Consumer Attorney of the Year

The Consumer Attorneys of California is proud to present its California Consumer Attorney of the Year Award.  This award is given to a  plaintiffs’ lawyer who has achieved a significant result in a case that was finally resolved within years 2004/2005 and which case has assisted consumers or changed consumer law for the better in the State of California.

CAOC salutes this year’s award winner and finalists, and we thank you for highlighting everything that is good and just about our profession and the civil justice system.



Paul Caputo
Consumer Attorney of the Year
FIGHTING FOR POLICY CHANGES TO HELP THE DISABLED
Borja v. Santa Clara Valley Transporation Agency

The Borja case involved the safety and liability of public transportation agencies that choose not to secure wheelchairs to buses and vans before setting them in motion.  Mr. Caputo represented Maria Borja, a disabled woman who had been the local volunteer of the year, after she was seriously injured in a bus accident when the bus driver failed to take necessary safety precautions to secure her wheelchair. According to the guidelines of the Americans with Disabilities Act, transit agencies must establish policies to either mandate wheelchair securement or ask the passengers if they will permit it. However, the Santa Clara Valley Transportation Agency was one of the few transit agencies in the nation that did not automatically secure disabled passengers who board buses in scooters or wheelchairs. Mr. Caputo took a highly unusual approach and decided to focus on the recklessness of the defendant’s wheelchair securement policy, a policy that he argued led directly to the plaintiff sustaining the major injuries. The strategy was unique in that the plaintiff acknowledged that Federal transit policy actually permitted transit agencies to adopt policies like the defendant’s. Nevertheless, Mr. Caputo argued that merely being permitted to adopt a reckless policy did not, and should not, permit the policy-maker to hide behind it when such a policy endangered the lives of those individuals the agency was required to protect. 

The jury agreed and the verdict will pay for her in-home care, but it also sent a strong signal to the VTA to change its practice and conform to the safety measures of other agencies. Caputo also took an unprecedented strategic approach, attacking the policy that led to the injuries, and not simply focusing on the negligence of the particular bus driver. VTA is in the process of changing its practice as a result of the verdict.



 

Madelyn J. Chaber and Dean A. Hanley
Consumer Attorney of the Year Finalists
OBTAINING COMPENSATION FOR ASBESTOS VICTIMS
Clinton v. Union Carbide Corporation

Ms. Chaber represented Bob Clinton and his family against Union Carbide for damages caused by exposure to drywall materials that led to Mr. Clinton’s mesothelioma, a form of asbestos-related cancer. Bob, a lifelong Salinas resident active in his local community, ran his own remodeling and construction business.  He and his wife, Gloria, ran the business, starting it when they first married in their early 20s.  Bob was the general contractor and Gloria handled the books.  Bob frequently worked around the installation of drywall materials, predominantly United States Gypsum (USG) brand drywall. Union Carbide denied that its asbestos was used in the USG materials, and it had successfully maintained this classic smoke and mirrors defense in other cases. However, with Ms. Chaber leading the charge, the jury saw through it.  Union Carbide also argued that even if it was its asbestos in the drywall, the asbestos short fibers did not cause this particular cancer. However, once the Union Carbide experts were examined, it became clear that they just could not keep the “story” straight, first arguing that the unique short fibers could not be inhaled, but then another expert testified that it was the width of the fibers that made them difficult to inhale. Ms. Chaber also presented evidence of malicious conduct on the part of Union Carbide.  One plant worker testified that he was told by management “you can eat this stuff and it won’t cause damage,” and how dust equipment was turned on only when they knew OSHA inspectors were coming.  Plaintiffs also presented evidence that when the company president did find a worker who died of cancer and asbestos was listed as a cause of death, he orchestrated an autopsy to be done and succeeded in getting the reference to asbestos removed from the death certificate.

The jury found that Union Carbide acted with malice, fraud and oppression and found in favor of the plaintiffs. In addition to the help to the Clintons, the verdict was the first one in the country that found that Union Carbide was the exclusive supplier of the asbestos fiber in post-1969 US Gypsum brand of joint compound drywall materials, an issue it strenuously disputed and has repeatedly escaped liability for on summary judgment. 



 

Robert J. Chavez and Anthony C. Lanzone
Consumer Attorney of the Year Finalists
PROTECTING CALIFORNIA’S ELDERLY AND DISABLED AGAINST NURSING HOME ABUSE
Morris v. Longwood Management 

This elder abuse case involved a poor, paraplegic man (Kenneth Morris) who lost his leg because of the nursing home’s extreme negligence and conduct the jury found “despicable.” The plaintiff was a poor, schizophrenic, paraplegic man who lives in a nursing facility. The defendant allowed a simple pressure sore in his heel to become so festered and infected that they had to amputate his leg. The loss could have been avoided simply by placing a pillow under his foot. Further, evidence showed that the facility’s policy of profits over people led to drastic under-funding and under-staffing, which resulted in the failure to follow individual care plans and to monitor conditions adequately. The State requires 3.2 hours of individual care per resident per day, but the facility had only met that requirement three days of the month preceding the amputation. 

Mr. Morris received a significant award in punitive damages, the second largest elder abuse verdict in California. More importantly, this verdict will make both the defendants and other nursing homes stand up and take notice, hopefully encouraging them to follow the law on staffing and care so that this type of tragedy can be avoided. There were no settlement offers prior to trial, and the attorneys put in over 1,200 attorney hours and risked over $150,000 in costs to advance the case. Elder abuse cases are particularly challenging for attorneys as often the key witness (the resident) is infirm, disabled, or senile and unable to participate as a witness.



 

C. Brooks Cutter, Robert A. Buccola and Harvey R. Levine
Consumer Attorney of the Year Finalists
FIGHTING FOR INSUREDS WHO WERE OVERCHARGED PREMIUMS
Vanderpool v. Allstate 

Mr. Cutter, Mr. Buccola, and Mr. Levine represented plaintiffs in this class action case leading to the recovery of premium overcharges for California’s Allstate insureds. The case involved Allstate’s practice of increasing its customers’ mileage band ratings (number of miles driven annually).  By unilaterally placing its insureds in a higher mileage band, Allstate was able to unfairly increase premium revenue.

Through extensive discovery and investigation the lawyers laid bare the scheme, including how it was implemented, the planning and communication within the company about it, and the damage to the insureds. As a result, Allstate ultimately agreed to a settlement in which claiming class members received a full refund of the premium overcharge with interest. Now, insurers disclose the mileage attributable to the insured on the declarations page, which permits an insured to challenge the amount assessed, resulting in fair premium rating.



 

Roger A. Dreyer
Consumer Attorney of the Year Finalist
SEEKING JUSTICE IN THE FACE OF CAUSATION OBSTACLES
Jose & Celia Servin v. United Parcel Service 

Mr. Dreyer represented plaintiffs arising out of a traffic collision. The plaintiff’s tractor-rig was struck from behind by a UPS tractor rig. The Plaintiff underwent surgery resulting in brain damage, but UPS contended the brain surgery was unnecessary and unrelated to the vehicle collision. This was a difficult medical causation case. The Defendant went to great lengths, through the testimony of expert witnesses, to attempt to disassociate the brain damage from the accident. Mr. Dreyer’s persistent, thorough efforts resulted in significant justice for the plaintiff.

Additionally, Mr. Dreyer recently won another significant verdict for his client, a 70-year-old chain installer on US Highway 50, who was struck by a vehicle in an area where there were inadequate warnings and signs alerting traffic to the chain installation area. The plaintiff suffered major brain injuries as a result of the accident. Mr. Dreyer’s works during this past year are clear examples of his ongoing efforts on behalf of California’s consumers.



 

Donald L. Galine and Chantel Fitting
Consumer Attorney of the Year Finalists
A SMALL PRACTIONER STANDING UP TO THE INSURANCE COMPANY FOR AN INJURED AUTO ACCIDENT CLIENT
Lindstrom v. Winheld

Mr. Galine represented plaintiff Dan Lindstrom, 30, after he was injured in an auto accident and had his life’s dreams destroyed. Dan had been swimming competitively for 20 years, had attended UC Berkeley on a swimming scholarship and was headed to the 2004 Olympics. He was driving his SUV in Berkeley when he was rear-ended by the defendant’s sedan. The force of the impact pushed Dan’s vehicle into another car in front of him. Because of the accident,  he sustained severe neck injuries, which permanently ruined his Olympic chances and eliminated his sponsorships and prize money. He could no longer train nor swim the butterfly stroke because of neck pain.

The Defendant admitted liability, but his insurer, Allstate, only offered $5,000, despite Dan’s drastic change in life plans and over $50,000 in past-lost income.  Further, Allstate refused to negotiate in good faith. Mr. Galine refused the offer and, after a four-day trial,  received a jury award of $111,000.  Allstate spent over $25,000 on experts and discovery. The defendant’s biomechanics’ expert testified that the force of the collision was too minor to cause lasting injuries. However, upon Mr. Galine’s cross-examination, the defendant expert admitted he had absolutely no familiarity with swimming at Dan’s level of aptitude. This case demonstrates the everyday struggles trial lawyers face with soft tissue injury cases as they seek justice for their clients. 



 

J. Gary Gwilliam and Jan C. Nielsen
Consumer Attorney of the Year Finalists
FIGHTING TO ENSURE A WORKPLACE FREE OF RETALIATION
Kotla v. Regents of the University of CA, Lawrence Livermore National Laboratory

Plaintiff Dee Kotla, a long term computer technician at Lawrence Livermore National Laboratory, complained to upper management for over three years about a male supervisor who was sexually harassing employees.  One employee later sued LLNL (which is managed by the University of California), alleging sexual harassment—Kotla was deposed as a witness for that employee. About one month later, she was served with intent to terminate her contract.  Ms. Kotla filed suit alleging retaliatory employment termination. After a six-week trial, the jury found in her favor, but a second trial followed when the Defendant appealed on the grounds of inappropriate expert testimony. A second trial occurred, and after five weeks of testimony, the jury found for Ms. Kotla and awarded her damages for both economic and non-economic loss. Additionally, the plaintiff’s counsel was awarded substantial attorneys’ fees. It has been almost 9 years since the lab retaliated against Ms. Kotla for testifying for a fellow employee.

This case was closely watched by union employees, consumer groups and whistle blower groups and impacted 7,000 UC employees. Each employee was aware of how its result would change their day-to-day interaction with management.  The case also led to changes in Federal Law that now requires all contractors of the government to be accountable for their own attorney fees. Prior to this time, contractors of the government (like the Lab and the UC) did not need to put their attorneys’ fees amounts for litigation in their contracts. They would pay off settlements or verdicts, but did not have to pay any litigation costs. This lack of accountability allowed them to prolong cases and delay settlement.

This case is a prime example of a total waste of government funds and intransient attitude on the part of the lab in failing to resolve the case for reasonable settlements throughout the almost 9 years of litigation.



 

Brian S. Kabateck, Mark J. Geragos, and Vartkes Boghos Yeghiayan
Consumer Attorney of the Year Finalists
BRINGING JUSTICE TO THE HEIRS OF THE VICTIMS OF THE ARMENIAN GENOCIDE
Marootian v. Turkey

This was a class action settlement for Armenians whose ancestors purchased life insurance policies in Turkey and perished in the 1915 Armenian Genocide. The case involved insurance claims against New York Life Insurance Company, which had sold about 9,000 life insurance policies to Armenians living in the Ottoman Empire prior to the genocide. During the genocide, many policyholders were killed or had to leave their homes so quickly that important papers, including life insurance policies, were lost or destroyed. Many of the beneficiaries were unable to apply for, or did not know they might be entitled to, benefits. Although New York Life was able to find and pay many beneficiaries, the company acknowledged that an estimated 2,300 policies sold to Armenians remained unpaid. Those that sought benefits faced continued roadblocks from New York Life. 

This settlement became the first recorded case addressing issues involving the genocide and focused international recognition on it. Moreover, it became the oldest resolved case in U.S. history—some 90 years had passed between the original event and the settlement. The settlement shows how far the judicial system can reach in the pursuit of justice—even when the events occurred years ago. Part of the settlement has already been distributed to Armenian charities and all funds not distributed to heirs will be donated to Armenian charities.



 

Niall P. McCarthy
Consumer Attorney of the Year Finalist
PROTECTING CALIFORNIA CONSUMERS AGAINST FRAUDULENT SCAMS
Wisper et. al v. ORTC (Old Republic Title Co.)

Mr. McCarthy represented a class of California consumers who were victims of an elaborate scam by Old Republic Title Company.  In this case, which spanned six years, Old Republic surreptitiously collected interest on consumers’ escrow deposits. As lead class counsel, Mr. McCarthy worked tirelessly on this case. The briefing was very extensive in this case with amicus briefs filed on behalf of the California Bankers Association and the California Land Title Association. The court held that Old Republic violated Business & Professions Code Section 17200 in connection with their cost avoidance and arbitrage practices. The final judgment will be returned to Old Republic customers. In addition to the monetary relief, the judgment brought “sweeping reform” to the title and banking industry. Title companies can no longer earn profits from escrow deposits made by their customers.

The presiding trial judge in this case stated that “viewing this matter prospectively, the Court cannot escape the conclusion that California Insurance Code Sect. 12413.5, as it now reads, does not permit escrow companies to retain the net interest earned on instruments required to be purchased with the proceeds of below-market rate loans extended in exchange for depositing escrow funds in demand accounts at the bank making the loan.” Because of this case, California law is clear and such fraudulent practices will not be tolerated.



 

Russell Paul Reiner and Robert G. Simpson
Consumer Attorney of the Year Finalists
EXPOSING FRAUDULENT MEDICAL PRACTICES
Tenet Healthcare Cases III 

Mr. Reiner and Mr. Simpson represented 345 Plaintiffs in this case involving widespread fraudulent medical procedures at a Redding medical center. The defendant doctors underwent unnecessary cardiac procedures when the doctors performed unnecessary heart catherizations and other invasive procedures including unnecessary coronary bypass valve surgeries. The Plaintiffs suffered horrible complications including death, brain damage, and amputation. The typical plaintiff enjoyed an active lifestyle prior to the surgery but now must cope with constant physical problems that preclude any thought of their pre-surgery level of activity. Additionally, many of the plaintiffs were told that they would risk dying without the surgical procedures. The plaintiffs were overcome with fear and anxiety and were “railroaded into the unnecessary surgery.” The Court approved a settlement between the patients and the cardiologists and Tenet, whereby Tenet would pay a substantial amount to resolve claims against it.

Long-term consequences from the unnecessary heart surgeries continue to be economically devastating to each victim. As a result of these unneeded surgeries, individuals who did not have heart disease now have it. In essence, these doctors took healthy people and gave them heart disease. The defendants literally “tinkered with human hearts for profit.” Because Medicare funds were used to pay for many of the unnecessary surgeries, the U.S. Government participated actively in this case and the  Office of the Inspector General determined that it would no longer allow Medicare payments for medical services provided at this hospital as long as Tenet owned it.