 20013 does the officer’s methodology must be sound, bicyclist bears primary fault for the colli - from an inattentive driver who did not as expert not exclude the “ contents of an accident ion testimony from a traffic officer who and his conclusions must be supported sion? Or does she just mean the bicy - violate a specific vehicle code provision. report, but rather excludes the report had investigated accidents for seven years If the defendant disclosed an officer by the record. ( In re Lockheed Litigation clist’s conduct was one of many circum - By clarifying during the officer’s itself .”) (emphasis in original). For example, and who based his opinion exclusively on as an expert witness, it is within the trial Cases (2004) 115 Cal.App.4th 558, 563- stances that combined in order for the deposition what standard is being witness statements contained in the report his personal observations. Other cases court’s discretion to admit his expert 64.) Evidence that provides a reasonable collision to happen? may be admitted under an established opinion. ( Zelayeta v. Pacific Greyhound basis for one opinion does not necessari - • If the officer is referring to fault, what exception to the hearsay rule or used for Lines (1951) 104 Cal.App.2d 716, 723.) ly provide a reasonable basis for another standard or methodology was used to impeachment purposes. Regardless of Testimony that is otherwise admissible opinion. ( Id . at 564.) assign fault? admissibility, a testifying police officer may is not objectionable simply because it Even where the officer is qualified as • In assigning fault, is the officer looking reference the report to refresh his or her “embraces the ultimate issue to be decid - an expert, courts have held opinions for whether a vehicle code violation recollection. And the accident diagram ed by the trier of fact.” (Cal. Evid. Code, based on hearsay are inadmissible. occurred? Is there also an evaluation as may be shown to the jury in order to illus - § 805.) (Kastner v. Los Angeles Metropolitan Transit to whether the parties were negligent? New! trate the officer’s testimony. That said, even for an officer dis - Authority (1965) 63 Cal.2d 52, 58.) For • In assigning fault, what facts did the From closed and qualified as an expert, there example, “[w]here the opinion is based officer take into account or assume? Officer opinions regarding fault are limits. The testimony must be helpful on what witnesses told the officer, at least An opinion regarding “primary fac - Plaintiff or causation to the jury, non-legal in nature, based on where objection is made, it is error to tor,” “cause,” or fault, when reduced to reliable material, and based on a reliable admit it.” ( Ribble v. Cook (1952) 111 The concern that a jury might give its essence, usually runs afoul of the pro - magazine’s methodology. Cal.App.2d 903, 906 (citing Stuart v. undue weight to “official” conclusions hibition against legal opinions, the prohi - Judgments As an expert witness, an investigat - Dotts (1949 ) 89 Cal.App.2d 683).) This found in a police report is equally appli - bition against opinions regarding matters ing officer may give opinion testimony is because, for an expert opinion to be cable to “official” conclusions voiced by a in the jury’s common experience, or and Collections “[r]elated to a subject that is sufficiently admissible, the factual foundation cannot uniformed officer. both. “An opinion that [a driver] was beyond common experience that the be “nebulous,” based on conjecture, or This is why a court should strictly ‘most responsible’ for the accident is a editor, opinion of an expert would assist the based upon a credibility determination. apply the rules of admissibility to opin - legal conclusion and not a proper subject trier of fact....” (Cal. Evid. Code, § 801.) (See Waller v. Southern Cal. Gas Co. (1959) ion testimony from officers. Error in this for expert opinion.” ( Carlton v. DMV David J. Cook. Thus the opinion must go beyond com - 170 Cal.App.2d 747, 755.) regard is likely to be prejudicial. (1988) 203 Cal.App.3d 1428, 1432.) mon sense. It must do more than simply Nevertheless, courts are divided as Most conclusions formed by law Under California Evidence Code sec - Just published by the apply law (for example, the vehicle code) to whether these opinions are admissible. enforcement officers do not meet these tion 352, such opinions also carry a high American Bar Association to circumstances already understood by standards. When we push on accident For example, in Williams v. Gurwitz (1950) risk of unfair prejudice and confusing the the jury. reconstruction and fault opinions during 99 Cal.App.2d 801, 803 the court held jury, with minimal probative value. A jury “I finally wrote my book. Although testimony is permitted depositions of law enforcement officers, that “neither a police officer nor any may take the officer’s opinion regarding This book shows you how regarding “ultimate” issues, the expert we usually find these opinions collapse. other witness should be asked whether he “fault” or “causation” as equivalent to a people hide their assets and must not testify regarding a legal issue. They are made up of building blocks that had reached a conclusion as to which comparative fault determination in a civil how to reach them... how to Expert testimony “on issues of law is not include hearsay, speculation, arbitrary party violated the right of way or to state trial. But the reality is that officers are topple asset protection admissible since it is the judge’s responsi - judgments, and subjective interpretations such conclusion if he had arrived at applying their own idiosyncratic standard schemes, how to collect.” bility to instruct the jurors on the law.” of the law (i.e., the vehicle code). It is one,” but in Hart v. Wielt (1970) 4 that elevates the Vehicle Code and — David (Summers v. A.L. Gilbert Co. (1999) rare to find objective standards or rigor - Cal.App.3d 224, 229, the court held “[i]t excludes concepts like “due care” and 69 Cal.App.4th 1155, 1159.) An expert ous methodology. is generally established that traffic offi - “reasonableness.” In a recent deposition, Order online: who “expounds on the law usurps the In the absence of a reliable method - cers whose duties include investigations a CHP lieutenant confirmed that negli - http://shop.americanbar.org role of the trial court.” ( Ibid. ) The vehicle ology, the court should exclude expert of automobile accidents are qualified ex- gence was irrelevant to his assignment of code is no exception. opinions. perts and may properly testify concerning fault. Only the vehicle code mattered:

38 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 39 Expert with Badge , continued from Previous Page

are distinguishable where the officer is Additionally, if a bicyclist was riding Whenever your client is found at relying on hearsay, or where the point on a sidewalk, the law does not require fault in a collision, the hostile investigat - of impact determination involves com - that the bicyclist ride in the same direc - ing officer is a dangerous witness for the plex engineering computations outside tion as traffic. Cal. Vehicle Code section defense. However, careful planning for the officer’s expertise. (See Hodges v. 21650.1 requires a bicycle operated “on a the officer’s deposition can lay the Severns (1962) 201 Cal.App.2d at 108 roadway, or the shoulder of a highway,” groundwork to exclude or neutralize (opinion regarding point of impact “is to be operated in the same direction as much of her potentially damaging testi - not admissible unless based on facts vehicles are required to be driven. But mony at trial. What the witnesses told the E S

observed by the officer at the scene of the legal definition of “roadway” does officer, how the officer believes the acci - N E C I

the accident”). not include sidewalks. (Cal. Veh. Code, dent occurred, and who the officer found L

S

Similarly, in Enos v. Montoya (1958) § 530.) to be at fault are all fair game for exclu - N O

158 Cal.App.2d 394, 399, the First Another common misconception is sion. M M

District held the trial court properly that bicyclists should stay off the road Finally, evaluate whether the evi - O C

E

admitted testimony regarding reason - whenever a shoulder or bike lane is avail - dence is ultimately more helpful or hurt - V I T A

able speed around the curve where the able. The law says a bicyclist riding at the ful depending on the facts of your case. E R C /

accident occurred when the investigat - speed of traffic is entitled to share the Sometimes, letting your client testify I R ing officer had driven the curve “on a road anytime. And even a bicyclist riding about the emotional impact of being A D R number of occasions under comparable slower than traffic is entitled to ride on wrongfully found “at fault” is the most A S

conditions.” The outcome should be the right-hand edge of the road, and to compelling testimony of all. N A K

different where an officer is speculating take over the center of the lane when the O L regarding conditions and visibility at lane is too narrow for passing, or when Sara Peters is an associate the time of an accident, or simply offer - safety otherwise requires. (Cal. Veh. Code attorney prosecuting com - ing a “because I say so” opinion based § 21202.) plex and catastrophic per - Shaping liability in the on facts known and understandable to The list goes on. We cannot rely on sonal injury cases at the jury. the vehicle code provisions commonly Walkup, Melodia, Kelly & Questioning the officer’s cited in traffic collision reports. We must Schoenberger. She coaches driverless car era Vehicle Code assumptions know the code, especially the portions mock trial at Stanford Law benefiting pedestrians and cyclists. Peters School, where she received In our experience, many officers her J.D. in 2008, and is a Some say liability concerns could be a roadblock The hostile officer damages evaluating vehicle-versus-bicycle colli - enhancement contributing editor for The Rutter Group sions or vehicle-versus-pedestrian colli - 2015 Claims & Defenses practice guide. She for driverless cars, stifling innovation sions overlook Vehicle Code provisions Often, in cases where we represent serves as Co-Director of Attorneys Bettering that benefit the cyclist or pedestrian. pedestrians or bicyclists, we observe a law the Community, a local nonprofit, and as CLE BY CHRIS DOLAN In essence, the authors are saying that the manufacturers For example, some officers profess enforcement bias against our clients Vice Chair of the BASF Barristers Litigation will shy away from technology that could save lives because of ignorance of the existence of unmarked (especially against the cyclists). Section. Ms. Peters has been peer-nominated In 2009 the California Department of Transportation com - the fear of lawsuits for when their technology fails. Indeed, they crosswalks. An unmarked crosswalk exists You’ve seen it before, too. A defen - as a Northern California Super Lawyers missioned a study by the Rand Corporation (you know, that con - write, “It will probably be in automakers’ interest to continue to between sidewalks at every intersection. dant driver, fueled by righteous indigna - Rising Star from 2013-2015. servative think tank) entitled Liability and Regulation of focus attention on the need for a responsible driver to monitor (Cal. Veh. Code, § 275.) A pedestrian tion that a bicyclist is merging into the Autonomous Vehicle Technologies. The authors felt that “over - crossing at a corner without a marked lane of travel, accelerates into an unsafe Valerie Rose practices all all, we do not anticipate that liability for individual drivers will crosswalk is thus not jaywalking. In fact, pass and runs him down. The bicyclist types of personal injury liti - be a problematic obstacle to the use of autonomous vehicle tech - the pedestrian has the right of way and shatters half the bones in his body. As the gation as an associate at nologies. On the contrary, the decrease in the expected proba - vehicles must yield. cyclist is loaded onto a stretcher, the offi - Walkup, Melodia, Kelly & bility of a crash and associated lower insurance costs that Other officers assume that a bicy - cer takes down a self-serving statement Schoenberger . Ms. Rose is autonomous vehicle technologies will bring about will encourage clist on a sidewalk is violating the law. from the defendant. When the cyclist gets a 2010 graduate of the adoption of these technologies by drivers and automobile- But this is not the case. The California home from the hospital insult piles on University of California, insurance companies.” Rose Vehicle Code explicitly states that there injury. He finds a ticket waiting for him, Berkeley School of Law and And, leaving no opportunity unexploited, they made a pitch is no prohibition against riding on a citing him for an unsafe merge. has been peer-nominated as for no-fault insurance which inures a benefit to the insurance sidewalk in the absence of a local Our first impulse may be to exclude a Northern California Super Lawyers Rising company at the consumer’s expense. Despite the obvious municipal ban. (Cal. Veh. Code, §§ evidence of the citation. But this also Star from 2013-2015. enhanced safety benefits to consumers, the study said “we antici - 21650(g) and § 21206.) Some munici - eliminates evidence of one aspect of pate that current liability laws may lead to inefficient delays in palities have blanket prohibitions, some damages: the added anxiety and frustra - manufacturers introducing autonomous vehicle technologies. have no prohibition, and others prohibit tion caused by an erroneous finding of The gradual shift in responsibility for automobile operation from bikes on sidewalks in downtown areas fault against the innocent victim of a the driver to the vehicle will lead to a similar shift in liability for only. collision. crashes from the driver to the manufacturer.” Interior of a car modified to be driverless 40 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 41 Liability in the Driverless Car Era , continued from Previous Page

the autonomous vehicle technologies, the road in about two years.” Audi and year, Uber announced a strategic partner - According to one tech blogger, Zach percent reduction in crashes which would even after the technologies mature suffi - Volvo are in hot pursuit. ship with Carnegie Mellon University Kanter, who cites the Price Waterhouse save nearly 30,000 lives and prevent 2.12 ciently to allow truly autonomous opera - In 2013 The Earth Institute at (CMU) in creating the Advanced Study as a basis for his predictions, million injuries annually. In short, the tion. To the extent possible, automakers Columbia University released a study Technologies Center in Pittsburgh whereby “[a]ncillary industries such as the $198 driverless vehicle is predicted to definite - will want to preserve the social norm that called “Transforming Personal Mobility” Uber will endow faculty chairs and gradu - billion automobile insurance market, $98 ly, and permanently change all aspects of crashes are primarily the moral and legal which modeled various existing transporta - ate fellowships. CMU already hosts the billion automotive finance market, $100 transportation as we know it. Throughout responsibility of the driver, both to mini - tion systems in comparison to driverless General Motors-Carnegie Mellon billion parking industry, and the $300 all of this disruption we need to remain mize their own liability and to ensure vehicles, shared vehicle system, and specif - Autonomous Driving Collaborative billion automotive aftermarket will col - ever vigilant so that we do not see con - safety.” ic-purpose vehicles in an effort to see if Research Lab. Research at CMU has been lapse as demand for their services evapo - sumer safety and corporate accountability The authors also suggest that pre - economies and efficiencies would result. heavily funded by the National Science rates. We will see the obsolescence of trampled under the hoofs of the techno emption, requiring manufacturers to The results are staggering. For example, Foundation (NSF), the Defense Advanced rental car companies, public transporta - titans as they shout their battle cry incorporate the most promising forms of the study revealed that with just 9,000 Research Projects Agency (DARPA), the tion systems, and, good riddance, park - (whine): “don’t stifle my innovation.” this technology by regulatory fiat, while autonomous vehicles managed through U.S. Department of Transportation’s ing and speeding tickets. But we will see simultaneously exempting them from reportedly stated the development was “an the “Mobility Internet,” all of New York’s University Transportation Centers pro - the transformation of far more than just Chris Dolan is the owner state tort liability, presents a practical important step toward improving road safe - taxis could be replaced, reducing pick-up gram as well as General Motors and pri - consumer transportation: self-driving of the Dolan Law Firm with approach to encouraging manufacturers ty and transforming mobility for millions wait times to about 36 seconds and costs by vate foundations. It was the Carnegie semis, buses, earth movers, and delivery offices in San Francisco, to develop the technologies under the of people.” Google states that the results as much as 80 percent for fleet owners. Mellon’s modified Cadillac SRX trucks will obviate the need for profes - Oakland and Sacramento. He theory that in the aggregate more good of their testing suggested it was safer to Savings that could then theoretically pass autonomous vehicle which transported sional drivers and the support industries has been widely recognized for than harm will occur. remove all driver controls because the down to passengers. One author suggested Bill Shuster, chairman of the House that surround them.” his excellence in trial advoca - The Rand study centers too much on potential of a human suddenly taking over that at a cost of $25,000 per driverless car, Transportation and Infrastructure “The Bureau of Labor Statistics lists cy, receiving the Consumer protecting the interests of the manufac - was too unpredictable and potentially dan - all 171,000 taxis in the US could be Committee, 33 miles to Pittsburgh that 884,000 people are employed in Attorneys of California Trial Dolan turers and not enough on protecting the gerous. Urmson reportedly told the New replaced for about $4.3 billion. International Airport. CMU is now provid - motor vehicles and parts manufacturing, Lawyer of the Year Award, the public. It completely fails to address York Times that “[w]e saw stuff that made So who is perhaps most excited about ing members of Congress the opportunity and an additional 3.02 million in the Edward Pollock Award for service to the harms to third parties such as pedestri - us a little nervous.” the driverless car? Uber. Currently the to ride the vehicle around Washington. dealer and maintenance network. Truck, Plaintiff’s Bar, the SFTLA Trial Lawyer of the ans. Presumably, the preemption theorists Google is not the only company mammoth common carrier application Not surprisingly, GM CEO Barra’s bus, delivery, and taxi drivers account for Year Award, The Chief Justice’s Award for feel their lives will be the price to be paid pushing forward with automated technol - (with a market value of over $41 billion) statement about the 2017 Cadillac V2V nearly six million professional driving Contribution to the Courts, and the SFTLA for progress. What is apparent is that ogy, indeed, in a CNNMoney interview, pays around 75 percent of gross profit per release came just weeks after Chairman jobs. Virtually all of these 10 million jobs Civil Justice Award. Chris is rated AV those of us to whom the process of sort - Tesla Founder Elon Musk said that the ride to the drivers who provide the vehi - Shuster was safely delivered to Pittsburg. will be eliminated within 10-15 years, Preeminent by Martindale Hubble, has been ing out responsibility and accountability is 2015 Tesla would allow for what he cles and labor. Indeed, in 2014, while Given GM and CMU’s inside track with and this list is by no means exhaustive.” designated as one of the Top 100 Lawyers in entrusted need to become a part of the termed “autopilot” for up to 90 percent speaking at The Code Conference in Palos Washington, it makes sense that Uber Kanter cites to a Morgan Stanley California by the Daily Journal, is named as policy discussion and regulatory frame - of miles driven and definitely for high - Verdes, Uber CEO Travis Kalanick said (supposedly) shunned its investor Google report entitled “Nikola’s Revenge: one of the Best Lawyers in America, and has work so that the interests of the yet-to- way travel. During the October 2014 that Uber will eventually move away from when it turned to form a strategic part - TSLA’s New Path of Disruption” predict - been a Top 100 Super Lawyer for over a be-injured are factored as much, if not meeting of the Intelligent Transport hiring human drivers to using a fleet of nership with CMU (and by association, ing that autonomous vehicles, among decade. He currently serves as president-elect of greater than, those who stand to profit off Society, General Motors CEO Mary autonomous vehicles. He stated, “Look, GM) in an effort to develop the driver - other significant impacts, will lead to a 90 the San Francisco Trial Lawyers Association. of this technology. Barra, speaking about consumer expecta - this is the way the world is going… If Uber less car. A more jaded skeptic (one of the The future is here tions, stated; “[t]hey want unfettered per - doesn’t go there, it’s not going to exist more polite things that I have been sonal mobility. More specifically, they either way.” [We think he meant to say “… called) might see this as Uber and In May of 2014 Google unveiled the expect us to help mitigate... if not elimi - it’s going to exist either way.” — editor] Google, partners from the start, collabo - first of 100 completely driverless vehicles. nate... the congestion... pollution... and Kalanick went on to state, “The rea - rating to infiltrate the competition and, Most striking is not the radar on top, it is traffic accidents that are the downsides of son Uber could be expensive is because between them, control the marketplace. the absence of any controls inside the vehi - automobiles. To me, these aren’t noble you’re not just paying for the car – you’re The magnitude of change cle. That’s right, no steering wheel, brake, causes. They are imperatives. If we paying for the other dude in the car. When turn signal, accelerator, or mirrors. To see expect our industry to thrive well into the there’s no other dude in the car, the cost of According to Price Waterhouse the car in action, go to YouTube and enter future, we have to provide solutions. To taking an Uber anywhere becomes cheaper Cooper’s Autofacts team’s February 2013 “a first drive.” You will see a slick promo do that, we have to be passionate and than owning a vehicle. So the magic there predictions contained in the report enti - done by Google which talks about empow - fearless advocates for safety technologies is, you basically bring the cost below the tled, “Look Mom No Hands,” autonomous erment, security, freedom and the cool fac - like vehicle-to-vehicle communication... cost of ownership for everybody, and then vehicle technology has the potential to tor. You will be equally intrigued and dis - vehicle-to-infrastructure communica - car ownership goes away.” Given that reduce the vehicle fleet from 245 million turbed at the same time. (www.youtube.com/ tion... and ultimately, fully autonomous Morgan Stanley research released in to just 2.4 million vehicles, reduce the watch?v=CqSDWoAhvLU) driving. No other suite of technologies September of 2014 revealed a utilization number of traffic accidents from 10.8 mil - Chris Urmson, director of Google’s offers so much potential for good... and rate by car owners of about four percent of lion to 1.1 million and reduce commute self-driving car project, told The Guardian it’s time to turn potential into reality. available hours, Kalanick is banking on time and energy as a function of quantity that “the aim was to run extended tests in That’s why I’m announcing today that both car ownership and driving to become of fuel consumed from 1.9 billion gallons California where Google is based.” Urmson GM will put its first V2V-enabled car on obsolete. Indeed, on February 2nd of this to 190 million gallons.

42 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 43 Profile: Mark Fong streets, the number of vehicles is not nec - basically came down to his intellectual quiet, confident type, they’ll appreciate essarily subsiding – in a city that’s essen - strengths: reading, writing, critical that. You’ve got a lot of time in court, Accomplished trial attorney, avid cyclist, tially locked in on all four sides. “So you thinking and public speaking. and they will know by the end of the trial have more total vehicles competing for Fong graduated with high honors that your demeanor is true. On the flip relishes a diverse trial practice and says the same space,” he said, “which is why from UC Berkeley with a political science side, they can also tell when you’re not you’re seeing an increase in cycling acci - degree and went on to UC Hastings yourself.” that to a client “you’re their knight…” dents and deaths. It’s a huge part of what College of the Law in San Francisco, Keep on pedaling Vision Zero, the San Francisco Bike where at first much of the procedural BY STEPHEN ELLISON Fong’s and even underwater transport, including Coalition and Walk SF are trying to get and theoretical practices were foreign to When he’s not in the office or court, cases pretty scuba diving gear. He has obtained sever - their heads wrapped around – how to him. He persevered, however, and even - Fong most likely is spending time with For Mark Fong, advocacy is more much run al multimillion-dollar verdicts and settle - make the three work more harmoniously tually served as an extern to Justice his family, riding his bike or participating than just a job requirement. It’s an the plain - ments over the years and has been recog - together.” Winslow Christian of the Court of in a community service capacity. He important part of his daily life, whether tiffs’ law nized accordingly as a fellow of the presti - insists he is not a hard-core cyclist, but A sense of duty Appeal, First Appellate District (San he’s at work in his San Francisco office, gamut, from gious American Board of Trial Advocates Francisco). he’s experienced and knowledgeable riding his bicycle for commute or pleas - premises as well as a member of the National Trial In law, Fong’s path to success was Upon graduation from Hastings, enough to speak authoritatively about it. ure, representing his Asian-American liability and Lawyers, comprising the top 100 trial almost as unwieldy as a San Francisco Fong was eager to start trying cases and He also is extra cautious and mindful of heritage or just being a good citizen and governmen - attorneys from each state. street. But he paid his dues, learned as joined forces with Robert Harlem, prac - following the rules of the road. “I know family man. tal torts to Because he is an avid cyclist himself he went and polished his skills to a fine ticing in that capacity for the next 25 how hard it is sometimes − you’re Because others are depending on personal – often riding to and from his San shine. And through it all, he never lost years. He moved to Minami Tamaki in clipped into your pedals, you’ve got his intelligence and shrewdness, as injury and Francisco office – Fong is active in the sight of his duty or purpose. 2006. “When I was coming up, there momentum and you’re at a stop sign and well as his ability to do the right medical mal - city’s cycling and transportation commu - “Someone once said, ‘You try a case weren’t a lot of minority or especially you see no cars coming − so it would be Fong thing, Fong takes those roles seriously, practice. But nity – outside the realm of his law work. for show, but you settle for the dough.’ Asian-American trial lawyers, and that easy to keep pedaling,” Fong said. “You always conscious that his actions could his passion seems a bit more heightened He is a member of two nonprofits – the The idea is you try the cases to show was something that I really enjoyed from really have to be cognizant of the fact result in positive change for specific when a case involves a motor vehicle, San Francisco Bike Coalition and Walk SF the other side … that you’re not afraid, the beginning,” Fong said. “Trial lawyers that if it’s a car versus you, you’re going people’s lives and possibly society in watercraft, bicycle or pedestrian. While and co-chair of a third called Chinatown and you will try the right case,” Fong will tell you many reasons why it floats to lose. general. he hesitantly called himself a specialist in TRIP, which is active in transportation explained. “If (the opposition) is not will - their boat, but for me, it’s a combination “When I ride, I look kind of stupid – “When you’ve got someone who is accident cases, Fong was quick to point and pedestrian safety and accessibility. ing to be fair to your client, then it’s on. of it’s a chess match, it’s theater, it’s like lights on in the daytime, highlighter-yel - catastrophically hurt, they’re relying on out that, as a trial lawyer, he shouldn’t be Fong said cycling and pedestrian safety I’ve tried enough cases that I think I football. It’s a game of inches sometimes low helmet, bright yellow jacket – because you to basically put their lives back seen as a niche attorney. have become critical issues for his home - have the reputation that I won’t back with discovery, and then sometimes there I’ve seen all the crazy stuff that can hap - together again,” said Fong, a partner “I hearken from a time when a trial town. down if they won’t be fair.” can be a long bomb with a dispositive pen,” he continued. “If someone’s going with Minami Tamaki LLP. “You’re their lawyer would say they can pick up any “I’ve always lived in San Francisco – By the same token, Fong said he’s motion. But mostly it’s a game of inches to say they didn’t see me, they’re going knight, you’re the one who can put them kind of a plaintiffs’ case,” Fong said, still do. It’s always been very dense, no not willing to add undue risk to his – it’s human life. So I decided early on I to have a tough time proving it.” back together again … they’re resting recalling what his mentors taught him one drives, everyone takes the bus or clients – many of whom are already cata - don’t want to just be working on some When it comes to proving his cases every confidence on you, and you have a early on. “They would say they could liti - walks or uses other public transit,” Fong strophically injured – just to stroke his corporation’s lease.” at trial, Fong believes whole-heartedly in chance to really help them.” gate that (case) and try it because they said. “So having streets that are safe to ego. “I’m not going to say, ‘I think I can Through the early years, Fong stud - a show-and-tell approach. For young trial Indeed, when he was starting out always believe the skill is in the trial work walk on and buses that are safe and oper - do better’ at trial,” he continued. “I’m ied other successful plaintiffs’ trial attorneys today, he said, there’s no better more than three decades ago, Fong and working with the jury and knowing ate on time serves the community, and not going to say, ‘Let’s roll the dice – let’s lawyers at work: how they carried them - way. quickly recognized that his foray into law your way around the courtroom. The it’s a pretty big deal. Vision Zero is an roll your dice.’ I think the medical selves in court, what worked for them “Trial work is all about creating a – and into plaintiffs’ trial practice – substantive area is something you can ambitious and very commendable plan expression is ‘The enemy of good is bet - and what didn’t. Then he recognized the word picture, but if we can create a pic - would give him a chance to make a dif - learn up on, and you find experts.” by the mayor – the goal is zero traffic ter,’ meaning if you’ve got the operation importance of applying those methods to ture picture, better still,” he explained. ference. It also would give him an oppor - “Those were my mentors’ con - deaths in San Francisco by 2024 – one to a point where you have a good result, his own way of doing things. It is a devel - “People have different learning styles. tunity to represent his heritage at a time tentions. I’m not that bold; I know my that everyone who is interested in bike that’s where you stop – let’s close up the opmental process he feels all young A study once said if you tell with words, when few Asian-Americans were in the limits.” and pedestrian safety should get behind. patient. But if you’re in your hubris, try - lawyers should follow. “What we do, it’s people retain it for 10-20 minutes; if you profession. “But, yes, I would say anything that It’s an embarrassment and a sore spot for ing to make it better, now you’re playing been done, studied, dissected by other show them something in a picture, they “Those certainly were huge factors – rolls and ways that people can get hurt City Hall the number of pedestrian and with the patient’s health. … In our case, lawyers – they write books and give semi - retain it for 30-40 minutes. When you tell the lack of people who looked like me in from vehicles … those types of cases I’ve bike deaths we’ve had to endure, and the we’re playing with the client’s livelihood.” nars,” Fong said. “It’s incumbent on any them and show them, their retention the courtroom and the ability to … say had a lot of experience trying.” Bike Coalition and Walk SF are not let - Born and raised in San Francisco, young trial lawyer to learn as much as increases many-fold, and your chances of ‘yeah, I’m doing right, one case at a ting it subside. This issue is not going Fong was a trail blazer of sorts in his they can, just be a sponge and learn from winning your case are that much better.” Motions on motion time, one client at a time,’” Fong said away.” family when it came to the law profes - those who have been successful, and then about deciding to pursue law. “And every Fong’s case diversity in the area goes Fong pointed out that more and sion. He had an uncle who was a proba - make it your own because juries can tell Stephen Ellison is a freelance writer so often, you get a case that will speak to beyond typical car, bike and pedestrian more people each year are trying to find tion officer and later went into law, but when you’re faking it. based in San Jose. Contact him at a greater good, where changes can be incidents. They could involve tractor alternative ways to work, so that means he really had no influences – at home “I think (jurors) appreciate it when [email protected]. made that have a much broader impact, trailers, aircraft, heavy construction the bus, walking and bicycling. While or at school – pointing him down you’re yourself,” he continued. “If you’re not just on your clients.” equipment, elevators, cranes, watercraft there may be many more cyclists on the that path. His career choice, he said, not a gifted orator, if you’re more of a

44 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 45 10:00 p.m. and 12:30 a.m. the night blood could not be related to an alco - The probable effect of intoxicants Marijuana use before the accident. The main effects hol level. [The County’s expert] did not other than alcohol is a topic ‘sufficient - from marijuana occur in the first one to do any accident reconstruction, so she ly beyond [the] common experience’ of two hours. Most of the effects would could not form an opinion that the most jurors that expert testimony is and the civil have worn off within three to four hours. marijuana Randy used caused the acci - required. [Citations.] [Plaintiff’s expert] stated the opin - dent. Although [the County’s expert] (Pedeferri v. Seidner Enterprises (2013) 216 ions of the [County’s expert] were could say where Randy was in the Cal.App.4th 359.) jury trial flawed, because she relied on a model ranges and effects, [she] could not say Also, while it is important to have an that does not account for postmortem that Randy would not have died if he expert who can handle the science of redistribution. The fact that marijuana was not impaired. She disagreed with marijuana and testing for marijuana, The rules you must is detectable does not mean Randy was [Plaintiff’s expert] that Randy’s level of sometimes the case will require more impaired or under the influence of the active ingredient was so low that it than one expert. It is not enough for the know before evidence marijuana. [Plaintiff’s expert] admitted would not have an effect on his driving. party to establish that there was marijuana the study he relied on used less potent She could not say that the marijuana in the system or that the party was poten - of marijuana use marijuana samples than marijuana on Randy used the night before caused his tially under the influence of marijuana. the current market and the concentra - death the next morning or that being As set out in CACI Instruction 404, “A tion affects the results. under the influence caused his death. person is not necessarily negligent just is put before the jury [The County’s expert] testified As the above discussion illustrates, because he or she used alcohol [or that in her opinion, Randy was under the science related to marijuana can get drugs]. However, people who drink alco - BY ALAN VAN GELDER show you have a blood alcohol level of .08 the influence of marijuana at the time complicated especially when trying to use hol [or take drugs] must act just as care - We have added this article to the bicycle you are legally intoxicated, but marijuana of his death. Marijuana is not stable a blood test to work backwards in an fully as those who do not.” In 2010, Randy Hernandez was and pedestrian issue because the issue of is different. Marijuana is processed by the and dissipates after death, but the effort to prove the effect the marijuana It is not enough to show marijuana struck and killed by a vehicle driven by a marijuana use and comparative negligence body differently than alcohol. Each person autopsy performed a few days after was having, if any, at the time of the inci - use. In order to get the marijuana evi - processes and reacts to marijuana differ - Randy’s death showed he still had the dent. This discussion leads us to the next dence in front of the jury, the particular Los Angeles County Sheriff’s Deputy as could play a role in an otherwise admitted- he stood on a freeway next to his dis - ently depending on a variety of factors. active ingredient in the blood in his important rule. facts of your case might require testimo - liability case of a vehicle striking a cyclist abled car. Randy had a legal prescription Significantly, evidence of marijuana use heart. Based on the presence of the ny about how the marijuana played a Rule #2: You need an expert, or for marijuana. The night before his or pedestrian. – Editor lingers in the body long after the active active ingredient, she concluded the role in causing the incident. This may several death he allegedly used some of his pre - effects of the marijuana have worn off. amount must have been higher prior involve additional experts in accident scription marijuana. Trace amounts of Evidence of past marijuana use does to the accident and Randy had used it You need an expert and, depending reconstruction and/or human factors, or marijuana were still in Randy’s system at with the Plaintiff that the jury’s verdict not establish when the marijuana was recently enough to be impaired at the on the case, you may need multiple others. These experts might be necessary the time of a post-mortem blood test. In had been prejudicially tainted by the actually used or whether the person was time of his death. She also testified experts. There are many traps and pitfalls to help put the marijuana use in the the ensuing wrongful death action, the introduction of evidence related to mari - suffering from the effects of the marijuana that the level was well within the meas - that need to be navigated when dealing context of the behavior of the person at plaintiffs would contend there was no juana. at the time of the incident. Even when the urable amount for the test. with marijuana. As set out above there are the time of the incident and link the connection between Randy’s marijuana The lesson to take away from the marijuana is no longer actively affecting [The County’s expert] concluded questions as to how testing is done, ques - marijuana to the incident. This leads us use and the events that caused his death. Hernandez decision is that parties need to the user, it can still appear in the blood Randy used medical marijuana approxi - tions related to the test results, the mean - to our next and important rule of this At trial in 2012, the County desperate - be careful when attempting to present work. Consider the following discussion mately five to six hours before his ing of the test results, and how those test article. ly tried to get evidence of marijuana before evidence of marijuana use to the jury. from the Hernandez case at 1606-08: death. The model she relied upon sug - results can be applied to your case. The Rule #3: Substantial factor the jury. The County had multiple experts, Marijuana evidence is extremely compli - [Plaintiff’s Medical toxicology gested a wide range of times in which issue gets even more complicated when a all of whom admitted they could not con - cated and controversial. If the marijuana expert] testified that “The level of the Randy could have taken the marijuana party tries to use the blood work to recon - Without expert testimony that mari - nect the marijuana to Randy’s death. Still, issue is improperly admitted into evi - active ingredient of marijuana found in based on the ratio of the active ingredi - struct how marijuana was affecting a per - juana was a substantial factor in causing the County claimed it was a matter of dis - dence, a party risks having a verdict Randy’s heart during the autopsy was ent and the metabolite in Randy’s son at the time of the incident. the incident, marijuana evidence should puted fact that had to be resolved by the overturned. The Hernandez v. County of extremely low.” It was barely within the blood, but she agreed with [Plaintiff’s You are a lawyer, not a toxicologist. be inadmissible. In Hernandez , the jury. Ultimately, after a hotly contested Los Angeles decision provides some help - ability of the test to measure. In addi - expert’s] concern that the model was Only an expert trained in the field is County’s attempt to put evidence of motion-in-limine hearing, the marijuana ful guidance about the use and misuse of tion, the amount of the inactive based on living participants. Therefore, going to be able to explain to you and Randy’s alleged marijuana use before evidence was admitted. Although the plain - marijuana evidence at trial. This article metabolite measured in the autopsy [the County’s expert] accepted the con - the jury why the opposing expert is play - the jury was riddled with problems relat - tiffs were able to get a verdict against the will walk you through the Hernandez deci - was higher than it would have been at clusion that Randy used medical mari - ing fast and loose with the facts and the ed to testing and analysis of the actual County, the jury’s verdict was compromised sion and provide some basic rules regard - the time of the accident, because con - juana the night before the accident, science. As the Court in Hernandez wrote test results. In the end, the County was by the marijuana evidence, with the jury ing marijuana evidence. centrations that have built up in the because it was within the range provid - at supra 1614: unable to connect Randy’s alleged mari - apportioning 14% of the fault to Randy. tissues over time are released as the tis - ed by the model and consistent with his Where the complexity of the cau - juana use to his death. None of the three Rule #1: Marijuana is different sues break down postmortem. mother’s testimony. sation issue is beyond common experi - County experts (pharmacologist/forensic The plaintiffs appealed. than alcohol In 2014 the Court of Appeal ordered [In the expert’s] opinion, the level [The County’s expert] could not ence, expert testimony is required to toxicologist, accident reconstruction, and a new trial in the published decision of Testing positive for marijuana is not of active marijuana ingredient detected quantify the level of impairment that establish causation. human factors) could provide an opinion Hernandez v. County of Los Angeles (2014) the same as being under the influence . in Randy’s blood was consistent with his Randy was experiencing at the time of (Garbell v. Conejo Hardwoods, Inc . (2011) that marijuana was a substantial factor in 226 Cal.App.4th 1599. The Court agreed In the State of California if your test results having ingested marijuana between the accident. The level measured in his 193 Cal.App.4th 1563, 1569.) causing Randy’s death.

46 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 47 Marijuana , continued from Previous Page

Comparative fault is an affirmative that Randy was experiencing at the time option. This was impermissible charac - defense which places the burden of proof of the accident, did not form an opinion ter evidence that had nothing to do Appellate Reports on the County. As the Hernandez Court that the marijuana Randy used caused with negligent actions on the morning wrote at page 1614: the accident, and could not say that the that Randy was killed, because Randy’s The comparative fault doctrine “is marijuana Randy used or being under character was not at issue. and Cases in Brief designed to permit the trier of fact to the influence of marijuana caused his (Id . at 1615.) consider all relevant criteria in appor - death. If none of the County’s experts could tioning liability. The doctrine ‘is a flexi - say Randy’s marijuana use was a substantial Rule #4: Improperly admitted EEOC v. Abercrombie & Fitch Stores evidence = reversal of verdict ble, commonsense concept, under factor in causing his death, the jury could not which a jury properly may consider and speculate there was a causal connection Improperly admitted marijuana evi - An employer may not make an applicant’s evaluate the relative responsibility of between Randy’s use of marijuana and his dence can result in reversal of a verdict. various parties for an injury (whether death. Therefore, the evidence of marijuana While it is true that certain segments of religious practice, confirmed or otherwise, their responsibility for the injury rests use was irrelevant and should have been society have become more accepting of on negligence, strict liability, or other excluded. (Cf. Smith v. Workers’ Comp. marijuana (especially medical marijuana) a factor in employment decisions theories of responsibility), in order to Appeals Bd . (1981) 123 Cal.App.3d 763, over the years, marijuana is still a hotly arrive at an “equitable apportionment 771-775 [employer that denied workers’ contested issue. There are conflicts in the BY JEFFREY I. E HRLICH even if the employee or applicant has not violation of Title VII. The EEOC pre - or allocation of loss.’” [Citation.] compensation benefits based on employ - science, conflicts in the politics, and con - requested such an accommodation. vailed in district court, obtaining a (Rosh v. Cave Imaging Systems, Inc . (1994) ee’s intoxication must prove intoxication flicts between generations and social Synopsis: Samantha Elauf, a practic - $20,000 award. The 8th Circuit reversed, 26 Cal.App.4th 1225, 1233, quoting was a proximate cause or a substantial classes on the issue. Combine those con - EEOC v. Abercrombie & Fitch ing Muslim, applied for a job in an finding that an employer could not be Knight v. Jewett (1992) 3 Cal.4th 296, 314.) factor in causing accident, as was shown flicts with a lack of understanding from Abercrombie store. She wears a headscarf held liable for violating Title VII for fail - Generally, the defendant has the bur - by expert testimony that judgment and many jurors as to the effects of marijuana Stores, Inc. consistent with her understanding of her ing to accommodate a religious practice den of establishing that a percentage of reaction time would be impaired seri - and marijuana can potentially turn into a (2015) __ U.S. __ (U.S. Supreme). religion’s requirements. The store’s assis - until the applicant (or employee) pro - fault is properly attributed to the plaintiff, ously at a blood-alcohol level of 0.25 very prejudicial issue. Who needs to know about this case? tant manager gave Elauf a rating that vides the employer with actual knowl - other defendants, or nonparties to the percent and could have contributed to During the appeal, defendant Lawyers handling Title VII claims based qualified her to be hired, but was con - edge of the need for a religious accom - action. The County tried to compensate the accident].) argued that times have changed and that on religious discrimination. cerned that her headscarf would violate modation. Reversed. for this problem by arguing that although (Hernandez , at 1614.) plaintiff was stirring up arguments about Why it’s important: Holds that Title the company’s “Look Policy,” which gov - Abercrombie’s primary argument the marijuana claim was weak, and there The County’s closing argument old fears and prejudices related to mari - VII has no knowledge requirement. erns how employees dress, and bars was that an applicant cannot show dis - was no expert testimony on causation, made it apparent that Randy’s mari - juana from the 1950’s. The Court reject - Hence, an employer can be held liable “caps.” The store’s manager decided that parate treatment without first showing jurors were sufficiently familiar with mari - juana use was not relevant. The ed the argument and found that the for violating Title VII even if it does not the headscarf would violate the Look that an employer has “actual knowledge” juana that they could decide the issue County’s attorney admitted there was issues relating to marijuana are compli - know that the employee or applicant Policy and directed the assistant manager of the applicant’s need for an accommo - themselves. The Court cited parts of the no evidence Randy’s marijuana use cated and can very easily taint an entire requires a religious accommodation, and not to hire Elauf. The EEOC sued for a dation. The Court disagreed. It held Defense closing argument at page 1609: contributed to his death, but he invited trial and verdict. The County’s attorney added, the jury to speculate about the effects It is not enough to point to a posi - “There was evidence of marijuana. You of marijuana anyway. tive marijuana result in a blood test and folks are going to do with it what you Because the experts could not leave it to the jury. Without the right sci - Choosing the rig ht appellate lawyer will. None of our experts could say it identify any manner in which marijua - ence, the right experts, and a solid con - caused the problem. Did it contribute na use contributed to the accident that nection between marijuana and the cause can be the most importa nt decision to it? I don’t know. Think about this. injured Randy or his decision to exit of the incident, marijuana should not be a trial lawyer makes. The blood was drawn 50 hours after the Land Rover, the evidence was not admitted into evidence. The Hernandez relevant to the issues and had no pro - the incident. And 50 hours is a long case demonstrates that the Court of Certified Appellate Specialist*; Harvard Law School, cum laude time. That’s more than two days. Two bative value. Even if the presence of mari - Appeal will not hesitate to overturn a Over 65 published appellate opinions — including cases in the days [later] and then tested, and those juana in Randy’s blood had some minimal verdict if claims of marijuana are improp - U.S. Supreme Court and California Supreme Court levels are still in the blood. I think that probative value, the danger of undue preju - erly tossed into the jury box. counts for something. … dice was substantial. The conflicting evi - As of 2014, Ehrlich is a co-author of Croskey, Heeseman, Imre & There is competent evidence that he dence about marijuana use confused the Alan Van Gelder is a Ehrlich, California Practice Guide – Insurance Litigation (Rutter 2014) was under the influence. You folks are issues for the jury and encouraged them to partner at the law firm of and featured speaker on Insurance and Appellate litigation going to do with it what you will. speculate whether marijuana use was a fac - Greene Broillet & Wheeler Two-time CAALA Appellate Lawyer of the Year The Court of Appeal rejected the tor in the accident in some way, when there LLP . He is a graduate of * California Board of Legal Specialization attempt by the Defendant holding: was no evidence to support causation. The Southwestern University In this case, the County failed to County’s attorney even used the mari - School of Law and since present evidence that Randy’s marijuana juana evidence to suggest that Randy 2002 has been specializing in 818-905-3970 Van Gelder www.ehrlichfirm. com use was a substantial factor in causing might not have had a legitimate med - cases involving catastrophic his injuries. [The County expert] could ical need for marijuana or that mari - injuries, wrongful death, product liability, 16130 Ventu ra Boul evard Suite 610 • Encin o, CA 91436 not quantify the level of impairment juana was not a legitimate treatment business litigation, and legal malpractice. The Trial Lawyer’s Appella te Firm

48 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 49 Appellate , continued from Previous Page

that, “an applicant need only show that finds that the lawsuit was frivolous, makes such an advance payment “shall” and change her clothes, and she slipped subject to equitable tolling. “In enacting demurrer; the Court of Appeal reversed, his need for an accommodation was a unreasonable, or groundless. The at the time of beginning payment notify and fell while walking back to her bed. the FTCA, Congress . . . provided no finding that the SVPA imposed mandato - motivating factor in the employer’s deci - Supreme Court agreed. Section 1032 of the recipient in writing of the applicable She claimed that the floor was wet clear statement indicating that § 2401(b) ry duties on the DMH, but that its breach sion.” the Code of Civil Procedure says that, statute of limitations. The failure to pro - and appeared to have been recently is the rare statute of limitations that can of those duties was not the proximate Title VII, unlike some other anti- except as otherwise provided by statute, vide such notice “shall operate to toll mopped. There were no warning cones deprive a court of jurisdiction. Neither cause of Gomez’s death. Affirmed. discrimination statutes, contains no the prevailing party is entitled to an any such applicable statute of limitations” present. Almost 2 years after the fall, the text nor the context nor the legisla - The Court’s opinion contains an knowledge requirement as a prerequisite award of costs as a matter of right. from the date of payment until notice is she filed suit against Prime for premises tive history indicates (much less does so extended discussion of sovereign immu - to liability. “Instead, the intentional dis - Government Code section 12965, which actually given. But notification is not liability. The trial court granted summa - plainly) that Congress meant to enact nity and duty, and concludes that the crimination provision prohibits certain is part of FEHA, states that in FEHA required if the recipient is represented ry judgment, finding that the case was something other than a standard time duties imposed by the SVPA on the DMH motives, regardless of the state of the actions, the trial court has discretion to by an attorney. subject to MICRA and that the one-year bar.” are mandatory, and that the DMH’s fail - actor’s knowledge. Motive and knowl - award fees and costs to the prevailing Blevin had knee surgery at Coastal statute of limitations for MICRA cases, ure to have Pitre evaluated by two evalua - edge are separate concepts. An employer party. By making a cost award discre - and contracted a bacterial infection Code Civ. Proc. § 340.5 governed. Mandatory duty; proximate cause; tors was a breach of its mandatory duties. who has actual knowledge of the need for tionary in FEHA cases, section 12965 from a sponge that had been used to Reversed. government claims : State Dept. of State But the Court held that this breach was an accommodation does not violate Title modifies the mandate in section 1032 clean surgical equipment. Coastal paid MICRA applies to cases involving Hospitals v. Superior Court (Novoa ) (2015) not the proximate cause of Gomez’s VII by refusing to hire an applicant if that requires a cost award to a prevailing him $4,118 for the medical expenses he “professional negligence.” The inquiry __ Cal.4th __ (Cal. Supreme). death, as a matter of law. The Court avoiding that accommodation is not his party. incurred in treating the infection. He under section 340.5 requires the court The Sexually Violent Predators Act explained, as it has in prior cases, that motive . Conversely, an employer who acts Although section 12965, on its face, was not represented by counsel and did to determine whether the negligence (“SVPA”) allows for civil commitment of proximate cause includes two compo - with the motive of avoiding accommoda - does not distinguish between awards to not sign any release. More than 15 alleged in the complaint occurs in the prison inmate who has committed a nents: (a) cause in fact, i.e., but-for causa - tion may violate Title VII even if he has plaintiffs or defendants in FEHA months after receipt of the payment, he rendering of professional services and prison term, but has been found to be tion; and (b) considerations of public pol - no more than an unsubstantiated suspi - icy. The Court held that neither compo - actions, the legislative history of the pro - sued Coastal for medical malpractice not the level of skill required for each a sexually violent predator (“SVP”). cion that accommodation would be need - nent was satisfied here. With respect to vision convinced the Court that the and obtained a judgment. On appeal, individual task. For purposes of section Under the statutory scheme, when the ed.” cause-in-fact, the outcome of the SVP Legislature intended an asymmetrical Coastal argued that Blevin’s claim was 340.5, subdivision (2), “professional neg - Department of Corrections determines “Thus, the rule for disparate-treat - evaluations was discretionary, and the standard like the one adopted by the time barred and that Ins. Code § 11583 ligence” is defined as “a negligent act or that an individual in custody may be an ment claims based on a failure to accom - one evaluator who did evaluate Pitre U.S. Supreme Court in Christiansburg did not apply to medical-malpractice omission to act by a health care provider SVP, it must refer the case for evaluation modate a religious practice is straightfor - determined he was suitable for release. Garment Co. v. EEOC (1978) 434 U.S. actions. Affirmed. MICRA’s one-year in the rendering of professional servic - by the Department of Mental Health ward: An employer may not make an In order to establish her case, the plain - 412, 416-418. Accordingly, in FEHA statute of limitations provision, Code es.” Because mopping the floor and put - (“DMH”). The DMH must have an evalu - applicant’s religious practice, confirmed ation made by two psychiatrists or psy - tiff would have to show that if two evalua - or otherwise, a factor in employment actions, the trial court’s discretion in Civ. Proc. § 340.5, prohibits any tolling ting a warning sign up did not occur tors had been used, the process would awarding fees and costs is subject to the of the statute of limitations beyond during the rendering of such services, chologists. If they agree the inmate is decisions. For example, suppose that an likely to be an SVP, the DMH must begin have ultimately satisfied all the steps employer thinks (though he does not same standard: a prevailing plaintiff three years. This limitation would apply plaintiff sufficiently alleged facts to sup - leading up to a civil commitment after a should ordinarily receive an award of to tolling under Ins. Code § 11583 that port an ordinary negligence claim so as civil commitment proceedings. If the know for certain) that a job applicant evaluators disagree, a second evaluation jury trial. This was too speculative. In fees and costs, unless special circum - extended more than three years. But to bring her action within the two-year may be an orthodox Jew who will observe is made by two new evaluators. If they addition, as a matter of public policy, the stances would render such an award since the tolling in this case was only limitations period of section 335.1 of the Sabbath, and thus be unable to work agree that the inmate is a potential SVP, breach of the duty should not be consid - unjust; a prevailing defendant, by con - several months, the tolling provision in the Code of Civil Procedure. on Saturdays. If the applicant actually then civil commitment proceedings are ered to be the proximate cause of trast, should not be awarded fees or § 11583 applied. And since the relevant requires an accommodation of that reli - initiated. The commitment process Gomez’s death because it “trenches close - costs unless the trial court determines facts surrounding the application of the Federal Tort Claims Act; claim- gious practice, and the employer’s desire requires a jury trial to determine under ly upon the discretionary functions of the that the action was objectively without provision were undisputed, the trial presentation deadlines; equitable to avoid the prospective accommodation the beyond-a-reasonable-doubt standard evaluation process established by the foundation when brought, or the plain - court could apply the section as a matter tolling: (2015) __ U.S. __ (U.S. is a motivating factor in his decision, the that the inmate is an SVP. SVPA.” employer violates Title VII.” tiff continued to litigate it after it clearly of law, without the need for a trial on Supreme). The Federal Tort Claims Act Here, Gilton Pitre was convicted and became so. the defendants’ limitations defense. (FTCA) requires that a tort claim be pre - imprisoned for the 1996 rape of his Jeffrey I. Ehrlich is the sented to the appropriate federal agency roommate. He came up for parole in principal of the Ehrlich Short(er) takes: Medical malpractice actions; Medical negligence; MICRA; within two years after it accrues, and 2007. He was referred to the DMH for Law Firm , with offices in advance or partial payment of dam - premises liability; ordinary versus pro - then brought to federal court within six evaluation as a potential SVP. Instead of Encino and Claremont, FEHA actions; costs; prevailing ages; tolling statute of limitations; Ins. fessional negligence; statute of limita - months after the agency acts on the having him evaluated by two evaluators, California. He is a cum party; asymmetrical court discretion to Code § 11583 : Blevin v. Coastal Surgical tions : Pouzbaris v. Prime Healthcare claim. (28 USC § 2401(b).) the DMH had a single evaluator review laude graduate of the award costs and fees to defendants: Institute (2015) 232 Cal.App.4th 1321 Services-Anaheim, LLP (2015) __ In two cases that were consolidated, his records, and on that basis Pitre was Harvard Law School, a cer - Ehrlich Williams v. Chino Valley Independent Fire (2d Dist., Div. 6). Cal.App.4th __ (4th Dist., Div. 3): the plaintiffs missed one of the dead - determined to be suitable for release. tified appellate specialist by Dist. (2015) Cal.4th (Cal. Supreme) Insurance Code section 11583 states Pouzbaris was admitted as a patient lines, but asserted equitable tolling Four days after his parole, Pitre raped the California Board of Legal Specialization, Williams sued the District under that no advance payment of damages to Prime’s hospital, West Anaheim based on the government’s conduct. and murdered Alyssa Gomez. Gomez’s and a member of the CAALA Board of FEHA and lost on summary judgment. made by any person or by his insurer as Medical Center, complaining of chest The government argued that equitable sister, Elaina Novoa, sued the DMH for Governors. He is the editor-in-chief of The trial court granted the District its an accommodation to an injured person tightness and shortness of breath. She tolling was not available under the wrongful death, claiming Gomez’s death Advocate magazine. costs. Williams appealed, arguing that in or the heirs of a decedent shall be con - was placed in a room with a private FTCA because the deadlines in § was caused by the DMH’s failure to dis - a FEHA action, costs cannot be awarded strued as an admission of liability. The bathroom. Two days after her admission, 2401(b) are jurisdictional. Held: the charge its mandatory duties under the against a losing plaintiff unless the court statute further states that the party who she used the bathroom to freshen up deadlines are not jurisdictional, and are SVPA. The Superior Court overruled a 50 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com plaintiffmagazine.com | July 2015 | Plaintiff 51 Back Story

Relax, I’m a professional Understanding bicycling experts’ biases in the context of urban riding’s evolution BY MILES B. C OOPER space. The Eight to Eighty advocate, stereotypically in her (or his) twenties to thirties, lives in a busy metropolitan area, has an The plaintiff’s lawyer sat in the conference urban planning background, and is involved in urban policy room, hoping the expert would eventually answer directly or through advocacy. her question. “I’ve been doing this for over forty Cycling plans years,” explained the bicycle expert in a conde - scending way, barely omitting a “little lady” at the When evaluating experts, one must also consider cycling Cooper end. “And during that time we’ve trained vehicu - plans. Many localities have developed plans recently. Some fall lar cyclists to…” The expert droned on. Nope. under regional active transportation plans. Active transportation He was not going to answer the question posed. refers to public transit, walking, and bicycling – transit methods that require more than sitting behind a car’s steering wheel. Do I need a bicycle expert? Other cycling plans may encompass a county or region, rather An expert is not always necessary, but the more complicated than just a city. the incident and the more significant the damages, the more Many of these plans were developed by consultants in con - important a bicycle expert becomes. Having a trained profession - cert with community involvement. The plans tend to be ambitious al who can explain the expectations for cyclists and why your – so ambitious that the adopters have been unable to meet their client was complying with them can be helpful. own goals. That’s grist for a dangerous conditions case. So are all bicycle experts the same? No. There can be a huge Where do you find the plans? Start with Google. Many are variance based simply on the timing of their own experiences. posted online. You can then hone in with Sunshine Act requests or a visit to the traffic engineering department. Vehicular bicycling No clear-liability bike cases In the 1970’s, an approach known as vehicular cycling gained prominence. Vehicular cycling is the theory that bicyclists should Say your case is a clear-liability bike-versus-car incident with use roads as if cyclists are cars (with some modifications). Riders plenty of insurance. Why bother with experts or research? First – are taught to ride with confidence and “take the lane” when nec - there are no clear-liability bike cases! Anti-cyclist biases run deep, essary. This provides cushion to avoid incidents; say for example: even in bike havens like San Francisco. The general public doesn’t getting doored (brought to a sudden and painful stop when a remember the thousands of law-abiding cyclists. They remember parked car’s door is opened without warning in the rider’s path – the helmetless dude blowing through a stop sign, one hand grip - a violation of California Veh. Code, § 22517.) ping a third wave coffee, the other extending a middle finger salute. (That’s not me. I drink Peets – meaning I, too, like the Vehicular bicycling experts vehicular cyclist expert, am a relic). So, vehicular cycling is good, right? Yes and No. An orthodox Traffic research also helps identify dangerous conditions. vehicular cycling advocate would tell you that a bicyclist is perfect - Cycling counts – traffic studies counting the numbers of road rid - ly safe on long, wide, suburban roads with three lanes going in the ers – are great when taking defendant depositions. When there same direction, at 35 miles per hour, and that bicycle funding is are 30 riders per hour, it helps defeat the “I didn’t expect the better spent on cycling education instead of roadway modification. cyclist” argument. They also help demonstrate that cycling on Stereotypically, that expert would be a white male in his six - that road is common, expected, and mainstream. ties. He would carry a low-digit League of American Bicyclists Outro Cycling Instructor number, and wistfully remember it as the League of American Wheelmen. This is not derision – the efforts Returning to our plaintiff’s lawyer’s deposition. “You are famil - of these types, in part, laid the groundwork for mainstream adop - iar with the city’s bicycle master plan, right?” she asked. “You came tion of cycling commuters. Many such experts have kept current. across that in your very thorough research into this incident?” The But chances are the one hired by the defense is stuck in a zealous bobbing Adam’s apple answered her question. “I’ll take that as a vehicular cycling mode, because that approach may help minimize no. Well, I’ve brought some copies and want to direct you to page the value of the plaintiff’s case. 32.” The rest of the deposition did not go very well for the expert. Miles B. Cooper is a partner at Emison Hullverson LLP . “Eight to Eighty” bicycling experts He represents people with personal injury and wrongful death cases. Times are changing. Crowded cities are adopting bicycling as In addition to litigating his own cases, he associates in as trial counsel a mainstream transit solution. With adoption came a shift to an and consults on trial matters. He has served as lead counsel, co-counsel, Eight to Eighty model. This theory asserts that roads should be second seat, and schlepper over his career, and is a member of the designed so cyclists from age eight to eighty feel safe. This neces - American Board of Trial Advocates. Cooper’s interests beyond litigation sarily means changes to vehicular cycling – bikes aren’t simply include trial presentation technologies and bicycling (although not at the slower, narrow cars. They are road users who deserve their own same time. ) 52 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com A partner you can rely on.

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