Read the report here:  Esquivel v. County of Humboldt  jury verdict.

The verdict has forced corporations that operate skilled nursing facilities to pay attention to the minimum nurse staffing requirements necessary to ensure the health and safety of the residents.

Janssen Malloy LLP partners W. Timothy Needham and Michael J. Crowley spent seven months in trial on Lavender vs. Skilled Healthcare LLC in 2010.   Both Mr. Needham and Mr. Crowley have served on the Board of Governors of the Consumer Attorneys of California, and Patrik Griego currently serves on that organization’s Board of Governors.

The Consumer Attorneys of California champions the rights of injured people, safety and responsibility, and the right to trial by jury.

This past week it came to our attention that Harley Davidson issued a recall for 250,757 touring motorcycles from years 2008-2011 due to a issues with the brakes. Harley officials said the rear brake-light switch could be damaged by heat from the bikes’ exhaust systems. There has been one reported accident attributed to the brake defects.

Following is information from a Wall Street Journal bog by Jonathan Welsh on October 23, 2011 regarding the recall with model numbers of the bikes subject to the recall:

Motorcycle maker Harley-Davidson Inc. is recalling certain touring motorcycles, trikes and models from its Custom Vehicle Operations or CVO from the 2009 through 2012 model years. The reason for the recall is that the rear brake-light switch could be damaged by heat from the bikes’ exhaust systems.

According to a document filed with the National Highway Traffic Safety Administration, the recall includes a total of 250,757 models built from June 6, 2008 through Sept. 16, 2011. The company says it knows of one alleged crash attributed to the defect.

The company says the excessive heat may cause the switch to fail to activate the brake light during braking, or to activate it when the brake has not been applied. The problem could also result in a brake fluid leak at the switch that could keep the rear brake from working properly. Any of these problems could cause a crash.

A motorcycle’s rear brake is usually operated by a foot pedal while a hand lever controls the front brake, and riders are supposed to apply them together. Though the front brake does most of the work to slow the bike, losing the rear brake’s effect is a serious problem.

Harley-Davidson said its dealers will replace the rear brake light switch free of charge. The recall is expected to begin about October 31.  Owners may contact Harley-Davidson at 414-343-4056.

Here is a list of affected the Harley-Davidson models and model years:

H-D / FLHP 2009-2012

H-D / FLHPE 2009-2011

H-D / FLHR 2009-2012

H-D / FLHRC 2009-2012

H-D / FLHT 2009-2010

H-D / FLHTC 2009-2012

H-D / FLHTCU 2009-2012

H-D / FLHTCUSE4 2009

H-D / FLHTCUSE5 2010

H-D / FLHTCUSE6 2011

H-D / FLHTCUSE7 2012

H-D / FLHTCUTG 2009-2012

H-D / FLHTK 2010-2012

H-D / FLHTP 2009-2012

H-D / FLHX 2009-2012

H-D / FLHXSE 2010

H-D / FLHXSE2 2011

H-D / FLHXSE3 2012

H-D / FLHXXX 2011

H-D / FLTR 2009

H-D / FLTRSE3 2009

H-D / FLTRU 2010-2012

H-D / FLTRUSE 2011

H-D / FLTRX 2010-2012

H-D / FLTRXSE 2012

HSU’s Disability Awareness events continue with “When Billy Broke His Head,” on Tuesday, October 18th, 2011, at 6:30 p.m., HSU Gist Hall 218.  This is a first-person road movie about disability, civil rights and the pursuit of an intelligent life after traumatic brain injury, and includes a post-film interactive workshop, free admission, and refreshments.

While the amount to be received by plaintiff Elena Esquivel, 29, is currently unclear, a civil jury on Friday awarded a total verdict for damages in excess of $548,000, which includes money for past and future medical expenses, pain and suffering and lost wages. However, the jury found Esquivel to be 25 percent responsible in the attack that rendered her left arm permanently damaged, so she will receive a sum around three-quarters of the total award.

Esquivel filed suit in April 2009, alleging that the county acted negligently when it took “Hoddy,” a pit bull terrier that had previously bitten three other people, to the McKinleyville Animal Care Center where Esquivel worked as a receptionist, for a rabies vaccination.

On Sept. 3, 2008, an animal control officer responded to a report that Hoddy — an un-neutered male — had bitten his owner’s neighbor. The officer realized the dog didn’t have a current rabies vaccination and ordered the owner to take him to the county animal shelter in McKinleyville for a 10-day quarantine. At the end of 10 days, the dog was transported by a kennel worker — not an animal control officer — to the McKinleyville veterinarian’s office to receive the vaccination.

Esquivel’s attorney Patrik Griego said he argued the kennel worker was entirely untrained to handle a vicious dog and was also unaware that Hoddy had also bitten two other people — another neighbor in 2004 and a man at a store in 2007.

”Nobody that was dealing with this dog really knew the extent of its bite history and the circumstances of its previous bites,” he said. “All three people that were bitten said the bites were unprovoked.”

Griego said he argued that despite warnings from Hoddy’s owner that he would have to be handled with a catch-pole, the kennel worker, identified in court documents as Tracey Barnwell, used a leash when transporting him from the animal shelter to the veterinarian’s office in the back of a county pickup truck with a camper shell on Sept. 15, 2008.

At the veterinarian’s office, Esquivel came out to the parking lot to watch a veterinary worker give Hoddy the rabies vaccination in the back of Barnwell’s truck while the kennel worker held him by the leash, which she’d wrapped around the dog’s snout as a type of muzzle, according to Griego. The vaccination was administered without incident, Griego said, at which point, Barnwell held Hoddy’s leash in one hand while attempting to close the truck’s camper shell with the other.

While Barnwell was doing this, Griego said his client and the veterinary worker turned to walk back inside the vet’s office. Griego said Hoddy then leapt from the back of the truck, dragging Barnwell behind him, and attacked his client, first biting her in the stomach before again lunging at her and biting her left arm, leaving a “de-gloving” injury that stripped skin and tissue from Esquivel’s forearm.

The county’s attorney Nancy Delaney said she believes Esquivel’s actions instigated the attack, a notion she said seems supported by the jury finding Esquivel 25 percent responsible.

”Rather than going directly back into the care center, she was still standing there and walked in front of the dog to go back into the care center, which is what we suggested prompted the dog to jump out of the vehicle,” Delaney said. “It’s a dog that’s just had a vaccination. It’s a dog that’s in an uncomfortable situation. One would expect an experienced animal professional to not move in any manner that could provoke the dog. … For whatever reason, she chose to walk in a direction that could have been perceived as threatening to the dog. The dog could have perceived that it needed to protect the kennel worker like it perceived it needed to protect its owner.”

Hoddy was euthanized shortly after the incident.

The mauling forced Esquivel to undergo a number of surgeries, including one to graft skin from her scalp onto her forearm. Griego said his client will likely have to use patches that slowly administer pain medication to her arm for the rest of her life, and also relies on a compression sleeve to keep swelling at bay. She has nerve damage, he said, that will never go away.

”If she bumps up against anything, she’s going to feel pain,” Griego said, adding that Esquivel suffers from Hyperpathia. “She has some areas with no feeling, but the nerves she has that do still have feeling interpret every sensation as pain.”

The jury award includes $150,000 for pain and suffering, $50,000 for that which she will experience in the future, $224,460 for future medical expenses and almost $170,000 for past medical expenses. The last figure is somewhat in dispute, as it amounts to the total amount Esquivel was billed for medical services, not the amount she paid.  Delaney said she expects to see it lowered by the court by as much as $150,000.

Even if the number is reduced, and taking into account Esquivel’s 25 percent responsibility, the county will be on the hook to pay the woman more than $300,000 unless other aspects of the verdict are appealed.

Delaney said she has no intention of appealing because the ruling is less than the county reserved for the case.

”I think the jury reached a fair result,” she said, adding that the award is also less than Esquivel was seeking in settlement talks.

The award is also more than the county indicated it was willing to pay in a potential settlement, Griego said.

The attorney said he still hasn’t sat down with his client to have a detailed discussion of the award, and consequently couldn’t comment on the issue of possible appeals. Griego said he’s initially satisfied with the result.

He said Esquivel — though she has some percentage of permanent disability — is also looking forward to returning to work.

”She didn’t ask the jury for future lost wages, she said, ‘Look, I’m going to find a way to get back to work,’” he said, adding that his client will be looking into a different profession when she’s prepared to return to the work force. “She has a fear of big dogs now.”

Delaney and Griego stressed that the Humboldt County Sheriff’s Office’s McKinleyville Animal Shelter has changed its policies since the incident.

Sheriff’s Lt. Steve Knight, who used to oversee the shelter, said policy now dictates that veterinarians come to the shelter to treat any dog that’s been deemed vicious and that computer systems have been updated to ensure that kennel staff know dogs’ full histories when handling them.

”It was a tragic accident,” Knight said. “Policy has changed.”

Thadeus Greenson/The Times-Standard – 8/9/2011.
Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com.

The claim involved an auto accident in Orange County, California.  Mr. Lewison t-boned Mr. Orozco-Garcia when Mr. Orozco-Garcia, an unlicensed driver, made an unsafe and illegal left turn at an intersection thereby unnecessarily endangering Mr. Lewison and his wife who were proceeding straight through the intersection.  As a result of the accident Mr. Lewison suffered lumbar, thoracic, and cervical spinal injuries, resulting in a bi-level spinal fusion at the L4-S1 level.  Mr. Lewison also suffered permanent and severe urological and intestinal damage as a result of the accident and subsequent medical treatment.  Mr. Griego provided expert testimony from Mr. Lewison’s physicians that  Mr. Lewison, a young man at the time of the accident, was limited to working part-time for the remainder of his life and was unable to perform most household services for his family.  The insurance company defendant hired an expert to contradict these opinions but upon examination the insurer’s own expert agreed that Mr. Lewison’s injuries were caused by the accident and would prevent him from obtaining employment in the future.

In order to achieve the correct results in this case, The Janssen  Law Firm traveled throughout Wyoming, Nebraska, Colorado and California to meet with and depose multiple medical experts, vocational rehabilitation experts, and economists.  The insurance company drove up the costs of the litigation and would have made handling the matter difficult for a small law firm due to the time and financial commitments involved.

As an insured, one should expect that their insurer will pay the reasonable value for a case.  Unfortunately, this is not always the case.  If you or a friend are not being treated fairly by your insurer after being injured by an uninsured motorist please contact us for a free consultation.

News Release – For Immediate Release

June 21, 2011

Contact: Deborah Mathis, Communications Director – (202) 797-8600 or dmathis@publicjustice.net

Six California Lawyers Who Won Historic Verdict for Nursing Home Residents Are Finalists for Trial Lawyer of the Year Award

A team of California lawyers is in the running for the 2011 Trial Lawyer of the Year Award, presented annually by the Public Justice Foundation, a national organization of public interest attorneys and advocates headquartered in Washington, D.C.

After six years of litigation that included a seven-month trial in Lavender v. Skilled Healthcare Group, attorneys Tim Needham of Eureka, Calif., Michael Thamer of Callahan, Calif., Chris Healey of San Diego, and Michael Crowley, Patrik Griego and Amelia Burroughs, also of Eureka, won a staggering $677 million jury verdict against Skilled Healthcare Group, Inc., a for-profit corporation that owns and operates nursing homes throughout the U.S. The lawyers represented a class of approximately 32,000 current and former nursing home residents and their families in their lawsuit against Skilled Healthcare.

Contacted by some residents’ families, Needham and his team took on the case and discovered that the nursing homes weren’t employing enough staff to provide adequate care, and that Skilled Healthcare had, in fact, intentionally understaffed all of its 22 California nursing homes in order to cut overhead and boost profits.

The $677 million was the largest ever verdict against a nursing home chain.

Needham, Thamer, Healey, Crowley, Griego and Burroughs are among 36 total lawyers—spanning six cases—named as award finalists for their extraordinary legal work in the public interest. Fifteen cases were nominated for this year’s award. They involved a range of issues: from marketing smokeless tobacco to children, to predatory lending by mortgage brokers, to discrimination against Native American farmers.

Detailed summaries of Lavender v. Skilled Healthcare Group, Inc. and the other finalist cases are accessible on the Public Justice website at http://www.publicjustice.net/Newsroom/News/2011-TLOY-Finalists-Selected.aspx.

The winner of the nationally prestigious award will be announced on July 12 at the Public Justice Foundation Annual Gala and Awards Dinner in New York City.

Public Justice is a national public interest law firm that fights injustice and holds corporate and government wrongdoers accountable. See our website at www.publicjustice.net.

Avi Kramer
Communications Coordinator
Public Justice Foundation
1825 K Street, NW Suite 200
Washington, DC 20006
(202) 797-8600 x240
http://www.publicjustice.net/
http://twitter.com/Public_Justice
http://www.facebook.com/publicjustice

A similar FOIA request was recently used for a far different purpose as the public interest group Judicial Watch has filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Defense seeking the release of images and videos surrounding the death of Osama bin Laden. The interest group stated that the “American people have a right to know, by law, basic information about the killing of Osama bin Laden.” Under the FOIA, the government has 20 days to respond to the request, but the Defense Department instead issued a statement, saying, “At this time, we are unable to make a release determination on your request within the 20-day statutory time period.”  Wire Report, The Sacramento Bee  05/13/2011.  Read Article: The Sacramento Bee.

Although we cannot predict whether a FOIA request will result in pictures of Osama bin Laden, we do know that such requests can reveal important information that Humboldt County residents have a right to receive.  If you believe that the breath or blood testing results from testing equipment seem incorrect then please contact us so that we can assist you in finding the documents that might assist you in your case.

Eureka and Arcata residents know that the fate of the young woman who was hit in Sacramento could have easily been visited upon any number of pedestrians attempting to cross our city streets each day.

In our Eureka personal injury lawyer practice we have been receiving an increased number of cases involving pedestrians who are hit in the crosswalks by inattentive drivers.   At the intersection of  5th and I Streets, near the courthouse, drivers often honk at pedestrians who are legally crossing the roadway as if the pedestrians forgot to yield the right of way to vehicular traffic.   Drivers typically zoom past pedestrians waiting on the corners of crosswalks without even slowing down, much less yielding.  The problem has become so prevalent that The Janssen Law Firm has contacted Eureka Chief of  Police Garr Nielsen, who has stated that the police officers are going to increase their enforcement because the problem has not gone unnoticed.

We encourage members of the community to yield to pedestrians at crosswalks in Humboldt County.  Failing to yield to our community members needlessly endangers everyone.  It is not just the law, it can also help prevent the tragedy recently addressed by the Sacramento jury.

Humboldt County employees now have broader protection against retaliatory firings thanks to a recent decision by the United States Supreme Court.  On January 24, 2011, the Supreme Court of the United States issued an 8-0 decision in the case of  Thompson v. North American Stainless.  This decision held that Title VII of the Civil Rights Act of 1964 (“Title VII”) extends to third parties in certain circumstances.  In summary, an employee was terminated because another employee filed a sexual discrimination suit with the EEOC. The employee who was terminated was engaged to the employee who filed the sexual discrimination suit.  The Court held that the purpose of Title VII is to provide broad protection  against discrimination to employees.  The Court went on to state that this protection extended to third parties who were retaliated against in an effort to injure the party complaining of discrimination.  Writing for the majority, Justice Scalia stated that Title VII’s anti-retaliation provision extends to anyone within the “zone of interest” that the statute seeks to protect.

The Supreme Court reasoned that Title VII’s anti-retaliation provisions were intended to protect against any employer action that may dissuade a reasonable worker from making or supporting a charge of discrimination.  It was “obvious” that a worker might be dissuaded from making or supporting a complaint of discrimination if he or she knew that her fiancé might be terminated.  Hurting the fiancé was the means by which the employer intended to harm the woman making the complaint of discrimination.  The Court warned that retaliation against a mere acquaintance would not meet this standard but did not define which specific relationships would qualify.  It held that outside of close family relationships it would depend on the circumstances of each case to determine whether the plaintiff was in the “zone of interest.”

The bottom line is that employers should be aware that if they retaliate against employees or persons close to them because the employee made a complaint, the employer is subject to a lawsuit under Title VII.  If you have questions about the effects of this case on your particular situation, please feel free to consult with a Janssen Law Firm employment lawyer.