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Articles

By Brian Chase on May 13, 2013 - No comments

Identifying and Litigating Quality and Products Defect Cases

Brian D. Chase (Bisnar Chase Personal Injury Attorneys) and Scott D. Raphael (Litigitechnology, Inc.)

One of the costliest but most satisfying and rewarding areas of product liability litigation involves automobile product liability defect cases. Without considerable self-schooling, exposure and experience in handling these cases they can quickly prove overwhelming or even well beyond the resource capability to a relatively small practitioner’s office. Spotting the quality auto product liability case from an ocean of potential defect litigation is therefore essential to survival and success in this field.

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Expert Witnesses and Motions in Limine

Brian D. Chase (Bisnar Chase Personal Injury Attorneys) and Scott D. Raphael (Litigitechnology, Inc.)

Since well prior to the 1986 Discovery Act, parties were at best committed to guesswork in ascertaining what expert discovery would be permitted at trial based on pretrial inadequacies in the disclosure of expert witnesses, of the scope of expert witnesses’ opinions, the transactional nature and source of acquisition of the expert’s opinions, and the adequacy of the expert’s deposition testimony as to the scope of his anticipated trial testimony. This followed largely from the lack of any meaningful guidance by the Courts or the Legislature on these subjects.

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Multiplying Your Tort Recovery by Eliminating Settlement Set-Offs Under Proposition 51

Brian D. Chase and Scott D. Raphael

The Electorate’s Attack on the Perceived Common Law “Deep Pocket” Rule

On June 3, 1986, California voters approved Proposition 51, the so-called “Fair Responsibility Act of 1986.” (Civil Code § 1431.2 – 1431.5) Its purpose was to remedy a perceived “deep pocket” injustice built into the doctrine of joint and several liability, whereby “if a defendant was found to be at all negligent, regardless of how minimally, under the joint and several liability rule he could be held responsible for the full damages sustained by the plaintiff, even if other concurrent tortfeasors had also been partially, or even primarily, responsible for the injury.” (See, Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1196.) This perceived injustice had been further complicated by the adoption of the pure comparative negligence doctrine in California in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, which abrogated the all-or-nothing contributory negligence doctrine and instead held that “the contributory negligence of the person injured…shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.” (Id., 13 Cal.3d at 829.)

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Cutting Edge Testing For Rollover Cases: NHTSA’s Road Edge Recovery Maneuver

By Brian D. Chase

For those of you who practice in the area of auto crashworthiness litigation, in particular rollover accidents, how many times have you heard the auto manufacturer, its experts, or a jury boldly proclaim some or all of the following: “This vehicle meets all Federal Motor Vehicle Safety Standards (FMVSS)”; “This vehicle complies with or exceeds all National Highway Traffic Safety Administration (NHTSA) guidelines or recommendations”; “NHTSA has investigated, or considered investigating, the alleged defect and determined that its not necessary to issue any new guidelines or safety standards”; and, “This vehicle passes the auto manufacturer’s rigorous stability and handling testing”? In addition to those proclamations, how many times have you had your vehicle stability experts criticized in deposition or on the witness stand as having “manipulated” their testing, that their testing it is not “objective” or “repeatable”, or that their testing is “merely a plaintiff’s test that has nothing to do with what happens in a real world accident”? Lastly, how many time have you heard, and this is the one that grates on me the most in a rollover case, the driver “panicked” and “over corrected” thereby somehow causing the vehicle to rollover unnecessarily and stating it was “driver error”?

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Making Motions for Trial-Setting Preference

Brian D. Chase (Bisnar Chase Personal Injury Attorneys) and Scott D. Raphael (Litigitechnology, Inc.)

The adage “time is money” was never more appropriately applied than to personal injury litigation. Twenty years ago, prior to adoption of Delay Reduction Act/”Fast-Track” measures in California’s trial courts, cases frequently could not receive trial settings for years after the complaint was filed, often requiring waivers of the five-year deadline for trial in larger California counties to ensure that a courtroom could be secured for the trial. Delay Reduction measures have dramatically changed the picture, with most superior courts now setting cases for trial within 12 to 18 months of the filing of the complaint. Notwithstanding the significant reduction in trial delays, plaintiffs typically do not resolve their cases unless and until a firm trial date is set, and protracted delays mean delayed resolution and delayed funding of a settlement or judgment.

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Utilizing Expert Witnesses

Brian D. Chase and Scott D. Raphael

Expert witnesses have become an essential part of modern trial practice. Unfortunately, their use has become almost too casual, with may practitioners on both sides resorting to an almost “knee-jerk” routine of hiring experts in every case. Contrary to what may be prevailing conventional wisdom, however, not every case genuinely requires retention of experts, although in most cases testimony from treating physicians (nonretained experts) is still required to carry the burden of proof on causation of injury.

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Health Maintenance Organizations and Their Lien Rights

By Bisnar Chase Personal Injury Attorneys

It is the authors’ experience that most of their clients have health care paid by an employee benefit plan which has contracted with an HMO or other health care service plan to provide health care or by Medi-Care. If the relationship is created by an employee benefit plan, the rights and obligations of the plan fiduciary, and those who claim rights reserved to the plan fiduciaries and the beneficiary of the plan are established and regulated by the provisions of ERISA. For a discussion of how ERISA may affect those rights and obligations, the reader is referred to the article written by Jonathan E. Gertler entitled “Understanding ERISA Liens in the Wake of Great-West Life and Westaff” which was published in the March, 2003 edition of the FORUM. A discussion of those issues exceeds the scope of this article. There are also HMOs which are implementation of the Medi-Cal and Medi-Care programs. A discussion of the rights secured for these health care providers under federal law, and how those rights conflict with contractual rights, is beyond the reach of this article.

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Trouble Finding A California Medical Malpractice Lawyer?

By Bisnar Chase Personal Injury Attorneys

If you or a loved one has been misdiagnosed or have been a victim of medical malpractice in the State of California and would like to take the doctor or hospital to court, you my find it very difficult to get a lawyer to represent you. There’s a reason California personal injury lawyers cringe at medical malpractice lawsuits – in this state, we have a $250,000 cap on medical malpractice awards and a cap on attorney’s fees. These two factors combine to make the pursuit of a medical malpractice not worth the costs and risks for wronged patients and their attorneys.

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Lagging Liability Limits

By Jeanna Bisnar

Nobody can drive without auto insurance. Well…nobody is supposed to drive without auto insurance. Governments have mandated for almost a century that drivers must be capable of providing compensation for most damages they may cause while operating a motor vehicle. I think it makes sense. People should be responsible for their actions. This concept of personal responsibility permeates our laws governing how we interact with one another.

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Pedestrian Accidents

By Carissa Bisnar

When cars collide with pedestrians, there is high potential for serious injury. Pedestrian/motor vehicle accidents are a serious problem throughout the world. The United States has a particular problem with pedestrian deaths and injuries. About 5,000 pedestrians are killed and another 64,000 are injured in motor vehicle accidents every year in this country.

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Medical Device Manufacturer Fights FDA Over Defective Product Recall

By Bisnar Chase Personal Injury Attorneys

A New Jersey-based company that makes tissue-based products used in open-heart surgeries is embroiled in a heated court battle and war of words with the Food and Drug Administration (FDA). This tension between Shelhigh and the FDA began April 17 when the federal regulatory agency pulled about 1 million parts at the company’s plant in New Jersey after a 10-week inspection of the facility in the fall of 2006.

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Shelhigh Medical Device Manufacturer-Under the Gun-FDA Claims of Repeated Problems with Contamination Spur ‘Recall’

By Bisnar Chase Personal Injury Attorneys

Many of us remember the TV Shows The Six Million Dollar Man and The Bionic Woman, but most of us had no idea how close we would come to rebuilding our human bodies in the 21st century. Inventions and advances in medical technology have given so many a ‘second chance’ at life.

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Large Truck Accidents According to Truck Configuration

By Carissa Bisnar

Children ATV Accidents, Injuries & Fatalities

By Bisnar Chase Personal Injury Attorneys

All-terrain Vehicles, popularly known as ATVs are becoming a major source of recreation for people of all ages in the United States. ATV trails and clubs are springing up all over the country. The most popular time for riding ATVs is in the summer and during the holidays.

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Insurance Companies Play Hardball With Minor Car Accident Claims

By Bisnar Chase Personal Injury Attorneys

Insurance companies are making it tougher and tougher to collect medical costs incurred due to minor car crashes. According to a recent 18-month investigation conducted by CNN, you could be in the fight of your life if you’re trying to get an auto insurance company to pay medical costs you incur due to an auto accident, even though the accident was not your fault.

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About the Author: Brian Chase

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