Writs & Appeals
Atlas Pallet Corp. v. USS-POSCO Industries, No. A159332, 2021 WL 4272324 (Cal. Ct. App. 2021)
Ben persuaded the California Court of Appeal to reverse a judgment for a defendant in a case that arose when a trespasser on the defendant’s property started a campfire that spread to the plaintiff’s business. The trial court dismissed the case, finding that landowners do not have a duty to prevent trespassers from starting fires on their property. In a case of first impression, the Court of Appeal agreed with Ben that landowners have a duty to prevent trespassers from starting fires that might threaten neighboring properties.
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Novartis Pharmaceuticals Corp. v. Superior Court, No. D077934, 2021 WL 1918774 (Cal. Ct. App. 2021)
In a case of first impression, Ben persuaded the California Court of Appeal to affirm the trial court’s ruling that Novartis’s counsel waived the attorney–client privilege when they failed to promptly ask the plaintiffs to return a privileged document that Novartis inadvertently produced in discovery.
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Larsen v. California Victim Compensation Board, 64 Cal.App.5th 112 (2021)
Working pro bono for the California Innocence Project, Ben persuaded the California Court of Appeal to hold that, under California law, a wrongfully incarcerated prisoner who establishes he is “factually innocent” under the U.S. Supreme Court’s decision in Schlup v. Delo, 513 U.S. 298 (1995), is entitled to automatic compensation for his time spent in prison. The decision was notable because, in agreeing with Ben, the court expressly rejected a published decision issued by a different division of the same court just two months earlier. Ben was awarded the 2021 “XONR8R Award” by the California Innocence Project for his work in this case.
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McCarley v. Anesthesia Service Medical Group, Inc., No. D074353, 2021 WL 1540466 (Cal. Ct. App. 2021)
Ben successfully defeated the defendants’ appeal from an $11 million medical-malpractice judgment following a jury verdict in favor of a young woman who suffered a severe brain injury during a medical procedure.
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Nolasco v. Malcom, 949 N.W.2d 201 (Neb. 2020)
Ben’s amicus brief on behalf of the Nebraska Association of Trial Attorneys persuaded the Nebraska Supreme Court to abandon the parental-immunity doctrine, which prohibited minors from suing their parents for most torts. At the time, Nebraska was one of seven states—including Alabama, Arkansas, Colorado, Georgia, Indiana, and Louisiana—to recognize the doctrine.
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Omidi v. Wal-Mart Stores, Inc., 742 F. App’x 260 (9th Cir. 2018)
Ben persuaded the Ninth Circuit to reinstate a lawsuit by consumers who alleged they were defrauded into purchasing eye examinations from purportedly "independent" optometrists who were actually under Walmart’s extensive control as part of a scheme to sell more prescription eyewear.
T.H. v. Novartis Pharmaceuticals Corp., 4 Cal.5th 145 (2017)
After losing to Ben in the California Court of Appeal in T.H. v. Novartis Pharmaceuticals Corp., 245 Cal.App.4th 589 (2016), Novartis — joined by members of its powerful lobby, including the U.S. Chamber of Commerce, the drug industry, and the defense bar — appealed to the California Supreme Court. Ben and his co-counsel (Leslie Brueckner of Public Justice), persuaded the California Supreme Court to affirm the Court of Appeal’s decision. The resulting majority opinion broke with over 90 decisions from state and federal courts in other jurisdictions and became the first standing state supreme court decision in the United States to recognize that consumers injured by generic drugs have a cause of action against even brand-name manufacturers who negligently failed to add necessary warnings to the drug’s label. For their work in this case, Ben and Leslie received the Pound Civil Justice Institute’s 2018 “Appellate Advocacy Award,” a national award that “recognizes excellence in appellate advocacy in America.”
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T.H. v. Novartis Pharmaceuticals Corp., 245 Cal.App.4th 589 (2016)
Ben persuaded the California Court of Appeal to reinstate a lawsuit that two minors brought against the brand-name manufacturer of an asthma drug for failing to update a drug label with warnings regarding the drug’s potential to disrupt fetal brain development. The minors alleged they were injured when an OB/GYN gave their mother a generic form of the drug to treat preterm labor. The Court of Appeal’s decision reinstating the lawsuit was just the third published appellate decision in the United States to recognize that consumers injured by generic drugs have a cause of action against brand-name manufacturers who negligently failed to add necessary warnings to the drug’s label, and was the first decision in the United States to expressly recognize such claims against a former brand-name manufacturer.
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Motions
Chung et al. v. Penske Media Corp., No. 18STCV10039 (L.A. Super. Ct., Dec. 21, 2021)
Ben defeated a motion for summary judgment in a personal-injury action arising out of a head-on collision during a media event for Robb Report magazine. One of the defendants (Penske Media Corporation) sought summary judgment on the grounds that the at-fault driver was an employee of its subsidiary, and therefore that it was not liable for the plaintiffs’ catastrophic injuries. The trial court agreed with Ben that Penske could be treated as the driver’s employer under a novel agency theory.
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Kumar et al. v. California Department of Transportation, et al., No. 18GECG00954 (Fresno Super. Ct., July 1, 2021)
Ben defeated a motion for summary judgment in a case arising out of a multiple-fatality collision at an intersection between a county road and state highway. The case presented the novel theory of whether an intersection is in a dangerous condition if the conditions of the roadway cause motorists to ignore an otherwise unobstructed “Stop” sign. The case also involved the question of whether a public entity can be held liable under a failure-to-warn theory if it is entitled to design immunity for the same public improvement, a question on which there is currently conflicting appellate authority. The trial court agreed with Ben on both issues, and denied the motion for summary judgment. The Court of Appeal subsequently denied writ review of the trial court’s order by a 2–1 vote.
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Golden v. MedPro Group, Inc., No. 30-2018-01035776 (O.C. Super. Ct., Dec. 18, 2020)
Ben defeated a motion for summary judgment in an insurance-bad-faith lawsuit arising out of an insurance company’s failure to settle a medical-malpractice lawsuit, resulting in a $6 million excess judgment against its insured. The underlying medical-malpractice lawsuit arose when a vocational nurse mismanaged an infant’s breathing tube, resulting in permanent brain damage.
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Takahashi v. Prime Healthcare Paradise Valley, LLC, No. 37-2019-00020065 (S.D. Super. Ct., Dec. 4, 2020)
Ben defeated a motion for summary judgment in a wrongful-death case brought by the widow and minor son of a man who committed suicide while in the custody of a mental-health facility to whom he had been admitted for psychiatric treatment.
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Lefiti, et al. v. Allied Universal Security Services, et al., No. GCG-17-559883 (S.F. Super. Ct., Sept. 16, 2020)
Ben defeated a motion for summary judgment in wrongful-death and personal-injury lawsuits brought by dozens of victims of a mass shooting at a UPS facility in San Francisco against the security contractor responsible for access control at the facility.
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T.H. v. Novartis Pharmaceuticals Corp., No. 37-2013-00070440-CU-MM-CTL (S.D. Super. Ct., Sept. 4, 2020)
After persuading the California Court of Appeal and California Supreme Court to reinstate the case, Ben defeated a motion for summary judgment in this long-running lawsuit against Novartis for failing to issue adequate warnings regarding its drug’s potential to disrupt fetal brain development.
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The California Court of Appeal affirmed an $11 million medical-malpractice judgment following a jury verdict in favor of a young woman who suffered a severe brain injury during a medical procedure.
Wrongfully incarcerated prisoners who prove they are “factually innocent” are entitled to compensation for the time they spent in prison, which the court upheld.
A lower court ruled that: consumers injured by generic drugs can sue brand-name manufacturers of that drug for misrepresentations in the drug’s warning label; and the defense counsel had waived the attorney-client privilege when they failed to promptly ask plaintiffs to return a privileged document inadvertently sent. The court of appeal affirmed the lower court’s ruling.
