California Injury Lawyer Blog

A San Jose, CA jury late yesterday afternoon awarded a former foster care child $30 million in damages for sexual abuse the child endured due to the negligence of the private company that licensed the foster home in which the child was placed for four years. (See Mercury News)

The plaintiff, who for privacy issues is only identified as John Doe, was 11 years old when he was placed in the foster home of John Jackson in Santa Clara County, California. Doe was forced into more than 600 acts of sexual abuse by Jackson from December 1995 to March 1999 when Doe was removed from the home.

The defendant in the case, Giarretto Institute, was licensed by the State of California to supervise and monitor the Jackson home as a foster family agency. The jury found Giarretto 75 percent responsible for the injuries to Doe and Jackson 25 percent responsible. Giarretto is responsible for $22.5 million of the $30 million verdict.

Doe is now 25 years old and suffers from residual mental distress as a result of the abuse. Three other foster children who were also in the Jackson home and suffered similar abuse have lawsuits pending.

At trial, the plaintiff's attorney, Stephen Estey of Estey Bomberger presented extensive evidence showing that Giarretto did not properly train its employees, many of whom had other full time jobs and worked for the company on a part-time, off-hours basis. When allegations of sexual abuse were raised by the foster children, Giarretto did not have any investigators with sexual abuse experience, so the allegations were not properly investigated and were found by Giarretto's staff to be unsubstantiated.

The trial lasted two and one half weeks, and the verdict was returned in one day. The jury was comprised of seven woman and five men. The Honorable Peter Kirwan presided over the trial.

The verdict is the largest in California this year for a single person sex abuse case and is one of the largest verdicts in the state in 2010. It is believed to be the largest verdict in California history for a single person sex abuse case.

During the trial, the jury heard testimony that the company which initially licensed the Jackson home (Giarretto subsequently purchased that company) did not conduct a proper background check of Jackson. An elementary reference check of Jackson would have uncovered disturbing information about his past that would have disqualified him from being a foster parent, such as a history of inappropriate sexual conduct including sex with a minor, a history of drug and alcohol abuse, threats toward others with firearms, physical abuse toward his pregnant wife and suicide attempts resulting in psychiatric hospitalization.

Jackson has been convicted of his abuse against Doe and the other victims and is currently serving a 200+ year sentence.

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In personal injury news, after a three-week trial and two days of deliberation, a jury in Barstow has awarded $32.2 million to a 17-year-old boy who was left quadriplegic after he jumped from a moving pickup truck and struck his head on the pavement on Highway 127 in 2003. The family of Dillon Elkins will receive 80% of the award, as the jury found the driver 80% at fault, and Dillon 20% at fault.

According to the LA Times, back in 2003, Dillon Elkins (who was 10 at the time) and another 10-year-old boy approached a football player, Robert Murchison, who was 18 at the time, and asked for a ride. Murchison alleged he said no, because the cab of the truck was full, and that Dillon and the other boy got into the cab of the truck on their own.

In court documents, Dillon's attorney contended that Murchison told the two young boys that if he saw a cop, he would yell or honk, and they should jump out. On northbound CA-127, Murchison saw a CHP vehicle going in the opposite direction, and reportedly told the boys to jump.

Dillon's mother was told at the hospital that he might mot make it through the night. He remained in a coma for three weeks. He sustained a massive traumatic brain injury that left him unable to talk, walk or eat anything except through a feeding tube.

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In personal injury lawsuit news, on May 29th, a jury in Yolo County awarded a 63-year-old man $1.5 million for injuries he suffered in a truck accident on October 2, 2004. According to the Daily Democrat, plaintiff Michial Jacobs was driving his pickup truck pulling a trailer on I-505 north of Highway 16 when the driver of a big rig truck behind him fell asleep at the wheel.

The big-rig, loaded with 40,000 pounds of sugar, rear-ended Jacobs' pickup truck and trailer at about 55 mph. Jacobs reportedly suffered a concussion, fractured a left rib, and an injury to his mid back which resulted in chronic back pain. He has not been able to return to work as a carpenter since the accident.

The truck driver was employed with Washington state-based companies Pacific Transportation Services and Ernie Newland. The Daily Democrat reported that the plaintiff offered to settle on June 20, 2007, for the insurance policy limits. As a result of the defendants' refusal to accept that offer, the plaintiff is entitled to an additional $442,000 in interest plus all costs. The jury's award is the largest known verdict for a single person's injury in Yolo County.

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In personal injury lawsuit news, a jury in Miami-Dade recently awarded more than $14 million to a Sarasota man who inhaled asbestos in the 1970s and now has mesothelioma.

According to the Miami Herald, William Aubin, a 59-year-old retired firefighter, worked for his family's construction company in the 1970's and during that time, was exposed to joint compounds laden with asbestos. Eventually, Aubin developed peritoneal mesothelioma, a rare and usually fatal type of cancer that attacks the lining of the abdominal cavity and organs.

The jury found chemical manufacturer Union Carbide was negligent in using the asbestos fibers to make the joint compounds that were used by Aubin's family's construction company. The labeling on the compounds did not mention asbestos or warn users about the dangers associated with asbestos. The jury also found four of the compound manufacturers, including Georgia-Pacific, shared some of the responsibility for causing Aubin's cancer.

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In personal injury news, a lawsuit has been filed after a 44-year-old man suffered catastrophic injuries in a fall from a zipline ride at a Scout-O-Rama event at Kelly Park in San Jose on May 9, 2009.

The victim, Linden Feldman, a software engineer and former Eagle Scout, was told he was safely hooked on to the zipline ride and jumped from the tower, yelling "Geronimo." His 10-year-old son and 9-year-old daughter witnessed his terrifying, almost instant 25 foot fall to the ground. The injuries he sustained in the fall left him in a coma for a week with a traumatic brain injury, a collapsed lung, respiratory failure surgery required to remove portions of his bowel.

Court documents allege that the Boy Scout leader did not know that he had to shackle riders to the safety ring on the harness. Instead, he attached riders to a thin piece of nylon cloth. The method was strong enough to hold small children, but was not strong enough to hold Feldman, the first adult to ride the zipline. The suit was filed in Santa Clara County Superior Court against the Boy Scouts of America and the Santa Clara County Council of Boy Scouts.

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In medical malpractice news, a jury in Palm Beach County awarded a woman $36 million after an epidural administered during a pain management procedure went horribly wrong. The woman, 52-year-old Kathleen Ramey, has difficulty walking and lost the use of her right hand after her doctor administered the epidural in 2000.

Ramey had been seeking pain relieve from a previous injury suffered in a car accident when the doctor penetrated her spinal cord with the epidural, causing significant damage. The doctor who administered the epidural, Andrew Weiss, did not attend the two-day trial in West Palm Beach, as he is currently serving a federal prison sentence on a conviction of peddling prescription drugs. Weiss was apparently given the opportunity to appear on his own behalf, but declined.

As it stands the award will be difficult to collect, as Dr. Weiss filed bankruptcy just days after the procedure, and Weiss's medical malpractice insurer denied Ramey's claim. However, the jury's award was the first step in a lawsuit against Weiss's medical malpractice insurance company.

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Increasing numbers of cancer patients are receiving a type of radiation therapy known as IMRT (intensity modulated radiation therapy). This relatively new type of therapy is substantially different from standard linear accelerator radiation therapy and has been used since the 1990's. It has been hailed as a "breakthrough" in radiation treatment for mesothelioma, prostate cancer, breast cancer, thyroid cancer, lung cancer, gastrointestinal and gynecologic malignancies and other types of cancer. However, not everyone has benefited from IMRT therapy, and some patients have been seriously harmed when the target is missed, the wrong dose is given, or the wrong patient is treated.

How IMRT Therapy Works Works

The concept and intention behind IMRT therapy sounds good, but critics believe the complex technology may be getting ahead of basic safety protocols. With IMRT therapy, the radiation oncologist can target the tumor and completely avoid radiating normal, healthy cell tissue. Using a 3-D CT scan and computerized doze calculations, IMRT essentially allows higher doses of radiation to be focused on the tumor, while minimizing the amount of radiation to healthy tissue. IMRT utilizes complex algorithms that determine a dose based on a three-dimensional image of a tumor. The treatment is administered by a team led by a radiation oncologist, a physician specially trained to develop and prescribe a cancer patient's treatment plan, and adjust treatment as necessary.

Problems with IMRT Therapy

In January 2010, the New York Times told the story of Scott Jerome-Parks, a 43-year-old man who died in 2007, several weeks after a computer error in a radiation therapy machine blasted his brain stem and neck with errant beams of radiation on three separate occasions (see "Radiation Offers New Cures, and Ways to Do Harm"). There are a number of problems with IMRT therapy, from the way radiation oncologists are taught to implement the treatment to the unstable software that runs the machines. According to the Times, "while this new technology allows doctors to more accurately attack tumors and reduce certain mistakes, its complexity has created new avenues for error -- through software flaws, faulty programming, poor safety procedures or inadequate staffing and training." In New York, from January 2001 to January 2009, there were 621 radiation mistakes (see statistics).

Serious Consequences for Patients

The risks of radiation can be likened to the risks of other invasive procedures like surgery or chemotherapy. Mild radiation burns are comparable to a sunburn, but serious radiation injuries can cause organ failure or death. There are no concrete statistics on how often radiation overdoses or radiotherapy accidents occur. Some of these accidents are on a clerical level; the New York Times mentioned 50 instances where patients received radiation treatment intended for another patient, including a brain cancer patient who received radiation treatment intended for someone with breast cancer.

Radiation Injury Lawsuits

In the vast majority of cancer patients, radiation therapy is beneficial. However, in a number of situations, radiation therapy has gone horribly wrong, causing disastrous consequences to the patient. The lawyers at Estey Bomberger have handled a number of overradiation cases involving CT scan overradiation and overexposure, and we are closely monitoring overradiation cases involving IMRT radiation therapy. If your or a family member has been subject to a radiation injury, or negative IMRT side effects following any type of radiation cancer treatment, contact us for more information and to discuss your potential case.

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The Daily Breeze reported this week that a Silver Lake man has filed a civil wrongful death lawsuit against RA Sushi in Torrance, and its parent company, Benihana, for the death of his wife following a car accident on July 2, 2009.

According to the suit, the sushi restaurant on Carson Street provided alcoholic beverages to Paul Kyu Kim, 20, knowing he was drunk, and allowed him to drive away, even though he showed classic symptoms of intoxication. After he left the restaurant, Kim allegedly drove on the Long Beach Freeway (710 Freeway) at speeds reaching 100 mph, and crashed into the back of a car driven by Drean Handley, 59, of Silver Lake.

Drean suffered a broken spine, broken ribs, major internal injuries and paralysis. She died of her injuries a week after the crash.

Kim was charged with driving under the influence causing injuring, and driving with a 0.08 BAC level or more. He has pleaded not guilty and is currently free on bail awaiting court proceedings in Compton, scheduled for May 18. If convicted, he could receive up to 10 years in prison.

According to the Daily Breeze, "The lawsuit uses RA Sushi's own marketing strategy against itself as a place that caters to young patrons. The lawsuit cites references on the restaurant's Web site that calls it a place "Where Iron Chef meets Girls Gone Wild," and "The perfect place to cut loose with good friends, toss back a few, and enjoy the best damn sushi the ocean has to offer."

Civil Liability For Providing Alcohol to Minors

A dram shop is a legal term that refers to an establishment where alcohol is served, such as a restaurant, bar or tavern. Dram shop laws hold retail establishments accountable for any harm--death, injury, or other damages--caused by an intoxicated patron. In California, dram shop liability is limited to cases involving alcohol sales to intoxicated minors, as is allegedly the case in this wrongful death suit. Laws vary from state to state, but serving alcohol to minors is illegal in all 50 states, and restaurants and bars may be held financially accountable for the consequences.

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After Consumer Reports magazine issued a rare "Don't Buy: Safety Risk" warning on the Lexus GX460 SUV, Toyota says it will stop selling the vehicle to conduct its own testing about the safety of the vehicle. According to Consumer Reports, the seven seat SUV did not handle well in safety tests, and slid until it was nearly sideways before the electronic stability control system regained control. Consumer Reports said, "When pushed to its limits on our track's handling course, the rear of the GX we bought slid out until the vehicle was almost sideways before the electronic stability control system was able to regain control. We believe that in real-world driving, that situation could lead to a rollover accident, which could cause serious injury or death. We are not aware, however, of any such reports."

The "Don't Buy" warning is the first warning issued since 2001. The Toyota 4Runner, which shares the same platform as the GX 460, doesn't have the same problem.

Toyota initially responded in a statement, "We're concerned with the results of Consumer Reports testing on the Lexus GX 460 and their suggested buyer recommendation. Our engineers conducted similar tests during the development of the new GX and had no issues. However, we will try to duplicate the Consumer Reports' test to determine if appropriate steps need to be taken. Please keep in mind that the 2010 GX 460 meets or exceeds all Federal Government test requirements. Customer safety and satisfaction remain our highest priorities. We take the Consumer Reports' test results very seriously and appreciate them bringing it to our attention." Later in the day, Toyota announced it would stop selling the vehicle, at least temporarily.

About 5,000 GX460's have been sold in the three months since they went on sale. The GX460 debuted at the China International Automobile Exhibition in November 2009.

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As the number of Zicam lawsuits continue to rise, Matrixx Initiatives, the maker of Zicam, has introduced a new line of Zicam products - Cold Remedy Plus. The Cold Remedy Plus products, cherry-flavored Zavors and cherry-flavored Liqui-Loz, are a multi-ingredient formulation marketed to reduce the duration of the common cold and relieve symptoms of people with the common cold. Two mint flavors, available in a rapid melt and an oral mist, will launch this fall. Matrixx Initiatives will be spending $23 million to advertise the products across print, radio and television media formats.

FDA Warning Regarding Zicam

On June 15, 2009, after identifying at least 120 reports of people losing their sense of smell, the FDA issued a warning letter recommending consumers immediately stop using certain Zicam Cold Remedy products, including Zicam Cold Remedy Nasal Gel, Zicam Cold Remedy Nasal Swabs and Zicam Cold Remedy Swabs Kids Size. Very shortly thereafter, Matrixx Initiatives issued a recall of the Cold Remedy products. Matrixx has reportedly received more than 800 reports of loss of smell from consumers.

Zicam Injury Lawsuits

Matrixx Initiatives has twice requested the FDA retract their warning, but the FDA has twice refused. Zicam's manufacturer is now facing lawsuits alleging that they knew their Zicam products were dangerous but continued to advertise and sell them anyway. Zicam is also facing litigation from Matrixx investors alleging the over-the-counter healthcare manufacturer hid the complaints of smell loss from investors. The Securities and Exchange Commission is also investigating Matrixx Initiatives.

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Two people were killed Sunday, March 28, 2010 in a SUV rollover accident on southbound Interstate 15, the California Highway Patrol reported. The accident occurred at about 7 p.m., north of State Highway 138 in the Cajon Pass. According to a statement released by the San Bernardino County Sheriff-Coroner's Department, officers responding to reports of the accident found the red 2001 Ford Explorer overturned in a ravine on the west side of the freeway. Witnesses said the Ford Explorer was travelling at between 60 to 65 mph in the #1 lane of I-15 when, for unknown reasons, the SUV veered across all lanes of traffic and overturned multiple times. The victims were identified as George Perry, 58, of Rancho Cucamonga, the passenger, and Clara Perry, 59, also of Rancho Cucamonga, the driver. Both died at the scene of the crash.

Fatal Rollover Accidents in Southern California

This heartbreaking accident serves as another reminder of the potentially deadly consequences of SUV rollovers at highway speeds. Sadly, this accident is only one of many fatal SUV rollovers in Southern California this year. Just last Tuesday, two teens were killed in a SUV rollover on Interstate 5 involving a 2003 Nissan Xterra. Earlier this month, on March 21, 2010, a 46-year-old San Bernardino woman was killed in a solo-vehicle SUV rollover on southbound I-15 near Kenwood Drive. That accident was attributed to a tire blowout. Last December, a 24-year-old man was killed in a rollover accident on northbound Interstate 15 in Barstow.

Ford Explorer Rollovers & Liability

In February, a jury in West Valley Superior Court returned a 12-0 verdict ordering Ford Motor Company to pay $23.5 million to a woman paralyzed after a 1997 Ford Explorer rollover accident on March 23, 2007. At trial, jurors saw evidence Ford knew of the safety issues, and that engineers had made recommendations to improve vehicle safety, but management turned down recommendations. Ford has paid out hundreds of millions to victims and their families injured or killed in Ford Explorer rollover accidents.

Although this most recent Interstate 15 accident is still under investigation by the California Highway Patrol, the family of the two people killed in the Cajon Pass accident would be well advised to consult with a California SUV rollover accident lawyer about their legal rights. An attorney who has successfully handled large damage cases against major automakers can help the family obtain justice for their loss and hold the parties responsible accountable to the maximum extent.

Last week, a Superior Court jury in Sacramento awarded $24.3 million in damages to an Oregon girl who was run over by her father's big rig truck in 2004, the Sacramento Bee reported March 9th. The jury verdict to determine monetary damages came after a judge found the father's employer, Freeway Transport Inc., liable for the girl's injuries on December 14, 2009. In his decision, the judge determined that the defendant was listed on the shipper's bill of lading as the carrier, and the carrier had insured the load.

Diana Yuleidy Loza-Jimenez, who was 14 at the time, suffered catastrophic injuries on Novenber 27, 2004, when she got caught under the rear wheels of her father's truck near Mount Shasta. The accident occurred when Loza-Jimenez accompanied her father and mother on a Thanksgiving weekend long-haul trip from Hermiston, Oregon to Bakersfield, CA. While getting back into the truck after stopping for a break on the trip, she became caught in the wheels of the truck. Loza-Jimenez suffered severe injuries to her lower body, and she faces at least a dozen future surgeries, including a possible hip replacement.

Before the damages portion of the trial was decided, the judge ruled from the bench to exclude the jury from knowing it was the victim's father who accidently ran over her. Following a 13 day trial to decide damages, the jury awarded $24.3 million to the victim, including $2.2 million for the girl's past medical expenses, including $1.6 million in costs incurred at Shriner's Children's Hospital, plus $2.1 million for future economic damages, $8 million for past pain and mental suffering and $12 million for future noneconomic losses.

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The wife, son and daughter of a cyclist killed in a bicycle accident last August in Baltimore have filed a civil wrongful death lawsuit seeking $5 million in damages from the driver of the truck that allegedly ran over the cyclist, and his employer. The accident was a hit-and-run, but was caught on camera by nearby surveillance tape.

According to the Maryland attorney representing the victim's family, the truck driver and his employer, a demolition, excavation and equipment rental company, were negligent because the driver turned without signaling or making sure traffic was free of cyclists or pedestrians. The attorney also contends that the victim, John R. "Jack" Yates, 67, was not at fault because he was staying with the flow of traffic, as far to the right as possible. Police investigators contended that Yates was at fault for riding in parking lanes.

An attorney for the truck driver's employer said the vehicle that struck Yates was not a company truck, and that testing of blood and hair found on the truck returned "inconclusive" results. The truck did not stop after the accident, and investigators believed the truck driver was not even aware that he had run over Yates.

Yates' death was a factor in the passing of a law in the Senate requiring motorists to stay three feet away from cyclists in Maryland.

On Monday, opening statements will begin in the first Seroquel diabetes lawsuit trial to reach a jury. The case is being brought by Ted Baker, a Vietnam veteran who alleges that he developed diabetes after he was prescribed Seroquel to treat his post-traumatic stress disorder.

Seroquel is one of the best selling drugs for pharmaceutical giant AstraZeneca. It is used in the management of schizophrenia and bipolar depression, but is commonly prescribed "off-label" for treating obsessive dementia, obsessive compulsive disorders, anxiety, autism, alcoholism, tourette syndrome, and post-traumatic stress disorder. Seroquel is available in 25 mg, 50 mg, 100 mg, 200 mg, 300 mg and 400 mg tablets. Annual sales for Seroquel are estimated to be $4.7 billion nationwide, and $2.7 billion in the United States. The drug has been used by more than 19 million people around the world.

One of the side effects of taking Seroquel is weight gain, and the heightened risk of diabetes. Taking Seroquel (quetiapine fumarate) can cause the patient's appetite to persist even after eating a meal.

Baker's lawsuit is one of an estimated 26,000 claims against AstraZeneca over the side effects of the drug. The lawsuits allege that AstraZeneca did not warn patients about the risks of weight gain and diabetes, pancreatitis, and tardive dyskinesia, a rare movement disorder. Court documents suggest that AstraZeneca knew of the possible weight-gain side effects of Seroquel, but continued to market the drug as "weight neutral," even after clinical trial evidence confirmed the drug could cause significant problems.

Yesterday, after a 15-day trial, a Pomona Superior Court jury awarded $12 million to a woman who suffered a traumatic brain injury after being shot with an airgun at a family member's home in El Monte on September 4, 2007. The woman, Jessica Ramirez, was conscious after being shot in the head and was able to walk into Greater El Monte Community Medical Center on her own.

After going to the hospital following the airgun incident, Ramirez remained at the El Monte hospital for five hours until she was flown to Huntington hospital in Pasadena and rushed into surgery. At the trial, the neurosurgeon that operated on the woman at Huntington Hospital testified that he was certain she would have had a better outcome if he had been able to operate sooner. Another medical expert testified that "earlier surgery would have allowed Jessica Ramirez to care for herself and live independently," the San Gabriel Valley Tribune reported.

The family of Jessica Ramirez, represented by a southern California medical malpractice attorney who is also a medical doctor, brought the suit against AHMC Healthcare, Inc., which owns Greater El Monte Community Hospital. According to the suit, the negligence of Greater El Monte Community Hospital allowed bleeding and pressure on Jessica Ramirez's brain to cause permanent damage. Because of the brain damage, she now is in a "minimally conscious" persistent vegetative state in a nursing home, and requires 24-hour care.

Hospital officials said in a written statement they would appeal the verdict.

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