CONTAMINATED FOOD PRODUCT CASES:  BE CAREFUL WHAT YOU EAT

Some of the more interesting cases that my offices have been involved in have concerned food products or dishes that contained contaminants that should not have been there.  Because this is an unavoidable risk of eating food, but is something that nobody would want to encounter, these types of cases tend to be somewhat unforgettable even with the passage of time from having handled such matters.

The law imposes strict liability for certain injuries as a matter of public policy, in certain types of cases.  If a food product has a contaminant in it that is not natural to the preparation or nature of the particular product, then the law will impose strict liability for all resultant injuries, regardless of whether or not the purveyor or vendor of the food product was negligent in the preparation of same.

Under what has come to be known as the "consumer expectation test", if the contaminant in question is not natural to that food product, then strict liability will apply.  On the other hand, if the contaminant in question is natural to that food product (ie., a bone fragment in a meat or fish dish), then strict liability will not apply, and the injured consumer can only assert negligence as the basis of a legal claim.  This may be difficult or impossible to do given the circumstances of any particular case, as the law only requires that a person owing a duty of care to another act "reasonably", not "extraordinarily reasonably".

Some of the non-natural contaminant cases that I have been involved in over the years have included broken glass in a dinner salad, worms in a candy bar, a piece of clear plastic in a container of mashed potatoes, a band-aid in a deli sandwich, and pieces of metal in fast food burgers (the latter situations were nearly always the result of the metal ring used to secure the ends of  commercially prepared plastic rolls of ground round somehow ending up in the patty, although I had one case wherein the piece of metal was a heavy gauge staple on a hamburger patty (this is not an advisable way to secure the cheese to the patty).

Much more difficult are cases wherein the consumer alleges to have contracted food poisoning due to ingesting a certain food product.  Proving that a specific food item caused food poisoning when the consumer most likely had several meals over the past 24 hours from other sources can be an uphill battle.  Moreover, many "food poisoning" claims are based solely on various subjective symptoms that cannot be medically correlated to a true situation of food poisoning.  The cases that I have been successful with in this area have all involved situations wherein there were multiple victims who had all consumed the same product from the same source.  There is strength in numbers.

In many food contaminant cases, the potential damages are somewhat nominal.  While anyone would probably have revulsion or distress at finding certain contaminants in their meal, those cases are not worth as much as those wherein the consumer requires medical or dental care to treat an actual physical injury arising out of the experience.

As might be expected, some food contaminant claims are looked at askance by the defendant, as they can be easy to fake by a dishonest person.

If you are the actual victim of a food contamination incident, it is important to remember the following:  (1)  make an immediate report or complaint to the vendor of the product or dish; (2)  save the contaminated object -- many restaurants or retailers will want to take immediate possession of whatever you may have found, but do not surrender what is now "Exhibit A" -- they can look at it later in a controlled setting after a formal claim is made; and (3)  seek medical or dental care immediately if a physical injury or significant distress is involved.

Lastly, I must share my favorite "food" contaminant case of all time.  This one was not a case that I handled, but I remember it from law school, and even then it was only a footnote in a products liability treatise that I was required to read.  The footnote referred to an actual case where a consumer bit into a plug of chewing tobacco and encountered a severed human toe.  While some may view this as an object lesson as to why you shouldn't  be using "chaw", my question was how this unfortunate soul was able to tell the difference between the "chaw" and the toe.  And that is why I don't use chewing tobacco.

Civility In Law Practice

Many clients in adversarial matters view their party adversary as the enemy, and by association, have a similar feeling about their adversary's attorney.  This is especially true in family law, probate proceedings involving opposing family members, and in business litigation wherein the parties had a working or personal relationship in place before a dispute arose.  These clients often have a problem understanding how their respective attorneys can communicate in an amicable fashion, given the emotional baggage that they may be bringing to the fore.  An attorney can always accomplish more for their client by having an open line of friendly communication with the opposing attorney, although depending upon the client it is not necessarily something that should be openly advertised in the client's presence, like a courtroom hallway.  A working relationship can help to avoid motions (and which are expensive for the client) and achieve stipulations to certain issues (and which again are usually a cost-saving procedure for the client) that are in the client's best interest.  In those situations wherein opposing counsel do not get along, an effort should still be made to do so, as it is the professional high-road to take.  Letting opposing counsel know what you really think about them in a negative way will cloud a lawyer's objectivity and open the door for eating a big dose of humble pie if things don't go the way you want them to at court.  The legal community can be a relatively small one, and you may encounter a former opposing attorney in a new case one day, and wherein you need a favor.  Don't burn your bridges.

E-FILING TO BE MANDATORY THROUGH-OUT THE STATE

It looks like the Judicial Council is going to make it mandatory to E-file all courthouse filings through-out the state within the near future.  An initial pilot program requiring E-filing at Orange County Superior Court has already been in effect.  The OCSC E-filing project initially only applied to complex cases, and then was gradually expanded to include all filings over a phased-in period of time.

E-filing means that the litigant must download his legal pleadings and send them to an approved vendor, who will then electronically file same with the court.  Either the litigant or the vendor must have an approved on-line payment system in effect in order to satisfy any filing fees required by that particular court.

As is the case with all things in the computer age, there are advantages and disadvantages to E-filing.

Advantages allow the litigant to directly file their pleadings, without traveling to the courthouse to do so; and to file documents as late as midnight of the given business day in which they are filed.  The latter fact may be important if a litigant is trying to get something on file before a relevant Statute of Limitations expires.  You also don't have to stand in line at the clerk's offices to get something on file.

Disadvantages would include the following:  A service fee is charged by a vendor for each E-filing, using in the amount of $9.95 for all court documents pertinent to one case that are being E-filed at one time; you must go to the trouble of scanning each document that must be E-filed (many times various types of motions may literally include dozens if not hundreds of pages); many vendors charge the litigant an "advance fee" for all filing fees that they advance on behalf of the litigant; and to those who do not have a computer or are unsophisticated re same, the E-filing requirements may be a major hassle or outright obstacle, especially if they do not have an attorney and are representing themselves in an action.

Bottom-line: E-filing is inevitable, but it costs litigants more for the ostensible purpose of making the court system more efficient.

SHIN v. KONG (2000)

I successfully represented the defendant physician in this appeal back in 2000.  One of the interesting things that happens when an appellate decision becomes reported, as this appeal was, is that other attorneys and courts can cite it as legal precedent, and which has occurred several times with this case in subsequent decisions.  The casehttp://caselaw.findlaw.com/ca-court-of-appeal/1402969.html stands for the legal proposition that a physician owes a duty of care to his patient, and not to the patient's spouse whom he is not treating.  It is also significant for its reinforcement of the "anti-heart" balm statute as embodied in Civil Code section 43.5 as first enacted in 1939, and which prohibits civil damage actions for alienation of affection, seduction of an adult or "criminal conversation" (aka committing adultery with another person's spouse).  The practice of law was probably more exciting before this code section was enacted.

BUDGET CUTS FURTHER IMPACT ORANGE COUNTY SUPERIOR COURT

The state's budgetary woes have already severely impacted the court system, especially in San Francisco and Los Angeles, where various subsidiary courts have had to close, resulting in longer waiting periods to get to trial and more travel time for litigants to attend court hearings.
Orange County Superior Court has been affected as well, although I believe it is one of the better managed county court systems in the state and has thereby been able to avoid many of the court closures that have affected other counties.
That is about to change on July 1, 2013.  At that time, the following changes will occur:

     The limited jurisdiction court in Laguna Hills will close.  This courthouse serviced South Orange County in small claims, traffic, civil harassment, unlawful detainer, and limited jurisdiction civil cases where the amount in dispute was less than $25,000.00.  Thereafter, the limited civil cases will be transferred to the Central Justice Center courthouse in Santa Ana, and the other matters will be heard at the Harbor Justice Center in Newport Beach.

     Probate and mental health cases, which used to be heard at the Lamoreaux Justice Center in the City of Orange, will also be transferred to the Central Justice Center.

     Family law cases (divorce and separation cases, adoptions, etc.) that were formerly heard at the Central Justice Center will be centralized and heard only at the Lamoreaux Justice Center.

Across the state, $260 million is being cut from court budgets, with Orange County bearing slightly more than 8 percent of that number.

This will probably result in longer waits for trial on civil matters, as the civil trial panel in Santa Ana will now have to deal with a glut of limited jurisdiction cases in addition to their regular caseload of unlimited jurisdiction cases, wherein the amount in dispute exceeds $25,000.00.

The above changes will probably be more inconvenient to litigants than to attorneys, other than waiting for longer periods of time to get to trial.  Up until now, Orange County Superior Court has been very diligent in ensuring that most of the civil cases went to trial no later than a year from the date that the action was filed.  That is probably going to change, given the above developments.

While the legal system in this country has its share of critics, I firmly believe that the United States has the most fair and enlightened criminal and civil justice system in the world, and it is a shame that financial mismanagement by a series of governors and state legislators has brought us to this point in time.

Out of the all of the appeals that I have been involved in, the case that is identified in this link is probably the most interesting.  It involved a family dispute over the dinner table, when an irate uncle choked out my client's 14 year old son in response to a verbal exchange between the two.  The police were summoned, and they arrested the uncle for assault on the minor.  The uncle was prosecuted for a misdemeanor and was acquitted following a jury trial, in large part due to his retaining one of the better criminal defense attorneys in the county and due to the failure of the D.A.'s offices to subpoena the minor's grandparents, who witnessed the altercation but who reside up in Northern California. The D.A.'s offices apparently won't incur travel expenses for witnesses unless it is a felony matter.  Thereafter, the uncle sued my client and his girlfriend for malicious prosecution and false arrest, contending that they maliciously filed a false police report against him.  I filed a special motion to strike the civil lawsuit under C.C.P. sec. 425.16, contending that the actions of the clients in calling the police was a privileged act of petition of grievances under the code section, such that it could not constitute a basis for a civil lawsuit.  We further contended that even though the uncle was claiming that he choked the minor in self-defense, that there were sufficient objective facts to justify the call to the police by the clients.  The trial court disagreed and denied my motion, at which time I took it up on appeal and the appellate court agreed with me, which resulted in the dismissal of the malicious prosecution action and an award of attorney's fees and costs to my clients.  The opinion is in the link and makes for interesting reading even if you are not an attorney.  The bottom-line is that pursuing malicious prosecution cases are fraught with peril, and that you better have the case thoroughly analyzed as to your chances for success if you intend to pursue such an action.http://www.leagle.com/xmlResult.aspx?page=1&xmldoc=In%20CACO%2020120307058.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

PET OWNERS FARING BETTER IN COURT ON DAMAGE CLAIMS

I had posted an earlier blog last year about how an appellate court upheld an award of emotional distress damages to a couple that owned a dog when their neighbor attacked it with a baseball bat, injuring it.  The CA Supreme Court refused to review the appellate court decision, so the dog owners' damages claim is now a done deal.  Again, this represents a significant shift in the law, where traditionally most courts have disallowed emotional distress claims related to pet injuries.

The current state of the law is therefore that emotional distress damages are allowable to the pet owner if their pet has been intentionally injured (ie., via the situation hereinabove), but not when their pet has been only negligently injured (ie., like an errant motorist hitting a stray in the roadway, or a veterinarian being sued for malpractice because of a procedure being performed with complications on a pet).

The recent appellate decisions also appear to allow the recovery of vet bills to treat an injured animal, even when the bills exceed the fair market value (FMV) of the pet.  Contrast this to the situation wherein if your motor vehicle has been damaged in an accident, that your damages are limited to the cost of repair or the FMV of the vehicle, whichever is less.

The arguments against allowing emotional distress damages for the loss or injury to a family pet are essentially twofold:  (1)  If emotional distress damages are to be allowed, then to how many family members is such relief to be granted; and (2)  parents who suffer the injury or death of a minor child due to the negligence of another are not normally allowed damages for emotional distress unless they contemporaneously witness the injury or death of the child, and in the case of the death of a child the parents are limited to the loss of future financial support the child would have arguably provided them had the child lived, plus the "loss of society" of the deceased child.

This is an evolving area of California law, but it definitely appears that the courts are starting to recognize the unique bond that family pets share with their human owners, and are translating it into a remedy when the pet is injured.