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FMG Law Blog Line

Posts Tagged ‘injury’

Loss of Earnings Calculations – Experts – Damages – California

Posted on: December 16th, 2019

By: Chuck Horn

California just changed the law on recovery of loss of earnings.  Traditionally counsel, and experts, would look to the actual earnings history of the plaintiff, or plaintiff’s decedent, in the years before the accident or injury.  Subpoenas and Requests for Production of Documents would seek the personnel file, the W-2s, the date of initial employment and pay rate, and the person’s wage-increase progress, promotions, and likely future promotions and pay raises, and information to calculate life expectancy.  Then independent forensic economists would be given this information and would investigate the known statistics that apply to that person and calculate reasonably likely “past” earnings from the accident to trial, and reasonably likely “future” loss of earnings.  Seems simple, right?

California has just changed the way all this works.  The California legislature changed the law (Civil Code §3361, enacted by SB 41 in 2019) for civil damages for loss of earnings because the results of past practices “are a reflection of gender pay gaps and workforce discrimination,”  and “perpetuate systemic inequalities” and “disproportionately injure women and minority individuals by depriving them of fair compensation,” recognizing that “[a]ny generalized reduction of civil damages using statistical tables alone, based on a plaintiff’s membership in a protected class identified in Section 51 of the Civil Code, is counter to the public policy of the State of California.”

Effective 01/01/2020 Section 3361 has been added to the California Civil Code, as follows: “Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.”  This is a significant change to past practices of counsel and experts for all sides in civil litigation in California and must be taken into account in claim evaluation and trial preparation.

If you have any questions or would like more information, please contact Chuck Horn at [email protected].

OSHA Developments Favorable for Employers

Posted on: October 24th, 2018

By: Amy Bender

Two recent OSHA developments signal good news for employers.

The first relates to the scope of OSHA inspections of an employer’s workplace. In a recent federal court case, after an employee of a poultry processing plant was injured at work, the employer reported the incident to OSHA as required. It also provided 3 years of its injury and illness (“OSHA 300”) logs and permitted OSHA to inspect the particular hazards relating to the injury. OSHA then sought a warrant to inspect the employer’s entire facility based on this information as well as the fact that poultry processing plants were included in OSHA’s Regional Emphasis Program, which had identified hazards of particular concern to that industry. After the warrant was issued, the employer objected. The court agreed with the employer and quashed the warrant, finding a lack of reasonable suspicion to support such a broad inspection and a lack of evidence that OSHA selected the employer for inspection applying neutral criteria. Although the permissible scope of an OSHA inspection will depend on the individual circumstances of each situation, this case can give employers some comfort that OSHA’s authority is not unfettered. The case may be read here: USA v. Mar-Jac Poultry, Inc., Case No. 16-17745  (11th Cir. Oct. 9, 2018).

The other development relates to OSHA’s stance on post-accident drug testing and workplace safety programs. As we previously reported here, OSHA published a final rule in 2016 prohibiting mandatory, across-the-board post-accident drug testing as being discriminatory against employees based on their injury or illness reporting and limited testing to situations where employee drug use was a likely factor in the incident. The final rule also required employers to develop employee injury and illness reporting requirements that meet certain criteria, including informing employees of their right to make such reports without fear of retaliation. The final rule left employers scrambling to revamp their long-standing and well-meaning policies and procedures relating to workplace safety. Fortunately, OSHA now has issued a memorandum clarifying that it does not prohibit workplace safety incentive programs or post-incident drug testing. Such programs are impermissible only to the extent they are intended to penalize employees for reporting a workplace injury or illness. The memorandum provides additional guidance on what will be considered acceptable reporting policies and drug-testing procedures. The memorandum is available here.

If you have any questions or would like more information, please contact Amy Bender at [email protected].

Landowner Scope of Duty

Posted on: January 11th, 2018

By: Owen T. Rooney

The California Supreme Court recently issued an opinion that limits the scope of duty and liability in premises liability cases. In  Vasilenko v. Grace Community Church, plaintiff was struck by a car as he crossed a public street, at night in the rain, between the main premises of a church and the church’s overflow parking area. Plaintiff alleged that the church owed him a duty of care to assist him in safely crossing the public street. The court ruled “that a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.”

The court was motivated in part by the lack of control the church has over the public roadway, and in part by “the possibility that finding a duty in this case will cause some or perhaps many landowners to stop providing parking…. By providing parking, a landowner may decrease its invitees’ risk of injury from other dangers of the road as compared to invitees finding their own parking on the streets.”

This case should limit liability in cases where plaintiff tries to stretch the landowner’s “property lines” to conditions off the property.

If you have any questions or would like more information, please contact Owen Rooney at [email protected].