Case studies and results details

Dental Supplies Company Dismissed from Product Liability Suit

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Guy R. Gruppie, Gina E. Och and Paul R. Flaherty recently obtained an early dismissal in a multi-party toxic tort case where a former dental patient alleged that exposure to mercury contained in amalgam fillings caused him to suffer various illnesses and permanent personal injury.

Murchison & Cumming represented Den-Mat Corp., which along with approximately 50 other defendants, was alleged to have manufactured and/or distributed the allegedly defective product.

Pursuant to the terms of pleadings and discovery orders made by the Complex Case division of the Los Angeles Superior Court, Den-Mat was able to obtain an early partial dismissal of certain causes of action set forth in the multi-count complaint, and then establish that it could not have played a role in manufacture or distribution of the mercury-containing product.

Only one deposition had taken place by the time plaintiff agreed to dismiss Den-Mat in lieu of a motion for summary judgment.

Author Defeats Allegations of Defamation, Invasion of Privacy & Commercial Misappropriation

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Michael B. Lawler, Gina E. Och, and Michael J. Nunez successfully defended a defamation, invasion of privacy and commercial misappropriation case where the plaintiff, a public figure, alleged that defendant had defamed her when he made reference to her in a chapter of a book about stalking.

The defense filed an anti-SLAPP Motion to Strike pursuant to Code of Civil Procedure section 425.16, which allows the dismissal of a complaint intended to chill free speech or a party’s right to petition the court. Typically, the speech or petition right at issue concerns a matter of public interest or concern. In this case, the speech at issue concerned stalking, law enforcement techniques and the criminal justice system.

The court granted the defense’s anti-SLAPP Motion to Strike finding: (1) defendant met his burden of demonstrating that plaintiff’s complaint fell within the ambit of Code of Civil Procedure section 425.16; and (2) the plaintiff failed to demonstrate a probability of prevailing on her claims against defendant because she is a public figure and she failed to show actual malice by clear and convincing evidence. Moreover, the court found that some statements made in the book were privileged, certain statements were statements of truthful facts and other statements were statements of opinion. The court granted dismissed plaintiff’s lawsuit against the defendant.

President of Dietary Supplement Maker Dismissed from Products Liability Case

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Scott L. Hengesbach, Jane O. Matsuda, Gina E. Och and Tina D. Varjian recently obtained a dismissal in a products liability case. Plaintiff sued defendant, the president and sole shareholder of a maker of dietary supplements, for injuries she allegedly sustained by taking one of the products manufactured by defendant’s company.

The defense moved to dismiss the complaint against defendant via a motion to quash summons based on the contention that the court could not exercise personal jurisdiction over the defendant. Specifically, the defense argued that defendant, a resident of Missouri, did not have sufficient minimum contacts with the State of California. The plaintiff argued that California had personal jurisdiction over defendant because he was allegedly a designer and promoter of the dietary supplement, as well as President and sole shareholder of the company.

The trial court granted the motion and dismissed the defendant. Plaintiff appealed the dismissal. On appeal, the order of dismissal was affirmed by the Court of Appeal. The appellate court found that the trial court did not err in finding that the State of California could not exercise personal jurisdiction over defendant because, despite his close connection with the company, he did not purposely avail himself of the benefits of California or intentionally cause an effect in California.

Window Manufacturers Successful in Construction Defect Trial

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Tom E. Dias successfully defended Rolleze, Inc. and Robert H. Panman successfully defended California Windows Corporation, in a complex construction defect action involving 102 homeowners. Plaintiffs’ experts alleged that the windows installed in the 102 single-family homes were defective and needed to be replaced. Rolleze products were installed in 39 of the homes, while California Windows Corp. products were installed in 15 of the 102 homes. The plaintiffs argued that the windows did not have a sufficiently high rating for the homes.

On behalf of their respective clients, Mr. Dias and Mr. Panman argued that the windows were in fact, properly rated and that there was no evidence that the window products were defective when they were delivered to the job site.

The plaintiffs’ case went to the jury against the developer, roofers, framers, stucco subcontractors, window manufacturers and garage door manufacturers. Plaintiffs asked the jury to return a verdict of 7.5 million dollars, while the defense argued the case had a value of approximately 1 million dollars. The demand to Rolleze was more than $400,000, while the demand to California Windows was in excess of $200,000. During the course of the trial, Plaintiffs abandoned their claims for personal injury from exposure to mold.

Prior to trial, the judge dismissed two Rolleze homeowners and three California Windows homeowners. Cases against the remaining 37 Rolleze homeowners and 12 California Windows Corp. homeowners went to jury.

After three and a half months of trial and another four weeks of deliberation, the jury returned a defense verdict in favor of Rolleze on 16 homes and awarded plaintiffs damages in the sum of $8,640.00 (inclusive of Stearman costs) against Rolleze for the remaining 21 homes.

California Windows received a full defense verdict on eight of the homes. On the remaining four, plaintiffs were awarded $1,550.00. Plaintiffs’ total recovery on all issues, against all defendants, was $771,955.00 (inclusive of Stearman costs).

After speaking with jurors, the defense learned that the jury found no defect with the window product and only awarded damages against Rolleze and California Windows for water intrusion at sliding glass doors (which Rolleze and California Windows both manufactured and installed) and for fogging of some dual glazed windows. The jury determined that the framing and stucco subcontractors were 100% responsible for water intrusion at all other windows due to defective installation.

“This was a terrific verdict. There is a strong belief amongst the industry that settlements in these cases no longer reflect the true value of the claim and instead are driven by the cost of defending a case of this magnitude through trial. This verdict sends a message that insurance carriers can and will successfully try these cases, which will result in evidence based settlement negotiations as opposed to settlement discussions based on defense costs,” said Mr. Dias.

Luxury Hotel Chain not Liable in Jewelry Theft Case – Summary Judgment Granted

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Steven L. Smilay, Corine Zygelman and Gina E. Och successfully defended a case involving a luxury hotel chains’s liability in federal court. Plaintiffs filed a complaint against defendant for failing to provide adequate security for valuables.

Plaintiffs alleged that, while they were registered guests at the defendant’s hotel, their jewelry valued by plaintiffs to be between $100,000 and $300,000, was allegedly taken by an unidentified person from a locker at the hotel spa. As a consequence, the plaintiffs further alleged that the hotel failed to provide either security or “adequate advice” to its guests and failed to “provide for a secure place to be theft-free while plaintiffs were present on the property.”

The defense filed a motion for summary judgment based on the California innkeeper statutes codified at California Civil Code Sections 1859 and 1860, whereby a hotelkeeper’s liability is barred if certain conditions are met. In particular, Section1860 frees a hotelkeeper from all liability if it keeps a fireproof safe, notifies guests of the safe, and the guest chooses not to deposit his or her property in the safe for safekeeping. In this case, the plaintiffs were advised of the firerproof safe on the hotel’s premises, but chose instead to keep the jewelry in a little white box, which was kept in a purse. Moreover, despite the claimed value of the jewelry, the plaintiffs stored the purse in a locker at the spa while plaintiffs were using the hotel spa. Consequently, based on the California Innkeeper statutes, plaintiffs were barred from asserting any liability against the hotel arising from the theft of the jewelry from the locker.

The court granted summary judgment in favor of the defense.

Accidental Death at Work Leads to Multi-Million Dollar Product Liability and Wrongful Death Dispute

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On May 2, 2001, Timothy Long, age 34, was operating a pedestal grinder at Lufkin Industries in Bakersfield, California, when the attached 12 inch grinding wheel “exploded”. Although he was wearing the appropriate safety equipment, fragments of the wheel penetrated his skull and he suffered severe injuries that led to his death a few days later.

Timothy’s surviving family members, his employer and the worker’s compensation insurance carrier for Lufkin, filed a products liability claim against Independent Welding Distributors Cooperate/Weldmark (IWDC/Weldmark), represented by Guy R. Gruppie, Heather L. Mills and Karen Ahearn, and against several other parties. Plaintiffs alleged that IWDC/Weldmark designed and distributed a defective grinding wheel that burst unexpectedly during use by Timothy. They also contended that since the grinding wheel remnants, when re-assembled post-accident, clearly stated “Weldmark” on the label, defendant was liable as a manufacturer and/or distributor of the same, even though Lufkin, the employer had no records of any purchase of equipment from IWDC/Weldmark.

As a mere cooperative, rather than design/manufacturer or seller of equipment for the welding trade, IWDC/Weldmark denied any role in the design engineering, manufacture and/or distribution of the accident grinding wheel, denied ever manufacturing grinding wheels and denied ever permitting any person or entity to make/sell grinding wheels under the good use of its name.

The surviving family of the decedent included his wife, age 22, and three children, ranging from 14 to 3. Lufkin and Sentry sought recover of costs paid in the underlying worker’s compensation case, believed to have been in excess of $400,000.

The court determined as a matter of law that IWDC/Weldmark was not involved in the design, manufacture or distribution of the grinding wheel in question and granted defendant’s Motion for Summary Judgment.

Actor Sues Multiple Employers After Taking The Hot Seat!

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Kenneth H. Moreno and Ian Fusselman successfully moved for summary judgment in a special employment case involving a stand-in actor who was injured on the set of a television production. Plaintiff was involved in the filming of a special effect scene when he unknowingly sat on a towel that was wet with liquid nitrogen. Plaintiff suffered chemical burns to his buttocks and upper thighs.

Murchison & Cumming represented the production company responsible for the show and the special effects coordinator responsible for the subject effect. As an administrative convenience, the production company out-sourced all payroll related tasks to a third-party payroll service. The payroll service was designated as the “Employer of Record” and was responsible for processing payroll, withholding taxes, compulsory federal and state reports, and maintaining workers’ compensation insurance.

Plaintiff filed suit against the production company under the theory that the payroll company was his employer for workers’ compensation purposes and the production company was a viable third-party defendant. A Motion for Summary Judgment was filed on behalf of the production company on the ground that the exclusive remedy provisions of the worker’s compensation system, under the Special Employment Doctrine, limited Plaintiff’s rights of recovery. This doctrine establishes that, under certain situations, an employee can have two employers for the purposes of worker’s compensation. The primary issue in establishing the special employee relationship is whether the “special employer” has the right to control the details of the employee’s work. Although the existence of the special employment relationship is normally a jury issue, the Court can make the determination as a matter of law if the evidence and reasonable inferences drawn from the evidence do not conflict and allow only one conclusion.

In the Motion for Summary Judgment, it was established that the payroll company was not involved in any way in hiring or supervising the production’s employees. Instead, it was proven that the production company had the right to control, and did in fact control, the details of Plaintiff’s work. In opposition, Plaintiff contended that every employee on the set had a third-party payroll company designated as their “Employer of Record” and argued that there was a triable issue of fact as to who was actually responsible for the actions of each person on the set.

The trial court granted summary judgment in favor of the defense, precluding Plaintiff from proceeding with a civil action against the production company, leaving Plaintiff to his remedies available under the workers compensation system.

Homeowners Association Wins Dispute Over HOA Fees

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Dan L. Longo, Richard D. Newman and Michelle A. Hancock of the firm’s Orange County office successfully defended a local homeowners association in a law & motion matter. A dispute arose between the Homeowners Association and a homeowner over unpaid HOA dues. The Association filed a foreclosure action against the owner, who then filed a cross-complaint alleging numerous tort theories of liability against the HOA.

After a lengthy discovery process, wherein the judge was forced to appoint a discovery referee because the homeowner objected to each and every request for documents and responses to interrogatories, the referee granted the Association’s motion to compel in its entirety and assessed sanctions of over $3,000 against the homeowner’s attorney. At the same time, the homeowner attempted to file a §170.6 affidavit on the referee, filing several objections and motions and a writ seeking to vacate the proceedings before the referee. The court adopted the referee’s proposed order in full.

The discovery order was in July 2002. The homeowner did not comply but instead filed a motion to vacate and then yet another writ, which were denied in September 2002. Edwards still would not respond to the discovery and refused to pay the sanctions. In the meantime, the court set the matter for trial on May 12, 2003. Last month I filed a motion for terminating or issue sanctions based on their failure to comply with court order. Edwards opposed it by arguing basically the same grounds that he had unsuccessfully argued in the numerous proceedings last year.

Judge Trask in Riverside heard the motion, finding that the homeowner’s failure to comply with the discovery order to be inexcusable and dismissed the cross complaint at trial.

Summary Judgment Granted in Favor of GL Realty

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Summary Judgment in Premesis Liability Case Summary judgment was recently granted in favor of GL Realty in a premises liability case handled by Guy R. Gruppie, Catherine B. Kim and Michael J. Nunez of Murchison & Cumming’s Los Angeles office.

The plaintiff, a 69-year-old retired retiree, tripped and fell over a handicapped parking tire stop fracturing her left elbow, arm and shoulder. The accident occurred in the parking lot of a suite of medical offices when she was accompanying her grandson and elderly husband to a doctor’s appointment.

She underwent several surgeries and required placement of internal fixation. Besides orthopedic complications, her doctors opined that plaintiff’s pre-existing coronary artery disease was worsened by the accident and related surgeries. Her medical bills approached six figures.

Plaintiff’s husband did not see the accident, but did seek recovery on a loss of consortium claim.

The complaint alleged that the property owner, which also developed the land, was negligent because the tire bump was placed near a pedestrian walk path to/from the medical suites, constituting a hazard to individuals entering and exiting the building.

At deposition, plaintiff admitted, several times, that she had noticed the tire stop before she tripped over it, that it was not obscured from view and that she had safely entered the building that way, that day, by taking the same path, going safely past the blue tire stop.

Defendant’s motion for summary judgment argued that the tire stop was not a dangerous condition in that it was open and obvious. The court ruled as a matter of law that the placement of the tire stop did not constitute a dangerous condition, that if there was a danger plaintiff was well aware of it, and that the defendant had no duty to warn of such an obvious condition of the premises.

Larussa-Ghianni Inc. Extricated from Brain-Injury Lawsuit on Summary Judgment

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William J. Snyder and Scott J. Loeding of Murchison & Cumming’s San Diego office successfully extricated their client, LaRussa-Ghianni, Inc., from a brain-injury lawsuit when they prevailed on a motion for summary judgment in a construction injury case. Before filing the motion for summary judgment, the settlement demand to all defendants was $5 Million.

Defendant LaRussa-Ghianni Inc., a lath and plaster subcontractor, hired plaintiff’s employer to perform fireproofing work on the inside of the building. Plaintiff was a construction worker who fell approximately 30 feet down an elevator shaft while spraying fireproofing glue on the 3rd floor ceiling of a commercial building during a renovation project. Discovery revealed that safety barricades had been removed from the elevator shaft on the morning of the incident. Plaintiff testified that he was looking up at the ceiling while spraying the fireproofing material and walked into the shaft believing that it was the doorway to another room.

Plaintiff was 19 years old, with a wife and a one-year-old child. His claimed injuries included brain damage, multiple fractures to his left leg and femur, fractured jaw, loss of teeth, loss of sensation on the right side of his face, permanent scarring on his face and legs and the inability to engage in sexual relations with his wife.

His medical expenses were approximately $309,000 with at least one future surgery required for the non-union fracture of left femur. His loss of earning was approximately $26,000 and growing, with a claim for vocational rehabilitation.

The injured worker’s father was also a plaintiff, claiming negligent infliction of emotional distress. The father testified that he was working approximately 20 feet from the elevator shaft and saw his son fall down the shaft. The father then ran downstairs to the base of the shaft and held his son in his arms until the ambulance arrived.

The basis for LaRussa-Ghianni’s motion for summary judgment was that LaRussa-Ghianni only worked on the outside of the building as a lath and plaster subcontractor, and therefore, could not have any notice that the barricades had been removed from the elevator shaft. Further, LaRussa-Ghianni did not retain control over safety conditions at the site, did not control, supervise or participate in the fireproofing work and did not affirmatively contribute to the accident.

The court granted LaRussa-Ghianni’s motion for summary judgment as to the complaint and all cross-complaints, and awarded costs to be paid to LaRussa-Ghianni of approximately $5,000.