Category: Blog

Class Cert. Denied In Lockheed OT Suit

Last week a California federal judge shot down a motion for class certification in an overtime suit against Lockheed Martin Corp., saying that the proposed class of industrial security representatives was too diverse in their actual duties to be certified.

Judge Michael M. Anello wrote the order denying class certification. He based his decision primarily on the plaintiffs’ inability to meet the FRCP Rule 23(b) requirement that common issues predominate.

Basically, plaintiffs argued all putative class members were public- safety employees who were entitled to overtime. Judge Anello wasn’t convinced. He found that the plaintiffs hadn’t put on evidence that all the putative class members were engaged in the same type of work. He then focused on defendant’s argument that each putative class member had different job duties depending on which project they were assigned to in denying certification.

The lesson is, do your discovery on Rule 23 criteria early and thoroughly. Plaintiffs have the burden and, if you forget that fact, the judge will happily remind you.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

US Supreme Court Permits Waivers Of Class Action Rights In Arbitration Agreements

Supreme Court upholds class action waivers in AT&T v. Concepcion.

This is bad law. In effect, the US Supreme Court has created a safe harbor for corporate fraud, it’s sort of like licensing a tax on everything we buy. So long as the amounts stolen are too small to justify an individual case, crooked practices will be profitable.

At some point, corporate greed will demonstrate to all why this decision is wrongheaded. In the meantime, caveat emptor (ie, “buyer beware”), big time.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

California led the nation in 2010 dog bite claims

Jaeger Daniels (who does not bite)

California led the nation in 2010 dog bite claims, at 369, representing a total payout of $11.3 million, according to a State Farm Insurance Co. report that lists the top ten states for dog bite claims

This works out to an average $30,623.31 paid out per claim, which says something about the problem of dogs not kept under control by their owners.

If you love dogs, which I do (three Labs at home plus cats, etc.) then you know that there are pet owners who refuse to keep their dogs properly fenced on their property, or keep overly aggressive animals (in Los Angeles, pit bulls are a big problem) or just don’t understand that pet ownership is a responsibility as well as a privilege.

In California, dangerous animals give rise to owner liability under Civil Code section 3342, better known as the “Dog Bite Statute.”

And, by the way, in California, there is no “every dog gets one free bite” standard when it comes to injury claims.

The standard jury instruction (CACI 463) says that there is liability when an injured plaintiff proves:

  1. That the defendant owned the dog;
  2. That the dog bit the plaintiff while he/she was in a public place or lawfully on private property;
  3. That the plaintiff was injured;
  4. That the defendant’s dog was a substantial factor causing plaintiff’s harm.

Irresponsible owners should be held liable for the injuries their animals cause. Of course, it’s always better to head off the harm in the first place.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Wyeth v. Levine means our federalist system is still alive in protecting consumers from personal injuries

Big news today is that the U.S. Supreme Court upheld a Vermont personal injury jury verdict against drug manufacturer Wyeth.  The drug company had attacked the verdict claiming it had no liability under state law because the FDA had approved its labeling.  Wyethe v. Levine, 2009 WL 529172 (U.S.Vt.)

To their credit, the Supremes said, “no way.”  While the FDA is an important regulatory agency charged with overseeing drug safety at the federal level, the states have a role in protecting their own citizens as well.

What does this all mean?  Well, to the consumer, it means that when they are injured by a defective product, the manufacturer is now more likely to be held accountable under local state standards, rather than finding shelter under what is generally a much more lax federal system.

Does this mean personal injury claims involving product liability have become simple to prosecute?  Absolutely not.  These are still tough, hard fought cases and they will continue to be.

What the Wyeth decision does mean is that we have hopefully seen the high water mark of the Bush-era attempts to roll back state consumer protections, a movement that has caused untold harm to many millions of citizens.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

 

Don’t trust juries? Go to Russia!

St. Petersberg, Russia

The Los Angeles Times reports that Russian President Dmitry Medvedev has signed a controversial law that eliminated jury trial for “crimes against the state.”  The law does away with jury trials for a variety of offenses, leaving people accused of certain political crimes at the mercy of three-judge panels that critics worry are vulnerable to manipulation and intimidation by the government.

The move by the Russians government isn’t anything new.  Juries are designed as a check on governmental and institutional power.  It’s one reason why juries are vilified by powerful interests in advertising and the press.

I, for one, am glad to live in the greatest country in the world, one where a jury of my peers is still a viable protection from those who would take my freedom or property wrongfully.

Happy New Year, indeed!

The full story from the Times:

New law in Russia ends jury trials for ‘crimes against state’

President Dmitry Medvedev signs the controversial measure with little publicity. A pending Putin-backed law widens the definition of treason. Government critics fear the stage is set for a crackdown.

By Megan K. Stack

January 1, 2009

Reporting from Moscow — Russian President Dmitry Medvedev paused in the last, quiet hours of a dying year to sign into law a controversial bill that eliminates jury trials for “crimes against the state,” a move that lawyers and human rights groups fear will be the start of a dangerous exertion of Kremlin control over government critics.

The law does away with jury trials for a variety of offenses, leaving people accused of treason, revolt, sabotage, espionage or terrorism at the mercy of three judges rather than a panel of peers. Critics say the law is dangerous because judges in Russia are vulnerable to manipulation and intimidation by the government.

A parallel piece of legislation, pushed by Prime Minister Vladimir Putin and still awaiting discussion in parliament, seeks to expand the legal definition of treason to such a degree that observers fear that anybody who criticizes the government could be rounded up by police — and, because of the law signed Wednesday, tried without a jury.

Human rights groups and lawyers have warned that the changes to Russia’s criminal code, largely undiscussed in the state media, would allow the government to crack down on any whispers of dissent. The changes also seek a stronger hand for the FSB, the modern incarnation of the Soviet KGB, by giving the state wider latitude in cases that fall under intelligence agency rather than police jurisdiction. Some critics point to the days of dictator Josef Stalin as a comparable legal structure.

“It’s a preparation for terror, although not the grand terror of the 1930s,” said Andrei Illarionov, a fellow at Washington’s Cato Institute and a former economic adviser to Putin. “They are much smarter now. They are preparing some kind of selective terror against those who are courageous enough to speak up.”

The purpose, many observers agree, is not only to give the government greater tools in cracking down, but also to send out tremors of fear.

“Not that they necessarily will go ahead and do it, but they are threatening us very, very seriously that they can do it and are ready to do it,” said Lev Ponomaryov, leader of the For Human Rights movement. “They want to have the legitimate possibility to call all opposition people enemies of the state.”

Medvedev’s last-minute signing had all the trademarks of a pre-holiday news dump engineered to generate the least possible media coverage. New Year’s Eve is the biggest holiday of the year in Russia, and even those watching the news were distracted by the failing negotiations over shipments of Russian gas to Ukraine. The law was announced by a single sentence on Interfax.

Human rights and civil society groups have banded together to speak out against the move toward a broader definition of treason, which will be debated in a parliament dominated by Putin’s United Russia party.

The government has framed the jury law as an anti-terrorism measure, but legal experts say its implications are broader and more ominous — especially if the treason changes go through.

A chilling effect had begun to creep into the legal system even before the bill was signed into law, critics said. Svetlana Gannushkina, a human rights lawyer and chairwoman of Russia’s Civic Assistance committee, gave the example of a man from the Dagestan region who is represented by her organization. A jury found him not guilty of sabotage more than a year ago, and Russia’s Supreme Court backed the verdict, rejecting an appeal by prosecutors. The man was cleared — until a few weeks ago.

“And now what’s happening? When this campaign to change the law began, the prosecutor’s office immediately filed a new appeal,” Gannushkina said. “And this time, the Supreme Court cancels the decision of the trial and the verdict of the jury, and the whole process starts all over again.”

“They call it ‘managing the signals,’ ” she said. “You don’t even need to pass a decision anymore, you just need to send the signals.”

In the last week, there had been a faint hope among human rights organizations that Medvedev might refuse to sign the bill. The Russian president is a lawyer who was once seen as more moderate than Putin. He campaigned on promises to uphold the rule of law in the country.

“I’m convinced that Medvedev himself understands quite well that if he signs the law on jury trials, he crosses out his own legal career,” Ponomaryov said in an interview hours before the bill became law.

“Finally, without any questions or suspicions, he becomes an outright shadow of Mr. Putin.”

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

FDA Food Safety Campaign too late to avoid personal injury to one infant and death of another from contaminated formula

The FDA has announced a new initiative to start a long overdue overhaul of the nation’s food safety system, while in the meantime, one infant has died and another was hospitalized from a rare infection that authorities are blaming on contaminated powdered food products.  Personal injuries from food are a growing problem in the U.S. if media reports are to be believed.

This sort of thing used to be the province of lesser developed nations.  But with the underfunding of FDA food safety regulators coupled with anti-safety tort reform laws that close the courthouse doors to families suffering personal injury from contaminated foods, we’ve seen more frequent reports of contaminated products finding their way onto store shelves.

The FDA announcement described a campaign to reshape its food inspection arm by increasing the number of inspectors in the field and updating software tools.  Still, the government is going to be hampered from any increased effort by the very real budget problems that exist at both state and federal levels.

So, in response to the nationwide problem of increased food contamination risk, the FDA has committed to hiring an additional 130 employees to conduct inspections and collect samples.  While this is a good start, clearly the tort system needs to find its own increased role in policing food safety, since a private sector solution isn’t hampered by governmental funding shortfalls or transient political priorities.

An example of the high stakes in food safety is found in a report that two New Mexico infants contracted rare infections that the Center for Disease Control and prevention said are associated with contaminated powdered formula products.  On infant died, the other remains hospitalized.

While the CDC says other environmental sources of the infection are possible, without a robust public and private safety system in place — meaning government inspectors on the public side and private investigators working in the tort system on the private side — we may never know the actual source of the infection.

Time to get pro-safety in this country.  The stakes are high.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Rainy Monday morning with the neighbor’s house on fire

 


My wife woke me up this morning to tell me that the neighbor’s house was burning and L.A Fire was on scene.  It was all over pretty quickly, lots of black smoke to start, turning white as the firemen doused the flames, now all is quiet.  Hopefully they’ve got good insurance and there are no personal injuries.

The fire reminds me that it’s close to the beginning of a New Year, which is the perfect time to do our annual inventory of stuff, just in case we suffer a fire or some kind of catastrophe that requires documenting our belongings for the insurance company.

An easy way to do your inventory is the take a video camera into each room, then just photograph all of the contents.  If you have a spouse or friend to help, one of you should take the pictures and the other read the serial numbers and identifying information aloud for the camera.

I know from experience that one of the hardest things people face in making an insurance claim after a catastrophic loss is recreating a list of all the items they had that were destroyed, stolen or otherwise damaged.

A printed list, photographs, or video can save you a good deal of trouble.

This year I plan to take my own advice and update our records right after the Christmas presents are opened.  Hopefully my videographer son will help out.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Consumer Product Safety Act of 2008 may lower personal injuries in children this holiday

You recall all the horror stories of late where children’s toys from offshore — usually China — have unsafe levels of lead or other defects that threaten children with harm.

This past summer, Congress passed the Consumer Product Safety Improvement Act of 2008 to try to remedy some of these problems.  The new law bans lead and other harmful substances from toys, creates a publically accessible consumer complaint database, increases civil penalties for violators and protects whistleblowers who report safety defects.

The law didn’t come into full effect in time for this holiday season, but it ups the ante for those who manufacture and distribute unsafe toys because it creates higher standards they will face should their products cause injuries that wind up in court.

Toy-related accidents are a big problem in the United States.  The Consumer Product Safety Commission estimates there were 220,500 toy-related injuries treated in hospital emergency rooms in 2006, with some 165,100 injuries involving children younger than 15.  Twenty two of the later group, died, with the leading causes of death being airway obstruction from small toys and injuries sustained from riding toys.

When purchasing toys for your own children, be aware that you are your family’s first line of defense.  Read the labels on the toys you buy and purchase age appropriate products.  

Holidays should be happy times.  By paying attention to the toys your children play with, you can make sure the holidays are filled with nothing but fun.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.
 

Poor economy means more drivers are dropping their car insurance, which is bad news if you have a personal injury accident

In the news today, word that a rise in the unemployment rate is leading to a rise in uninsured drivers as people try to save money.  In California, roughly 25% of drivers aren’t insured.  That means if you stand on a street corner, one out of every four cars passing you has absolutely no insurance if they injure you in an accident.

Your best protection is to make sure you have adequate uninsured motorist coverage on your own policy.  This is something many people don’t pay attention to, or try to save money on by buying the lowest possible limits.

You need to be proactive in making sure you have enough uninsured motorist coverage on your policy.  Check your insurance policy declarations page and then ask your carrier how much extra they will charge for limits equal to what they would pay another driver if your were responsible for their personal injuries.

On the bright side, the Insurance Institute for Highway Safety is reporting that small cars are faring better in crashes than they used to, though they still show some weakness in side-impact collisions.

Top safety picks are the Scion xB, Honda Civic, Mitsubishi Lancer, Volkswagen Rabbit, Toyota Corolla and Honda Fit.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.