CJAC: Civil Justice Association of California

Trial Lawyers Attack Medical Malpractice Caps

Posted on 07/24/2014 @ 10:29 AM

Tags: MICRA, Prop 46

David Yates at Legal Newsline recently outlined the implications of Proposition 46, which seeks to raise the current cap on medical liability lawsuits to $1.1 million dollars with annual increases going forward.

Referencing an updated CMA report, Yates explains how the initiative, which would more than quadruple the current non-economic damages cap of $250,000, could also increase the cost of providing health care to Californians by nearly $10 billion per year, due to a higher number of medical lawsuits and jury awards. A similar increase in medical malpractice costs could force physicians to leave California for states where malpractice rates are more affordable. As a result, Californians would be left with increased health care costs and decreased access to care.

To read the the article, which also touches on the history of MICRA, click here.

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SB 1188 Defeated!

Posted on 06/25/2014 @ 12:52 PM

Yesterday, CJAC’s Legislative Director, Katherine Pettibone, and a large coalition were able to defeat SB 1188 (Jackson)! This bill would have subsumed existing warranty law by significantly expanding tort liability against manufacturers and retailers. It would have encouraged class action lawsuits by allowing plaintiffs to sue long after a product’s warranty expires for any latent defect by claiming they would not have bought the product “if they had known”… about whatever the claimed problem was. This bill would have encouraged lawsuits on every product imaginable including, food, clothing, or any product years later. It is a priority bill for the Consumer Attorneys of California (CAOC) this year.

This bill was an attempt to expand the Unfair Competition Law and the Consumer Legal Remedies Act to do what the plaintiff's bar has been able to do in court. The bill's new theory of liability would have drastically changed the landscape of warranty and product liability law in California and ultimately drive up costs to all consumers and encourage meritless product litigation against businesses. There would have been no statute of limitation because the consumer could sue whenever he or she became aware of the latent defect. California is already a class action haven for frivolous claims. This bill would have definitely made it much worse. A copy of the coalition letter of opposition can be found here.

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Verdugo v. Target -- Opinion Released

Posted on 06/24/2014 @ 07:29 PM

The California Supreme Court released its opinion June 23 in Verdugo v. Target Stores, S207313. CJAC, joined by the California Chamber of Commerce, filed an amici "friend of the court" brief in this case in November 2013.

The issue (certified by the Ninth Circuit for decision by this court) is: under what circumstances, if ever, does the common law duty of a retail store owner to provide emergency first aid to invitees require the owner to have an Automatic External Defibrillator (AED) on the premises for cases of sudden cardiac arrest?

The case arose after a woman suffered a heart attack and died in a large Target department store that did not have an AED. Plaintiffs asserted a common law duty in tort for defendant to have an AED on its premises. However, the Court sided with CJAC's arguments and concluded that Target's common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.

The Court found that nothing in the state Health and Safety Code required a business to acquire an AED and the Code explicitly stated that the sections concerning AEDs may not be construed to require a business to have one.

The Court noted that the Legislature is aware of the severity of the health risks posed by heart attacks and has taken several steps to address the issue. It has not found it necessary to impose this requirement on business establishments, and the Court believes the Legislature is in the best position to make this determination.

To read the opinion, click here.

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California Supreme Court releases opinion in Iskanian v. CLS Transportation

Posted on 06/24/2014 @ 07:13 PM

The California Supreme Court released an opinion June 23, 2014, in Iskanian v. CLS Transportation, S204032. CJAC, joined by the California Chamber of Commerce, filed an amici "friend of the court" brief in this arbitration case in May 2013.

The long-awaited decision in Iskanian is bittersweet. In the four-member majority opinion by Justice Liu (joined by Cantil-Sakauye, C.J., Corrigan and Kennard), the “sweet” news is that the Court recognizes the Federal Arbitration Act (FAA) preempts the state’s unconscionability doctrine when it comes to class-action waivers by employees of their rights to prosecute their claims against employers for labor law violations. Gentry v. Superior Court (2007) 42 Cal.4th 443, holding that waiver is impermissible if class arbitration is likely to be a more effective means of vindicating the rights of employees to overtime pay than individual litigation or arbitration, has finally been unambiguously reversed. Ditto for the companion argument that such waivers run afoul of the National Labor Relations Act.

The “bitter” news is that, barring a reversal by the U.S. Supreme Court, arbitration cannot substitute for an action brought under the state’s Private Attorney General Act (PAGA), a broad ranging qui tam-type statute that permits an employee as a “bounty hunter” to prosecute a representative claim on behalf of employees against an employer for violating a panoply of (wage/hour and public health and safety) laws. PAGA lawsuits cannot, despite the FAA, be waived by arbitration. Look for an up-tick in these kinds of lawsuits.

The majority opinion raises a number of questions about how such lawsuits are to be handled by trial courts: (1) Will parties agree on a single forum for resolving the PAGA claim and other related claims? (2) If not, are the claims to be bifurcated, with individual ones going to arbitration and the PAGA claim to litigation? (3) If bifurcation occurs, should arbitration be stayed? These questions are to be addressed “on remand.” In short, defendants thus far have won two battles but lost the war unless the High Court holds otherwise.

Justice Chin, joined by Justice Baxter, dissented from the PAGA exception. Justice Werdegar concurred with the majority opinion’s holding on PAGA, but dissented from its other holdings; she would find for plaintiffs on all of their claims.

To read the opinion, click here.

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California Supreme Court releases unanimous opinion in Duran v. U.S. Bank

Posted on 05/29/2014 @ 03:00 PM

Today, the California Supreme Court released its unanimous opinion in the Duran v. U.S. Bank case, holding that in a wage and hour class action based on statistical sampling to determine the scope of liability and extent of damages "a trial management plan must permit the litigation of relevant affirmative defenses, even when these defenses turn on individual questions." CJAC filed a joint friend of the court brief in this case with California Business Roundtable and California Bankers Association in 2013.

The opinion states that failure to allow the litigation of pertinent affirmative defenses that turn on individual defenses violates the defendants' due process rights.

According to the 51 page opinion by Justice Corrigan, in which Justice Liu joined with an additional 12 page concurrence, the appellate court's reversal of the judgment for plaintiffs must be affirmed because "flawed implementation of sampling prevented [the defendant bank] from showing that some class members were exempt and entitled to no recovery. A trial plan that relies on statistical sampling must be developed with expert input and must afford the defendant an opportunity to impeach the model or otherwise show its liability is reduced. [While] statistical sampling may provide an appropriate means of proving liability and damages in some wage and hour class actions[, in this case] . . . the trial court‘s particular approach to sampling . . . was profoundly flawed."

To read the opinion, click here.

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