January 17, 2014

On November 25, 2013, Volkswagen AG and Volkswagen Group of America, Inc., who were represented by Craig L. Winterman, Gary S. Yates and Ningur Akoglu of Herzfeld & Rubin, obtained a defense verdict in a products liability case tried in the Pomona branch of the Los Angeles Superior Court.  Plaintiff, a 17 year old girl, was seated in the right front passenger seat of a 1979 VW Rabbit.  The Rabbit stalled on the freeway due to poor maintenance and was subsequently struck in the rear by a 1999 Honda Accord traveling 65 mph.  Plaintiff contended that passenger seat’s head rest either completely dislodged from the seat or rose sufficiently up during the accident to permit her head and neck to hyperextend over the back of the seat causing her to suffer a C-1 – C-2 subluxation which resulted in her quadriplegia.   Photographs taken at the scene by the CHP revealed that the head rest was not attached to the seat.  The head rest was subsequently found by Plaintiff’s expert in the footwall area of the right front passenger seat.  Plaintiff’s expert noted that the plastic head rest guides which insert into the upper metal frame member of the seat were fractured but still attached to the head rest posts.  Plaintiff alleged that either the plastic head rest guides were defectively manufactured (they were too short and would therefore not completely insert through the bottom hole of the seat’s upper frame member) or the upper frame member was defectively manufactured (the holes in which the plastic guides are inserted were spaced too far apart).  As a result, the guides were not fully inserted but were partially impinged (stuck) in the bottom hole of the frame member.   Plaintiff contended that due to thermal expansion and contraction, stresses developed which caused the plastic head rest guides to fracture.  The Rabbit was destroyed before VW had an opportunity to examine the vehicle.  However, from photographs VW was able to determine that the seats that were in the Rabbit were not the seats that originally came with vehicle.  VW was also able to determine from photographs that the seats that were in the Rabbit had been reupholstered.  VW contended that the plastic guides were broken during the reupholstery process and not from being too short or from thermal stresses.  Plaintiff’s experts included Richard Grossman, Mechanical Engineer; Patrick Hsieh M.D., Neurosurgeon; Ann T. Vasile M.D., Physical Medicine & Rehabilitation; Melody Sarino M.D., Rehabilitation;  Anne Barnes RN Life Care Planner; Karen Smith, Economist;  Howard Goldfarb, Vocational Rehabilitation;  and, Angeline Chen Esq., Immigration Law.  Defense experts included Gregory Stephens, Accident Reconstruction, Elizabeth Raphael M.D., Biomechanics and Gary Fowler PhD., Material Science.  The case was tried before the Honorable Judge R. Bruce Minto.  The verdict was 10-2 for the defense.


March 13, 2012

Michael A. Zuk and Vadim Braslavsky obtain defense verdict in a complex medical malpractice case pertaining to severe, permanent neurosensory impairment in the lower extremities, wherein plaintiffs, the patient and her husband, sought $2.4 mil in damages.

Plaintiffs, Lydia and Jorge Demedio were represented by Ian “Buddy.” Lydia, had a complicated orthopedic history, including bi-lateral knee and hip replacements. Despite these procedures, as of September 2006, she was complaining of 10/10 pain in the left knee/leg radiating into the hip. Conservative treatment, including epidurals and physical therapy provided only temporary relief. Starting in December 2006, the pain spread to the lower back.

On January 15, 2007, at the request of the patient’s long-time treating orthopedic surgeon, the patient was seen by Dr. Khurana for surgical consultation. Dr. Khurana comprehensively evaluated the patient and reviewed all available radiological studies, including most recent plain films and MRI. Dr. Khurana concluded that the patient’s severe intractable left-sided leg and back pain was caused by profound L3-5 stenosis, accompanied by L4-5 spondylolisthesis.

Based on these finding, Dr. Khurana discussed with the patient in detail two surgical options. One was the minimally invasive approach performing microdecompression at L3-4 and L4-5. The other, which Dr. Khurana recommended, was a vigorous decompression of the lateral recess zone with interbody fusion at L4-5 to stabilize the spondylolisthesis. The patient expressed her understanding of the risks, disadvantages and benefits of the two options and agreed to proceed with a more aggressive approach.

On January 25, 2007, the patient presented to St. John’s where Dr. Khurana performed Transforaminal Lumbar Interbody Fusion (TLIF) at L3-4, L4-5 with the use of intraoperative microscope; somatosensory evoked potential monitoring and pedicle screw stimulation; and interpretation of intraoperative fluoroscopy.

During the laminectomy portion of the procedure, when the 9 mm spacer was removed, and before the placement of PEEK cage, SSEPs had completely disappeared in the lower extremities. Dr. Khurana and his assistant surgeon took comprehensive steps to determine the etiology of the SSEP loss, including but not limited to immediately inspecting the dural sack which was visible by virtue of facectomy. Everything appeared normal and the surgery was completed.

When the patient awoke, she had neither sensation nor motor function in the lower extremities. The following day, with the patient’s consent, Dr. Khurana took her back to the operating room to further explore any potential etiology of the patient’s neurological deficits. Once again, there was nothing to explain what happened. Specifically, there was no cord compression of any kind, no hematoma, bruising of neural elements, etc. The patient subsequently underwent rehabilitation, PT/OT, and was treated for bladder incontinence. The patient eventually regained some motor and sensory function in her lower extremities but has remained largely wheel-chair bound.

Plaintiffs contended that surgery should not have been performed before first attempting physical therapy and other conservative treatment; that there was no appropriate informed consent for the surgery; and that the correct surgery would have been a simple laminectomy instead of TLIF, wherein excessive nerve retraction caused permanent nerve injury.

Dr. Khurana contended that TLIF was an appropriate surgery to address severe lumbar stenosis with spondylolisthesis, the surgery was performed properly after obtaining appropriate informed consent, and the most likely cause of Lydia Demedio’s injury was a Cauda Equine ischemic event, such as venous congestion, a rare unpredictable and unavoidable complication. Jorge Demedio claimed loss of consortium, including but not limited to the value of household services. Total damages sought were $2.5mil.

Following a 7-day trial, the jury returned defense verdict. Plaintiffs subsequently filed a motion for new trial, which was denied.

October 14, 2011

The patient was referred by Dr. Demirozu to a surgeon for a procedure to remove excess tissue in the back of the throat and nasal cavity, which contributed to the patient’s sleep apnea, causing him hypoxic episodes and sonomulance. Post-surgery, the patient alleged he complained of leg pain which could be indicative of deep vein thrombosis. Dr. Demirozu testified that he was never advised of any such leg pain and that his examinations of the patient were normal and, further, that the patient was ambulating post-operatively which lessened the risk of lower extremity deep vein thrombosis. The patient ultimately did form such a clot which traveled to his lungs resulting in his instantaneous death. He left behind a wife and a son, and was employed as an executive in the transportation industry. The jury returned a defense verdict.

October 14, 2011

After a 33 day trial a Santa Barbara jury returned a defense verdict for H&R’s client Volkswagen Group of America, Inc. Plaintiff, Richard Steiner at the age of 49 was diagnosed with lung cancer.  He and his wife sued 18 defendants.  Plaintiffs sought damages from the defendants based upon Plaintiff, Richard Steiner, claimed 9 years of extensive and cumulative occupational exposure to respirable asbestos fibers during his high school auto shop class, and from his work at two Chevron service stations as well as non-occupational work on family and friends vehicles.   Mr. Steiner admitted to smoking between 2 to 5 cigarettes per day.  Plaintiffs alleged that Mr. Steiner’s lung cancer was caused in part by his exposure to asbestos-containing brakes, clutches and/or gaskets manufactured, supplied and/or distributed by the 4 remaining defendants, Pneumo Abex, Ford Motor Company, Nissan North America, and Volkswagen Group of America, Inc., and in part by his smoking.  Plaintiffs alleged that the combination of the asbestos exposure and the smoking had a synergistic effect in increasing Mr. Steiner’s risk of developing lung cancer. The Honorable Thomas P. Anderle presided over the case.  Volkswagen Group of America, Inc., was represented by Craig Winterman, Tara Jane Flynn and Chuck Finberg.  Plaintiffs were represented Simona Farrise, Carla Minnard, Jennifer Johnson and Sharon Arkin.

October 12, 2011

The California Court of Appeals, Second Appellate District affirms the grant of summary judgment that was authored by Partner, Gary S. Yates.

Plaintiffs, Luis and Heather Barbarena, appealed from the granting of a summary judgment and dismissal in favor of Defendant, Keyes Audi, a local Audi dealership.  The lawsuit involved a 2005 Audi A4 which stalled on the Ventura Freeway and was rear-ended by an automobile driven by co-defendant, Matthew Salzberg.  As a result of the collision, Luis Barbarena sustained neck, back and shoulder injuries necessitating a lengthy course of treatment.  Heather Barbarena, who owned the Audi, sued for property damage and loss of consortium.

Plaintiffs contended that the Audi stalled as a result of a defectively and negligently designed fuel system and also asserted a breach of warranty claim. In the summary judgment, Mr. Yates argued that the Barbarenas had failed to furnish any competent evidence to support any of their theories of liability. The Appellate Court affirmed the Honorable Judge Richard Fruin’s granting of the summary judgment in favor of Keyes Audi.   Keyes Audi’s appellate brief was authored by Gary Yates and  Miriam Skolnick and Les Williams of Herzfeld & Rubin PC.

October 12, 2011

Craig L. Winterman and Gary S. Yates, along with Les Williams of Herzfeld & Rubin PC, successfully defended a products liability suit brought against Bentley Motors, Inc. and Bentley Motors, Ltd.  Plaintiff, Fredric Ascari, a 40-year old attorney who was rendered a quadriplegic, contended that the seat in the 1990 Bentley Turbo R that he was driving was defectively and negligently designed.  Mr. Ascari lost control of the Bentley as he was driving on the McArthur Blvd. on-ramp for the northbound SR 73 freeway.  The Bentley collided with the metal guardrail that was adjacent to the on-ramp.  Mr. Ascari argued that his seat collapsed when the rear of the Bentley struck the guardrail.  As a result, Mr. Ascari ramped up the seat back striking his head into the rear window.   Mr. Ascari sustained fractures to his C -5 and C-6 vertebral bodies and a 50 cm scalp avulsion.  Plaintiff was represented by Gerry Spence’s former partners, Ed Moriarty, Brad Booke and Shandor Badaruddian, and San Diego attorney, Mary Downey.   They asked the jury to return a $70,000,000 verdict.  After a five-week trial, an Orange County Superior Court jury rendered a unanimous defense verdict after only 2 hours of deliberations.  This was the first products liability trial in the United States involving a Bentley automobile.

September 25, 2010

Mr. Yellen, a 32-year-old real estate agent was driving his 1988 Audi 90 westbound on the Ventura Freeway. As he exited an off-ramp, he sideswiped a vehicle, struck the curb and then sideswiped another vehicle before crashing into a light pole at the bottom of the ramp. Prior to the accident, Mr. Yellen had on six occasions taken his vehicle to an Audi dealer with complaints that his brakes were not operating properly. After the accident, a plastic T-fitting, which controls the vacuum power assisted brakes was found to have been eroded.

Mr. Yellen sustained brain damage from bifrontal hemorrhage contusions, left frontal lobe contusions, as well as multiple fractures to his left ankle/foot left arm and face.

Mr. Yellen contended that the erosion of the T-fitting resulted in the failure of the power assisted braking system which prevented the car from stopping. Mr. Yellen also pursued a novel lemon law claim in hopes of having any verdict rendered in his favor increased by a factor of 3.

Mr. Winterman’s clients admitted that they did not have an explanation for the erosion of the T-fitting but denied that such erosion would cause a brake failure.

After a five-week trial a Van Nuys, California jury returned a defense verdict. Mr. Winterman’s clients were awarded their costs. Plaintiff resolved the matter by paying Mr. Winterman’s clients $25,000 and dismissing his appeal.

Plaintiff was represented by Fred Rucker and Jonathan Justman.

September 25, 2010

Plaintiff, a 25-year clerk, claimed that she experienced numerous problems with her Porsche vehicle, including a leaking dashboard, noisy stick-shift, the odor of leaking gasoline, the dashboard lights coming on, and poor gas mileage. She alleged that she was subsequently coerced and defrauded into trading in the Porsche for a new Volkswagen. She sued for rescission, fraud, negligent misrepresentation, negligent repair, breach of warranty and violations of California’s Consumer Lemon Laws.

Plaintiff was represented by John Mestad, of the Law Firm of Mestad & Sanborn. A Los Angeles downtown jury returned a defense verdict for Volkswagen of America.

September 25, 2010

The plaintiff, an actress, underwent a liposuction procedure by defendant, Dr. Lewis. It was claimed that he failed to properly perform the procedure and failed to follow up postoperatively with appropriate treatment and instructions. The jury found that Dr. Lewis treated the patient appropriately both during and after the procedure and the patient herself failed to comply with the postoperative protocols resulting in her disfiguring scarring. She claimed loss of an acting career allegedly with economic damages in the multiple million-dollar range.

September 25, 2010

This case was brought by the guardian of a severely brain damaged 26-year-old stewardess. During the solo vehicle accident, she suffered a substantial brain stem injury which included memory impairment, speech, gait and behavioral changes, in addition to a diminution of her IQ from 130 to 70. The accident occurred when plaintiff attempted to negotiate a curve at the top of a hill and, according to testimony, was unable to steer the vehicle appropriately, causing it to hit the center divider, go out of control, and roll over a 50 foot embankment.

Plaintiff contended that the steering configuration on the subject “Super Beetle” (which was new and unique to that model) was defective. The product incorporated metal bearings that plaintiff claimed were defective because they were not fabricated of stainless steel and were subject to corrosion. Additionally, plaintiff contended that the rubber protective steering housing and seals protecting the needle bearings were antiquated, subject to severe wear and, as a result, allowed the steering system to develop excess play, making the vehicle uncontrollable in severe driving maneuvers.

James Okuley and Gerald Reopelle of Newport Beach represented plaintiff. After a two month trial, in which $10,000,000 in special damages was claimed by plaintiff, the jury returned a unanimous defense verdict.