The Veen Firm, P.C.

Newsletter

Workin' on a Building

Clients, Colleagues and Friends,

Lawyers love metaphors, and one of our favorites is “building.” We build arguments, buttressing them with solid facts and sound reasoning. We build cases against our opponents, making sure they are erected on a stable foundation of facts and law. Most important, we help our clients rebuild shattered lives by obtaining just compensation for them from responsible parties.

We are pleased to announce that the legal community has recognized The Veen Firm’s commitment to rebuilding the lives of the catastrophically injured by honoring our founder, William L. Veen, with the 2008 San Francisco Trial Lawyers Association’s Lifetime Achievement Award. Bill, practicing for nearly 40 years, has enjoyed the greatest rewards one can receive in our profession—the thanks of thousands of clients who have benefitted from his unwavering dedication to excellence. While the award is certainly a milestone in Bill’s career, he has no intention of resting on his laurels. As we write this newsletter, he is preparing for trial in yet another consumer-injury case.

The rest of us at The Veen Firm are honored to follow Bill’s example, and look forward to continuing to serve our community.

All the best,
The attorneys and staff at The Veen Firm, PC

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A Dangerous Movement

Deformed I-Beam Kicks Loose and Injures Boilermaker

John & Jane Doe v. Sheedy Drayage Co., Calpine Corp., & Calpine Construction

FACTS

Four years ago, plaintiff John Doe, 49, a journeyman boilermaker, was assisting in the jacking of a 5000-pound surface condenser so it could be moved. Doe’s employer had been hired by Calpine Construction on a San Jose project. That day, Doe was assisting employees of Sheedy Drayage Co., which had been hired to move the condenser from where it had been constructed to a concrete pedestal. The boilermakers were assigned to ensure that the jacks were centered on the I-beams supporting the condenser unit. Doe was working beneath it. Because an I-beam was misaligned, it deformed, kicked out and struck Doe’s head and torso, sending him flying and knocking him unconscious. Doe’s wife happened to be nearby and heard the noise. She rushed to her husband’s side and witnessed the aftermath.

Mr. Doe sustained a traumatic brain injury, disc herniations in his neck and lower back, and a torn rotator cuff of the right dominant shoulder. He also suffered from pain, depression, anxiety, post-traumatic stress disorder, headaches, tinnitus and loss of sense of smell. He underwent extensive medical treatment, including multiple back and shoulder surgeries.

Hospitalized for nine months following the incident, Doe then required an additional eight months of at-home treatment and care. He has been out of work since the date of the accident with injuries that prevent him from working in any capacity. Mrs. Doe suffered post-traumatic stress disorder caused by her proximity to her husband’s accident.

LEGAL THEORIES

The Does sued Sheedy and Calpine. They contended that Sheedy was negligent because it ignored the recommendations of the boilermakers, improperly placed the jacks atop the I-beams, failed to properly reinforce the jacking beams, used undersized jacking beams and failed to heed concerns about their adequacy. They also contended that the Calpine defendants negligently exercised retained control on the project in connection with the development of a task plan for the movement of the condenser. The Does further alleged that Calpine should have intervened to stop the movement of the condenser because it was handled unsafely.

Sheedy denied the plaintiffs’ claims. Sheedy also contended that the Does were special employees of Sheedy and, therefore, were limited to workers’ compensation benefits as their sole remedy for this injury. (See Practice Note, ReTort, Winter 2007.)

The Calpine defendants argued that they never exercised any retained control over the movement of the condenser unit and, if they did, it was not done in a negligent manner.

CASE RESULT

The plaintiffs received a total settlement of $11,725,000. The parties agreed to settle the case during their second mediation session. Sheedy paid $9,725,000, Calpine paid $1 million, and the carrier for the Does’ employer paid $1 million in indemnity. Sheedy also purchased the workers’ compensation lien of $775,000 for $225,000 and agreed to defend the Does against any lien claims by the employer.

The Does were represented by James G. Butler Jr. and Christopher Viadro of the Butler|Viadro Trial Team.

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Warning Signs Unheeded

Newborn Suffers Brain Injury When Ob/Gyn Ignores Fetal Distress

Jane Doe v. Defendant Obstetrician and Defendant Hospital

FACTS

At birth, Jane Doe stopped breathing, and the lack of oxygen injured her brain. Now, she has cerebral palsy, memory and sensitivity deficits, and motor dysfunction. She is unable to run, play, move or learn like her peers. She is currently one year behind her grade level in public school.

This tragic result could have been avoided when Jane was born 12 years ago. Jane’s mother was admitted to the defendant hospital at 11 a.m. on Aug. 1, 1996. The defendant obstetrician examined her and placed a fetal monitor. Both mother and fetus were healthy.

At 4:30 p.m., the nursing staff noticed the first signs of fetal distress. The nurses notified the obstetrician, but the doctor performed no assessment to determine the cause of the fetal distress.

An hour and a half later, the nurses noted that the fetal heart rate had increased and again notified the doctor. After reviewing the fetal monitoring strips with a nurse, the doctor ordered a labor-inducing drug.

Another hour passed. The fetal heart rate continued to rise. The nurses noted the ongoing fetal distress and again reviewed the strips with the doctor.

Three hours later, the nurses again notified the obstetrician of the progressing signs of fetal distress. The doctor responded by ordering more of the labor-inducing drug. Forty-five minutes later, the doctor said the mother should start pushing during contractions despite the fetus’ persistent rapid heart rate.

At midnight on Aug. 2, the nurses informed the defendant doctor of persistent ominous signs of fetal distress. Instead of doing an assessment of the mother and baby, the obstetrician requested that the nurses notify him when the baby began to crown. The doctor left to take a nap.

At 3:30 a.m., Jane Doe was born. The baby was limp, gray and not breathing. Her cord gases revealed acute severe metabolic and respiratory acidosis.

LEGAL THEORY

The plaintiff sued the obstetrician and the hospital for medical malpractice, claiming that the defendants’ professional negligence caused her injuries.

CASE RESULT

The case settled before trial for $3,450,000.

Jane Doe was represented by Eustace de Saint Phalle of the Saint Phalle Trial Team.

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The Eggshell-Plaintiff Rule in Action

Fall on Bus Leads to Below-the-Knee Amputation

Paula Programmer v. AC Transit

FACTS

Paula Programmer’s left ankle was crushed in a 1989 car accident. She developed a bone infection called osteomyelitis. Over the next decade, Programmer underwent numerous surgeries, including two plastic surgeries, to address wounds on the outside of her left ankle. As a result, she had a fused left ankle and wore a rocker-bottom shoe. From 2000-2005, Programmer was not symptomatic. She followed an exercise program and lost approximately 100 pounds.

On Sept. 1, 2005, Programmer boarded her regular AC Transit bus to get home from work. She turned to take the first available seat, which was one of four seats directly behind the driver designated for the disabled. These seats are on an elevated platform that require a step up before passengers can be seated. As Programmer was holding onto a handrail for support and stepping up to the seat, the bus driver accelerated away from the bus stop. Despite bracing herself with the handrail, Programmer was thrown to the floor by the sudden movement, tearing her skin on the outside of her left ankle.

The wound did not heal and slowly progressed to an ulcer. Programmer waited approximately three months before seeking medical treatment, when the wound was surgically repaired. Her treating surgeon testified that she needed surgery because of the fall and resulting injury. The surgeon also testified that even if Programmer had sought immediate medical attention instead of relying on self-care, she still would have needed surgery.

The wound caused nerves going through the neighboring tissue to become inflamed, resulting in a recurrence of the osteomyelitis and intense neuropathy. Programmer’s orthopedic surgeon determined that a below-the-knee amputation was the only solution for her intense pain. He testified that the Sept. 2005 fall was the cause for the amputation.

LEGAL THEORIES

Programmer contended that by moving the bus before she was seated, the driver did not provide the utmost care required from a common carrier. The depositions of the driver and AC Transit’s designated agent revealed that the driver did not know essential items necessary to be a professional bus operator. Programmer also contended her prior condition made her unusually susceptible to injury and that AC Transit was legally responsible for the full extent of her injuries, even though she may have suffered more from the event than another person.

AC Transit contended that Programmer did not have a disabled bus pass to alert the driver that she needed to wait until Programmer was seated; that a driver cannot wait for all passengers to take their seats, only disabled and elderly as identified by special passes; that Programmer was comparatively negligent in the fall; that Programmer failed to seek adequate medical care; and that the amputation was the result of the 1989 incident, not the Sept. 2005 fall.

CASE RESULT

The case settled for $2,750,000 after two mediation sessions with Ken Gack, Esq. of JAMS.

Cynthia McGuinn, Miles Cooper and Karen Stromeyer of the McGuinn|Cooper Trial Team represented Programmer.

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Building on Experience

Lancaster Trial Team Establishes Specialty in Pool-Filter Cases

Ten years ago, Kevin Lancaster resolved a case involving an exploding pool filter. The client was inspecting the filter after he had cleaned it, in accordance with the manufacturer’s directions, when air within it became trapped and built up pressure. The filter exploded in his face, causing brain and spinal cord injuries. The case settled before trial for $1.6 million.

The Lancaster Trial Team has built on its experience with pool filter injuries. Because of the 1998 case, they know pool filters can pressurize, explode and cause severe bodily injury or death. Filters operate under pressure, and can explode violently without any means to release entrapped air. Filters may also lack a “positive means of attachment” to hold the lid to the body of the filter, allowing it to suddenly separate and explode.

Currently, the team is prosecuting two exploding-pool-filter cases. One involves a filter that exploded in 2004, in which the filter’s lid blew off and into the client’s head. The man— a 48-year-old fiber optics engineer with two minor children— sustained a severe brain injury. He is permanently disabled, cannot return to work and will require a lifetime of assistance with daily living. He and his wife claim the filter was defectively designed because it lacked an automatic air-relief valve to prevent pressure buildup, it lacked a safety device to prevent the lid from flying off and had a defective clamp that broke under pressure and allowed the lid to fly off. At mediation, the plaintiffs settled with the clamp manufacturer and the poolsystem installer for $1 million each. The case continues against other defendants.

In the second case, the team represents the widow of a man who was killed when his pool filter, which featured an automatic air-relief valve to release entrapped air, exploded. The automatic air-relief valve failed and trapped air in the filter, pressurized and exploded in the man’s face. The case is scheduled for mediation.

Kevin Lancaster, Oliver Vallejo and Corey Friedman of the Lancaster Trial Team represent the clients in these ongoing pool filter cases.

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Practice Notes

“Not My Employee!”

Overcoming the Independent-Contractor Defense

Car and truck accidents make up a sizable portion of our caseload. Often, defendant drivers are doing business for their employers, as taxicab drivers, truckers or delivery drivers. The companies they work for should be responsible for any damages caused by their employees under the respondeat superior doctrine. But companies will often claim that the drivers are independent contractors and disclaim responsibility. A well-known international shipping company has been using this as a defense for many different types of cases.

The Veen Firm has encountered a number of variations of this tactic. Here are some strategies we have used successfully to hold companies accountable for their drivers’ actions.

We represented four airport workers who were injured when the airport shuttle bus they were riding in slammed into the back of a cab that had stopped on a freeway on-ramp to pick up a potential fare on US 101N. The cab company initially took the position that it was not responsible because its drivers were independent contractors. We were aware that the responsibility of a taxicab company for injuries or damage caused by the drivers of cabs it owns depends on the relationship between driver and company and the character of the agreement under which the cab is operated. When the company holds itself out as operating the cab by placing its name on the cab, via statements in its advertising, can at its option discharge the driver, determine the particular work to be done by him or her, fix the rate of fare and prescribe the method of dealing with customers, the relationship between the driver and the company renders the company responsible for the driver’s negligence. (See Am.Jur.2d, Carriers, § 862.)

We were also aware that the California Court of Appeal had found that cab drivers were employees of the company. (Yellow Cab Cooperative, Inc. v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1288.) In that case, the court held that Yellow Cab’s drivers were entitled to workers’ compensation benefits because they were employees, not independent contractors. The court held that “by means both direct and indirect, Yellow [Cab] controlled various aspects of the work.” It directed drivers to specific destinations. It instructed drivers on matters of behavior and cleanliness. It controlled drivers’ use of the dispatch radio. Dispatchers could demand that a driver return to the yard. Perhaps most significant was the prohibition on driving cabs for other companies.

When we pointed this case out to opposing counsel, the cab company agreed to stipulate that the driver was its employee instead of persisting in its independent-contractor defense.

Similarly, a Veen Firm paralegal was killed when he was struck by a tractor-trailer while walking to work. Here, the trucking company also claimed its driver was an independent contractor. This time, we turned to Restatement of Torts (Second) section 428, which provides:

An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.

The California Court of Appeal had recently held that this rule applied in a case where a motorcyclist was killed in a collision with a tractor-trailer being operated pursuant to a subhauling agreement. (Serna v. Pettey Leach Trucking, Inc. (2003) 110 Cal.App.4th 1475.) The owner of the vehicle was thus vicariously liable for the negligence of the driver. After reviewing the history of section 428, the Serna Court stated the applicable rule with respect to nondelegable duties of trucking companies that retain independent contractors pursuant to a subhauler agreement:

Hence, the rule is that a carrier who undertakes an activity (1) which can be lawfully carried on only under a public franchise or authority and (2) which involves possible danger to the public is liable to a third person for harm caused by the negligence of the carrier’s independent contractor. [Citations.] Were the rule otherwise, a carrier could escape liability for the negligence of its independent contractors, thus reducing the incentive for careful supervision and depriving those who are injured of the financial responsibility of those to whom the privilege was granted. For these reasons, the carrier’s duties are nondelegable, and it is only when the carrier is “not regulated” at all that the rule is otherwise. [Citations.]

(Id. at p. 1486.)

At deposition, the owner of the trucking company admitted that the driver was operating the truck under a subhauling agreement. So we moved for summary adjudication of the duty issue and obtained a ruling stating that the company was vicariously liable for the driver’s negligence. After that, the company settled for its insurance policy limits. Similar problems—different answers. The Veen Firm’s unique team-based approach gives us the flexibility to craft appropriate solutions to complex legal challenges thrown up by defendants seeking to evade legal responsibility for their harms.

By Dan Pleasant, Miles Cooper and Isaac Nicholson

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Staff Spotlight

Bill Veen Marries Ellen Swain

On Feb. 1, 2008, in a private ceremony at San Francisco City Hall, Bill Veen and Ellen Swain exchanged vows. Ellen, a former law professor, public defender and journalist, is currently writing a novel and a book for law students with learning disorders and Attention Deficit Disorder. The firm warmly welcomes Ellen.

Kevin Lancaster’s California Causes of Action (9th ed.) Is Published

The ninth edition of Kevin Lancaster’s California Causes of Action was published by James Publishing. Co-written by Stanton T. Matthews of Stanton T. Matthews and Associates of Laguna Hills, Calif., the book focuses on helping attorneys construct creative and exhaustive pleadings to maximize recovery for their clients.

Kevin joined The Veen Firm in 1984 and leads the Lancaster Trial Team. He focuses on prosecuting complex cases involving products liability, professional negligence, catastrophic personal injuries and wrongful death.

James G. Butler, Jr. to Speak With Applicants’ Attorneys Association About Civil Actions

James G. Butler, Jr. will be speaking at the California Applicants’ Attorneys Association’s annual convention along with Kevin Lancaster. They will address how to identify potential civil actions including nondelegable duties, negligence per se and recent developments in premises liability.

Jim joined The Veen Firm in 1987 and leads the Butler|Viadro Trial Team with Christopher Viadro. Jim has served with distinction as a trial team leader, trial attorney, educator and author. He focuses on fighting for workers’ and consumers’ rights.

Cynthia McGuinn Heading San Francisco Chapter of ABOTA

Cynthia McGuinn was selected as president of the American Board of Trial Advocates’ San Francisco Chapter for 2008. Her goals are to continue ABOTA’s commitment to protecting citizens’ rights to civil trial by jury, civility in the profession and ethical representation, as well as growing the organization’s efforts in youth education. She is the first woman to serve in this role.

Cynthia joined The Veen Firm in 1989 and leads the McGuinn|Cooper Trial Team with Miles Cooper. She has represented injured people, consumers and children in cases involving catastrophic personal injury, products liability, professional negligence and wrongful death for 25 years.

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Giving Back

Elinor Leary

Elinor Leary was nominated for a California State Bar President’s Pro Bono Service Award. Per the State Bar Web site, these awards recognize attorneys who have “provided or enabled the direct provision of legal services to poor persons….” Elinor was nominated by the director of La Casa de las Madres in recognition of the countless hours she has spent representing La Casa clients as part of The Veen Firm’s Pro Bono Program, as well as her participation in shaping La Casa’s own Pro Bono Program. Award recipients will be selected by the State Bar of California Board of Governors and honored at an awards reception during the 2008 State Bar Annual Meeting in September.

Elinor currently represents a client for La Casa de las Madres, a mother of three whose ex-husband was convicted of assaulting her.

Also, just before the winter holidays, Elinor successfully obtained a five-year restraining order for a single mother who had at one point been kidnapped by her accused abuser from in front of her house. The contested hearing lasted several days.

Corey Friedman

Corey Friedman also currently represents a client for La Casa de las Madres, a woman who was taken to the hospital and treated for bruises and a possible fracture after being pushed down stairs.

Oliver Vallejo

Oliver Vallejo settled an unlawfuldetainer action where his client owed $2,500 in back rent but claimed that the landlord had subjected the client to an illegal rent increase. Oliver substituted into the case, served the landlord with requests for admissions, requests for production, special interrogatories, form interrogatories and a deposition notice. The landlord offered to waive the back rent and pay the tenant to move out shortly thereafter.

Miles Cooper

Miles Cooper was honored with an Outstanding Volunteer in Public Service Award for 2007 from the Bar Association of San Francisco’s Volunteer Legal Services Program (VLSP). He is a regular volunteer at the VLSP’s weekend legal aid clinics and for tenants facing eviction.

Anthony Label

Anthony Label represented a tenant in an unlawful detainer proceeding as part of the VLSP’s Courthouse Project. The tenant and her elderly disabled grandmother were allowed to remain in their apartment, and the landlord agreed to inspect the apartment to ensure ADA compliance.

Carole Okolowicz

Carole Okolowicz, a paralegal with the McGuinn|Cooper Trial Team, is giving back to the community through art. She is working on a mural project in her neighborhood, which was plagued by a series of shootings last year, to brighten the area and discourage violence and graffiti.

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