Employment Law – How did Ani Chopourian get a $168 million dollar verdict?

Sacramento physician assistant Ani Chopourian made recent headlines with her $168 million verdict against Mercy General Hospital for unlawful retaliation, harassment, and rest/meal break violations. This may be the biggest verdict ever for a victim of workplace harassment.

The $168 million verdict consists of $42.7 million for lost wages and for emotional distress and $125 million in punitive damages. The verdict is being appealed, and it will not be surprising if the verdict is substantially reduced or if Chopourian settles in order to receive money now instead of waiting for what could be a lengthy appeals process.

Depending on what wrongdoing an employer commits, an employee may be entitled to recover lost wages since the wrongdoing (known as “back pay”) and perhaps as long as it takes to find comparable employment if reinstatement is not feasible (known as “front pay”), emotional distress, attorney fees, prejudgment interest, and punitive damages.

The amount of punitive damages that can be awarded depends on the nature of defendant’s conduct; the amount necessary to have a deterrent effect on the defendant (so a larger award is appropriate against a more wealthy company or individual); and the amount must bear a reasonable relation to the damages suffered by the plaintiff.

The $42.7 million in lost wages and emotional distress is believed to consist of about $3.5 million in lost wages and about $39 million in emotional distress. The lost wages would include a substantial amount for front pay, so the jury must have believed Chopourian was distressed enough to be unable to find comparable employment for a while.

There are no standards for calculating emotional distress. Given the severity of Chopourian’s claims against Mercy General Hospital as noted in the above Los Angeles Times article, a 7 figure emotional distress award is not out of the question but $39 million does appear excessive.

Often times the ratio of punitive damages to damage awards is considered in determining whether a punitive damage award is proper, and a 3 to 1 ratio ($125 million to $42.7 million) is usually thought of as reasonable. However, if the damage award is reduced, that would justify a punitive damage reduction. In addition, it is our understanding $125 million is nearly as high as Mercy General Hospital’s total profit, so an appeals court is likely to reduce the punitive damage award as a lower award would probably be considered enough to be a proper deterrent against this type of conduct happening again.

Personal Injury Law - Wrongful Death - AEG Live dismissed from Joe Jackson's lawsuit for wrongful death of Michael Jackson

A Los Angeles Superior Court judge recently dismissed concert promoter AEG Live from a wrongful death lawsuit filed by Joe Jackson, Michael Jackson's father, seeking damages for the death of Michael Jackson.

The court's ruling was based on procedural grounds as Michael Jackson's mother, Katherine Jackson (from whom Joe Jackson is separated), already has a pending wrongful death lawsuit and the law does not favor multiple lawsuits on the same grounds: this legal principle is called the one-action rule.

This case is a good opportunity to review who is entitled to sue for wrongful death in California. The dead person’s surviving spouse, domestic partner, children, issue of deceased children, dependent stepchildren (and dependent minors residing in the household for at least six months), dependent "putative spouses" and their children, and dependent parents can sue for wrongful death. If there are none of these types of relatives/persons, then whoever is entitled to intestate succession may be a proper wrongful death Plaintiff.

It is not clear whether Joe Jackson was dependent on Michael Jackson at the time of Michael Jackson's death: Joe Jackson was not close to Michael Jackson and was not named in Michael Jackson's will. If Joe Jackson cannot prove that he was not financially dependent on Michael Jackson for necessary living expenses such as rent or food, then he probably won't be able to join Katherine Jackson's lawsuit.

Personal Injury Law - Devin Petelski case shows importance of automobile on-board computers

On October 15, 2009, Devin Petelski died in a motor vehicle accident when her vehicle was struck by an LAPD car that was responding to a call. This recent Los Angeles Times article on the accident highlights the increasing importance on data from the on-board computer that are in most recently-manufactured cars and trucks. The LAPD officers reported they were traveling 40-45 mph and LAPD accident reconstruction experts estimated the LAPD vehicle was traveling about 50 mph.  However, data recovered from the LAPD vehicle's computer indicated the LAPD vehicle was traveling as fast as 78 mph.  The case settled soon after this data came to light.

In the pre-vehicle computer days, determining fault from an accident was largely based on testimony from the drivers and witnesses and on analysis from accident reconstruction experts.  As this case shows, determining liability in a motor vehicle accident has been an inexact science as witnesses are often unreliable and experts' analysis are based on assumptions that may or may not be true. On-board computers are changing that and it is now a factor in every significant crash.

Personal Injury Law - A way to deal with the Howell v. Hamilton Meats case

As noted in an earlier blogpost, the California Supreme Court ruled in the case of Howell v. Hamilton Meats that past medical expenses that are recoverable in a lawsuit are limited to the amount the hospital/medical care provider receives from the patient's health insurer, even if the insurer pays an amount much less than the original billed amount.

One way to deal with the Howell ruling is suggested by the well-regarded firm of Biren Katzman, which is to use medical factoring (companies that will purchase a debt, in this situation a medical bill, from the hospital/medical care provider at a discount and collect the bill from the proceeds of the case, which the factoring company hopes will be more than what they paid for the bill): this way the Plaintiff can seek to admit the full amount of the medical bill into evidence.  This is more likely to be viable in cases with more serious injuries, but it is good to know this kind of strategy exists to counter the effects of Howell.

Personal Injury Law, Employment Law - Facebook postings can be discoverable

In a recent New York case, Patterson v. Turner Construction Co., the court ruled that a plaintiff's Facebook postings may be discoverable, at least to the extent the Facebook postings are relevant to plaintiff's damage claims (see the ruling here). 

While this case is not binding on California courts, a California court is likely to reach a similar ruling.  We have already encoutered several cases, mostly concerning younger plaintiffs, where the plaintiff's social media postings were at issue to show the extent to which the plaintiff's injuries affected their life and the extent to which the plaintiff was injured.  Any injured party would be well served to think about what they post on the internet, even if their social media postings are supposed to be "private."

Personal Injury Law - Accident victims can't recover more than the amount of their medical bills paid by their health insurer

Insurance companies scored a big victory with the California Supreme Court's recent decision in the case of Howell v. Hamilton Meats & Provisions (click here for the Google Scholar version of the decision).  In personal injury/accident cases the accident victims are allowed to recover, among other things, the reasonable cost of medical expenses for treatment related to the accident.  For those with health insurance, as you probably know, the health insurers negotiate reduced rates with hospitals and doctors so that the hospitals and doctors accept discounts, often times substantial discounts, from their normal billed rate.

In the Howell case, Howell was seriously injured in an auto accident and received substantial medical treatment. The billed amount of her treatment was about $190,000.  However, since Howell had health insurance, the hospital and doctors ended up accepting only about $60,000 for Howell's treatment.

Therefore, the California Supreme Court held that regarding the amount of medical expenses recoverable by Howell, she could only recover the amount actually paid for her treatment, $60,000, even though the reasonable value or market value of her treatment arguably exceeds $60,000. 

There are 2 big side-effects of this ruling.  The first side effect is that it causes a situation where an uninsured person has a better case than an insured person because the uninsured person with Howell's injuries can claim $190,000 in medical expenses while Howell can only claim $60,000.  A general legal principle called the "collateral source rule" says that if an injured person is compensated for his injuries from someone besides the tortfeasor, that payment shouldn't be taken into account in figuring out the amount of the injured person's damages.  The California Supreme Court decided the collateral source rule did not apply to health insurance and limited the recoverable amount to the actual amount paid, even though the majority of other states allow the injured person to recover the reasonable value of the medical treatment, even if that exceeds the actual amount paid.

The second side effect is that as a practical matter, the amount of money awarded for pain and suffering is often based on the amount of medical bills (in general, in personal injury cases you can recover the amount of medical bills, property damage, lost earnings and earning capacity, and pain and suffering: it is common for pain and suffering to have the most value out of these damage categories).  Therefore, the value of many personal injury cases will be substantially reduced because, as seen in Howell, if there is health insurance the amount of medical bills will probably be less than 50% what they would have been if there was no insurance: for Howell, the pain and suffering is based on $60,000 in medical bills instead of $190,000.  Also, the Howell case was silent on how the difference in the billed rate and the amount paid makes a difference in figuring out the amount to award for pain and suffering: arguably plaintiffs will now not be able to even refer to the billed medical expenses to explain the extent of their injuries (meaning, if the jury is barred from hearing that the billed medical expenses were $190,000 and only hears the medical expenses were $60,000, a pain and suffering award is likely.to be smaller).

For more on this case, see this Sacramento Bee blogpost on the case, an interview with the appellate lawyer representing Howell, and a pro-insurer view of this case.

Employment Law – Law clerk exempt from overtime pay because he was classified as a professional employee

Matthew Zelasko-Barrett sued a Northern California law firm, Brayton-Purcell LLP, for not paying him overtime for his work for them as a law clerk after he graduated from law school and before he passed the bar exam.  The California Court of Appeals recently ruled Zelasko-Barrett was not entitled to overtime pay because he was considered to be a professional employee (click here for the Google Scholar version of the ruling).

Here’s a quick explainer on being eligible for overtime pay in California: employees are generally eligible for overtime pay unless they are exempt.  Exempt employees are those who are deemed to be executive, administrative, or professional employees.

A professional employee is one who is licensed or certified in certain named professions (including law, medicine, teaching, and accounting) OR one who primarily works in a learned or artistic profession.  A learned profession means the job requires advanced knowledge of a field or science that usually requires prolonged study, and the work is intellectual and is not standardized in nature.  A professional employee must also exercise discretion and independent judgment in performing the job duties and earn at least 2 times the minimum wage for full-time employment.

Zelasko-Barrett had not passed the bar yet, so he was not licensed or certified as a lawyer at that time.  Zelasko-Barrett’s job duties as a law clerk included drafting pleadings, preparing and managing discovery, legal research, exercising discretion and judgment to choose the documents and arguments to be used in depositions and hearings, speaking with opposing counsel, clients, and witnesses, and supervising clerical staff.  Zelasko-Barrett had a supervising attorney and he was not able to sign any pleadings or appear in court because he had not yet passed the bar exam.

Based on the above, the court found Zelasko-Barrett’s job duties required a “significant level of discretion” in the actions taken by him, even if Zelasko-Barrett’s recommendations were not always used by his supervising attorney in the final version of his work.  Therefore, the court ruled Zelasko-Barrett met the requirements to be considered an exempt professional employee and was exempt from overtime pay.

It is important to remember this court’s ruling was based on Zelasko-Barrett’s specific job duties.  Another law clerk with more menial duties could still be entitled to overtime pay.

For more on this story, see this San Francisco Chronicle article, and for more information on the rules of overtime pay in California, see this from the California Department of Industrial Relations.  Zelasko-Barrett has passed the bar exam and is apparently now self-employed in San Francisco.