The Veen Firm, P.C.

Newsletter

Trying Times

Clients, Colleagues and Friends,

The Veen Firm is proud of our track record in representing the catastrophically injured. But we realize that our win-loss record is not the true measure of our success. We know that at the heart of each case is a real human person, a real family. They are going through what stands to be the most traumatic event of their lives, be it a lifechanging injury or the death of a loved one. We strive to keep that in mind throughout the challenging litigation process. Our team-based approach to cases provides us with methods to address the myriad of difficulties faced by our clients before, during, and after litigation.

The Practice Notes article Ten Ways to Help Your Client Through Trying Times, highlights our commitment to a holistic approach to meeting clients’ needs and provides some suggestions for ways to help people through the process.

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

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No Workers' Compensation Insurance + No License = Big Problem

Unsafe Work Practices Lead To Fall From Tree

Doe v. Tree Trimming Co. and Henry Homeowner

FACTS

Plaintiff John Doe, a 39-year-old tree trimmer, was working in an oak tree in the San Francisco Bay Area. He touched an overhead power line and fell 25 feet to the ground. A spine injury paralyzed Doe from the chest down. In addition, he suffered traumatic brain injury. Doe now is in a wheelchair for the rest of his life.

LEGAL THEORIES

Doe contended that the homeowners were negligent because they hired Doe’s employer to trim branches, near the top of the tree and adjacent to overhead lines, even though the employer had informed them that he was not authorized to trim near overhead lines and did not carry the necessary insurance to do that type of work. He also contended that the homeowners did not check to see if the employer was licensed.

Doe contended that his employer, who ran a tree-service business, was negligent because his company was performing work without the required license, did not carry workers’ compensation insurance, did not properly train or equip Doe, and did not require safe work practices. Doe also contended that his employer attempted to hide his assets by fraudulently transferring his share of his home to his wife.

CASE RESULT

John Doe received a settlement of $4,300,000.

James G. Butler, Jr. and Christopher Viadro of the Butler|Viadro Trial Team represented Doe.

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Tamper Resistant

Pool Filter Explodes And Kills Man In His Backyard

Doe v. Pool Filter Co.

FACTS

On August 27, 2006, a man was cleaning his swimming pool filter when it exploded in his face. The filter, which operated under pressure, came equipped with an automatic air-relief valve designed to release entrapped air. The manufacturer of the filter advertised that the automatic air-relief valve eliminated the need to manually vent the filter tank. But the automatic air-relief valve did not work and instead trapped air inside the filter, causing the tank to explode.

The victim’s wife heard the explosion and called paramedics, who rushed the man to the hospital. He struggled to stay alive as doctors performed surgeries to relieve swelling in his brain. Eleven days after the explosion, he died.

The victim and his wife had been married 16 years and, with no children, all they had was each other. They regularly hiked, biked, skied, and travelled the world together.

While the victim was in the hospital, his wife told their pool technician about the accident. The technician told another technician, who called the manufacturer of the exploding pool filter. Two days after the accident—with the victim still in the hospital—the manufacturer sent a technician to the victim’s house. Finding no one home, the technician broke into the victim’s yard, disassembled the filter, tampered with the filter’s parts, and cut off the filter’s serial number.

LEGAL THEORY

The victim’s widow sued the filter manufacturer for products liability, trespass, conversion, civil conspiracy, and loss of consortium. She claimed economic damages for medical expenses and lost income of over $1 million.

CASE RESULT

The matter was resolved for a confidential sum. After the settlement, The Veen Firm helped the client publish a website— www.poolsafetyadvocates.org—designed to educate the public about the risks associated with pool filters. For more information about exploding pool filters, pool accidents generally, and how to avoid a pool injury, please visit the site or go to www.veenfirm.com and click on the "Pool and Spa Injuries" link on the "Products Liability" page.

Kevin Lancaster and Oliver Vallejo of the Lancaster Trial Team, in partnership with Thomas G. Beatty and Lisa Roberts of McNamara, Dodge, Ney, Beatty, Slattery, Pfalzer, Borges, & Brothers, LLP, represented Doe.

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Yellow Means Floor It!

Student Injured By Car While Crossing In Crosswalk

Sarah Student v. Nina Nanny

FACTS

One morning in September 2006, Sarah Student, a 28-year-old junior at San Francisco State, walked her regular route to the bus stop to take MUNI home from school. After waiting for the pedestrian signal to change, Student began to cross the busy intersection. Nina Nanny, driving her employer’s car, failed to stop at the light. Nanny was late to a class where she had an exam. Although Nanny saw that the light at the intersection was yellow, she tried to make in through to avoid waiting for a red light. She failed. The car struck Student on her left side, throwing her onto the hood of the car, denting it. Student then fell to the ground and struck her head on the pavement.

Student suffered a cervical herniation causing chronic pain in her neck radiating into her right shoulder, requiring an anterior cervical disk fusion. Student also suffered a mild traumatic brain injury that caused significant cognitive deficits, including diminishment of her short-term memory, concentration, and mental stamina. Student met the criteria for mild traumatic brain injury even without a definite loss of consciousness due to her period of post-traumatic amnesia followed by confusion, and cognitive, emotional, and physical symptoms that persisted beyond one-year post accident. Student may be able to compensate for her disabilities but will never fully recover.

LEGAL THEORIES

Student alleged that Nanny violated the Vehicle Code by running a red light. Nanny argued that a witness in the police report, who neither side could locate, stated that Student had started walking before Student had a green light. Nanny further argued that Student had pre-existing shoulder and emotional problems.

CASE RESULT

The case settled before trial for $1.2 million.

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

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Where’s Security?

Concertgoers Injured When Man Plunges From Balcony

Mason Barkhurst et al. v. Matthew Neely et al.

While attending a 2005 New Year’s Eve concert at the Bill Graham Civic Auditorium, plaintiffs Mason Barkhurst and Jessica Pollatsek were injured when fellow patron Matthew Neely landed on them after he either jumped or fell 25 feet from the balcony. Plaintiffs alleged Neely had been acting in a bizarre and erratic manner, prompting other concertgoers to seek out security for a sustained period of time before the incident. Plaintiffs alleged there was no security available in the balcony area, and patrons unsuccessfully attempted to restrain Neely on their own. Ultimately, the inadequate security on the balcony led to Neely’s plunge from the balcony and impact with plaintiffs below.

Pollatsek suffered head trauma that included crush fractures to her skull. Barkhurst suffered spinal fractures, a broken wrist, broken teeth, and an ankle injury.

LEGAL THEORIES

Plaintiffs contended that defendants were under legal and contractual obligations to provide security and a safe venue for this New Year’s Eve concert. Defendants pointed to Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495 to argue no liability. In Lopez, a gunman walked into a McDonald’s and shot 22 people without warning. The court in that case concluded that McDonald’s did not owe a duty to its patrons to protect against once-in-a-lifetime massacres. The court held that the likelihood of the unprecedented murderous assault was so remote and unexpected that, as a matter of law, the restaurant’s nonfeasance in failing to provide an unarmed, uniformed security guard did not facilitate its happening. Plaintiffs countered that Neely’s behavior was erratic and dangerous for at least ten minutes before the incident, so Lopez didn’t apply.

CASE RESULT

Plaintiffs reached a global settlement of $900,000 with all defendants.

Eustace de Saint Phalle and Elinor Leary of the Saint Phalle Trial Team represented plaintiffs.

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Practice Notes

Ten Ways to Help Your Client Through Trying Times

 

1. Get out of the office.

Effective advocacy requires an in-depth understanding of your client and your clients’ story. Visiting your clients in their own home can give you insights into their lives and losses that an interview in the office or over the telephone will never provide. Visiting the scene of the incident allows you to absorb the environment with all five senses—looking at photographs is not enough.

2. Solve problems creatively.

Ask your clients about problems their injury or the litigation process is causing or exacerbating, and seek creative solutions. One example: a client may be having problems making rent payments. The client’s attorney can talk to the landlord and offer to allow a lien against the case and help the client keep a roof over the client’s head during the lawsuit.

3. Get their benefits.

Most catastrophically injured clients should be getting social security disability payments. Many of them do not know to ask or are denied despite their injuries. They may need assistance with applying for social security disability. Whether you refer the matter out to a social security attorney or help them yourselves, they need the medical records that you likely have obtained in their case. The deadlines in social security disability cases can be complicated for someone untrained in the law or administrative procedure. Clients frequently need help in order to obtain the benefits they are due.

4. Talk about money.

Chat with your client about his/her financial needs and long-term goals well before there is a settlement or verdict. For most catastrophically injured people, the settlement or verdict they receive will be the largest sum of money they have ever seen. But it also needs to take care of them for the rest of their life. Prepare them in advance for the opportunities and pitfalls. People who have not had large amounts of money before often are not prepared to manage it. They need to think about it in advance of receiving the reward.

5. Address their workers’ compensation and medical liens.

There are ways to resolve liens in various situations, whether they be workers’ compensation liens or medical liens. Workers’ compensation liens require an analysis of employer fault and have to be handled very delicately. The resolution of workers’ compensation liens or subrogation actions in civil cases is an article in itself. Given that our firm handles a large number of multiparty construction-site injury cases, we have a great deal of experience in this area. Medical liens may be subject to the made-whole doctrine. This is an equitable insurance principle under which the insurer may not subrogate the insured’s recovery unless the insured recovers 100% of his or her damages. Similarly, California Civil Code § 3040 subjects certain liens to a pro-rata reduction for costs and attorney’s fees under the common-fund doctrine. The common-fund doctrine is an equitable doctrine that permits a litigant or attorney, who recovers a common-fund for the benefit of persons other than himself or his client, to recover fees from the fund. For briefing on these issues, please contact our office.

6. Help repair their credit.

Before settlement or trial, talk to them about their debts and see if you can help negotiate down interest, penalties, and other excess charges on credit cards. Card companies and collection agencies are often amenable to such arrangements, but not if the collections agency learns that the client has just received a substantial amount of money.

7. Protect their result.

Clients who get a large recovery frequently find that they start hearing from long-lost friends and family once news of the resolution gets around. Everyone seems to have a business idea, real-estate venture, or reasons to use their services once the funds are in. Matching your client with a trust or estate attorney to protect their recovery, evaluate their needs, and establish trusts if appropriate and a very good way to help make sure the client’s funds last.

8. Use financial professionals and structured settlements.

Whether you have your client consult a trust attorney, you should help match the client with a certified financial planner and plaintiff-side structured settlement broker to help evaluate the future needs for the client against the available funds. It is helpful for the trust attorney, CFP, and structure broker to have access to the life-care plan prepared in your case. If the client needs more time to evaluate options, consider a Qualified Settlement Fund (QSF). A QSF is a formal process, set up through the courts, that allows the settlement proceeds to be held for later distribution. The QSF preserves all of the plaintiff’s tax benefits. Most structure companies will do the paperwork free of charge to the client. Make sure you afford your clients the opportunity of working with a plaintiff-only structure broker. Plaintiff-side structure brokers are looking for the best deal for your client, not for the insurance company.

9. Think about taxes.

Make sure clients understand the potential benefits of structures, as well as potential risks. Guaranteed payments are excellent for some clients but the lack of flexibility can be a problem. If the client needs more time to make a determination, offer a Qualified Settlement Fund.

10. Protect government benefits.

Some clients are eligible for governmental programs that they will be disqualified from if they receive a large settlement in cash. A particular vehicle known as a Special Needs Trust may be appropriate for these clients. A Special Needs Trust enables a person under a physical or mental disability to have, held in Trust for his or her benefit, an unlimited amount of assets. Those assets are not considered countable assets for purposes of qualification for certain governmental benefits. Once you determine whether such a trust might benefit the client, the client should be referred to an experienced Special Needs Trust attorney to make sure it is established properly.

By Dan Pleasant and Miles Cooper

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Criminal Restitution as an Alternate Remedy

 

Some of our cases are against people who have committed crimes, like car crashes where the driver was under the influence of alcohol. In these cases, we have learned that the restitution rules of Penal Code § 1202.4 et. seq. can be powerful tools to recover economic losses, as well as investigation costs, storage fees, and attorney’s fees. In some cases, the rules allow plaintiffs to attach a defendant’s assets even before conviction. In other cases, the rules permit plaintiffs to request an order of examination to determine a defendant’s assets.

Criminal restitution proceedings have some advantages over civil proceedings. Restitution hearings are more informal than civil trials and are not subject to the same stringent pre-trial proceedings. Also, once a victim has shown a loss, the defendant has the burden of proving inaccuracies in the victim’s proof. Finally, restitution is not dischargeable in bankruptcy.

For more information or briefing on this issue, email .

By Elinor Leary

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Staff Spotlight

William L. Veen

William L. Veen celebrated four decades in practice as an attorney in California.

Kevin Lancaster

Kevin Lancaster is in his second year as a panelist with What’s New in Tort and Trial. The well-regarded program, presented in multiple locations throughout the state, covers changes in statutes and case law affecting torts and civil trials over the preceding year. This year’s panel will cover over 500 cases in the 3.5 hour program.

Kevin is also pleased that the tenth edition of James Publishing’s California Causes of Action is being issued. Kevin is a contributor to the publication.

James G. Butler, Jr

James G. Butler, Jr. spent several weeks this summer learning to surf and writing about his experiences. Jim, who sustained his own catastrophic injury from an accident in his late teens, has a fused left knee. He faced unique challenges transitioning from paddling to standing. Jim believes that his experiences help him understand his clients’ situations.

Isaac Nicholson and George Ellard

Isaac Nicholson and George Ellard joined the Butler|Viadro Trial Team as associates. Isaac brings many years of experience working in the building trades as well as a passionate desire to help his clients. He is a 2006 graduate of Hastings College of the Law.George brings over fifteen years of catastrophic-injury litigation experience to the firm.

He has tried cases in both federal and state courts in California and Nevada. His prior experience defending doctors and later representing injured patient results in a detailed medical knowledge that he employs in handling catastrophic-injury cases.

Corey Friedman

Corey Friedman, who is heavily involved in the Democratic Party, spent a week in November in New Mexico volunteering for the Obama campaign and making sure eligible voters were afforded their right to vote.

Oliver Vallejo

Oliver Vallejo was recently elected to serve on San Francisco Unified School District’s Lafayette Elementary School Site Council, which is working to develop a plan to meet the students’ needs. Oliver also serves on the Lafayette Garden Committee, dedicated to creating a more beautiful and stimulating learning environment.

Daniel Pleasant

Daniel Pleasant’s article, "Kaiser Should Read the Fine Print on Arbitration Agreements," was published in the Daily Journal in August. That same month, his article on incorporating graphics in legal writing was published in Facts & Findings, the trade journal of the National Association of Legal Assistants. Dan is a Writer & Editor for the McGuinn|Cooper Team.

Welcome Ari Label

Anthony Label and his wife Laura Hauben welcomed Ari Label on September 2, 2008. Ari weighed in at 7 lbs 13 oz, and is already the favorite plaything of big sisters Lola and Lindsey.

John Bolts Marries Nadia Flamenco

John Bolts, a paralegal with the Lancaster Trial Team, married Nadia Flamenco in a ceremony in San Salvador, El Salvador on November 24, 2008. John, whose wife is Salvadoran, is looking forward to bringing his wife to the Bay Area.

Corey Friedman Marries Nathaniel Leeds

Corey Friedman and Nathaniel Leeds, a former law clerk at the firm, were married on February 6, 2009 at San Francisco City Hall. They initially met at UC Hastings. Corey will continue her work as an associate with the Lancaster Trial Team.

Miles Cooper Marries Mary Anne Bendotoff

Miles Cooper and Mary Anne Bendotoff, a former Veen attorney, married on September 6, 2008 in a ceremony in San Miguel de Allende, Mexico, officiated by The Brandi Firm’s Casey Kaufman. Miles will continue to serve as the firm’s Managing Attorney as well as manage the McGuinn|Cooper Trial Team with his colleague and mentor Cynthia McGuinn. Maryanne Bendotoff Cooper, who left the firm in 2008, now runs Fix, LLP, which provides litigation services including experienced attorneys for contract assignments to supplement a law firms’ existing resources.

Kelly Palomera and Dietlind Vander Schaaf Partnered

After five years together, Kelly Palomera and Dietlind Vander Schaaf, the firm’s Office Manager, registered as domestic partners and celebrated with a civil union ceremony at San Francisco’s City Hall on June 12, 2008. The two met when Dietlind was the firm’s receptionist and Kelly was a bike messenger who made frequent deliveries to the firm. Dietlind will continue to serve as the Office Manager. Kelly, who retired after 20 years as a San Francisco bike messenger, now works as a certified arborist.

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Giving Back

Elinor Leary

Elinor Leary represented an emancipated foster child threatened with eviction after being accused of starting an altercation with another tenant. The matter settled without trial shortly after Elinor substituted into the case.

Kevin Lancaster

Kevin Lancaster chaired the team that developed the social justice and solidarity portion of the Diocese of Oakland’s Strategic Plan. Kevin is excited that one part of the plan, the Legal Justice Center, opened this past November. The Center provides legal clinics, educational seminars, and tax help for indigent and low-income clients of any denomination. The Center is partnering with other Bay Area legal aid providers, including the Family Violence Law Center, East Bay Community Law Center, Bay Area Legal Aid and Central Legal de la Raza. The Center seeks to provide access to social justice and break the cycle of oppression by empowering its clients.

Kevin also participated in Rebuilding Together Oakland over two weekends. The group rehabilitated a single family home in East Oakland with a host of individuals, school groups, and civic entities.

Christopher Viadro, Anthony Label, and Miles Cooper

Christopher Viadro, Anthony Label, and Miles Cooper served as judges for the Carlene Caldwell Mock Trial competition. The competition provides area law schools with an opportunity to learn and practice trial skills and get feedback from practitioners. Kevin Lancaster also served as a judge in a mock trial and moot court, helping law students learn to be better practitioners. Kevin judged at Golden Gate Law School’s mock trial competition, which focuses on trial skills, and at the University of San Francisco’s Moot Court Competition, which focuses on appellate argument skills.

Oliver Vallejo

Oliver Vallejo is a volunteer mentor with VIP Mentors, a non-profit program designed to help parolees re-enter the community after prison. Oliver, a former Federal Public Defender, has found it rewarding to assist parolees in what can be a difficult transition from institutional to civilian life. Last year, VIP’s San Francisco director nominated Vallejo for "VIP Mentor of the Year."

Dan Pleasant

Dan Pleasant discussed paralegal careers at "Teens at Court", an event sponsored by the San Francisco Trial Lawyers for at-risk youth. Each year, TAC brings urban high-school students to San Francisco Superior Court for a brief civil-justice lesson, courtroom visits, and a presentation on legal careers.

Kathleen Humphrey and Deborah Fontaine

Kathleen Humphrey and Deborah Fontaine volunteered at the SPCA’s Holiday Windows at Macy’s in San Francisco’s Union Square. The six-week event resulted in the adoption of 307 animals and over $55,000 in donations to the SPCA.

Corey Friedman and Isaac Nicholson

Corey Friedman and Isaac Nicholson have been working with La Casa de las Madres to help a victim of domestic violence obtain a restraining order against her abuser.

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