The case before the court was Stinnett v. Tam, in which a jury found health care providers liable for the death of a young man and awarded his widow, Holly Stinnett, $6 million as compensation for loss of her spouse. Under MICRA, the jury’s award was reduced to $250,000, the maximum that can be awarded under the law for non-economic damages (such as loss of a spouse, loss of fertility, loss of mobility or severe disfigurement).

“Our argument was twofold,” said attorney Robert Peck of the Center for Constitutional Litigation in Washington, D.C., one of two attorneys who argued the case at the Court of Appeal on behalf of the plaintiff. “First, there is no longer a crisis affecting the medical malpractice insurance industry, as was alleged when the law was passed in 1975. The lack of a crisis no longer justifies a $250,000 cap on the most catastrophically injured individuals. And second, the right to jury trial means you get the benefit of the jury’s determination of damages. Any interference with that violates this inviolable right.”

In the trial court, the plaintiffs submitted an affidavit from former Missouri insurance commissioner Jay Angoff showing how California’s medical malpractice insurance industry is thriving, with high profits, record surpluses and a competitive marketplace. The trial court judge opined that the matter is one for the legislature to decide, not the courts.

But Peck argued that MICRA violates the equal protection clause of the state constitution by dividing a class of plaintiffs—people injured by medical negligence—and then discriminating against those who are catastrophically injured and thus do not get the full benefit awarded by a jury. Patients who suffer lesser injuries are not affected by the cap. Peck said the justification for the discrimination in 1975 was the malpractice “crisis,” a justification that was later upheld by the California Supreme Court, but he argued that if the crisis no longer exists, the discrimination cannot be allowed to continue.

“Equal protection means you have to have a rational basis for not treating groups equally,” Peck told the court. “We submit the rational basis for MICRA has evaporated.”

Attorney Daniel U. Smith

“Now, 36 years after MICRA was passed, times have changed,” said attorney Daniel U. Smith, who also argued the plaintiffs’ case before the Court of Appeal. “The conditions in the insurance market and in health care are completely different than they were in 1975. There is no crisis. Medical malpractice insurers are profitable. Mr. Angoff’s affidavit showed that by every measure their profits exceed the national average, and we showed that health care is not at all at risk. Doctors have their choice of malpractice insurance carriers, new carriers are moving into California to take advantage of this market, and premiums are declining. On that basis we suggested to the court that there is no rational basis for continuing discrimination against the most severely injured plaintiffs.”

“We’re not here to litigate whether there was a true crisis in the mid-1970s,” said Stewart Tabak, who represented Ms. Stinnett at trial. “But there is no evidence whatsoever—none—to suggest a crisis currently exists. And if there’s no crisis, there’s no rational basis to claim that MICRA has any life left in it. We have Proposition 103 [enacted in 1988] in place now to regulate malpractice insurance premiums and ensure insurance companies get a fair return and health care providers are not overcharged.”

Smith made the analogy during his argument before the court that MICRA is like a cast put on a broken leg. Just as a cast is used to help heal an injury, MICRA was used to help treat what was thought to be an insurance crisis. But once the leg heals, there’s no rational basis to keep the cast on, and Smith argued now that the crisis is over, there is no reason to keep MICRA.

The defense was represented at the Court of Appeal by Kenneth Pedroza, on behalf of the health care providers involved; Todd Chayett, on behalf of the California Medical Association, California Hospital Association and American Medical Association, among others; and Fred Hiestand, on behalf of the Civil Justice Association of California, the big-business-backed group that works to reduce citizen access to the courts.

“The arguments that were made by the other side were, one, this is really something for the legislature to do and no court has the authority; the court seemed to look down on that argument pretty much,” Peck said. “The second was that because of the way the evidence came in at trial on the current lack of a crisis, in the affidavit from Mr. Angoff that was submitted late in the process, maybe it’s necessary to have a full-fledged evidentiary hearing and do it differently.”

Pedroza said during his argument in court, “They [plaintiffs] argue it’s Proposition 103 that has kept malpractice insurance rates reasonable. We say, no, it’s MICRA that has kept rates reasonable….I don’t think this is an appropriate function of the court to determine who’s keeping rates stable.”

He went on to add, “Proposition 103 does nothing to control premium increases based on claims, it just guarantees insurers a fair rate of return. It won’t help doctors with premium increases after a $7 million case.”

Pedroza also said the analysis in the Angoff brief claiming medical malpractice insurers paid out too low a percentage of their premiums in claims did not take into account the cost of defending the cases.

“There are going to be good years and bad years [for insurance companies based on the amount paid in claims],” he told the court. “The point of MICRA is to provide stability, so companies can continue providing insurance and doctors can continue to practice….There continues to be a rational basis for MICRA.”

Chayett countered Smith’s cast analogy with an analogy of his own, saying enacting MICRA in response to an insurance crisis was more like a dam built in response to a flood. Remove the dam, he said, and the flood will come back. “We think we would revert to a medical malpractice crisis [without MICRA],” Chayett told the court. “We think there would be problems retaining physicians.”

Peck later referred to a California Medical Association report that cited the reason for doctors leaving the state as the penetration of managed care and noted there was nothing in that report about medical malpractice premiums.

Chayett pointed out the state Supreme Court’s 1985 ruling in Fein v. Permanent Medical Group that there was an insurance crisis that created a rational basis for MICRA. “Are we stuck with that forever?” asked Justice Dennis Cornell. “On that basis there would still be Japanese-Americans interned. Aren’t there constitutional issues that can be investigated by a trial court?”

The question was aimed at defense arguments that only the legislature has the power to change MICRA since it is a statute. Peck later pointed out that when the state of Texas implemented caps on damage awards to malpractice victims, it did so through an amendment to the state constitution granting the legislature the power to enact a cap.

In his final remarks, Peck said, “The [malpractice insurance] crisis doesn’t exist, therefore the rational basis [for MICRA] doesn’t exist. We think the court has full authority to declare MICRA unconstitutional based on changed circumstances.”

In addition to Justices Cornell, Justices Betty Dawson and Gene Gomes heard the case for the Court of Appeal and must issue a decision by mid-November. The justices, especially Justices Cornell and Dawson, extensively questioned all the attorneys who presented, and at the conclusion Justice Cornell said the case was “very well argued.” Cornell had started the proceedings by saying it is “an amazingly interesting case.”

–J.G. Preston

Here is a video report on this story:

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It’s hard to say what brings tears to Kathy Olsen’s eyes faster – talking about her son’s past, or the young man’s future.

Steven Olsen was a mischievous two year-old in 1992, the kind of kid happy to lead his 3-year-old sister into trouble on a regular basis. His response when mom put up a gate to keep the kids from climbing the stairs? No problem – Steven would turn a laundry basket into a step; up and over they’d go. And when dad blocked off the ladder to the backyard slide? Steven turned a tricycle into a step stool.

“He figured this all out,” she says. “He was really quite intelligent.”

That all changed in late February 1992, when a freak injury followed by a downward spiral of medical errors left the boy severely brain-damaged. This tragic series of events turned the Olsens into forceful advocates in the battle to roll back California’s medical malpractice caps, set in place by the watershed Medical Injury Compensation Reform Act of 1975. MICRA’s $250,000 cap on human suffering, the Olsens argue, led to an inadequate financial settlement and didn’t allow the family to fully hold accountable the people responsible for destroying their son’s life.

The Olsen’s ordeal began during a visit to a relative’s mountain cabin outside San Diego, where Steven tripped while running and fell face-first onto a sharp stick that penetrated deep into the right front part of his mouth, face and sinus cavity. Surgeons at Children’s Hospital of San Diego repaired the damage and took cultures to test for infections as a precaution, then sent the family home.

A few days later, Kathy and her husband, Scott Olsen, noticed that Steven was becoming lethargic. A fever spiked. The Olsens brought him back to the hospital. As the medical teams tried to figure out what was happening, the couple suggested the face-impalement may have caused additional problems and asked for a brain scan. The medical team rejected the request and  diagnosed meningitis, the first in a series of errors that eventually sent Steven into a two-week-long medically induced coma.

By the time the nightmare stabilized, Steven was severely brain-damaged from an undiagnosed and ruptured abscess inside his skull caused by the impalement. That unseen damage would have been discovered had the doctors heeded the Olsens’ request for a scan. And it likely would have been treated even sooner had the medical team checked the lab results on the cultures that had been taken during the first hospital visit.

Steven (right) with his brother and sister. © Consumer Attorneys of California

The fallout of that missed diagnosis of a treatable infection was horrific: The bright and creative problem-solving toddler was left severely brain-damaged, blind and incapable of all but the most basic tasks. As his parents look to the future, they fear for how his later years will play out, in part because MICRA had capped a jury verdict of $7.1 million in pain and suffering damages at $250,000.

The Olsens did receive $4.1 million in economic damages from the jury and a pre-trial settlement with some of the defendants. That total immediately shrank by a quarter for lawyers’ fees, and by another $115,000 for the expert witnesses who testified in the trial. Other expenses, including nursing care and a private school for the disabled that helped Steven regain some of his speech and coordination, also have accounted for more than $100,000 in costs.

Steven also receives $718 a month disability support from Social Security, which was cut in May from $908 a month. The Olsens say a conservator controls the money on Steven’s behalf, but they fear it will run out. “I don’t think his money will last as long as he will,” Kathy Olsen says, tears again streaming down her cheeks. Yet she also thinks her son is lucky that they’ve been able to advocate for him. “We’re survivors in a system that isn’t really set up to help somebody,” she says.

Most of the young man’s medical costs have been covered by health insurance through Scott Olsen’s job as an automotive technical writer, but he will soon age out of that coverage. They fear that once they pass on, responsibility for Steven’s care will ultimately fall to government programs rather than to the people most responsible for his condition – the medical team that made the critical and avoidable errors when the boy was two.

Steven’s medical problems have transformed the Olsen’s family life. When he was injured, the family had four pre-teen children living and sharing bedrooms in a two-story house in suburban San Diego. Kathy Olsen quit her career as a store manager for Sears to become Steven’s primary care-giver rather than hiring aides to cover the hours when she otherwise would be working. Scott Olsen believes his career as a technical writer has suffered because of his repeated and extended absences during Steven’s many medical crises – including 23 surgeries.

Steven's mother Kathy became his primary caregiver. Photo by Lori Shepler © Consumer Attorneys of California

“Everyone’s been good,” he says, adding that he has appreciated the support and understanding from bosses and co-workers. “But it doesn’t help when they ask, ‘Can everyone come in tomorrow?’ and I say I can’t because my kid’s in the hospital.”

The Olsens had to move from their two story home into a nearby ranch house because Steven could no longer navigate the stairs he used to scramble up like a monkey. They also needed more room – because of the constant need for care, Steven could no longer  share a room with a sibling. Through the conservatorship, Steven owns half of the house, which underwent renovations to make it easier for him to maneuver, and to add a full access bathroom off his bedroom.

Out back, the yard has a play set and a swimming pool where Steven, despite having limited control of his motion (the brain injury caused cerebral palsy), likes to swim, and gets regular exercise. Steven’s a generally happy young man despite his disabilities, though he has trouble sometimes controlling emotions and impulses because of the areas of the brain that have been damaged. At the start of the interview for this story, he said he was interested in talking but after insisting on showing me his bedroom and how his favorite toys worked (we walked down the hall together, Steven kissing my shoulder most of the way until his mother persuaded him to stop) he decided he no longer wanted to talk.

Steven requires near-constant supervision after his accident. Photo by Lori Shepler © Consumer Attorneys of California

He requires near-constant supervision, and help. He can tend to most of his bathroom needs during the day but has to be diapered at night. For his own safety, his room – outfitted like a young boy’s – has a locking door with an alarm in his parents’ bedroom to keep him from wandering around at night. Leg braces help him stand and he has limited abilities to use a cane for walking around.

A circle of friends and relatives have pitched in to give the Olsens some time for themselves (a cousin stayed with Steven during the interview), but caring for their son has become the focal point of their lives. Steven has regular preventive appointments with a pediatrician, a neurologist/neurosurgeon, an orthopedic surgeon, an ear/nose/throat specialist, schedules that pick up when he encounters unexpected  problems. A physical therapist the couple pays for privately visits the house three or four times a week to help keep Steven’s limbs, over which he has limited control, as functional as possible.

“He is highly maintained,” Kathy Olsen says. “We go every six months. I don’t want anything else to happen to him.”

Yet Steven is not coddled. “He needs to know what he can do for himself,” the mother says. “Getting in our van, I put his foot there and say, ‘Now, plant your foot and get your butt up on that seat.’ He has learned what I think are some of the independent skills that he has to learn. He has to function.”

The Olsens’ experience with the legal system, and their frustration with the MICRA cap, turned them into reluctant activists. They have taken part in rallies, spoken at conferences on the issue and testified before Congress on how the MICRA cap has affected their lives. They are particularly galled by pronouncements and political spin by proponent of the caps.

The Olsens have been active fighting MICRA.© Consumer Attorneys of California

“We probably wouldn’t have done anything, but then we kept hearing from insurance companies and the other side about how this cap is helpful to people like us,” Scott Olsen says. “If they would have just shut up, we probably would never have done anything.”

The Olsens are particularly irked by the Californians Aligned for Patient Protection (CAPP) group, which is supported by doctors, hospitals and other medical care providers, and whose board of directors is composed of leaders of for-profit medical groups.

“They don’t protect patients at all,” Scott Olsen says. “Their whole premise seems to be that this is helpful to the person that’s been injured by malpractice.  They can collect the award faster, they settle much quicker. This isn’t right. If they would just say, ‘We don’t want to pay for it,’ that’s fine. Just be honest about it.”

The couple also occasionally fields calls from people who have been similarly affected by medical malpractice, but – particularly those involving the death of a child – can’t find lawyers to take on the cases because the cost of going to trial exceeds the possible judgment.

“Unfortunately, if you kill a child, there’s no economic damages,” Scott Olsen says. “Or it’s someone with no income that it happens to.” The MICRA cap, the couple says, effectively bars those families from seeking redress through the courts.

Scott Olsen says dismissive attitudes by defenders of the caps also galvanized them. He cites a comment by then-U.S. Rep. Christopher Cox (R-Newport Beach) in the mid-1990s that referred to pain-and suffering awards as “feelings” damages. “That,” Olsen says as his now-adult son struggles nearby to eat lunch without help, “just set me off.”

California’s MICRA law has been used as a blueprint for similar laws in other states, and in pushes for federal legislation – efforts that also brought the Olsens to witness chairs in legislative hearings, and rallies fighting the measures. They’ve appeared on national television talk shows and news programs, from the old “Phil Donahue Show” to NBC’s “Today” show. They also are active with Consumer Watchdog (Kathy Olsen sits on the board) and the Center for Justice and Democracy, and have worked on projects with the Consumer Attorneys of California.

“There were so many things that were not right that you have to do what you can,” Kathy Olsen says, arguing that the issue is not a face-off between doctors and lawyers, but between insurance companies and doctors and their patients. She sees the MICRA cap as part of the broad power the insurance companies have amassed, which now extends to dictating to doctors how they treat patients.

For all the broad policy elements of medical malpractice caps, the full impact is on the micro level. Over the course of a nearly two-hour interview, the Olsens’ dug into two decades of memories to detail the dizzying litany of treatments, complications and medical crises that their son has endured due to the medical negligence of his doctors. Finally, memory spent, Kathy Olsen went off to the family computer to print out a list.

She returned a few minutes later with four stapled sheets holding 56 separate entries listing all of Steven’s serious medical encounters, from the first emergency room visit through November 2009, the last time she had updated it.

“People who are 21,” she says, “shouldn’t have a medical history like this.”

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By NANCY WRIDE

Mayra Fornos had big dreams, and they’d all come true by age 24. Newly married to a handsome USC student, Fornos lived across the street from the sands of Manhattan Beach, he a surfer bound for law school, she the tall and stunning fashionista. The future seemed set: He would become a lawyer; she would launch a career in apparel marketing.  She was already one of three top models in Los Angeles that shaped Guess and other brands in the $2 billion jeans industry. She’d already been a Rams Cheerleader.

Then, it all cratered, with the break of a wave.

Attorney Mayra Fornos at her law firm in Los Angeles. Photos: Lori Shepler

On that day in 1979, six months before graduating USC, Ralph Fornos walked into the waves with his board, and had to be carried out.  Perhaps a wall of water slammed him to the ocean floor, or he hit a sandbar. He floated to the surface alive, but unmoving, a quadriplegic.

In the years that followed, her husband’s life in a wheelchair drastically changed hers.  “After my husband was injured, he said ‘that’s it. We have to change the world,’ ” Fornos recalls proudly. It started with Fornos turning the pages of his law books. Immersing herself to help him with classes at University of West Los Angeles School of Law, Fornos decided to become a lawyer herself, and practiced with her husband until his death in 2002.

She views the Americans with Disabilities Act as the greatest civil rights law passed since the Civil Rights Act itself.

Today, it’s fair to say that Mayra Fornos is the only lawyer in Southern California whose entire workforce is either paraplegic or quadriplegic.  She is one of the best-known Los Angeles attorneys specializing in Americans with Disabilities Act claims, and a widely respected advocate for the profoundly injured.

Working tirelessly both in and out of court, she has changed access policies, she has changed bicycle safety routes, she has changed hospital protocols. Friends say she never focuses on the money, but the cause. She has helped found two charities for the disabled.

She has done it, say her colleagues, with an approach that is blissfully ego free in a profession that typically is not. Steve Heimberg, a Los Angeles medical malpractice attorney and physician who works frequently with Fornos, put it this way: “She has fairy dust.”

And a firm resolve. When defense firms see Fornos is on the case, Heimberg said, they bring in their biggest guns for the battle. Even those who have jousted with Fornos in court respect her – and her devotion to the rights of the disabled.

“She’s an excellent lawyer, but even more impressive than her legal skills is her passion for the ADA and her pursuit to preserve the true intent behind the ADA,” said Kathleen Hunt, a Los Angeles lawyer who has sat opposite from Fornos.

Fornos isn’t after technical violations, added Hunt. “Her concern is to really make people aware that those with physical disabilities can and should have access and equal enjoyment to properties, places, just like anyone else.”

That devotion carries into her Century City office with the team she has assembled. Three of her associates are paraplegic. Two are quadriplegics. That they are impressive goes without saying – but their manner says something about Fornos, as well.

Across the street from Fornos’ Century City practice, she and associate attorney Mark Willits, 29, of Woodland Hills, talked about how he was paralyzed from the lower neck down. He breathed through a ventilator as an assistant fed him.

He had just turned 16, and was helping unload a semi-trailer on his family’s small town Iowa farm, 1,200 acres of corn, soybeans and a 100-cow herd.  A bunch of wood fell on top of him, causing catastrophic C2 and C3 injury.

“Think about it: he can’t breathe on his own but since his injury, he has graduated UCLA law school, he has gotten married, he holds a job and he’s bought a house,” Fornos said. “What people can do if given a chance – there it is.”

Willits would not minimize the staggering degree of mental trauma one lives through with this kind of tragedy. But neither does he dwell, allotting just a couple of sentences to define his fate.

“I wanted to die. But I eventually realized that I had to move on with life, and I had a very strong family to support me,” he said. Earning his law degree and passing the California bar were big turning points. His role is to recruit clients who seem in need of legal or life help, and to screen the cases for the firm. “Mayra is empathetic and passionate about helping people,” Willits said simply.

Each of her half dozen workers is devoid of self-pity, willing to share how they came to be permanently injured, well moved-on from the dark days of wanting to die or hide from the weight of their own thoughts about the future.

Brianna Walker of Anaheim was a former dancer and legal secretary when she crashed her car in a sleep-deprived state and was paralyzed. Her life in a wheelchair is as full as it ever was – she practices law with Fornos and, along with Willits, helps run the charities Ralph and Mayra established.

Left to right: Mark A. Willits, Briana Walker, Mayra M. Fornos, Anthony R. Orefice III and Robert Rohan. Photos by Lori Shepler.

Walker and her co-workers share a matter-of-fact confidence about their capabilities and no self-doubt about their standing at the firm. There, Fornos and her team have represented cases of malpractice and discrimination and won damages and access for the disabled into places where barriers once stood – schools, amusement parks, workplaces, public spaces.

But the case she’s really arguing is the rights of her clients to have a life.

It sounds so simple, and yet it never is, and nobody knows this better than Fornos, part of why she is so effective in cases she fights herself and those she works on with other lawyers, some at big firms with the resources to power the lengthier battles. She has teamed with some of the top personal injury and medical malpractice lawyers in Los Angeles, among them longtime CAOC leaders Bruce Broillet and Heimberg.

“Her own view of what is important and which of her cases are the biggest is different than a lot of attorneys,” Heimberg said. “They are not the money cases they’re the cause cases – and virtually every case of hers that I am aware of is a cause case.” In the hard-knock legal world, Fornos operates “on the goodness method.”

“I think she is quite unique in the country,” said Heimberg – and he isn’t just talking about her team of lawyers in wheelchairs.

During her years of marriage, Fornos became well aware of what it actually means for a wheelchair-bound person to not be able to use a public restroom. It is not just the indignity or potential humiliation – it’s a potential health hazard. Robbed of a place to relieve themselves, they can experience extreme high blood pressure and a risk in some cases of dying.

In her first semester at law school, Fornos took a course in constitutional law from a professor that would become the most influential person in her professional life: the late California Appellate Justice Bernard Jefferson. He was also president of the law school.

Jefferson, who authored the California Evidence Benchbook, took Ralph Fornos under his wing – and the university did likewise, making its campus more accessible to he and other disabled students. Fornos was inspired to apply her experience as the wife of a quadriplegic living a full life.

“It was perfect timing and meant to be,” said Fornos. “The ADA passed in 1990, and went into effect in 1992. We passed the bar in 1993. We were maybe among the first lawyers to really focus on it.”

In those days, people who worked with the couple said their palpable romance and connection was evidence of what life could be for the wheelchair-bound.

“I met Mayra and her late husband many years ago. I think it was at a disabilities expo, and they were shopping for new vans and wheelchairs,” said Tommy Hollenstein, 49, an advocate and former client of Fornos. She won a discrimination case on his behalf. He is now an artist beloved in the disabled community. Hollenstein can’t use his hands, instead drizzling paint as his electronic wheelchair moves on canvas. He then rides through with his wheels to complete the picture. He became a minor celebrity for doing this with his dying guide dog, whose paw prints cut a path through the paint alongside his wheels.

Hollenstein was 24 when he rode his mountain bike off a dirt hill in a San Fernando Valley accident in 1985 and landed in a trench. He does a lot of volunteer work today in one of two charities Fornos founded or helped create. Ralph’s Riders, named after Fornos’ husband, is a support group where the disabled can learn everything from resources and product information to how to go on a first date in a wheelchair.

“They were an amazing couple,” Hollenstein said of Mayra and Ralph. “They clearly loved each other.”

Mayra and Ralph Fornos

In disability parlance, it’s called “not seeing the chair.”

Her personal experiences quite obviously color everything Fornos does in the courtroom and in her law practice. It is difficult to include all that Fornos involves herself with, the scope of her impact, because it is widely recognized as ridiculously surpassing the law. While she’s known in the legal world for her disability rights work, Fornos sees herself more broadly. On top of winning settlements and justice for her clients, she seeks help and support for them.

“I want to be helping the whole person, from the time they are injured to getting them resources and support,” Fornos said.

She would be the first to point out that there are attorneys out there filing bogus claims about disability discrimination that are out for the money, and she is particularly sensitive to the small business person’s frequent complaint that they can be shaken down for minor technical violations of the complex law. She is, after all, a small business owner herself with a small staff of six.

Said opposing counsel Hunt, “she’s really for the cause more than just a quick settlement.”

Fornos said she couldn’t help but be changed by her husband’s accident and her life with him as a quadriplegic. “Yes, you can win people a lot of money, but now what? You have to help people with that. I wake up every morning with the joy of that. Asking, how can I get them to change their mind today, and see this differently, at a job or a government office? Had I not gone through the pain, really, I’d just be a lawyer.”

Nancy Wride is a journalist and local editor reporting news for the Long Beach website, Belmontshore.patch.com

All photos: Lori Shepler

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If understaffing of nursing homes wasn’t on the radar as an issue before July 6, 2010, it certainly has been since then.

That’s the day a Humboldt County, California, jury returned a $677 million verdict against one of the nation’s largest nursing home chains, Skilled Healthcare, for violations of California’s Health and Safety Code at 22 of its facilities in the state.

“We as a jury needed to send a message,” jury foreperson Bob Hart said, months after the verdict.  “Are we going to let our old people waste away and die in their own filth?  Or are we going to say, no, we don’t want that to happen?”

Hart said the jury’s answer was emphatic. “Our verdict said, by God, you can’t ignore this!”

One of Skilled Healthcare's facilities in Eureka, California

Skilled Healthcare heard the message – and so has the entire nursing home industry.

The case resolved in a negotiated settlement of $62.8 million.  But as part of that agreement, the plaintiffs’ attorneys also got Skilled Healthcare executives to agree to a court injunction requiring the company to meet legally-mandated minimum staffing levels, with the company paying for a court-appointed monitor to ensure compliance.

The size of the jury’s verdict reflected the maximum damage amount of $500 penalty for each patient at a Skilled facility on a day when the facility failed to provide at least 3.2 hours of nursing staff time per patient, the minimum required under California Health and Safety Code Section 1276.5.

Attorneys Tim Needham and Michael Crowley of Eureka’s Janssen Law Firm, Michael Thamer of Callahan and Christopher Healey of San Diego’s Luce Forward firm brought the case as a class action on behalf of some 32,000 residents of Skilled Healthcare facilities over a six-year period.  The maximum potential damages per violation was set by Health and Safety Code Section 1430 (b) because the understaffing violated the portion of California’s Resident Bill of Rights for nursing care patients that reads, “The facility shall employ an adequate number of qualified personnel to carry out all of the functions of the facility.”

In essence, the attorneys made the case that, when the facilities did not maintain minimum staffing, the residents did not receive the care they—or, in the case of Medi-Cal and Medicare patients, taxpayers—had paid for.  Lavender v. Skilled Healthcare Inc. is the first case to be prosecuted to a conclusion on that basis.

The suit was an outgrowth of a number of wrongful death actions that had been brought against Skilled Healthcare in Humboldt County, where the company has owned all five of the county’s skilled nursing facilities since 2003.

Needham said the discovery process in those wrongful death suits frequently identified understaffing as an underlying issue.  “We would ask why did the woman fall, why was she injured, and we would be told, ‘I was the only person on shift and I was trying to move her,’” Needham said.  “Why didn’t she get turned?  ‘Well, I couldn’t turn everybody, I was the only person on Saturday night and I certainly couldn’t get around to turning 30 different patients.’  It was a pattern of understaffing.”

Eventually, some family members of residents approached the attorneys to see what could be done to change the corporation’s behavior, and that’s when the class action began to take shape.

Attorneys Tim Needham (left) and Michael Thamer

Needham said the maximum damages of $500 per violation initially seemed too small to merit legal action.  “But there are a hundred people in each facility, and there’s 22 facilities in California, and we know they’re understaffing 30 to 40 percent of the time” Needham said.  “I started doing the math.”

Because the penalty can be assessed for each patient in a facility for each day the facility is understaffed, Needham’s arithmetic made it clear the potential total penalty was huge.

Asked if the understaffing violations should have been handled directly by the state Department of Public Health, Michael Crowley said, “That would be nice in a fantasy perfect world if there was not a $20 billion budget deficit in California and the Department of Public Health had enough staff and resources to aggressively enforce their own rules.  The Legislature recognized the reality of those limitations, and therefore encouraged court action to enforce the public policy of protecting elders.”

Even when the regulators documented abuses, little came of it. The state came in on 87 different occasions and issued deficiencies to Skilled Healthcare for being below the minimum staffing level on more than 500 days. The result was no result – staffing levels never improved. With the sorry track record, “the suggestion that the state is effectively regulating this field so that cases like this are unnecessary is an indefensible position,” Michael Thamer said.

Needham explained how the state’s inspection process worked.  “What we found is, when the state would issue a deficiency, the response by the defendants would be, ‘We promise we’ll do better.’  And the state would say, ‘Okay, fine, you promised you’ll do better, that’s enough.’  They [Skilled Healthcare executives] just ignored it [citations from the state].  In fact we had e-mails that showed that it was treated internally as a running joke.”

It would take a class action to stop it.

—

Because the case was based on a violation of residents’ rights, the plaintiffs did not have to show residents were harmed as a result of understaffing.  But in his opening statement and closing argument, Thamer made the consequences of understaffing clear to the jury.  “This wasn’t just a violation of an abstract number.  These violations had a real and significant impact on the residents.”

The testimony of both former residents and family members of former patients painted a vivid picture of what those impacts were.

Jack Stearns, a millwright at the Louisiana Pacific pulp mill in Humboldt County, developed Alzheimer’s disease.  He lived with his daughter, Cindy Cool, and her husband for a year before they were no longer able to keep track of his wanderings or deal with his outbursts.  “He was placed in a care facility where they took very good care of him,” Cool said.  “And then when they sold, they asked him to move.”

That’s when Stearns became a resident at Eureka Healthcare.  The family turned to it because it was a lockdown facility could keep track of him. But the very first day, Cool said, “by the time I got home I had received a phone call from somebody who said they thought they had my father in their front yard,” a mile from the nursing home.

Cindy Cool's father was a resident at Eureka Healthcare, where she frequently found him wearing clothes that had been soiled from incontinence because there weren't enough employees on hand to clean and change him.

Cool said her father also suffered from neglect in other ways.  “He was incontinent quite a lot.  I would go in and his sweatpants would be soaked, and his undergarments would be hanging down to his knees, and all that urine was running down into his shoes,” Cool said. In the lounge area, sofa and chair cushions were soaked with urine. On visits with her father, she took to finding a towel to put down or a hard chair without covers so wouldn’t be sitting in urine.

Cool came to realize many of the problems were the result of understaffing.  “When you walk in and you’re looking for a nurse for help, and you have to go to two different wings before you can find one, because they have only one nurse on staff to take care of three wings, that tells you something.  If you pushed the call button for the nurse to come, it would be 20, 30, 40 minutes before anybody would answer it.

“I want to make it clear that I don’t blame the help over there.  I blame the owners of Skilled Healthcare for not providing more help for them.  I just wanted him taken care of, and they didn’t do that.”

And it was clear to Cool that officials at the facility knew they were not meeting their legal staffing requirements.  She was there twice when state inspectors showed up, Cool said. “The first time I saw all these people in there and I asked someone, ‘Did you hire more helpers?’  And they said, ‘No, they’re just in from the other facilities because we’re having an inspection.’  And then after the inspector left it was back to the same empty building.”

More than four years after her father’s death, Cindy Cool is still visibly emotional discussing the way her father was cared for, and those emotions were evident at trial.  Michael Crowley recalled how Cool grew tearful talking about the terrible things she had witnessed with her father.

In his closing argument, Thamer noted that the only defense witness to become tearful during the trial was Skilled COO Jose Lynch, who cried under tough cross-examination over his compensation package, which for the year in question was more than a million dollars.

—

The first witness the plaintiffs put on the stand was William Hugoboom.  In early 2005 he was recovering from a head-on crash when he fell and tore the tendons in both knees, leaving them “swollen to the size of volleyballs and extremely painful,” he said.  Hugoboom was born with brittle bone disease and has had nearly 90 fractures, so his ambient level of pain is high and he needs powerful painkillers when he has additional acute pain.  He was sent to Eureka Healthcare to recover from his knee injuries.

“Day after day after day after day I was in anguish and agony because of the lack of staffing,” Hugoboom recalled.  “They were behind in getting the pills out.  I felt sorry for the staff, because they were constantly stressed.  When I complained, I was told, tough, there are a lot of other people here too.”

When he was a resident at Eureka Healthcare, William Hugoboom noticed how many more employees would suddenly be on hand on days of state inspections.

Hugoboom chose to testify in the case because he felt a moral obligation to speak for those who couldn’t speak for themselves.

“One fellow who was in my room was a stroke victim” Hugoboom said.  “One time a nurse brought in a manual Hoyer lift, a sling they put under the patient in bed and then use a hoist to lift him up and place him into a wheelchair.  You should have two people to operate it.  The nurse came in, alone, to operate it, and the patient fell through it onto the floor.

“Then she got help, and in the process of getting him back in the sling and into the wheelchair, he had a bowel movement, and they rushed him off in the wheelchair and left the bowel movement in the middle of the floor.  Well, I pushed the button, and it was about a half-hour before someone came to pick up the bowel movement.”

Hugoboom echoed Cindy Cool’s observation that facility officials knew they were illegally understaffed.  “Many times they pulled staff members from other facilities to fill gaps, especially on days when there was a state inspection,” he said.  “The inspectors would show up and then all of a sudden there would be all kinds of people there from the main office, and there would be all kinds of people there I never saw before.  When the inspectors left, those people would disappear immediately.  Immediately!”

Like Cool, Hugoboom doesn’t blame the employees.  “You have these young girls that come in, they’ve just gotten their CNA [Certified Nursing Assistant], they barely know what they’re doing, they get hired, they’re told what to do, and then they can’t do it because they start doing something and somebody yells at them that they gotta go do this and then somebody yells at them that they gotta go do that, and they’ve got all this incomplete stuff behind them—they are so frustrated by their job that they’re in tears.  There wasn’t enough of them.”

—

It was more than three years from the time Lavender v. Skilled Healthcare Inc. was filed until it went to trial.  After more than six months of trial the jury returned a plaintiffs’ verdict.

Attorney Michael Crowley

Crowley said the defense did everything it could to slow the proceedings. The plaintiffs’ attorneys had to slog through numerous procedural fights, a motion to decertify the class, change of venue motions, 12 writs to the court of appeal, plus two appeals that were denied.  Near the end of the trial, they had to survive motions to disqualify the trial judge on alleged bias, motions for mistrial on various allegations, and then post-verdict motions for mistrial based on alleged jury misconduct.

They fought for years to get the defendants to release internal corporate e-mails relevant to the issues of understaffing and management. Then, shortly before the beginning of the trial, the defendants dumped a quarter of a million pages of e-mails.

Crowley said it was clear the defense didn’t think the plaintiffs’ team could go through and organize that amount of material.  But they did.  In trial, “those were killers,” he said. “We used those e-mails to great effect.  The e-mails were just devastating to them.”

Jury foreperson Bob Hart found the paper trail incriminating.  “They [the defendants] proved the plaintiffs’ case.  The payroll records that they had to provide under penalty of perjury proved they were under [the minimum staffing requirement].  They kept treating 3.2 [nursing hours per patient each day] as a goal instead of a minimum.”

Jury foreperson Bob Hart said Skilled Healthcare's own records proved the plaintiffs' claims of understaffing.

Hart described how the jury came to see the case.  “I switched the conversation from ‘harm’ to the patients to ‘risk’ to the patients.  That just changed the whole tone of the deliberations.  The evidence showed that the lower they got below 3.2, the more they were putting people at risk.  Maybe residents didn’t get a shower, okay…but maybe they didn’t get food, or maybe they didn’t get turned, things that could lead to bad things happening.”

Jurors agreed unanimously that Skilled Healthcare had violated the Health and Safety Code.  Determining the penalty was another matter.

“When we were talking about the damages, the biggest difference was when one of the jurors said, ‘We’re not talking about zero to $500 [per violation]; we’re talking about zero percent liable to 100 percent liable.’  We felt they were 100 percent liable, and 100 percent meant the maximum penalty.  The amount of the verdict was based on the violations.  The reason the total was so high was because it was $500 times the number of violations.”

Michael Crowley said the size of the verdict “sent an appropriate message” to the nursing home industry – that the business model of understaffing to jack up profits was just simply not going to be tolerated.  “Since corporations exist to provide profits to their shareholders, that’s the way to get that message across [and] for social good to come out of litigation like this,” Crowley said.  “That’s what they’re going to respond to.”

Soon after the verdict was returned, negotiations began to resolve the case at a level that would allow Skilled Healthcare to stay in business. But that wasn’t the plaintiffs attorneys’ primary concern, Michael Thamer said.  “We wanted to ensure that the law was being followed. Their competitors were able to follow the law and stay in business.”

Thamer said the sticking point in negotiations was not the dollar amount but the plaintiffs’ insistence on a “meaningful” injunction that would require Skilled Healthcare to meet minimum required staffing levels.

“They didn’t want plaintiffs’ attorneys coming in and telling them how to run their business, and I can certainly understand that,” Tim Needham said.  “But on the other hand, we were adamant that they were going to improve the staffing levels, and we never really got past that point until the trial ended.”

Needham said understaffing at skilled nursing facilities is “a nationwide problem.”

“There’s no question about that,” he said. “The jury recognized that their verdict here was going to have a nationwide impact, which it has.  It’s one of the few occasions where we as attorneys can really say at the end of the day we did what we intended to do from the start, which was achieve justice.”

The decision has already had an impact on staffing levels at nursing homes around California, Needham said. “And I hope it will have that kind of impact across the country.”

J.G. Preston is press secretary for Consumer Attorneys of California.

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When Mohamed Ali Samantar came to the United States from war-torn Somalia in 1997, he hoped to live quietly in retirement in suburban Virginia. But thanks to a little-known San Francisco human rights group, the former Somali official instead became the focus of a landmark U.S. Supreme Court human rights case.

Samantar, who served as defense minister and prime minister of Somalia during the 1980s, is accused of responsibility in the torture, rape, imprisonment and deaths of thousands of Somali civilians. The non-profit Center for Justice and Accountability, which has pursued human rights abusers for more than a decade, filed a civil suit against him seeking damages on behalf of five victims and survivors.  After six years of legal wrangling, the Supreme Court ruled unanimously in June that Samantar could be sued in the United States under a law that dates to 1789. The case now heads back to district court in Virginia for trial.

The small legal center, with offices in the historic Flood Building on Market Street and a staff of just 11, may seem an unlikely organization to win a major human rights victory at the high court. But it has a proven track record of winning high-profile cases around the country by teaming up with law firms that donate their expertise and thousands of hours of attorney time. With pro bono help, CJA has brought legal actions in cases from a dozen countries, including the assassination of Archbishop Oscar Romero in El Salvador, abuses by Haiti death squads, the torture of Falun Gong practitioners in China and atrocities by an Indonesian general during East Timor’s independence referendum. Most recently, the center filed a complaint with the New York Office of Professions against psychologist John Leso for his part in designing and implementing a system of abusive interrogation at the U.S. prison at Guantanamo.

“We are the only U.S.-based accountability organization dedicated to bringing human rights cases against individual human rights abusers who have sought a safe haven in the in the United States,” said Pamela Merchant, an attorney and the center’s executive director. “Our mission is to represent torture survivors and family members who have suffered human rights abuses.”

The 12-year-old center has a remarkable track record: it has not lost a case that has gone to trial. It has won judgments for its clients totaling $160 million, although most of the judgments have amounted only to moral victories. Plaintiffs have collected just $1.1 million – more than half of it from a former Haitian colonel who came to public attention in Florida when he won the state lottery. “It’s never about money,” said William Aceves, an associate dean at the California Western School of Law in San Diego who serves on the CJA board. “It’s about an opportunity to present a case before a judge and jury, to be able to point a finger at the perpetrator and say, ‘What you did was wrong.’”

Merchant said that about 500,000 victims of torture and human rights abuses live in the United States, many of them granted political asylum. Amnesty International estimates that 1,000 former officials and military officers who committed human rights violations also live here, sometimes in the same communities as their victims.

A petite former federal prosecutor, Merchant is an energetic, hands-on manager and lawyer who is passionate about winning justice for victims of torture.  The center’s staff attorneys, who share her commitment, have a mix of experience in private law firms andnon-profit work.

One of the keys to the center’s success is enlisting the pro bono help of private law firms. Once CJA decides to file a suit against an alleged human rights abuser, it looks for a law firm in the jurisdiction with experienced litigators and the resources to help take on a complex, potentially time-consuming case. The center reported last year that it received nearly 6,000 donated hours valued at $2.5 million from 15 law firms, private investigators, law school legal clinics and other volunteer attorneys. “These cases are tremendous opportunities,” said Merchant, a former federal prosecutor. “The clients are so inspiring to work with. This is an opportunity to work on something you are passionate about and hone your legal skills.”

Among the law offices that have assisted CJA in pursuing human rights cases are Morrison & Foerster; Wilson Sonsini Goodrich & Rosati; Cooley Godward Kronish; Aiken Gump Strauss; and the now-defunct firm Heller Ehrman. “We have been fortunate to work with some of the best firms in California and the country,” Merchant said. “We really value working with the big firms. We couldn’t do what we do without that partnership.”

The Center for Justice and Accountability was founded not by a lawyer but by psychotherapist Gerald Gray, who has been treating victims of torture in San Francisco since 1985. Gray recounts that in the mid-1990s, he received an urgent call from San Francisco General Hospital seeking help for a newly arrived Bosnian War[cq] refugee. When he got to the hospital, the refugee was distraught because he had come across his torturer living in San Francisco.

Gray feared the man might kill his tormenter, but instead the traumatized refugee fled to the East Coast. His torturer was never held accountable. “I can’t say why he decided not to hunt this guy,” Gray said. “Maybe fear of the police, or maybe he couldn’t bring himself to kill someone.”

The incident inspired Gray to find a way to help victims overcome their trauma by bringing their abusers to justice. With Amnesty International’s assistance, he established CJA in 1998. “The law gives us a chance to do something in a civilized way,” said Gray, who serves on the center’s board and has founded other groups to aid torture victims. “If we didn’t have the law, or if it didn’t work, we would be stuck back in that primitive place of flight or fight.”

In bringing its lawsuits, CJA relies primarily on the Alien Tort Statute of 1789 and the Torture Victims Protection Act of 1991, which allow victims of crimes committed abroad to sue for damages in U.S. courts. “They’ve been amazingly effective, especially given their small size and limited resources,” said Vienna Colucci, Amnesty International USA’s managing director.

The Samantar case originated in the San Francisco Bay Area in 2002 when three immigrants from Somalia — brothers Bashe and Omar Yousuf and their cousin, Amina Jireh — learned by chance that the former Somali leader was living freely in the United States.

“I was really mad,” recalled Omar Yousuf, an engineer with the California Department of Transportation. “The person who destroyed the country and killed thousands and thousands of people was in the United States and we couldn’t do anything about it.”

Jireh said her nephew, a young doctor, was among those arrested and killed by government forces. His body was dumped in the street in broad daylight. “The regime that was ruled by Samantar killed my nephew and now Samantar is sitting in Virginia having coffee,” she said. “We allow him to be here and have a safe haven.”

The three met with lawyers from CJA and decided to pursue Samantar in court. Bashe Yousuf became the lead plaintiff. He had been a successful businessman in Somalia but was arrested in 1981 after he led an effort to clean up a hospital and obtain medical supplies from foreign charities. The government falsely accused him and his colleagues of planning a rebellion and conspiring with foreign agents. He was waterboarded, tied up, beaten, shocked and held in solitary confinement for six years. He later received political asylum in the United States and became a U.S. citizen. He now lives near Atlanta.

The other plaintiffs are Aziz Mohamed Deria, whose father and brother were killed when Somali government forces attacked civilians in 1988; a man who survived execution by firing squad and hid under dead bodies until he could escape; a young woman who was arrested, repeatedly raped and held for years in solitary confinement; and a man whose two brothers were arrested and executed.

At the time, Somalia was ruled by Siad Barre, who seized power in a 1969 military coup. Samantar, a general, served as his defense minister and first vice president from 1980 to 1986 and then as prime minister until 1990. The regime used summary execution, rape, torture and imprisonment without trial to control the population, particularly in Somaliland, a secessionist region in the northwestern part of the country.

“The abuses in Somalia were well documented,” Merchant said.

After the regime collapsed in 1991, the country descended into chaos. Today, Somalia is a base for Al Qaeda and for pirates who attack commercial vessels.

“This case will set a precedent for a lot of countries that are ruled at gunpoint,” said Jireh, who today works as an insurance sales representative in the Bay Area. “He’s a war criminal who is living like you and me. That shouldn’t be O.K.”

Samantar fled Somalia, lived for a time in Italy and eventually arrived in the U.S., where he settled in Fairfax, Virginia. He denies the charges against him but declined through one of his attorneys to be interviewed. CJA filed suit against him in 2004.

His lawyers fought for years to keep the case from going to trial. They argued that he was acting in his official capacity when the alleged crimes occurred and was protected from suits by a U.S. law that grants immunity to foreign states. “Mr. Samantar vigorously denies the particular allegations in the suit, none of which have ever been determined to be true by any court of law,” said attorney Shay Dvoretzky, a partner in the Washington law firm Jones Day.

In 2007, Samantar won at the district court level when the judge ruled that he had immunity as a foreign official and dismissed the suit. The 4th Circuit Court of Appeals subsequently overturned the decision, ruling that the law applies to foreign states, not individuals.  Samantar then appealed to the Supreme Court.

A ruling by the high court that individuals could not be sued under the Alien Torts Statute or the Torture Victims Protection Act would have established a precedent making it extremely difficult for CJA to continue pursuing alleged human rights abusers.

“Samantar should not be above the law and our clients should have their day in court,” Merchant argued.

Samantar’s appeal received support from an unusual collection of allies, including the government of Saudi Arabia and pro-Israel groups who filed amicus briefs expressing concern that a ruling against Samantar could expose officials from their countries to similar lawsuits.

The plaintiffs countered with amicus briefs from former diplomats, retired military officers, torture victims, professors, members of Congress and Holocaust survivors arguing that individuals who were responsible for human rights abuses were not entitled to immunity in the United States. Much of the legal work was done by 10 law firms that worked pro bono on the case.

“The whole point of the law is to prevent people like Samantar – who use their power to order torture, rape and killings — from seeking a safe haven in the United States,” Merchant said. “The bottom line is that this man is not above the law.”

In June, the U.S. Supreme Court issued a 9-0 ruling agreeing with the plaintiffs that Congress did not intend to exempt officials from personal liability for alleged human rights abuses. “There is nothing to suggest we should read ‘foreign state’… to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted,” wrote Justice John Paul Stevens in one of his last opinions for the court.

On the day the decision was announced, Merchant said she was thrilled with the ruling. “In the United States, our government officials are not above the law,” she said, “and the Court’s unanimous ruling today confirms that foreign government officials, who come and avail themselves of the benefits and privileges of living in the U.S., are not above the law either.”

Deria, one of the two plaintiffs who have been publicly identified, praised the Supreme Court ruling. “I had faith in the Constitution and the legal system and I understand that this country represents the fairness of humanity,” he said.

Deria, who now lives in Oregon, came to the United States as a student in 1983 at the age of 19. His father, a successful businessman, and his brother were among 5,000 people killed when government forces attacked civilians in Hargeisa, the largest city in Somaliland, in 1988. “We lost everything we had,” he said, “emotionally and physically.”

The Somali community in the United States is watching the Samantar case closely, Deria said, in part because a number of other former top military officials who served in the regime also have taken up residence here. “This is not supposed to be a country that harbors war criminals,” he said. “We have a lot of evidence against Mr. Samantar. He has done a lot of harm and we are ready to meet him in court.”

For Merchant, the Supreme Court ruling is an affirmation of the years of work by the center to seek justice for victims of atrocities around the world.  “I have never had a job where I felt so inspired by the courage and the strength of our clients,” she said. “They are not vindictive. They don’t want to use violence back. They want to use the courts and stand up for a principle that’s bigger than themselves. It’s truly moving.”

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Sniffing, Charles Campbell figured, was part of the job. He’d take a whiff of the flavor mix to make sure that his batches of cinnamon candy didn’t come out tasting like butterscotch, that the peppermints didn’t smack of wintergreen.

As he poured liquid flavoring into mixing machines at the former Brach’s Confections in Chicago, Campbell never imagined that his 30-year career with one of America’s favorite sweet makers could take a toll on his lungs. Nor that his pride in making candies for kids could foreshadow a health nightmare that would weaken him so much that he couldn’t even visit his own kids and grandchildren.

Charles Campbell with his great-granddaughter Leloni Chang.

Campbell, who never smoked, eventually found himself tethered to portable oxygen, suffering a rare, irreversible and life-threatening lung obstruction called bronchiolitis obliterans. Physicians in 2000 began finding high rates among workers in microwave popcorn plants –- leading to the moniker “popcorn lung” –- and then among people who make butter flavoring for popcorn companies and snack food makers, like Brach’s.

Scientists fingered a compound called diacetyl, which occurs naturally in dairy products but also is part of a chemical cocktail used to make butter flavoring. The problem was not consumption of food containing the flavoring, but inhalation of its vapors by workers. Small airways in their lungs became constricted and scarred. With the threat identified, government regulators issued voluntary guidelines encouraging respirator usage as well as ventilation and enclosure systems to protect workers.

But after years of research and hundreds of worker lawsuits against makers and suppliers of butter flavoring, the government still hasn’t figured out what level of exposure is safe and how much makes people sick. Further, nobody has nailed down how widespread the hazard might be. And perhaps most disturbingly, after popcorn makers and other food producers changed their recipes for safety, government officials now are flagging the toxicity of substitute substances that essentially mimic diacetyl’s properties. In other words, the problem doesn’t stop with diacetyl.

* * * * *

“That story is still evolving because unfortunately sometimes people will use the substitutes without going through the toxicological background that is necessary,” said Lauralynn McKernan, senior environmental health officer at the National Institute for Occupational Safety and Health (NIOSH). The agency, a branch of the Centers for Disease Control, will include the emerging science on substitutes in a broad review of diacetyl that is due out later this year and is expected to recommend a diacetyl exposure limit.

Both California officials and the federal NIOSH are working on regulations specific to diacetyl, and now are grappling with the question of substitute chemicals. NIOSH investigators in November reported that reformulated buttermilk flavoring supplied to a General Mills bakery mix plant in Los Angeles contained ingredients potentially as toxic as the diacetyl they replaced. The toxins were not listed on the safety sheets they came with, NIOSH found. The company used protective ventilation and respirators, but workers had higher than expected rates of asthma and shortness of breath.

“The difficulty in trying to regulate diacetyl is it forces flavor manufacturers to use these similar molecules with one more carbon, two more carbons, when the toxicity is probably the same,” said Kathleen Kreiss, head of NIOSH field studies on respiratory disease. A further complication in evaluating health effects is that workers may not show symptoms until after months or years of cumulative exposure. Employers often don’t know what their workers are exposed to, so doctors have trouble linking illness to the compounds.

Additional unknowns involve diacetyl’s interaction with other potentially harmful flavoring substances. A NIOSH study in 2008 found that the metabolism of diacetyl changes in the presence of butyric acid, a common chemical in butter flavorings, and becomes more harmful.

* * * * *

Popcorn lung faded from the front pages after popcorn giants including Orville Redenbacher, ACT II and Pop Weaver announced “no added diacetyl” in their microwave products two years ago. California regulators drove down usage with a voluntary program involving flavoring companies, and federal officials issued non-binding worker protection guidelines. The Flavor and Extract Manufacturers Association urged its members to reduce use of diacetyl. Food makers say their protective systems have improved.

Nonetheless, politicians and government officials say an enforceable limit on diacetyl use is needed, a regulatory fix that also is supported by food industry representatives. One-time critics who now hold key positions in the U.S. Department of Labor yanked the go-slow Bush administration approach last year and announced the Obama administration would set a first-ever enforceable standard for diacetyl.

Labor Secretary Hilda Solis, who as a member of Congress had pushed for speedy government action when two flavoring workers contracted lung obstruction in her California district, noted three deaths had been linked to the flavoring compound. So far:

• •   OSHA cited diacetyl regulation as a top priority last fall. A leading critic of Bush’s policy, David Michaels, now heads the agency, but he acknowledged time-consuming regulatory hoops. “OSHA is committed to protecting workers from the serious hazards associated with exposure to diacetyl,” Michaels said in a statement issued through his press office. “However, numerous steps in the regulatory process mean OSHA cannot issue a rule as quickly as it would like.” The agency anticipates October peer review of a health risk analysis that will underpin the regulation. It is considering whether to include diacetyl substitutes. In the meantime it has a special program to inspect 83 facilities that make diacetyl-containing flavorings. A similar program issued citations at 18 of 35 popcorn plants inspected in 2008.
• •  Some in Congress want quicker steps. “I am concerned that OSHA has not acted fast enough to compel employers to reduce workplace exposure to this deadly additive,” Sen. Sherrod Brown (D-Ohio) wrote to Solis in November. “Workers and their families should not remain unprotected any longer.”
• •  California is closer to issuing protective rules that would affect companies using flavoring with more than one percent diacetyl. They would have to employ respirators and workplace controls and provide medical surveillance of employees. The state estimates 30 flavoring companies and potentially more than 4,000 food manufacturers would be affected, although many may have stopped using diacetyl. Some but not all have implemented recommended worker protections. The regulation, expected by summer, likely will include substitutes, said Len Welsh, head of California’s Division of Occupational Safety and Health. “We want to make it as difficult as possible to switch to an unknown and hope for the best,” Welsh said. Although new cases of bronchiolitis obliterans have dwindled in California, Welsh is tracking 45 workers with other lung illness that could be linked to diacetyl exposure.
• •  NIOSH is trying to learn about diacetyl exposure at food factories beyond popcorn and flavor companies, such as baking and snack firms. Many companies have refused to let the researchers in.
• •  The Food and Drug Administration is reviewing a petition that challenged its “generally recognized as safe” designation for diacetyl in food. The request was submitted in 2006 by OSHA’s Michaels when he was head of George Washington University’s Project on Scientific Knowledge and Public Policy. “While it is extremely unusual for FDA to contemplate food ingredient regulation on the basis of inhalation concerns, we have not ruled out any regulatory option,” said FDA spokesman Michael Herndon said.

* * * * *

Aside from worker illness, lung obstruction cases have emerged among four or five voracious popcorn eaters who blame their disease on vapors from the microwave product.

Popcorn was a staple for Debbie Daughetee. She popped at least two bags a day during long, intense hours as a Los Angeles writer and TV producer. Too tired to make dinner, she’d turn to popcorn at home. “It was quick, easy, filling and it didn’t have a lot of calories,” she said.

Over time, Daughetee became weak and short of breath, and lost her writing focus. Eventually doctors diagnosed bronchiolitis obliterans. Three years working in movie theaters again exposed her to butter flavoring, further endangering her health, she claims in lawsuits against several flavoring and popcorn companies. The suits are filed in Iowa federal court and Los Angeles County Superior Court.

At 53, Daughetee’s days of dancing, hiking and scuba diving are a memory, along with her dreams of being an executive producer. Taking a shower tires her. “It makes me incredibly angry,” she said.

Litigation by sick workers continues across the country. In a bankruptcy case involving chemical maker Chemtura, a major producer of diacetyl, 375 people have submitted claims asserting health effects due to diacetyl exposure.

Still it’s likely that many people don’t know they were exposed or that their physicians don’t know to ask them about the exposure and link it to their illnesses, said B. James Pantone, an attorney representing an Orange County flavoring worker who lost 70 percent of his lung capacity. “People who work around food don’t think of it as a dangerous substance. They think of it as food,” Pantone said. “Are there more cases? I think they’re going to be popping up for years.” But, he added, many will never be identified.

At least five of Charles Campbell’s co-workers at Brach’s developed severe lung injury, said Ken McClain, whose Independence, Mo., law firm specializes in popcorn lung cases. He said the firm represents 500 people in 300 diacetyl cases nationwide, and has settled many others including Campbell’s. It won trial awards totaling $60 million for another handful of clients.

“The extent thus far has been far more than anyone guessed and the number of potential people who are exposed numbers in the thousands,” McClain said. “What impact it’s having on a variety of occupations and uses is yet to be determined.”

Industry representatives say general food manufacturers have not seen workers’ compensation claims or illness patterns to indicate a widespread problem. “The presumption that latent cases of fixed obstructive lung disease would be discovered throughout food manufacturing has not been borne out in spite of several years of experience,” the Grocery Manufacturers Association told California regulators in complaining the state’s proposed rule was unnecessarily broad.

The association, which supports the idea of a diacetyl limit, said its members generally use flavorings with far less than one percent diacetyl. Food production workers are not continuously exposed to butter flavoring because bakers and food companies mix a variety of products and not all contain butter flavoring.

Some health experts counter that without active screening of employees, severe lung obstruction is frequently misdiagnosed or overlooked. “No one really knows,” said David Egilman, an occupational and internal medicine specialist who has diagnosed many brochiolitis obliterans cases and has testified as an expert witness. “Some people have gotten better after the exposure stopped and some people have gotten worse. You can’t say that there’s a particular pattern. There’s not enough data.”

He and California’s Welsh also portrayed the diacetyl problem in a larger context. Said Welsh, “I don’t think it’s the last that we’ve heard of this issue. There may well be other flavorings that turn out to be problematic. This one is an attention grabber because the illness you get is so dramatic and so life threatening. There’s an array of other flavorings that I believe are going to have pulmonary impact because of occupational exposures.”

* * * * *

Charles Campbell’s illness robbed him of retirement plans to travel and see family. “I look at other people enjoying life. I can’t do nothing,” he said, his weak voice punctuated by coughing. “My body is deteriorating.”

Uncomfortable in bed, he sometimes sat all night in his chair. But he didn’t complain about his pain, sitting day after day in his home outside Chicago, watching his beloved Chicago teams on TV. Last Thanksgiving, his five children, with kids and grandchildren, came to visit from around the country. “I just thank God I’m still here,” he said later.

In early April, Campbell mustered his strength to drive a short distance for replacement oxygen. He pushed his slight frame out to his new Hummer. Then, he turned and handed his son the keys.

“I knew then that it was bad,” said his wife, Natoma.

At the hospital the next day, he struggled to breathe. Two days later, on April 4, Charles Campbell died at 68. He was not, his wife said, ready to go.

Rita Beamish is a journalist who has covered national investigative and environmental stories for many years.

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It was the perfect day that turned into a nightmare. Bulent and Anne Ezal were on a trip to Big Sur, traveling one of the most ruggedly beautiful stretches of the California coastline. As lunchtime drew near, Bulent eased the couple’s Toyota Camry into a parking space near a coastal restaurant hugging the steep and rocky bluff overlooking the waves.

Without warning, the vehicle suddenly shot ahead and careened over the cliff. The couple held on as the Toyota plummeted 75 feet, smashing onto the surf-washed rocks below.

Miraculously, Bulent suffered few permanent physical injuries. But his beloved wife Anne died a horrifying death.

This Toyota Camry went off a cliff and plunged 75 feet, killing a passenger, and her husband at the wheel could do nothing to stop it

The tragedy of that day has been replicated in accidents all over America, creating a tidal wave of trouble for an auto manufacturer that once commanded the pinnacle of consumer trust. Toyota has been called to task by congressional investigators, attorneys and the general public over a phenomenon that has afflicted thousands of vehicles, maimed and killed motorists, and earned its own moniker: sudden unintended acceleration.

Toyota of late has embraced explanations that challenged credulity, suggesting that unintended accelerations can be caused by “sticky gas pedals” or “all-weather floor mats” that can jam the pedal. In the Ezals’ case, as in many other reported runaway accelerations, their Toyota did not have all-weather floor mats or the specific gas pedals identified in Toyota’s press releases. So what happened?

The most likely explanations can be discerned with a look at the past, present and future – a look back in history, an examination of pivotal issues being publicly disregarded by Toyota, and the consideration of new techniques for discovering the root cause of this deadly defect.

A brief history of uncontrolled accelerations

The syndrome now afflicting Toyotas may be news to many, but unintended accelerations are nothing new in the auto industry.

In 1978, Volkswagen began selling the first Audi 5000s in the United States. Sales were strong, with sales of the Audi flagship doubling in its first seven years in the U.S. market. But these popular vehicles had a recurring problem: uncontrolled acceleration.

From 1978 to 1987, consumers reported more than 1,500 crashes involving sudden acceleration of Audi 5000s, with 400 reported injuries and seven fatalities. Many of the crashes were similar: the car was idling with the automatic transmission in “park,” the driver shifted into “drive” or “reverse,” and the car would, suddenly and without warning, wildly accelerate. Often the Audis could not be stopped before hitting other cars, trees, walls, or even people.

One of those killed was six-year-old Joshua Bradosky. He died when an Audi 5000, driven by his mother, surged forward, crashing him through a garage and pinning him to the garage wall.

Audi’s response was, essentially: the car is not defective, the drivers are. Audi’s public relations staff accused the drivers, emphasizing that “maybe people are putting their foot on the wrong pedal.”

The response by the National Highway Traffic Safety Administration (NHTSA):  The car is not defective; the drivers are. In 1989, NHTSA completed its investigation into “sudden acceleration incidents” (“SAI”), concluding, “most SAI probably involve the driver unintentionally pressing the accelerator when braking was intended.” In short, despite the increased frequency of sudden accelerations in certain model vehicles, and the driver (in virtually every incident) reporting “foot on the brake” rather than the accelerator, NHTSA concluded it was all merely the result of the driver pressing the wrong pedal.

Despite this ultimate “finding” by NHTSA, as a result of prior work by trial attorneys, journalists, safety advocates, and consumers, the Audi 5000 had been recalled several times to correct problems that NHTSA itself acknowledged could cause sudden acceleration.

In 1982, in a move shockingly similar to today’s Toyota headlines, NHTSA forced the recall of the Audi 5000 because the driver’s floor mats could cause sudden acceleration. Later, the placement of the brake pedal was blamed for some sudden accelerations, and the Audi 5000 was recalled again for repairs.

In 1987, NHTSA identified defects that could cause “engine surge” and demanded the recall of some Audi 5000s yet again. Finally, that same year, the Audi 5000 was recalled to retrofit an automatic shift lock to prevent “unexpected, sudden acceleration, without prior warning.” Audi touted this final recall as the solution to most of the sudden accelerations incidents.

With NHTSA’s investigation into “sudden acceleration incidents” closed, and most unintended accelerations attributed to driver error, NHTSA made no further recalls of the Audi 5000.  Long after the recalls, however, consumers continued to report runaway accelerations with the Audi 5000, even on vehicles that received all recall repairs.

The 1990s and Ford Motor Company

In the 1990s, consumers began to report that automobiles with popular cruise control systems had runaway accelerations. Ford Motor Company absorbed much of the criticism, with numerous lawsuits filed against it as well as multiple NHTSA recalls related to sudden acceleration.

Unlike Audi’s problem with the Audi 5000, Ford’s runaway acceleration problems crossed into many models and various brands: Aerostars, Contours, Escapes, Explorers, F-Series Trucks, Focus Hatchbacks, Tauruses, Mercury Mystiques and Mercury Sables.

Most of these Ford recalls involved the cruise control system. There was particular focus on a design that allowed contaminants into the speed control cable conduit or caused damage to the cable itself, resulting in either a wide-open throttle or surging throttle.

However, the recalls ignored key consumer concerns regarding runaway accelerations. Prominent among them was whether transient electromagnetic interference (EMI) could cause these unwanted accelerations. Some experts believed that transient EMI could cause the electronic cruise control to signal the throttle to open, despite the absence of accelerator input.

In addition, Ford was privy to information indicating that EMI could cause vehicles to suddenly accelerate out-of-control. Indeed, in internal investigations on sudden acceleration, Ford concluded that sudden unintended acceleration incidents increased with the introduction of broadly applied electronics in 1984. Ford also documented in internal memoranda that various electromagnetic failures, including EMI, could cause sudden unintended acceleration.

Ford apparently learned that “the vehicle speed maintenance control system or ‘cruise control system’ . . . is capable in the event of ‘failure or malfunction’ of opening the throttle a substantial amount without driver input.” Indeed, former Ford employees have admitted that unwanted electrical impulses could open the throttle, causing sudden unintended acceleration.

Ford generally denied virtually all defect claims related to runaway accelerations, often citing the 1989 NHTSA report of “drive pedal” error as evidence. However, Ford employees apparently experienced incidents of sudden unintended acceleration, with no reproducible evidence of the event.

In one reported incident, a Ford engineer, investigating a Ford Expedition for cruise control problems, found that after pressing the “resume” button, “the vehicle kept accelerating beyond the set speed and wouldn’t respond to brakes or the off switch.” Upon examining the truck, however, Ford could not find anything out of the ordinary.

In another reported incident, during a test drive of a Mercury Grand Marquis, a Ford employee shifted into “drive” and the engine raced with the wheels spinning, as if the accelerator were floored.  The employee stopped the car by braking as hard as he could. The car later checked out normal.

In yet another reported incident, a Ford employee crashed an experimental Aerostar prototype. After shifting into gear, the vehicle accelerated to full throttle, tires squealing. The employee removed his foot from all pedals, thinking he had accidentally floored the accelerator, but the van continued to accelerate. He shifted into “park” but could not avoid crashing into a wall.

Despite the above, Ford and virtually the entire industry continued to rebuff opinions that EMI could cause runaway accelerations, especially during related litigations.

The 2000s bring trouble for Toyota/Lexus

On August 28, 2009, with a California Highway Patrol Officer at the wheel, a passenger in a new Lexus ES 350 made a frantic call to 911. Their vehicle was out-of-control, weaving through traffic at 120 miles per hour.  The passenger’s final frantic words were “we’re in trouble . . . there’s no brakes.” The driver, his wife, teenage daughter, and brother-in-law, the 911 caller, were all killed as the vehicle slammed into another car and careened down an embankment.

Since 2001, consumers have lodged more than a thousand reports of sudden unintended acceleration in Lexus and Toyota vehicles. NHTSA officials told a Congressional committee in early March that the agency had received 52 complaints of fatalities involving sudden unintended acceleration in Toyota vehicles since 2000. A Los Angeles Times review of public records and interviews with authorities found at least 56 deaths blamed on sudden acceleration in Toyota and Lexus vehicles. In contrast, sudden unintended acceleration in all other vehicles made by other manufacturers resulted in only 11 deaths.

Toyota first blamed these unintended accelerations on the drivers, then admitted that its all-weather floor mats could jam the accelerator pedal on certain models. Hoping to rectify the floor-mat problem, in September 2009 Toyota recalled millions of vehicles, including Camrys, Priuses, Avalons, Tacomas, Tundras, and Lexus models.

The remains of the Toyota Camry in which Anne Ezal died

The floor mat recall, however, did not end the inquiry.  NHTSA, in an unprecedented rebuke, responded to Toyota’s claim that no defects existed in their vehicles with compatible and properly secured floor mats. NHTSA publicly stated that it recognized an “underlying defect” in the design of the Toyota and Lexus accelerator pedals and the drivers’ foot wells.

In January 2010, Toyota announced yet another related recall.  This one recalled millions of more vehicles to correct “sticking accelerator pedals.”  Toyota’s press release stated that its continuing investigation found that certain accelerator pedals could mechanically stick in a partially depressed position, or return slowing to the idle position.  Later in January, Toyota announced an unprecedented decision to halt sales and production of eight models until it could determine how to stop the gas pedals from sticking and causing unintended accelerations.

However, we believe that Toyota’s runaway acceleration problems will not end at “jamming floor mats” or “sticky gas pedals.”  A telling point is that complaints of unintended acceleration in Toyota and Lexus vehicles increased dramatically after employment of electronic throttles in the last decade. In some models, sudden acceleration complaints increased five-fold after introduction of electronic throttles.

The ignored issue and solutions

Like the proverbial “elephant in the room”, the EMI issue must be directly addressed by Toyota and the rest of the auto industry.  EMI is real.  The aerospace industry has been dealing with the ramifications of EMI/EMC (electromagnetic interference/electromagnetic compatibility) since the 1960s.  Said simply: The more sophisticated electronics one stuffs into a small area, the more lethal the EMI/EMC issue.

We now rely on an unprecedented number of electronic gizmos in every new car–some more than others.  Toyota, as the largest automobile manufacturer and an undisputed leader in electronic advances for automobiles, is at the forefront.  As such, and with its current runaway acceleration woes, Toyota will have to face the issue first.

EMI/EMC

The electronic throttle system that Toyota introduced at the turn of the 21^st Century replaced the mechanical link (usually a steel cable) between the driver’s foot and the engine’s acceleration with a series of sensors, microprocessors, electric motors and wiring.  These devices were located among a growing number of additional sensors, processors, and wiring for a myriad of other electronic subsystems in a relatively small space in the vehicle’s engine area.  This, in and of itself, is a classic recipe for EMI/EMC problems.

As the aerospace industry learned decades ago, manufacturers cannot simply continue to jam electronic devices into small areas without testing for and designing away EMI dangers.  If they do, spurious signals that inadvertently and randomly excite near-by electronics are inevitable.  If those near-by electronics include the engine control unit (or electronic throttle system), runaway accelerations are to be anticipated.

EMI/EMC dangers can include stray voltage, algorithm defects in the related software of the microprocessor components, and random signals that excite other subsystems (such as opening throttle control units).

Toyota, understandably, wants a “quick fix” to its runaway acceleration problems.  Sales, reputation and peoples’ lives depend on it.  But limiting its investigations to mechanical things such as “jamming floor mats” and “sticky gas pedals” is a tragic mistake.  Toyota (and the industry as a whole) can no longer afford to disregard “the elephant in the room”: EMI/EMC.

The solution is not a “quick fix.”  Eliminating EMI/EMC dangers is a system design and test issue that affects every electronic component and computer-driven subsystem in the vehicle. And the more electronic components and microprocessors in a vehicle, the deeper and darker the problem.

Besides testing for EMI/EMC dangers at each step of the design process, safety analyses must be done.  In particular, Failure Modes and Effects Analyses (FMEA) must be conducted to show that the system-design is free of EMI dangers.  Through careful design, testing and on-going FMEA, electronic devices can be safely integrated, insulated and, if need be, isolated, and all associated algorithms can be verified and validated to virtually eliminate the risk of EMI.  In more than 25 years of product liability litigation, however, we have yet to see an FMEA from any auto manufacturer that comes remotely close to accomplishing and documenting the above.

Now is the time.  Toyota, as industry leader and saddled with its current “runaway acceleration” problems, should lead the way.  Future designs must thoroughly address EMI/EMC from the ground up.  Lives depend on it.

But what about the Toyota vehicles already on the road?  Retrofit and perhaps redesign is necessary.  If Toyota has not already done so internally, it should immediately amass what the aerospace industry calls a “tiger team” of knowledgeable engineers across multiple disciplines (including auto design, electronics, software and safety engineers) to beat back its deadly problems.  Suspect components and software should be modified.  Susceptible electronic devices, including wiring and sensitive components, should be shielded, insulated and if necessary isolated or retrofitted to eliminate EMI dangers.

The role of product liability litigation

For well over 30 years, product liability litigation has been at the forefront of auto safety. Think Pinto “exploding gas tanks,” interior padding, airbag safety, roll-over propensity, etc.  Litigation is especially effective where industry progress is thwarted by profit concerns and federal regulation is dwarfed by politics.

Even with today’s government and media interest in sudden unintended acceleration, troubles loom and questions remain unanswered. Toyota’s inconsistent mechanical “explanations,” the fact that the issue isn’t isolated to just one manufacturer, the reality of EMI/EMC dangers and the essential disregard of those threats by manufacturers and government watchdogs leave the public at risk.  As with so many previous automotive defects, that safety void will exist until manufacturers are spurred to find the real solution.  And, as in the past, that void will be filled by product liability litigation, and the type of knowledge and techniques that effective lawyers can use for the good of consumers across the nation.

Cory G. Lee is an attorney with Raymond Paul Johnson, A Law Corporation.  He is a member of Consumer Attorneys of California and the Consumer Attorneys Association of Los Angeles, and practices in the areas of products liability, hazardous roads, business law and other civil litigation matters.  He and Raymond Paul Johnson are representing the Ezals against Toyota.

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