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Decedent Hubbard died from mesothelioma caused by exposure to asbestos from asbestos-cement pipe which he experienced when he worked for Fairley Constructors, a contractor specializing in building municipal water systems. Plaintiffs, Hubbard’s wife and children, sued LBL’s client, San Jose Water Company (SJWC). SJWC was defended at trial by LBL Partners Tom LoSavio and Vernice Louie. Tom and Vernice argued that the Privette Doctrine applied (protecting those who employ independent contractors from civil liability to the contractors’ employees who are injured on the job). For the Privette Doctrine to apply it was necessary that SJWC was not negligent. Plaintiffs claimed SJWC was negligent because it failed to warn Fairley about the dangers of working with asbestos-cement pipe.
Trial went forward before Judge Brad Seligman in Alameda Superior Court for 18 days. Tom and Vernice argued that SJWC was not negligent because it was reasonable for SJWC to expect that by November 1974 (when Fairley first started doing work for SJWC) Fairley was already aware of the dangers involved in working with asbestos-cement pipe. They elicited testimony from two Fairley employees who said they knew it was dangerous to breathe dust from asbestos-cement pipe. Tom and Vernice also got testimony from experts (including the plaintiffs’ expert!) that information about the hazards of asbestos had been available in public libraries and that OSHA (a statute requiring employers to provide a safe workplace) served to educate employers like Fairley about the dangers of asbestos dust. The jury agreed and rendered a defense verdict.
Plaintiffs appealed, arguing there was insufficient evidence to support the verdict and that the trial court had incorrectly instructed the jury by placing the burden of proof regarding what Fairley knew on plaintiffs rather than on SJWC. LBL Partner Guy Stilson handled the appeal for SJWC. Guy showed that despite contradictions in the witness’ testimony, the evidence was sufficient to support the verdict. Guy also showed that the burden of proving an exception to the Privette Doctrine was properly placed on plaintiffs and there had been no instructional error. The Court of Appeal agreed and issued a decision affirming the judgment in favor of SJWC and awarding costs to SJWC.Meet LBL Partner Guy Stilson
Plaintiff was struck by a tow truck and transported by ambulance to Kaiser. When he was released, he returned once to refill his pain medication, and never returned. Six weeks later, Plaintiff retained an attorney who sent him to a pain management doctor and to a chiropractor where he treated for approximately 8 months. The pain management doctor and chiropractor were not covered by Plaintiff’s insurance.
At the mediation, plaintiff argued the applicability of Pebley v. Santa Clara Organics, LLC, a case decided on May 8, 2018. The court had ruled that an insured plaintiff who chose to treat with doctors outside his insurance plan should be treated as an uninsured plaintiff for the purpose of determining economic damages. The Pebley court explicitly rejected the argument that Plaintiff’s failure to treat with an out of network provider was failure to mitigate his damages.
The LBL team distinguished Pebley on the ground that, in this case, the care from the chiropractor and pain management doctor was not medically reasonable and necessary because no doctor at Kaiser (or any other doctor) ever told Plaintiff that he required any follow up care. Plaintiff’s only referral came from his attorney. Pebley confirms the long-held principle that an uninsured Plaintiff cannot establish his recoverable damages by mere billed amounts for the treatment rendered.
In this case, Plaintiff’s reasonable cost of treatment could not be determined because Plaintiff only offered the billing statements as evidence of his economic damages. Plaintiff reduce his initial demand by more than a third, enabling Rachel Ostrander, Christine Reed, and the LBL team to negotiate a favorable settlement.
After a late night of movie-watching on July 4, our client had to drive his girlfriend home. Afterwards, he fell asleep at the wheel and crashed, literally walking away from a totaled car without a scratch.
An ambulance happened to be driving by and ended up hitting the totaled car, which had no lights and was in a traffic lane. Some trucks and cars were able to see and avoid the two crashed vehicles, but here comes plaintiff, who didn’t. He totaled his car and sued for his injuries.
Sonja Blomquist and the LBL team were able to settle the cases brought by plaintiff and the ambulance company for minimal policy limits.
Meet attorney Sonja Blomquist.
February 2017, Alameda County Superior Court. A plaintiff in her early 70s with mesothelioma alleged that her disease arose as a result of exposure to asbestos at her place of employment, an automotive parts distribution business and automotive service facility. LBL Partner Guy W. Stilson took the depositions of plaintiff and another former employee of the business and got them to confess that they had no evidence that either the distribution business or the service facility sold or used parts associated with his client. Stilson’s client was subsequently dismissed from the action.
February 2017, Los Angeles. Plaintiffs alleged their decedent was exposed to toxins by LBL’s client. During the pendency of the litigation, LBL Partner Guy W. Stilson filed a summary judgment motion. While the motion was pending, the client dissolved and terminated the employment of all its officers, directors, and personnel. Plaintiffs served a notice of the deposition of LBL’s client, and Stilson responded with a motion to quash the notice because the client no longer had any employees. Plaintiff opposed, arguing that the summary judgment motion was supported by a declaration from the client’s president. Stilson argued that the motion was filed before the president’s employment had been terminated but the deposition notice was not served until after the termination of the president’s employment. The court agreed that when the deposition notice was served the client was incapable of producing a responsive witness and quashed the deposition notice.
NEWS & EVENTS
Ms. Reed will present “Cannabis and Insurance: Gold mine or all smoke?” at the the…
Ms. Reed will present at the Mid-Valley Claims Association on March 16, 2018 in Stockton….
In December, managing partner Sonja Blomquist addressed a conference of Certified Industrial Hygienists on issues…
Low, Ball & Lynch’s Annual Sacramento Seminar/Webinar Date: Thursday, November 9, 2017 Time: 1:00 –…
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