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Posts Tagged ‘Tort’

Watch for the Sucker Punch… Joint and Several Liability for Professional Negligence?

Posted on: March 20th, 2019

By: Jon Tisdale

Litigants are forever looking for new ways to blame their lawyers when their mediocre case goes south. (As an aside, pay close attention to your intake protocol and “just say no” to those mediocre cases, because when they go bad, so will your relationship with your former client.) So, why is this a special problem for lawyers?

Like most states, California draws a bright line between economic and non-economic damages. In an effort to keep underinsured deadbeats from stiffing tort victims, California has enacted a statute with the stated economic impact being to hold “deep pocket” defendants (yes, the statute actually employs that disgraceful terminology) responsible jointly and severally for economic damages so as to not deprive an innocent victim of recovery of their medical bills, without regard to apportionment of fault. Non-economic damages (for “pain and suffering,” the so-called pot o’ gold at the end of the rainbow) remain collectible only to the extent of an actual apportionment of negligence by the trier of fact. This legislative enactment was, at least in California, aimed at the damages recoverable as a result of countless personal injury actions arising from car accidents. But wait… the statute applies to TORT actions… which means that it also applies, apparently unwittingly, to Professional Negligence actions.

California Jury Instructions (CACI) attempt to clearly define economic versus non-economic damages. Economic damages are verifiable, out-of-pocket monetary losses. Non-economic damages are the pie-in-the-sky general damages for physical pain, mental suffering and emotional distress that lead to the “Stella Award” type of verdicts. But that’s typically not the danger of professional negligence actions. CACI clearly instructs jurors that: “you will be asked on the Verdict Form to state the two categories of damages separately” (which is a legislative proclamation that if a trial judge permits a verdict form that does not require segregation of economic and non-economic damages, it will in fact be reversible error).

Why is this dangerous in professional negligence cases? Because, generally speaking, in cases involving the tort of professional negligence virtually all of the damages are economic! Professional negligence cases have a nominal “emotional distress” element to them, but the meat and potatoes of the tort is WHAT DID YOUR NEGLIGENCE COST ME OUT OF POCKET? It is not so much about how did it make the litigant feel, but how much did it cost them.

Increasingly we see cases in which litigants with less than clearly meritorious cases change lawyers mid-case, sometimes more than once. If it goes south, they are going to sue everyone. This is the danger that you need to be alerted to and cognizant of. You could be defending a lawyer who was just one of several lawyers in the chain of representation and who did seemingly nothing wrong.  But if the economic damages are millions of dollars and your client is found 1% at fault… he/she has joint and several liability for the full amount of the economic damages! More than a little scary…

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

Multi-Million Dollar California Verdict Affirmed Despite Questionable Causation

Posted on: March 6th, 2018

By: Theodore C. Peters

Proof of causation is a frequently debated topic in tort cases where the battle between “possible” and “probable” is bitterly fought.  Tort victims are left empty-handed unless they can sufficiently demonstrate the causal connection between the defendant’s conduct and the harm that befell them.  Speculation or conjecture is insufficient; a plaintiff must prove more.  But how much more, and where is the line drawn when there is no direct evidence supporting a causal connection and where it is equally plausible that the defendant’s act or omission did not cause the harm in question?  The California court of appeal, In Dunlap v. Folsom Lake Ford, recently provided some guidance.

In Dunlap, the plaintiff suffered personal injuries while driving a truck that flipped after its steering allegedly locked up.  The defendant car dealership admitted that a previous owner complained of similar steering problems, and there was evidence that the dealership had diagnosed a problem with worn ball joints, but denied that this was  the cause of the accident.  Rather, the defendant asserted that the accident occurred after the truck and the van it was towing jackknifed when the van suffered a blow out.  Prior to the litigation, the insurers took action to destroy both the truck and the van for salvage, so the parties’ experts were unable to physically inspect the vehicles and instead were limited to photographs which were admitted into evidence.  The photographs were inconclusive and the parties’ experts thus offered competing opinions of their respective interpretation of this evidence.

The defense accident reconstruction expert opined that, as a consequence of the jackknifing vehicles the truck was forcefully pushed, resulting in the equivalent of a PIT (police-intervention technique) maneuver which pushed the truck into a counterclockwise spin causing the accident.  In contrast, the plaintiff’s expert testified that “it was ‘more likely true than not’ that the worn-out ball joints caused the accident, and it was ‘not at all’ a close call.  In his opinion, if the ball joints had been replaced, ‘we would not be here today.’”  The court also noted that “[t]here was evidence that a particular defect (worn ball joints) was present in the truck, and that [the dealer] was aware the ball joints could cause steering lock and needed to be replaced but failed to replace them or verbally advise the owner to do so.”

The jury found in favor of the plaintiff and awarded over $7.4M in damages.  On appeal, the dealership claimed that, because there was no physical evidence that could confirm plaintiff’s expert’s opinion, plaintiff’s evidence as to causation was speculative and plaintiff’s expert should not have been permitted to testify that the ball joints were worn sufficiently to prevent steering.  In finding that the record supported a finding of causation based on non-speculative evidence, the court stated: “Expert testimony on causation can enable a plaintiff’s case to go to the jury only if it establishes a reasonably probable causal connection between the act and the injury… A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.  This is the outer limit of inference upon which an issue may be submitted to the jury.”  The appellate court concluded that substantial evidence supported the jury’s finding of causation, and affirmed the judgment.

The Dunlap opinion is consistent with a growing body of case law that favors letting juries decide issues of questionable causation where the proof satisfies a “more likely than not” standard.  While mere speculation and conjecture are certainly not enough, circumstantial evidence and reasonable inferences that can be drawn from such evidence are sufficient proof of causation to support a jury verdict.

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