ADVOCATE Volume 39, Number 1, JANUARY 2012

Associate Editors Joseph Barrett, Mary Bennett, Christa Haggai·Ramey, Joan Kessler, James Kristy, Beverly Pine, Norman Pine, Rahul Ravipudi, linda Rice, Ibiere Seck, Geraldine Weiss Editors·in·Chief Emeriti Kevirt Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Managing Editor Publisher Cindy Cantu Richard Neubauer cindy@caala.org rn@theadvocatemagazine.com Copy Editor Art Director Eileen Goss David Knopf

Consumer Attorneys Association of Los Angeles President Treasurer Michael Alder David Ring President·Elect lisa Maki First Vice President Geoffrey Wells Second Vice President Joseph Barrett Board of Governors

Secretary Ricardo Echeverria Immediate Past President Philip Michels Executive Director Stuart Zanville

Mike Arias, Michael Armitage, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, Carl Douglas, Jeffrey Ehrlich, Mayra Fornos, Stuart Fraenkel, Maryann Gallagher, Victor George, Scott Glovsky, Steven Goldberg, Jeff Greenman, Christa Haggai·Ramey, Genie Harrison, Steven Heimberg, Elizabeth Hernandez, David Hoffman, Arash Homampour, Neville Johnson, William Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Shawn McCann, Jill McDonell, Gretchen Nelson, Minh Nguyen, Thomas Peters, linda Fermoyle Rice, David Rosen, Jeffrey Rudman, Ibiere Seck, Adam Shea, Douglas Silverstein, Steven

' '-Stevens, Armen Tashjian, Geraldine Weiss, Jeff Westerman, -Ronnivashti Whitehead, Andrew Wright. Daniel Zohar

Orange County Trial Lawyers Association President Secretary Douglas Schroeder H. Shaina Colover President·Elect Treasurer Scott Cooper Geraldine Ly First Vice President Parliamentarian Casey Johnson B. James Pantone Second Vice President Immediate Past President Ted Wacker Yoshiaki Kubota Third Vice President Executive Director Vincent Howard Janet Thornton

Board of Directors Melinda Bell, Gregory Brown, Anthony Burton, Brent Caldwell, Cynthia Craig, Jonathan Dwork, Jerry Gans, Robert Gibson, Geoffrey Gray, Paul Lee, Kevin Liebeck, Christopher Purcell, Solange Ritchie, Sarah Serpa, Adina Stern, Dieter Zacher

Periodicals postage paid at Los Angeles, California. Copyright <0 2012 by the Consumer Attorneys Association of Los Angeles . All rights reserved. Reproduction in whole or in part without written permission is prohibited.

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- The Advocate Magazine JANUARY 2012

Contents Features:

8 Yes, Concepcion means what it says, but The ca es decided after Concepcion are a warning to those bringing claim covered by arbitration clauses, but also an instruction manual to tho e seeking to avoid arbitration. Michael Geibelson

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Adapting class actions after Dukes The Wal-MaTi v. Dukes decision raised the threshold for certifying clas actions . The author puts it in perspective for consumer attorneys. Brian S. Kabateck

A rising tide lifts all boats: Plaintiffs' steering committees in consolidated pharmaceutical cases The co-chair of the Vioxx plaintiffs' steering committee describes how the creation of a complex, portable trial package added value for all claimants allowed those cases to be tried all over the country. Pete Kaufman

What is the value of a poor man's life? The strategy of foc.using at trial on only noneconomic damages can maximize wrongful-death verdicts. Deborah Chang and Brian J. Panish

Survival actions: Under-deterrence, pain and suffering, and punitive damages California does not allow recovery of a decedent's pre-death pain and suffering in a survival action , and does not expressly allow for urvival of a decedent's action where the loss or damage occurs simultaneously with the death of the person. Gregory P. Waters

Whistleblowers under the Insurance Code Section 18 7l. 7 of the Insurance Code can be a powerful tool for fighting insurance fraud. Familiarity with this provision will provide the practitioner with a powerful tool to fight insurance fraud. Adam D. Miller

Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer · Sales Manager. 760·721 ·2500 Fax: 760·721 ·0294 e·mail: advertising@theadvocatemagazine.com Rate card available online at www.theadvocatemagazine.com Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human·interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e·mail: editor@theadvocatemagazine.com. Please check the website for complete editorial requirements. Reprint permission: E·mail written request to Managing Editor Cindy Cantu: cindy@caala.org

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I Deborah Chang Brian J. Pan ish

What is the value of a poor man's life? Focusing solely on noneconomic damages can maximize the wrongful-death verdict "If money is all that a man makes, then he will be poor. Poor in happiness and poor in all that makes life worth living."

-Herbert Casson

On January 28, 2009, 48-year-old Cameron Cuthbertson, a legally blind man, attempted to board a three-car train at Del Arno Station on the Blue Line in Compton. Mistaking the gap between the second and third cars as the doorway of a train car, he stepped off the platform and into the gap, falling onto the tracks below. While attempting to climb back onto the platform, his body wa crushed and severed when the train began to move. At the time of his death, Cameron lived with his 73-year-old mother, Mary Cuthbert on.

In the wrongful death case brought by Mary Cuthbertson against the Los Angeles Metropolitan Transportation Authority ("MTN), we decided to pursue only noneconomic damages at trial. Economic damages were, not surprisingly, minimal becau e Cameron's blindness limited his job opportunities and household ervices. Up to the time of his death, and despite hi ' declining vi ion, Cameron washed cars in his Compton neighborhood for pocket money. The MTA undoubtedly placed much emphasis on the fact that his eco-nomic damages were minimal: no settle-ment offer was ever made.

The jury returned a verdict in favor of plaintiff, awarding $17 million in noneconomic damages ($5 million past and $12 million future).

One montll earlier, in Kern County, ajury awarded our client a very high wrongful-death award against the City of Bakersfield, also based on noneconomic damages . Our strategy in both cases was

40 - The Advocate Magazine JANUARY 20 12

based on the premise that jurors can bet-ter understand and appreciate noneco-nomic damages in wrongfu l-death case when such damages are not combined with and diluted by minimal economic damages.

Economic damages in wrongful-death cases

Whenever death occurs unexpectedly due to another's negligence, the emo-tional loss of the decedent to his or her loved ones is unquantifiable. The tragic loss of a son, daughter, a parent, or a spouse leaves a void that can never be filled. Abraham Lincoln expressed this sentiment best in his letter to Mrs. Bixby in 1864 following the loss of her sons during the Civil War:

I feel how weak and fruitless must be any words of mine which should. attempt to beguile you from the grief of a loss so overwhelming.

Despite the e facts, we neverthele 's ask jurors to do the unimaginable: to quantify the loss of a decedent to another. To perform this daunting task, we arm them with evidence and broad jury instructions relating to economic and noneconomic damage . Too often, however, trial lawyers focus too much time and effort in gathering and pre-senting evidence of tho e a pects of the decedent's los that are quantifiable: the economic damages. We retain econo-mist to calculate how much the dece-dent would have made in his lifetime and to determine the reaso nable value of household services that the decedent would have provided. We gather receipts for funeral and burial expens-es, and work diligently on trying to plump up tho e economic damages a much as possible.

There is a harsh reality, however, related to tllese economic damage . Unless the decedent i omeone like Steve Jobs, those economic damages will never be enough to drive the wrongful-death damages award to where tlley should be. The true value of a man's life to his loved one cannot be measured by how much he earned. [n fact, tllOse eco-nomic damage will often drag tlle non-economic damages down. If the econom-ic portion of a man's life is valued at a mere $350,000 or even $ 1 million, then why should a jury award much more than that for noneconomic damage ?

There is a trend growing among trial lawyers who regularly u-y wrongful death cases: Dump the economic damages at trial. orne times that decision is easy. In our Bakersfield trial , for example, our decedent had a legal alien regi tration

See Life, Page 42

card, but it had expired and he did not have a current one in his possession at the time of hi death. Defendants tried to claim that our decedent was an ill egal alien. By eliminating economic damage and claim for loss of filture earnings, the decedent' re ident status was rendered irrelevant and inadmissible. (See Hernandez v. Paicius (2003) 109 Cal.App .4th 452, 460.)

In those case in which there are no such problemati c issues, however, trial lawyers are more reluctan t to waive eco-nomic dam age . Although that is under-standable, such economic damages too often unfairly defllle and limit the value of the decedent's life and loss . T hey also unintentionally place unnecessary bound-arie ' and limitations on the jury.

Michael Koskoff, the current presi-dent of the Inner Circle of Advocates and the senior partner at Ko koff, Koskoff & Bieder in Connecticut, has considerable experience in trying wrong-f'\.il-death cases. In one such case, the decedent was a 53-year-old truck driver with economic damages totaling approxi-mately $350,000. A decision wa made to waive those damages and to proceed with only noneconomic damages. T he jury awarded $ 11 .5 million, and the defen-dants appealed . After the case was reversed and retri ed, the second jury awarded $22.5 million for noneconomic damages. As a resul t of that experience, Koskoff now believe that "concenu"ation on relatively insignificant economic loss i a cheapening factor for a jury. Juror

mu t be lifted above the mundane to achieve real justice."

Less than two weeks after the Cuth.bertson v. MTA verdict, a Los Angele jury awarded $12.8 million in the wrongful-death ca e of Dylan Boeken v. PhilijJ Morris, USA, Inc. In that case, Michael Piuze pu r 'ued only noneconom-ic damages at trial. That verdict was also recently upheld by tlle trial coun.

Noneconomic damages in wrongful-death cases

When a loved one dies, it is the non-economic damages that re onate with a j ury. Jurors are asked to quan tify til e loss to the plain tiff of tlle decedent' love, companionship, comfon, care, assistance,

See Life, Page 44

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decide a reasonable amount based on the evidence and your common sense. (CACI 3921).

In order to maximize recovery for these noneconomic damages, trial lawyers must spend time and effort in creatively gathering and pre enting evi-dence of the plaintiff's loss in a way that the jury can appreciate. Finding ways that the relationship between the plain-tiff and the decedent was unique and special are essential. Defendants, and especially insurance companies, are too inclined on appeal to present a summary or average of wrongful death verdicts in other, non-similar cases as a basis for a "reasonable" wrongful-death award. Courts, however, have found that a case alleging non-economic damages for the loss of a fam ily member must be deter-mined on its own facts. (See DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1241.)

Developing the family relationship Every relationship is based on some-

thing that is unique and special; our most important task as trial attorneys is to find ways to make the jury see and appreciate that relationship between the decedent and the plaintiff.

In Cuthbertson v. MTA, the jury heard evidence of an extraordinarily unique relationship between a mother and her son. The evidence established that Cameron Cuthbertson wa a "Mama's boy" who never left home and lived with his mother from the day that he was born until the day he died. After Mary's hus-band died and her other children left home, Cameron stayed at his mother' side. For 48 years, Cameron was Mary's companion and gave her life special pur-pose and meaning.

The two forged an even closer and more meaningful bond when they both discovered they were suffering from pro-gressive impairments. He began to lose his ight as she started losing her hear-ing, and as a result, she served as his eyes and he wa her second set of ears. Together they made "a great team" and

See Life, Page 48

they depended on each other. Due to the nature of her hearing 10 ,Mary could adjust to the tone and pitch of Cameron's unique voice, and a a result, he could

hear and under tand him better than her other children.

As Cameron's vision deteriorated, Mary's bond with Cameron became even

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closer because he needed her. Cameron's brother, Colen Cuthbert on, testified that during this time period, Mary "notched up her concern and her care even more" and became more protective as "their bond got closer and closer because his limitations had increa ed or deteriorated. "

The jury heard the testimony of a board-certified psychiatri t, who explained the uniqueness of Mary and Cameron's relationship:

If you have a dependent ch ild, in a sen e they don't grow up . This was a fam ily of five and one, Cameron, had special needs because of his visual losses, and as a consequence, a mutual-ly dependent relationship occurred. As a re ult, Mary Cuthbertson developed a special role, in a sense, she anticipated this ongoing relationship to u tain her. She was, in a ense, till able to get her needs in terms of being a mother and taking care of someone realized in her relationship with her son Cameron dif-ferent than having, you know, adult children who move out of the home and you ee periodically ....

He became progressively more vi ually impaired over the course of year . During that time, in some ways he became more dependent on hi mother, but yet maintained a level of independence that's still really quite striking .... He as isted hi mother, who became progressively hard of hearing. So it's the situation where often she wou ld be his eyes and he would be her ears . T hey wou ld go shopping together. She would take him to his doctor appo intment. They were very, very close. They lived together since, you know, his birth . He had always been there with her and because of this, she had - he was a companion. He wa a confidant. He was there for her in a way that the other chi ldren weren't. It was a very special relationship. As both she and the children I interviewed pointed out, it was a different relation hip . It gave her a en e of meaning in her life. he was there to continue taking

See Life, Page 50

care of him and it established a sense of value for herself in term o[ that role . ...

The loss o[ this child , th i . ad ul t child , it has had repercussions for her .. . . It's left a huge void and it's an

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emptiness that' not fu lfi ll ed by her other children. H er other son moved in to be there with her, but he's a truck driver and not physica lly there much of the time. She's alone. He was her companion. He was someone who he counted on, both to h elp her with her chore , but £I I 0 it made her feel need-ed . She is missing the person who was her constant companion .

T he jury also heard and saw how the loss of Cameron has affected Mary. On the day that she testified, the extent of her hearing impairment became read ily apparent when he could not hear the questi ons posed to her even after counsel used a microphone that was set up only a few feet away fro m her. Without Cameron and the unique tone and pitch of hi voice I hat he could hear, Mary is alone and isolated from people and even her other loving children because he cannot hear them. She looked lost and forl orn , and eventually collapsed on the stand crying whi le testi fy ing: "I lost the one I needed the mo t. He wa - I lost my companion. I lost my second ears. I lost the one who gave me ecuri ty, a sen e of security. J can hear him calling me, and I can see him on the ground ."

Ba ed on such uncontroverted evi-dence , the jury awarded $5 mill ion for Mary's past lo ·s (when uch los· was most acute), and $ 1 million for every yea r she had remaining ( 12 years) .

Relevant cases Even though no fixed standard

exist [or determ ining noneconomic damages, defendants often challenge the amounts awarded fo r the e damages in wrongfu l death cases on the basis that they were "exces ·ive ." An appell ate courl , however, "will interfere with the jury's determinat ion only whe n the award is 0 Ii proportionate to the injuries suffe red that it shocks the con-scie nce and virtually compels the conclu-ion the award is attributable to pa ion

or prejudice."(RuJo v. Simpson (200 I) 6 Ca l.App .4th 573, 615; Wright v. City oJ Los Angeles (1990) 219 Cal.App .3d 31 , 355-356 [upholding wrongfu l death

See Life, Page 52

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verdict to parents of an adu lt child find -ing that "we are unable to say, as a mat-ter of law, the award of a similar amount to [decedent's] parents i 0 dispropor-tionate to their loss as to shock the con-science and warrant interference with the jury's verdict"] .)

The mere fact that a judgment is large, however, does not mean that the verdict is the result of passion or preju-dice. (DiRosario, 196 Cal.App.3d at 1241.) "Each case must be determined on it own facts." (Jbid.; see also Rodriguez v. McDonnell Douglas Corp. (1978) 87 CaJ.App.3d 626, 655 [''The fact that an award may set a precedent by it size does not in and of itself render it suspect. The determination of the jury can only be assessed by examination of the partic-ul ar circumstances involved.].)

In Rulo v. Simpson, OJ. impson contended that the $8.5 million awarded in non-economic damage to the parent of decedent Ronald Goldman wa exces-sive and that the evidence concerning the parents' loss of their adult son, who lived away from home, was insufficient to justi-fy the jury's verdict in uch a large amount. In that case, the evidence wa that the decedent lived away from home, and had not seen hi mother in 12 years. The appellate court upheld a damages award finding that "[a] lthough the ver-dict is very large, this alone doe not compel the conclusion the award wa attributable to passion or prejudice." (Jd. at 615 .) The court found that Simpson's argument primarily focused on the fact that the largest award in a published ca e that his counsel could find for the 10 s of

comfort and society in tbe wrongful death of an adult child was $2 million. The court rejected that a the ba is for a finding tbat the verdict was excessive. (Jd. at 615-616; see a1 0, Zibbell v. outhem Pac. Co. (1911) 160 Cal. 237 [finding tbat the mere fact that a personal injury ver-dict was more than twice a large as the largest verdict previously rendered in a similar case does not show the passion or prejudice necessary for granting a new trial].)

In trying to establish the "excessive-nes " of the verdier , defendants often present other jury verdicts in what they deem a "comparable" wrongful death ca 'es as a basis for comparison. Defendants fail to realize, that a human being is not a fungible object

See Life, Page 54

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whose los to another can be ca lculaled by computing the average or other verdicts in di similal- wrongfu l death ca es. Thi method of a ttacking a verdiCl was specifically rejected by the Ca lifo rnia Supreme Court in Berlera v. National General Corl}. (1974) 13 CaJ.3d43, 65, footnote 12, where it fo und :

T he vas t variety o f and dispari ty between award in other cases demon-strate that injuries can seldom be measured on the same sca le. The measure or damage uffered is a al question and as such is a ubject par-ticularly within the province or the !Tier of fact. FO'r a reviewing (onrt to upset a jury's Jactual determination 0'11 the basis of what other juries awmded to othel- jJtaill-tiffs Jar other injuries in other cases based lipan different evidell ce would cons/itllte a

Bruce Friedman, Esq. Mfflia/or • Arbi/ra/or

serio liS illvasioll iI/to the realm oJ Jactfilld-illg. T hus, we ad here to the previously announced a nd hi s( rically honored ·tandard or reveJ'sin T as exces ive only those judgments which the entire record , when viewed mo ·t favorab ly to tbe ju 19ment , in licates were rendered as the result of passion and prej udi ce on the pan or the .iurors.

(ld., emphasi . added) (See also Rllji), 86 Cal.App.4lh 573, 6 15 (r the defendants' cital ion or a wro ngfu l dealh verdict in anolher case); Wright , 219 Cal.App .3d a t 356 (same).)

Conclusion A wrongful-death case with limit ed

01- no economic damage ' i ' nOl a curse; ra t her, it can b ab le ' ·ing. By focusing on noneconomic damage, you can lill

Hon. Michael A. Latin Judge of/h. LA Superior Court Re/ired

the juror ' above t he mundane to achieve true justice.

Deborah Ch.allg i all altorney at the Los Allgele .. law [mn oJPan i h hea & Boyle LLP (www. jJsblaw.r011l) where sheJoCilses 011 wrongflll death, comj}lex j}ersonal injury, and jJrodllcls-liability actions. he has been a trial l{lwyerfor 24 yeaTS and is licensed in Ca lifon/ia. Florida, (md ConnectiCllt. She call be reached at chang jJsblaw. c01n.

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54 - The Advocate Magazine JANUARY 2012