The Veen Firm, P.C.

Newsletter

A Reintroduction

Clients, Colleagues and Friends,

With this mailing, The Veen Firm reintroduces its ReTORT newsletter, an information-packed compilation of cases, legal intelligence and firm updates.

Much within the legal arena has changed over the 32 years The Veen Firm has been in existence. The law has evolved, and we hope to help shed light on some of these changes through our cases and legal analysis. As the profession became more dynamic, we leveraged the latest technologies to match pace, from electronic document management to multimedia trial presentation tools.

While handling some of the most challenging and successful cases in firm history over the past two years, we also refreshed our image. In addition to this newsletter, be sure to visit our updated Web site at www.veenfirm.com.

The Veen Firm announces with great pride that we had three cases in trial simultaneously for the first time ever. Better yet, all three cases returned substantial plaintiff verdicts! See inside for facts, theories and outcomes of these three trials.

We invite you to continue to explore the changing legal landscape with us via this and future issues of ReTORT. While the legal environment changes, one aspect stays constant—The Veen Firm remains as focused on recovering damages for our catastrophically injured clients as we have been since 1975.

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

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Without Warning

General Contractor Held Liable For Not Guarding Elevator Shaft

Robert Scott v. Richter & Ratner Contrating Corp.

FACTS

The Burberry project, which spanned Dec. 2003 to Oct. 2004, was a multimillion dollar interior remodel and seismic/structural upgrade of the existing retail store and building at 225 Post Street in San Francisco.

The general contractor, New York’s Richter & Ratner Contracting Corp., hired several subcontractors, including Cannon Constructors and Paramount, an elevator subcontractor, to complete the project.

On Aug. 30, 2004, plaintiff Robert Scott, 45, a construction superintendent with Cannon Constructors, was working at the Burberry site. While Paramount was replacing the existing elevator, Scott slipped into the unguarded elevator pit, falling backward and landing on his back in the concrete pit.

As a result, Scott sustained permanently disabling back, neck and knee injuries that prevent him from ever returning to his prior work as a construction supervisor and general contractor or to the physical activities he loved.

LEGAL THEORIES

Plaintiff’s counsel argued that the contract stipulated that Richter & Ratner was required to maintain barricades in front of each elevator shaft opening throughout the project.

Plaintiff’s counsel claimed that Richter & Ratner had a nondelegable duty to guard the elevator shaft.

Richter & Ratner disputed the allegations, contending that Scott was comparatively negligent for not paying attention as he worked.

Defense counsel also pointed out that Scott was in a methadone program, and claimed he was not really injured but faking it to get painkillers.

CASE RESULT

The jury awarded Scott $10,563,862—a total 25 times the amount of the defendants’ final, pretrial settlement offer. The suit charged Richter & Ratner with negligence and premises liability, and the jury found the general contractor 98 percent responsible for the accident.

Combining medical and income figures, Scott was awarded $282,248 for past economic loss and $3,144,957 in future economic loss. He was also awarded $846,743 for past pain and suffering plus $6,289,914 for future pain and suffering.

This case was tried by Kevin Lancaster of the Lancaster Trial Team and William L. Veen.

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A PROMISING CAREER IN A DITCH

Aspiring Architect Suffers Brain Injury

Jane Doe v. Wood Supplier et al.

FACTS

Jane Doe, a 42-year-old designer at an architectural firm, was a passenger in a car driven by her employer. The two were en route to an appointment at an Oakland Wood Supplier retail store. Months prior, Wood Supplier had hired Gary Morris of Advance Construction, a licensed general contractor, to renovate the premises, including the parking lot.

Doe’s employer drove through an open gate into the Wood Supplier parking lot and started to drive across it when the car went into an unmarked, three-foot-deep drainage ditch that bisected the lot. Doe, leaning forward in her seat, was hit by the passenger air bag at a distance of only 5 to 10 inches.

As a result of the impact, Doe sustained a mild traumatic brain injury that gave her chronic and debilitating migraine headaches, decreased concentration, cognitive problems, vertigo, tinnitus, fatigue, memory problems, depression and anxiety. She is now—and likely for life—limited to only 24 hours of work per week, and her injuries have kept her from passing the architectural licensing examination, which curtails her career growth.

LEGAL THEORY

Plaintiff’s counsel contended the ditch was concealed because the far lot sat a few feet lower in elevation. Further, defendant Morris had removed car stops that had previously abutted the ditch and seal-coated over the parking lot striping in the upper lot—both of which were alleged to have been the only visual cues to the existence of the ditch. Plaintiff’s counsel also claimed that, without the benefit of cones, barricades, caution tape or other warnings at the edge of the upper lot, the ditch was a hazard and the gate to the lot should not have been left open.

Defendant’s counsel for Morris contended that Wood Supplier was negligent in leaving the parking lot gate open and Doe’s employer was negligent for driving at an unsafe speed in the rainy conditions and failing to see the ditch.

Defendant’s counsel for Morris also argued Doe did not sustain a mild traumatic brain injury but that her symptoms were a psychiatric reaction to the incident, which would be improved by seeing a headache specialist and receiving psychiatric care. It was also suggested that Doe’s earning capacity was not limited by her inability to become a licensed architect.

CASE RESULT

Prior to trial, plaintiff’s counsel settled with Wood Supplier for its $1,000,000 policy limits with the understanding that Doe would be entitled to 75 percent of the express/equitable indemnity recovery against defendant Morris, if any, and Wood Supplier would be entitled to 25 percent of plaintiff’s recovery against Morris, if any.

Defendant Morris’ last pretrial offer was $50,000. Plaintiff’s pretrial demand (C.C.P. § 998) was $1,000,000. The jury verdict was $4,057,562, assigning 85 percent fault to Morris.

This case was tried by James G. Butler, Jr., and Christopher A. Viadro of the Butler Trial Team.

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Hosed

Unsafe Equipment Injures Plumber

Kaz v. Berkeley Concrete Pumping Co., and Dolan Concrete Construction, Inc.

FACTS

Joe Kaz was hired as a journeyman plumber by J.W. McClenahan Co., a contractor that installs plumbing during the construction of commercial buildings, to work on the Four Seasons Hotel project in East Palo Alto.

Davis Reed Construction, the project’s general contractor, also employed Dolan Concrete as the main concrete subcontractor on the project. Dolan was responsible for pouring and laying the concrete into onsite locations as needed and, in turn, hired Berkeley Concrete Pumping to provide concrete, along with the pump and hoses to direct the concrete to be poured where needed.

A typical day on the project required Kaz to maintain a kneeling position for substantial periods, as well as to lift, carry and manipulate heavy loads of materials. On July 12, 2004, Kaz was checking the drain levels at the hotel construction site. As he walked by a concrete boom approximately six feet away, he heard a loud and unsettling popping sound. The pump’s hose had uncoupled and was swinging without restraint. As it swung, the hose, filled with pressurized concrete, whipped into Kaz’s left knee, skidded upward into his left upper thigh, then snapped down onto his right knee. The impact knocked him off his feet onto a metal deck. The force of the hose impact was so severe it broke his plastic protective knee guard.

After the injury, two surgeries were performed on Kaz’s knee. The damage from the accident, as well as an infection during one of the surgeries, has prevented him from returning to his job as a plumber because he is unable to perform work activities such as squatting, kneeling, crouching, crawling, heavy lifting or tasks requiring comparable physical effort.

LEGAL THEORIES

Plaintiff’s counsel argued that the defendants had used worn, concrete-encrusted clamps on their equipment. The hose sections separated because the defendants had failed to secure the clamps with locking pins—as required by the manufacturer of the clamp—to hold the sections of pressurized hose together.

It was also argued that defendant Berkeley Concrete Pumping should have been aware it was creating dangerous and potentially hazardous conditions at the Four Seasons Hotel project site before plaintiff was unnecessarily injured. The company’s Web site boasted that each of its “operators has been trained in maintenance, customer relations, operations and safe job setup, as well as pump operation.” As an experienced and trained pump operator, Berkeley Concrete Pumping’s foreman would have been well aware of the danger posed by a concrete hose, pulsing with more than a thousand pounds of pressure, held together by a defective clamp. Counsel asserted that despite its knowledge, Berkeley Concrete Pumping used a corroded, concrete-encrusted and improperly attached hose clamp. In addition, it was claimed that Dolan Concrete not only allowed Berkeley Concrete Pumping to attach the clamp improperly, but actively participated in its use by allowing the defective clamp to be selected for the equipment setup.

Defendants contended Kaz’s right knee was not injured in the incident. They also contended Kaz had degenerative conditions in his right knee prior to the incident.

CASE RESULT

A panel of 12 jurors reached a unanimous verdict that Berkeley Concrete Pumping and Dolan Concrete Construction were negligent in using aging, corroded, concrete-encrusted hose clamps and did not properly fasten and secure these clamps. The total award was $2,056,000, which included past and future medical expenses and wages.

This case was tried by Eustace de Saint Phalle of the de Saint Phalle Trial Team and Miles B. Cooper of the McGuinn|Cooper Trial Team.

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Off-Road in the City

Early Dialogue Helps All

Juan Diaz and John Doe v. Errant Delivery Co.

FACTS

In Mar. 2003, Juan Diaz and John Doe were standing in front of walk-up windows in San Francisco. An Errant Delivery Co. car left the roadway, traveled up a wheelchair ramp, across the sidewalk and into the windows. The two men were crushed between the car and the building. Doe, then 58 years old, suffered traumatic amputation of both legs above the knee. Diaz, then 27, sustained a severe crush injury to his left leg.

The Errant Delivery Co. driver claimed the car’s brakes had failed and the only place for him to go was into the building. Witnesses, including a passenger in the car, contradicted his statement and said he appeared to lose consciousness and veered into the building. Further, an inspection of the car determined there was no vehicle malfunction. The impact speed was approximately 25 mph.

While doctors were able to save Diaz’s crushed left leg, the repair required more than 14 surgeries over two years, including multiple skin and muscle grafts. He is able to walk but will require a cane for the remainder of his life. Doe lost both legs at the scene. As part of his care, he was provided with C-legs, sophisticated computer-controlled prosthetics.

CASE RESULT

In early 2005, Errant Delivery Co.’s counsel contacted plaintiffs’ counsel to say that Errant Delivery Co. acknowledged responsibility for the accident but that it was too early to put a value on the case. The company wanted to make a preresolution partial settlement payment to provide plaintiffs with the financial resources to get by until the case was resolved.

Errant Delivery Co. provided plaintiffs with more than $1,000,000 at that point. This early display of good faith allowed the parties to continue discussions and eventually reach a resolution that provided Diaz and Doe with sufficient compensation while avoiding forcing Errant Delivery Co. into bankruptcy. The final settlements were $5,500,000 for Diaz and $9,000,000 for Doe. As a result, the plaintiffs were justly compensated and Errant Delivery Co.’s more than 1,000 employees were able to keep their jobs.

This case was prepared for resolution by Cynthia McGuinn, Miles B. Cooper and Anthony Label of the McGuinn|Cooper Trial Team, William L. Veen, and Arnold Laub of the Law Offices of Arnold Laub. John Doe was separately represented by William Johnson of Bennett, Johnson & Galler.

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Practice Notes

Liability Analysis In College Athletic Injuries

There have been a number of young athletes—from basketball players to cheerleaders—who have been injured while participating in college sports. These tragic tales have made media headlines, shaken parents to the core and cut short the careers of vibrant young students just as they were getting started. In working toward settlement in a recent case involving a cheer practice fall that left a student paralyzed, The Veen Firm has analyzed liability as it relates to college athletic injuries.

To support a cause of action alleging that a sports instructor has failed to provide adequate instruction or has required a student to perform beyond his or her capacity without providing adequate instruction, “it must be alleged and proved that the instructor acted with intent to cause a student’s injury or that the instructor acted recklessly in the sense that the instructor’s conduct was ‘totally outside the range of the ordinary activity’ involved in teaching or coaching the sport.” (Kahn v. East Side Union High School District (2003) 31 Cal. 4th 990, 1011, internal citation omitted.)

Shortly after the California Supreme Court’s pronouncement, the Judicial Council adapted the Kahn holding in California Civil Jury Instruction 409, which sets forth the liability of sports instructors, trainers or coaches. That instruction reads as follows:

CACI 409. Liability of Instructors, Trainers or Coaches Injured party claims harm due to the defendant’s coaching. To establish this claim, the injured party must prove all of the following:

1. That the named defendant was the injured party’s coach;
2. That the defendant acted recklessly in that his or her conduct was entirely outside the range of ordinary activity involved in teaching or coaching the sport in which the injured party was participating;
3. That there was harm; and
4. That the coach’s conduct was a substantial factor in causing that harm.

In our matter, the facts when presented at trial would have provided a jury with sufficient evidence to find a judgment against the defendant. In addition, because the facts of our case were so similar to Kahn, we were confident that attempts by defendant to dispose of the case at the summary judgment level would be unsuccessful.

In holding that the “totality of the circumstances” precluded summary judgment, the Kahn Court referred specifically to evidence of:

• The defendant coach’s failure to provide plaintiff with training in shallow-water diving
• The coach’s awareness of plaintiff’s intense fear of diving into shallow water
• The coach’s conduct in lulling plaintiff into a false sense of security by promising that she would not be required to dive at competitions
• The coach’s last-minute breach of this promise in the heat of a competition
• The coach’s threat to remove her from competition or at least from the meet if she refused to dive
• That the maneuver of diving into a shallow racing pool, if not done correctly, poses a significant risk of extremely serious injury
• That there is a well-established mode of instruction for teaching a student to perform this maneuver safely
• A disputed issue of fact as to whether the coach provided any instruction at all to plaintiff with regard to the safe performance of such a maneuver, as well as to the existence and nature of the coach’s promises and threats

Under these circumstances, the Kahn Court held that “the question whether the coach’s conduct was reckless in that it fell totally outside the range of ordinary activity involved in teaching or coaching this sport cannot properly be resolved on summary judgment.”

The evidence in our case was remarkably similar—perhaps even stronger than Kahn. In comparing the similarities with the “totality of circumstances” the California Supreme Court used to defeat summary judgment in Kahn, it was unlikely the defendants would obtain a summary judgment.

Legal analysis by McGuinn|Cooper Trial Team members Cynthia McGuinn and Anthony Label. Exemplar complaints, briefs and discovery for these types of cases are available on request. Email to request more information.

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Staff Spotlight

de Saint Phalle Trial Team Formed

In January, Eustace de Saint Phalle was elevated to Trial Team Leader, a move that marks the firm’s expansion with a fourth trial team. The de Saint Phalle Trial Team is focused on complex litigation, construction site injuries and medical malpractice cases. In addition to his trial practice and team management, Eustace, who has been a member of The Veen Firm family since 1996, participates in free legal clinics and pro-bono legal services for veterans.

Born: Berkeley, CA
Admitted to bar: California; U.S. District Court, Northern District and 9th Circuit Court of Appeals – 1995
Memberships: Bar Association of San Francisco, American Bar Association, Consumer Attorneys of California and San Francisco Trial Lawyers Association
Education: University of San Francisco School of Law (J.D., 1995); University of California at Berkeley (B.A., 1989) Vital statistics: Eustace is married with three children and enjoys traveling, skiing, gardening and scuba diving.

Corey Friedman joins the Lancaster Trial Team

Corey Friedman was admitted to the California bar in December 2006. She joined the firm as an attorney in January 2007. She is the newest associate on the Lancaster Trial Team and will focus on personal injury, wrongful death, professional negligence and products liability matters with her team.
 

Born: Boston, MA
Admitted to bar: California; U.S. District Court, Northern District and 9th Circuit Court of Appeals – 2006
Memberships: Queen’s Bench and San Francisco Trial Lawyers Association
Education: University of California, Hastings College of Law (J.D., 2006); Bowdoin College (B.A., 2002)
Vital statistics: Corey is also active in the San Francisco Young Democrats and serves on its Board.

McGuinn|Cooper Trial Team Acquires a New Attorney

Karen Stromeyer, who was admitted to the California bar in December 2006, joined the firm as an attorney in January 2007. She is the newest associate on the McGuinn|Cooper Trial Team and together with her team will focus on personal injury, wrongful death, professional negligence and products liability matters.

Born: Redding, PA
Admitted to bar: California; U.S. District Court, Northern District and 9th Circuit Court of Appeals – 2006
Memberships: Bar Association of San Francisco, Queen’s Bench and San Francisco Trial Lawyers Association
Education: University of California, Hastings College of Law (J.D., 2006); University of California at Berkeley (B.A., 2002)

Anthony Label

Anthony Label of the McGuinn|Cooper Team recently welcomed Lola Label as the newest member of his family.

Miles B. Cooper & Mary Anne Bendotoff

Miles B. Cooper of the McGuinn|Cooper Team recently employed a process server to serve Mary Anne Bendotoff, attorney on the de Saint Phalle Trial Team, with a Summons and Request for Marriage. Much to his amazement, she accepted.

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