As 2015 comes to a close and we reflect on the year, the really big stories impacting consumers are tough to miss. Volkswagen’s scandal involving “clean diesel” that wasn’t clean at all; Takata’s scandal involving faulty airbags that can cause serious injury and death when they are meant to protect; and, General Motors’ defective ignition switches that have led to catastrophe for drivers are the triumvirate of auto industry scandals. It is tough to imagine a year in which auto consumer trust has been so shaken or in which so many millions of us have been affected by the actions of companies we rely on for safety.

Volkswagen has admitted to committing a major fraud on consumers looking for an environmentally friendly vehicle. A company with such highly-respected brands such as Audi and VW has taken itself through the reputation ringer. The smart VW tech car engineers thought they would outsmart emissions regulations and created a software program for their “clean diesel” cars that fools emissions tests. It allows vehicles that are actually spewing 40 percent higher emissions than are permitted under law, to fake results when tested only to return back to the excessive emissions when the car is driven again. After an avalanche of news and litigation concerning Volkswagen’s “clean diesel” fraud woes, the class actions filed against the car manufacturer have now ended up in the United States District Court for the Northern District of California. “Clean diesel” car owners have sued because they have a big problem. Their cars cannot meet emissions standards and dealers won’t take them back. Unless VW comes up with a fix, the cars aren’t worth much. The Multidistrict litigation (MDL) will likely result in a settlement with the car giant since they have admitted to having defrauded consumers. The question is, how much will VW pay for its big “mistake.”

The Takata defective airbag recall is also affecting millions of car owners. These airbags which were installed into vehicles made by at least 10 car manufacturers, have airbags that can suddenly deploy and can cause serious injury and death. The airbags spew shrapnel that has caused catastrophic harm to vehicle occupants. The majority of the vehicles are from model years 2002 through 2008, but has now expanded to 2104 for some vehicles. The problem with these airbags is the inflator, which has a metal cartridge that holds propellant wafers. The defective airbags can spray metal shrapnel inside the vehicle, harming drivers and passengers. Consumers can find out whether their vehicle is part of the recall by visiting the National Highway Transportation and Safety Administration’s website that includes the VIN numbers for all recalled vehicles that could have the dangerous airbags.

Listening to President Obama’s incredible eulogy of Rev. Clementa Pinckney, I was suddenly compelled to understand the meaning of grace. Amazing grace. And when a friend sent me a blog post by someone who studies and writes about the meaning of grace in our lives, one of her definitions resonated. In her Washington Post column, writer Sarah Kaufman pointed out that grace is a state of compassion. It includes the ability to empathize, to feel what other people feel without experiencing what they experience, to hurt for the mother who loses her child, to feel the pain of those in pain, to feel the anxiety of others. To feel it and incorporate it and explain it to others. And then it struck me — this is the essence of our work in the law — at least the way we practice it in our law firm.

It is this feeling of empathy, this grace, that made many of us choose the law as a profession. My decision to practice law was deeply rooted in my commitment to help those who have been hurt, who have lost loved ones, whose children have been taken from them, who have lost someone they love, who have been injured themselves and have lost their freedom from pain, from worry, from embarrassment. The legacy of this commitment runs deep in my family as well as our law firm, Hersh and Hersh, was founded on this commitment as an essential part of our law practice. And now, as a third generation comes to our law practice, this legacy is carried forward.
Continue reading

Recently, a Los Angeles jury awarded a hip implant plaintiff over $4 million dollars in a case involving a defect in manufacturing which eventually caused the hip to fracture and fail within the plaintiff’s body. The plaintiff sued Wright Medical Technology, Inc. for the failed hip implant. In interviews with the National Law Journal, the lawyers involved in the case report that the verdict is significant, but not just for the plaintiff whose implanted hip failed but for other patients who are similarly situated. Not only is the manufacturer of the hip implant named in literally scores of lawsuits, the case signals the potential for more major verdicts against it. The company has issued a statement that it will appeal the recent verdict.

The company has attempted to limit the scope and impact of this verdict. The jury found that the implant defect was in the manufacturing process. The company has stated that this case is out of the ordinary and that it involved a specific component failure. Other cases pending against the company, include multi-district litigations in California and Georgia and involve metal-on-metal hips in which the hip implant has caused injury or has failed. The consolidated cases mainly involve a specific hip implant known as the Conserve.

When patients are preparing for a hip implant, or an implant of any kind, it is important that they research not only their medical team and its experience with implanting devices, but also the type of implant that will be inserted into their bodies. Ensuring that both the surgeon and the device has an excellent track record is of utmost priority. For more information on the issues concerning hip implants please consult the Food and Drug Administration‘s website.
Continue reading

It is very difficult to understand why unfortunate things happen to wonderful people. Serious injury caused by the negligence of another person or a defective product, can leave a victim in pain. It can also lead to a sense of vulnerability and fear. Lawyers have the opportunity to represent our clients to make sure they are compensated for losses caused by others. As lawyers, we cannot change the fact that our clients have suffered injury. But we can help to provide them with the financial and other assistance to which they are entitled under the law. We are able to seek both economic and non-economic damages to help injured victims deal with their lives after a tragic accident or injury.

For example, during labor and delivery if a preventable injury occurs, we look to the relevant evidence to prove negligence by reviewing the prenatal chart, the labor and delivery record, the fetal monitor tracings, the neonatal intensive care records and more. Parents need legal support after a labor and delivery that results in injury to their infant. As a mother myself, I find great personal satisfaction in representing families of an injured child. Helping young victims and their families will not take away the damage that has been done, but we can connect families with medical experts that provide guidance and support and we can secure the support families will need to care for their injured baby as he or she grows.
Continue reading

The San Francisco Bay Area is the home of great technology innovation and often the public assumes because this sector is healthy and vibrant, tech workers are as well. But not so fast. Workers at Apple are claiming in another class action that the tech giant has taken a bite out of their rightful earnings. They filed a lawsuit in the Superior Court of California, which has now been certified as a class action. The allegations include those we have litigated on behalf of our clients in wage and hour cases, including failures to provide mandated breaks, including lunch and rest. Another claim involves the failure to provide final paychecks to workers. About 20,000 workers allege that the wage and hour violations were not an innocent oversight.

While consumers around the world are using their i-Everythings … from pods to phones to macs … these Apple hourly workers claim they were not provided what the law requires. And this claim doesn’t just apply to one segment of hourly workers. Across the board from technical experts in engineering to store employees, the claim is that the company did not give them certain basic requirements. Another class action that is already underway alleges that the company failed to compensate workers for the time they take on leaving work for searches of their personal items by security.

Wage and hour laws are established to ensure that workers avoid fatigue, injury and receive the quality of work environment to which they are entitled. When an employer fails to provide these basic mandates, workers can seek to be compensated for these failures. Worse yet, the law protects workers when they raise legitimate complaints about company policies that violate their rights to benefit from these protections. In this class action, the workers claim that the company culture did not allow for the legitimate complaint of violations. In short, the company intimidated them into a rule of silence in which they could not complain or could be fired from their jobs if they did.
Continue reading

Often called concussion, post concussion syndrome or mild traumatic brain injury, these injuries can happen to anyone involved in a motor vehicle collision, particularly if you are struck from the rear. If your head and neck flex and extend in a rear-end collision, your brain moves in your skull and hits the front and the back of the skull. This motion and contact can cause injury to the brain which is not perceptible on MRI, but exists and has an impact on your life nevertheless.

If you are involved in a motor vehicle collision and, afterwards, are dizzy, confused, have memory loss, have ringing in your ears, get lost on old routes to and from familiar places, are sensitive to light and noise and have other unusual for you responses to your environment, you might have a concussion or TBI. If the symptoms last beyond three months, you likely have a traumatic brain injury.

Most people recover completely but some, the silent minority, do not recover and while they look normal and people expect them to be themselves, they are contending with confusion, memory loss, ringing in their ears and other problems that affect their home and work lives. These people need neurologist who cares and understands, and possibly a neuropsychologist who can quantitate the damage to the patient’s brain. Don’t feel isolated and alone. Get the appropriate medical care and, if necessary, cognitive therapy and recognize that you have a very real injury.
Continue reading

California drivers know that our laws prohibit the handheld use of a cell phone while driving. We are not permitted to either text and drive or talk and drive holding our phones. But one man who was cited for checking a map while in the driver’s seat has taken his citation up to the California Court of Appeal, Fifth Appellate District and thus far has won. The next stop for this case just might be the California Supreme Court. This issue has likely crossed readers minds prior to the case which we will discuss here. After all, what use are the maps on our phones if we cannot use them to actually get ourselves out of a jam when driving and in need of directions? Think about the days of paper maps, some of us might recall using those while in the driver’s seat. Obviously with great care.

For now, the law in California is that it is permissible for drivers to use their cell phone map feature while in the driver’s seat. The driver in the case was stuck in a traffic jam and when he picked up his phone to try to get out of that using his map function, he was cited by an observant California Highway Patrol officer. Although ticketed from this activity while in a traffic mess, the man argued that he should not have been cited. He lost his case in traffic court and then took the case to the Superior Court in Fresno and lost there as well. Some would have given up at that point, but this driver was not giving up.
Continue reading

Over the years we have seen an increasing number of pedestrian and bicycle accidents on our streets and roadways around the Bay Area. One of the best things about living and working in our beautiful region, is that commuters have so many choices when it comes to how they get to work. Recently, an El Cerrito woman was killed when she was riding in a bicycle lane in West Oakland. She was hit by a truck while she rode. The cyclist was a regular commuter on the ferry from across the bay to her employment as a scientist in South San Francisco. Friends report that she was committed to her own safety and was very careful about making sure she had on reflective or other type gear that drivers can see. Despite all her efforts to be safe on the road, she lost her life riding her bicycle.

The driver that allegedly struck her while she traveled in the bicycle lane, has been cooperating with authorities on this bicycle accident. This is important to emphasize, as these days we have seen a major rise in hit and run accidents involving all sorts of vehicles, pedestrians and bicyclists. The rise in hit and run accidents has been so startling that it is beginning to make national news. Unfortunately, the fact that a driver actually obeys California law and stops after an accident is becoming notable. California Motor Vehicle Code section 20001 makes it mandatory for drivers to stop at the scene of a crash when there is injury involved.
Continue reading

As California trial lawyers, we help our clients through very difficult times in their lives. One of the best ways to do that is to make sure that the public in general knows what to do before and after something happens that could alter their lives.

For example, many people do not realize that if they are injured in a motor vehicle accident there is a way to make sure those injuries are covered. This is through what is known as Uninsured or Underinsured Motorist Coverage. If you click on the link above, you will be taken to the California Department of Insurance website and you will find answers to basic questions about auto insurance, including uninsured and underinsured motorist coverage.

When you are involved in an accident, the driver responsible for resulting injuries may only have the minimum amount of insurance coverage required under the law and this may not be enough to cover injuries and damages. You need to make sure you have enough uninsured or underinsured motorist coverage through your own vehicle policy to cover your needs. Getting the highest amount of uninsured or underinsured motorist coverage is fast, inexpensive, easy and worthwhile.

To secure this type of coverage, contact your automobile insurance carrier and get the maximum amount available. Make sure that you’re insured because others may not be. We know this is important as we have represented a number of individuals in motor vehicle accidents and have recovered damages for their injuries, including using uninsured or underinsured motorist policies.

Another cautionary note for our readers is knowing when your case begins. Did you know if you are injured in a motor vehicle accident or otherwise, your case starts when the other person’s or company’s insurance representative contacts you for a statement or for medical information? We recommend that you do not give a statement and do not “give away” your medical information or current medical status.

Instead, retain a lawyer and have that lawyer advise you immediately. It might seem like the insurance representative is trying to help you resolve your case quickly and easily. It might see manageable, but it can quickly get complicated and you may not realize that the carrier is getting information from you that could be used to actually hurt you, not help you.

Sometimes cases can be resolved without a lawyer. However, other times, before you know it, you will want help and you may have done more harm than good. How will you know if the offer you get is fair? How will you know when to settle? Avoid getting in too deep and then realizing you need a lawyer to help you. An experienced legal counsel will let you know if you need a lawyer and can offer the help you need.
Continue reading

Over several decades serving as a California injury lawyer, there is one thing that I have heard far too often from people who contact my office seeking to replace the lawyer or firm handling their case. They often complain that the lawyer representing them either does not respond to their phone calls at all, or they do not respond in a timely fashion. I have taught law students and lawyers, and I routinely advise them not to engage in this practice for a variety of reasons that the public should understand.

As lawyers, we work for our clients. We have attorney client agreements with them and it is our job to keep clients apprised of important events that affect their cases. That is a duty we all owe to those whom we represent and it is a duty set forth in our ethical rules. California Rule of Professional Conduct 3-500 states that lawyers must “keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.” An attorney is not subject to discipline for failing to communicate “insignificant or irrelevant information” (California Business & Professions Code section 6068(m)). The public needs to know and understand that we as lawyers must keep them informed, it is good practice and it creates rapport and trust with our clients.

As a profession, we need to remember that unreturned calls make the caller feel unimportant, ignored or, worse, that the lawyer is not working on their case. This feels like an insult to a client and causes clients to look for a different lawyer who is responsive and empathic.

No one goes to a lawyer because they are happy and content. To the contrary, they seek professional help because they are involved in a dispute they cannot resolve on their own. They are frustrated, angry, hurt, injured, economically challenged and/or in need of help and advice. Keeping this in mind, lawyers who are not responsive might think twice about how they treat their clients.

When dealing with those who have suffered personal injuries and or sustained losses that affect them physically and psychologically, it is most important to stay connected with clients. As is true of many personal injury firms, our firm is a contingency fee law practice. This means that the client does not pay an hourly fee and does not generally pay the costs of litigation but, rather, we pay the costs and are repaid what we spent and are paid a fee if and when we resolve the case either by settlement or trial. Many personal injury law firms have similar arrangements with clients, but it is important for members of the public to make sure that they understand the fee arrangement with the firm they retain. A great deal of information on the lawyer-client relationship can be found on the State Bar of California’s website.

Our clients often have catastrophic injuries like paralysis or the loss of a loved one. We are careful to provide complete and continuing contact and information so that they are part of the case as it progresses. We want them to be comfortable with the fact that we are providing service in an ongoing manner even when a case is moving slowly through the court system.

For example, when handling discovery (the collection of information on which the case will ultimately be presented) which is requested by the other side, we help clients understand what is required of them. This is important for any lawyer-client relationship and you should expect this from the lawyer you retain. It has always been important to us to make sure our clients have access to their lawyer and to someone who can explain things as they progress and assist them in the preparation of the responses to questions and discovery.

Even in our mass torts which involve many clients who have been injured by the same medical device or drug, the lawyers in the firm answer calls of clients who need to talk to their lawyer. Some firms require their clients to deal only with paralegals, rather than a lawyer in the firm. A client retaining a firm needs to know whether this will be the case for them or whether they are hiring a firm, such as our firm, that does not force them to only speak with a paralegal. Having said this, the paralegals in our law firm, like the lawyers, provide compassionate and understanding advice and information. This should be a goal and requirement of all firms and, particularly, personal injury firms.
Continue reading