A Los Angeles County Superior Court jury Wednesday found the state of California liable in the wrongful death of Francisco Castaneda, a prison detainee who died of a metastasized cancer that began as a lesion on his penis that state prison and medical officials had refused to treat.

Concluding a 13-day trial, the jurors awarded $1.73 million to Castaneda’s daughter, who said the state’s neglect had deprived her of a promising future with her father.  About $230,000 of the award is for economic damages, such as past medical expenses for Castaneda.

“I am so happy the jury understood what the state had done,” said Vanessa Castaneda, 17, Francisco Castaneda’s only child. “When they came in with the verdict, I just felt that they were voting for justice.”

Francisco Castaneda was in state custody between December 2005 and March 2006, first in Delano, Calif., and then in San Diego.  Officials at both facilities ignored medical personnel’s calls for a biopsy to determine if Castaneda’s worsening condition was caused by cancer.

Castaneda got the procedure on his own after his release from detention in February 2007.  By then, it was too late.  His penis was amputated and he began a round of chemotherapy in a futile attempt to stop the spreading cancer.  Castaneda, 36, died at his home in February 2008.

“We are extremely gratified with this verdict,” said Conal Doyle, co-lead counsel on the team of Public Justice attorneys representing Vanessa Castaneda.  “Finally, after three years of the state denying responsibility, a jury of Vanessa’s peers found that the state killed her father and recognized the tremendous loss with a full and fair verdict.”

Public Justice, the Washington-based national public interest law firm, had maintained that the state could not argue that it was unaware of Castaneda’s need for immediate medical care when its own employees had requested it. 

Medical experts testified that Castaneda would be alive today had his cancer been diagnosed and treated while in the state of California’s custody.

In addition to Doyle, Public Justice’s legal team included co-lead counsel Adele Kimmel of Public Justice, and co-counsel Thomas M. Dempsey of Los Angeles and Public Justice Goldberg Attorney Amy Radon.  Mike Withey is a former President of Public Justice (1995-1996) and recipient of its most important award the Public Justice Achievement Award in 2006.

I have found that representing bicyclists for highway design cases, or even when they are struck by negligent drivers poses tremendous challenges.  Most jurors are not avid bicylists. Those that are are usually excluded by the defense. Common juror attitudes toward bicylists on the road include the idea that “they don’t follow the rules of the road” and “they make me nervous” and “they should stay out of the way of cars” and the like.

But when the City of Seattle, for instance, puts a bicycle pathway or extends the Burke Gilman Trail in Ballard on a road where old and abandoned railroad tracks are located, the chances of a bicyclist having his tires caught in the tracks is pretty high and has caused numerous serious accidents, including a man I am representing.

A recent article in the Seattle Times describes a similar accident involving a Seattle attorney Mickey Gendler.  His attorneys did a fantastic job of representing him and obtained a terrific settlement. Here is the link: 

http://seattletimes.nwsource.com/html/localnews/2013265574_gendler27m.html

JOHN LOK / THE SEATTLE TIMES

Mickey Gendler now spends most of his time at home in Seattle after being seriously injured in a cycling accident in 2007.

JOHN LOK / THE SEATTLE TIMES

Caregiver Suzanne Walker helps Mickey Gendler in his Seattle home. Gendler, a quadriplegic, relies heavily on such help from two caregivers to get through the day.

The Contingency Fee is the ‘Key to the Courthouse Door”

There has been alot of controversy, mainly stirred up by the insurance industry, the US Chamber of Commerce, oil companies and mega-corporations about the contingency fee–where people who  are not wealthy enough to afford to pay an attorney significant hourly rates whether they win, lose or draw can have their day in court. A contingency fee allows an average joe or jane to go to an attorney and get representation because the attorney’s  fee would only come out of any recovery (compensation) that the attorney obtains.  No recovery, no fee!  It is an important part of access to justice and insuring that the courthouse doors are open to all, not just the wealthy and powerful.

On May 18, 2010, a federal appeals court issued a ringing endorsement of the value of contingency fees in preserving access to justice.  The case is In re Abrams & Abrams, No. 09-1283, which challenged a district court judge’s refusal to honor a contingency fee agreement between the parties to a personal injury lawsuit.   In reversing the district court, the United States Court of Appeals for the Fourth Circuit wrote that contingency fees play a crucial role in our legal system because they “provide access to counsel for individuals who would otherwise have difficulty obtaining representation.”  Public Justice, along with the American Association for Justice, had filed an amici brief in the case urging the Court to rule as it did. 

Why I Care:
This decision is a slap in the face of all those who would seek to deny victims their right to access to justice.  The district court’s approach – if applied more broadly – could have drastically limited victims’ ability to obtain counsel in contingency fee cases within the Fourth Circuit.  But that would have been only the beginning.  If the district court’s contingency-fee-slashing approach had spread, it could have made it significantly more difficult for injury victims across America to obtain any compensation for their injuries, regardless of how badly the defendant may have acted. 

The Fourth Circuit’s landmark ruling not only stopped this potential trend in its tracks, but it presents, in stirring terms, a powerful endorsement of the oft-criticized contingency fee at a time that we need it most.  As everyone knows, the tort system — and, in particular, “greedy trial lawyers” — have been under assault in recent years, with conservative forces arguing that personal injury lawsuits, and the lawyers that bring them, are at the root of a host of evils.  The Fourth Circuit’s spirited defense of the contingency fee won’t halt this assault, but it does provide some dearly-needed ammunition in the fight to preserve access to justice.   Thanks to Leslie Brueckner of the Public Justice staff for the analysis in this article.  www.publicjustice.net

Go to www.walegaltimes.com  for more commentary

Many of the woman have suffered unsightly 3rd degree burns, scaring and bald spots after dye products were applied and they were placed under a heat source.  Many such products contain chemicals known to cause burns to the skin, although proper care in the selection and application of these products can prevent any damage from occuring. 

A recent news story hightens the concern about the “Brazilan Blow Out” which promises frizz free hair but also contains formaldehyde, a chemical known to cause respiratory problems to both stylists and customers alike.  The link to the story is found at http://www.komonews.com/news/local/104676369.html

(Olympia, WA) – Judge Carol Murphy of the Thurston County Superior Court found that the Building Industry Association of Washington and its affiliates (BIAW) have mishandled tens of millions of dollars in member trust funds received as part of the State Department of Labor and Industry’s retrospective refund program. The Judge found that the BIAW violated its legal duties to 6,000 small businesses involved in the program by:

1. Failing to provide an annual accounting to its members;
2. Failing to have a CPA review the finances of the Trust;
3. Commingling trust funds with the funds of the BIAW’s for profit subsidiary Member Service Corporation (MSC);
4. Allowing the MSC rather than the Trust to accrue well over a half a million dollars in interest earned on Trust assets;

Commingling funds and skimming interest are serious financial improprieties. The judge stated that she was ordering the BIAW, MSC, and the Washington Builders’ Benefit Trust to comply with state law, with the governing trust documents, and with her ruling on the breaches of trust.  The lawsuit was filed by Seattle attorney Mike Withey and Knoll Lowney with the assistance of Andy Friedman and Tonna Farrar from Pheonix Arizona. 

BIAW is I-1082’s prime sponsor and has spent more than half a million dollars to pass it. Under I-1082, the BIAW would broker its members to big insurance companies, like AIG, in return for a cut of the premiums.

 Judge Muphy’s decision Thursday concludes a three-year-old case alleging breach of trust between the BIAW – one of Washington’s biggest conservative political funders – and its members.

 Five small businesses filed suit claiming that the BIAW failed its fiduciary duty in managing funds from the “retrospective rating” (retro) program through the Washington Builders Benefit Trust. This program is meant to promote worker safety by refunding part of workers’ compensation premiums to safe workplaces.

Today’s decision comes on the heels of the BIAW’s $584,000 settlement last week with the Office of the Attorney General for campaign finance violations in 2008. This fine – the second largest from the Public Disclosure Commission in recent history – also came from the BIAW’s financial mismanagement of retro dollars.

Knoll Lowney and Michael Withey, lawyers for petitioners, can also be reached for comment at (206) 650-1044 or knoll@igc.org and mike@witheylaw.com.

In CGI Technologies Inc. v. Rose, we will be defending a seriously injured car-accident victim — Rhonda Rose — who was sued by her health insurance carrier for the money it paid to cover her medical expenses. The insurance company is arguing that, because Ms. Rose sued the driver who caused the accident and recovered a small portion of her damages, it is entitled to repayment of 100% of its benefits. If the company succeeds, it will walk away without paying out a penny on Ms. Rose’s policy, while she is left without fair compensation for her injuries.

Rhonda Rose was badly hurt in a car accident that left her with permanent back and neck injuries. Her medical expenses were initially covered by her employer-funded health insurer. She then retained counsel and sued the driver who caused her injuries, but ultimately settled for only 25% of her damages because that was the limit of the driver’s insurance.

In February, however, her health insurance company sued her and her lawyer in federal court in Washington for complete reimbursement of the medical expenses her insurance policy covered. The insurer insists that, because Ms. Rose received some compensation from the person who injured her, it is entitled to get all of its money back — before Ms. Rose or the attorney who won her compensation are entitled to anything.

Public Justice has taken on this case because it is a disturbing example of a national campaign by insurance carriers to line their own pockets by raiding their beneficiaries’  recoveries. Across the country, employer-based insurance plans have been aggressively pursuing personal-injury victims for full reimbursement — or “subrogation” — of the medical expenses their insurance is supposed to cover. This trend has devastating consequences for personal-injury victims, who can be left worse off — and the insurers better off — than if the victim had never sued the wrongdoer at all.  The victims can be stripped of compensation for covered medical expenses and all other damages, including uncovered medical expenses, lost wages, and pain and suffering. 

Subrogation lawsuits like this one do more than just harm individual victims and line the pockets of greedy insurance companies. They also pose a major threat to access to justice in America. The risk of full subrogation can make it economically infeasible for a lawyer to take on a case. And, without the ability to attract counsel, injury victims have no means of seeking full compensation for their injuries. If the insurance companies can get away with this, many injured people will get no compensation or representation at all – and the wrongdoers who injured them will never be held accountable. 

To read the complaint in CGI Technologies v. Rose, click here.

Public Justice’s litigation team in this case includes Paul Stritmatter and Mike Withey of Seattle, along with Public Justice attorneys Matthew Wessler and Leslie Brueckner, Caitlin Palacios of Washington D.C., and Michael Nelson of Seattle, Washington, who represented Ms. Rose in her underlying lawsuit against the driver who caused the accident. Michael Nelson’s law firm, Nelson Langer Engle PLLC, has also been named as a defendant in the case.