Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Insurance Commissioner Files Legal Action Against FAIR Plan. Dismissal of Chamber of Commerce Medicare Challenge Affirmed. Court Approves Settlement of San Diego Prisoner ADA Claims. Outside Salesperson is “Exempt Employee” From Sick Pay Law. Glendale Woman Sentenced to 9 Years for $10.6M Hospice Fraud. Employer Faces Murder Charges for Illegal Cannabis Lab Explosion. Kaiser Patient Portal Deployment Study Shows Good Outcomes. National Hospital to Pay $2.9M for Unlawful Nurse Training Repayment.
Lance Miraco filed Application for Adjudication of Claim against the City of Salinas and Corvel Corporation alleging cumulative injury arising from his employment as a police officer with the City. The City and its claims administrator, Corvel, filed an answer denying the allegations of the application. The matter proceeded to trial before the WCJ.
After trial, the WCJ issued her written findings, award, and order (findings and order), finding that Miraco “sustained injury arising out of and in the course of employment during the period from January 1994 through December 31, 2013, to his low back, right leg, and sustained gastritis, gastroesophageal reflux disease, insomnia and hypertensive cardiac disease.”
Applying Labor Code § 5412, the WCJ found the date of injury for Miraco’s hypertensive cardiac disease was June 14, 2013, while the date of injury for his orthopedic injuries and related conditions (including gastritis, reflux, and insomnia) was December 16, 2020.
The findings and order explained that based on the date of injury, Miraco’s workers’ compensation claim for hypertensive cardiac disease, filed on December 24, 2020, “is barred and is not compensable, as beyond the statutory limitation imposed by [section] 5405.”3 Based on these findings, the WCJ awarded future medical treatment for Miraco’s “injuries to his low back, right leg, gastritis, gastroesophageal reflux disease, and insomnia” but not for his cardiac disease.
On October 16, 2023, Miraco timely submitted a petition for reconsideration of the findings and order. The petition for reconsideration challenged the WCJ’s finding that the claim for hypertensive cardiac disease was time barred. The City and Corvel answered the petition for reconsideration within 10 days. On Nov ember 7, 2023, the WCJ served on the parties a report and recommendation on the petition for reconsideration.
Under former Labor Code § 5909, based on Miraco’s filing of the petition for reconsideration on October 16, 2023, the Board had until December 15, 2023, to “act[] upon” the petition before it was “deemed to have been denied.
The Board did not issue its decision until March 12, 2024, when it granted the petition for reconsideration. In deeming its March 12 order timely, the Board invoked the judicially created exception to the 60-day deadline articulated in Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 (Shipley) for petitions that are not received by the Board due to procedural irregularity.
On the merits, the Board granted the petition for reconsideration and substituted its findings for that of the WCJ. It set the date of injury for Miraco’s injuries, including hypertensive cardiac disease, as December 11, 2020, and determined that compensation for those injuries was not time- barred.
The City and Corvel filed a petition for writ of review to challenge the lawfulness of the Board’s order granting the petition for reconsideration after the expiration of the 60-day statutory deadline delineated by former § 5909.
The Court of Appeal ruled that former § 5909 did not preclude the application of equitable tolling, and the facts warrant its use here. It therefore affirmed the order and opinion of the appeals board in the published case of City of Salinas v Workers’ Comp. Appeals Bd. –H052062 (August 2025).
During the briefing period for this writ proceeding, the Legislature amended § 5909, effective July 2, 2024. In addition, the California Supreme Court granted review of similar issues in Mayor v. Workers’ Comp. Appeals Bd. (2024) 104 Cal.App.5th 713 (Mayor), review granted December 11, 2024, S287261.
The question presented here on appeal is whether the Board may apply equitable tolling to act upon a petition for reconsideration after expiration of the 60-day timeline set forth in former section 5909, and, if so, whether the facts of this case warrant the application of tolling principles.
It was noted that the Court of Appeal in Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213 (Zurich) disagreed with Shipley.
It went on to say “neither Zurich nor Mayor decided whether the Board’s failure to act on a petition for reconsideration within 60 days meant only that it acted in excess of its jurisdiction, or whether it lost fundamental jurisdiction to consider the petition. Instead, both decisions recognized that, even if the expiration of the 60-day deadline did not affect the Board’s fundamental jurisdiction, the circumstances of those cases did not support the application of equitable tolling. (Zurich, supra, 97 Cal.App.5th at p. 1236, fn. 17; Mayor, supra, 104 Cal.App.5th at pp. 1310–1311, review granted.)”
And it went on to say “We discern no express prohibition in the statutory language of former section 5909 that would preclude, as a matter of law, the application of traditional equitable doctrines like tolling.”
“Our conclusion that the appeals board retains the authority to exercise equitable powers where appropriate, and in the absence of legislative direction to the contrary, is consistent with the judicial powers vested in it.”
Space Exploration Technologies Corporation v. National Labor Relations Board is a significant case involving constitutional challenges to the structure of the National Labor Relations Board (NLRB). On August 19, 2025, a panel of the United States Court of Appeals for the Fifth Circuit issued a ruling in the consolidated cases of Space Exploration Technologies Corporation (SpaceX) v. National Labor Relations Board (NLRB), along with related appeals involving Energy Transfer, L.P., La Grange Acquisition, L.P., and Aunt Bertha (doing business as Findhelp).
The court affirmed preliminary injunctions granted by three federal district courts in Texas, halting NLRB administrative proceedings against these employers on unfair labor practice charges. The decision, authored by Circuit Judge Don R. Willett and joined by Judges Jacques L. Wiener Jr. (concurring in part and dissenting in part) and Stuart Kyle Duncan, found that key aspects of the NLRB’s structure are likely unconstitutional under Article II of the U.S. Constitution and separation-of-powers principles.
The case stemmed from unfair labor practice complaints filed by the NLRB against the employers. SpaceX, for instance, was accused of unlawfully firing employees who had circulated an open letter criticizing CEO Elon Musk. Rather than defending the charges before the NLRB, the employers sued in federal district court, arguing that the agency’s structure violates the Constitution by insulating its Board members and administrative law judges (ALJs) from presidential removal.
The district courts issued preliminary injunctions blocking the NLRB hearings, prompting the NLRB to appeal. The Fifth Circuit consolidated the appeals and addressed whether the district courts had jurisdiction and whether the injunctions were proper.
The court held that NLRB ALJs are “inferior officers” under the Appointments Clause, exercising significant authority (e.g., issuing subpoenas, ruling on evidence, and rendering decisions that can become final without Board review). They are shielded by two layers of for-cause removal protections: ALJs can only be removed “for good cause” by the Merit Systems Protection Board (MSPB), whose members are themselves removable only for cause by the President.
Drawing on precedents like Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) and Jarkesy v. SEC (5th Cir. 2022), the court found this dual insulation unconstitutional, as it unduly restricts the President’s Article II authority to oversee executive officers.
The National Labor Relations Act allows the President to remove Board members only for “neglect of duty or malfeasance in office.” The court ruled this restriction likely unconstitutional, distinguishing it from the 1935 Supreme Court case Humphrey’s Executor v. United States, which upheld similar protections for the Federal Trade Commission (FTC) as a “quasi-legislative” body.
The NLRB, the court reasoned, exercises substantial executive power (e.g., investigating and prosecuting labor violations) without the FTC’s statutory requirements for bipartisan composition or non-partisan operations. Quote: “Both the Supreme Court and this circuit have declined to extend Humphrey’s Executor to agencies that are not a ‘mirror image’ of the FTC.”
The court rejected the NLRB’s claim that the Norris-LaGuardia Act barred the injunctions, finding the disputes did not arise from a “labor dispute.” It also applied the Thunder Basin factors to confirm district court jurisdiction, noting the claims were collateral to the NLRB’s expertise and that precluding review would deny meaningful judicial oversight. “These disputes do not implicate wages, hours, working conditions, or even union representation. They have nothing to do with employee boycotts, union organization, or labor strikes.”
The Fifth Circuit affirmed the district courts’ injunctions, preventing the NLRB from proceeding with its cases against the employers pending full resolution of the constitutional challenges. This ruling represents a significant setback for the NLRB, potentially affecting its ability to enforce labor laws nationwide if upheld or expanded. It aligns with recent Supreme Court trends curtailing administrative agency power (e.g., in SEC v. Jarkesy, 2024) and could invite further challenges to other agencies. The decision has drawn commentary on X, with legal analysts noting its broad implications for labor rights and agency structures.
One Big Beautiful Bill Act (OBBBA), signed into law on July 4, 2025, as Public Law 119-21, among other provisions, introduces two key provisions of immediate concern to employers, “No Tax on Tips” (Sec. 70201) and “No Tax on Overtime” (Sec. 70202) – effective for tax years 2025 through 2028.
The IRS has released FS-2025-03 with interim guidance on the changes, but more detailed guidance is expected in the coming months.
Employers face new administrative and reporting burdens to support employees claiming these deductions. Failure to comply could result in penalties for inaccurate information returns or withholding errors. By acting promptly, employers can minimize disruptions and avoid penalties (e.g., up to $270 per inaccurate W-2). The following are just some of the concerns and solutions voiced by the business community and their advisors so far, since passage of OBBBA.
Employers, particularly in industries like hospitality, retail, construction, and manufacturing, should prepare for increased administrative complexity. The provisions are retroactive to January 1, 2025, but the IRS has promised transition relief for 2025 to ease the burden.
The IRS will publish a list of qualifying tipped occupations by October 2, 2025. Review this to confirm employee eligibility. Expect updated withholding tables, forms (e.g., potential new boxes on W-2 for tips/occupation or overtime), and publications (e.g., Pub. 15 for withholding). The IRS has indicated further guidance on reporting and anti-abuse rules is forthcoming. For 2025, use a “reasonable method” (to be specified by the IRS) to approximate and separately account for tips and overtime if full tracking isn’t feasible.
Integrate software updates to track and report tips (including occupation) and qualified overtime separately. This may require new fields in payroll systems for FLSA overtime premiums. Review employee classifications under FLSA to ensure accurate overtime qualification – misclassification could lead to disputes or audits. Adjust for the expanded FICA tip credit if in beauty services; calculate and claim it on Form 8846 to offset payroll taxes.
Employers must now separately report the total amount of cash tips (including charged tips and tip-sharing arrangements) and the recipient’s occupation on information returns (e.g., Form W-2 for employees or Form 1099 for non-employees) filed with the IRS or Social Security Administration (SSA). This must also be included on statements furnished to workers. Only “qualified tips” (voluntary payments from customers, not mandatory service charges or negotiated fees) in occupations customarily receiving tips qualify.
The law extends the existing FICA tip credit (under IRC Section 45B) to beauty service establishments (e.g., barbering, hair care, nail care, esthetics, and spa treatments), previously limited to food and beverage industries. This allows eligible employers to claim a credit for their share of Social Security taxes paid on employee cash tips.
Employers should maintain detailed records of tips to prevent reclassification abuse (e.g., labeling wages as tips). The IRS may issue regulations to address potential misuse.
Note that these provisions do not affect state taxes or overtime laws (e.g., California’s daily overtime rules), so maintain separate compliance with unique state tax and payroll laws. The provisions expire after 2028, so plan for potential reversions in reporting and withholding.
Also note that these tips and suggestions are taken from various information sources across the country, and may or may not accurately reflect the new employer obligations as they interpreted by the accounting and tax law industry. This report is not provided as a substitute for legal or accounting advice. It should only be considered as topics of interest that need further inquiry by employers should they have concern about any one of these tips.
Prostate biopsies are usually performed under ultrasound guidance and involve collecting 12 to 16 samples. However, these biopsy samples provide only limited glimpses into a much larger and more complex landscape. The scattered samples provide limited insight, leading to a miss rate of up to 52 percent of clinically significant cancers.
Effective prostate cancer treatment relies on early detection of cancer before it has spread outside the prostate. To help improve the success rate of finding prostate cancers during routine biopsy, Mirabela Rusu, PhD, Assistant Professor, Stanford Medicine Department of Radiology (IBIIS division), developed an artificial intelligence tool called ProCUSNet that analyzes the ultrasound images already acquired during the biopsy procedure.
The ProCUSNet model was trained on over 2,200 prostate cancer patients, using 3D volumes reconstructed from 2D B-mode images captured during routine transrectal ultrasound procedures. Unlike previous research that required raw or investigational imaging, this approach focused on real-world data already available in clinical settings.
The current version takes approximately 10 seconds to analyze a 3D ultrasound volume and was developed using data from a specific ultrasound system. Broader validation across different devices and practice settings will be necessary. Future studies will also explore faster integration, prospective clinical trials, and adaptation to other ultrasound modalities.
Dr. Rusu said “What makes ProCUSNet unique is its ability to localize areas of cancer on standard ultrasound images using deep learning. We’re not asking clinicians to change how they perform biopsies. Instead, we’re enhancing the value of the data they already collect with a tool that’s fast and practical for use in the real world.”
The findings, recently published in European Urology Oncology, show that ProCUSNet can help clinicians detect high-grade prostate cancers. The algorithm was able to detect 82% of clinically significant cancers and identify 44% more lesions than human readers interpreting the same ultrasound images.
The researchers also showed that ProCUSNet was also able to detect cancers missed by standard systematic biopsy. Among patients who went on to have surgery, nearly 30% had high-grade tumors that were not captured through conventional sampling. ProCUSNet successfully flagged many of these otherwise undetected lesions.
The potential clinical impact of this approach is substantial. As the majority of prostate biopsies worldwide continue to rely solely on conventional ultrasound, tools such as ProCUSNet may offer a practical means to improve diagnostic precision and consistency.
Skyler A. Womack was a dependent adult with physical and developmental disabilities. In January 2020, he was admitted as an inpatient at a 24-hour skilled nursing facility called Asistencia Villa Rehabilitation and Care Center in Redlands, then operated by Silverscreen Healthcare, Inc. Skyler died on October 29, 2020, while still residing at Asistencia.
Following his death, Skyler’s parents and heirs, plaintiffs Jonie A. Holland and Wayne D. Womack, filed suit against Silverscreen. Plaintiffs’ complaint asserted four causes of action: (1) dependent adult abuse under the Elder Abuse and Dependent Adult Civil Protection Act, Welfare and Institutions Code, section 15600 et seq. (Elder Abuse Act); (2) negligence; (3) violation of residents’ rights under Health and Safety Code, section 1430, subdivision (b); and (4) wrongful death.
Plaintiffs alleged that Silverscreen failed to protect Skyler from “multiple falls with injury, and infections which caused him pain and suffering and were substantial factors in his untimely demise.” Plaintiffs also alleged that Silverscreen failed to “employ an adequate number of qualified personnel to carry out all of the functions of the facility”; failed to “keep[] its facility in good repair at all times”; failed to “correct deficiencies issued by the State of California’s Department of Public Health”; and failed to “provid[e] [Skyler] with good nutrition and necessary fluids for hydration.”
On admission to Asistencia, Skyler had signed a “Resident-Facility Arbitration Agreement.” The agreement provided for arbitration of malpractice claims, adhering to statutory language and formatting requirements for medical services contracts covering disputes as to the “professional negligence of a health care provider.” (§ 1295(a).) It stated that “any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration.” (Quoting § 1295(a).) The agreement further provided — in its own language — that the agreement was “binding on all parties, including the Resident’s representatives, executors, family members, and heirs.”
Based on this agreement and the Supreme Court decision in Ruiz v. Podolsky (2010) 50 Cal.4th 838 (Ruiz), Silverscreen filed a motion to compel arbitration of each of the four causes of action asserted in the complaint. Plaintiffs opposed the petition. They argued that Ruiz did not apply because their wrongful death claim was based on Silverscreen’s “neglect,” as that term is defined under the Elder Abuse Act, and not its “professional negligence.”
The trial court granted Silverscreen’s motion to compel arbitration of the three survivor claims but denied the motion as to plaintiffs’ individual claim for wrongful death. Following the lead of the Court of Appeal in Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 843 (Avila), the trial court explained that although “[t]he complaint includes allegations that could be categorized as professional negligence as well as elder abuse,” plaintiffs “ ‘chose to plead a cause of action under the [Elder Abuse Act], and they did so successfully. The fact that they could have also pleaded a claim for medical malpractice, had they wished to do so, is irrelevant. Accordingly, . . . plaintiffs’ claim is not one within the ambit of section 1295, and therefore, Ruiz’s holding does not apply.’ ” (Quoting Avila, at p. 843.)
The Court of Appeal reversed. (Holland v. Silverscreen Healthcare, Inc. (2024) 101 Cal.App.5th 1125 (Holland).) The Court of Appeal acknowledged several appellate cases, including Avila, in which courts refused to compel arbitration of wrongful death claims predicated on allegations of neglect by nursing homes and similar residential care facilities. (Holland, supra, 101 Cal.App.5th at p. 1134). The Court of Appeal agreed with these cases insofar as they “confined Ruiz’s holding to wrongful death claims predicated on medical malpractice or professional negligence,” but it disagreed with the cases to the extent they might suggest that plaintiffs’ claim here falls outside Ruiz. (Holland, at p. 1134; see id. at pp. 1134–1135.).
The California Supreme Court reversed the Court of Appeal in the case of Holland v. Silverscreen Healthcare, Inc. -S285429.PDF (August 2025).
In Ruiz the Supreme Court identified an exception for certain wrongful death claims based on medical malpractice. If a patient agreed to arbitrate medical malpractice disputes in compliance with the arbitration provision of the Medical Injury Compensation Reform Act (MICRA) (codified as Code Civ. Proc., § 1295), the patient-provider agreement may bind the patient’s heirs in a wrongful death action, even if the heirs themselves never agreed to arbitration. (Ruiz, at pp. 849–850.).
The question before the Supreme Court here concerns the application of Ruiz in a recurring context. Plaintiffs sued a 24-hour skilled nursing facility, alleging that the facility’s neglect caused their son’s death. Before his death, plaintiffs’ son had signed an agreement to arbitrate medical malpractice disputes against the facility. Parting company with appellate courts that had taken different approaches to the issue, the Court of Appeal in this case held that the patient-provider agreement binds plaintiffs because their wrongful death claim based on the nursing facility’s neglect is necessarily a claim about the manner in which a health care provider rendered its professional services.
The Supreme Court concluded that “the Court of Appeal’s decision in this case extends Ruiz past statutory bounds. Ruiz does not apply to every type of wrongful death claim that might be brought against a health care provider – particularly a provider that, like the skilled nursing facility in this case, provides both medical care and day-to-day custodial care of dependent adults. Under Ruiz, plaintiffs’ claim must be submitted to arbitration only if they are raising a dispute about medical malpractice as that term is defined in MICRA’s arbitration provision – that is, a dispute “ ‘as to whether any medical services . . . were improperly, negligently or incompetently rendered.’ ” (Code Civ. Proc., § 1295, subd. (a) (§ 1295(a)).) Ruiz does not require plaintiffs to arbitrate their disputes about a facility’s neglect of a resident’s basic welfare and safety needs.”
“To the extent the plaintiffs’ complaint in this case fails to detail whether they are alleging deficiencies in the nursing facility’s rendering of medical services or instead in its provision of custodial care, we conclude that they should be permitted to amend their complaint to specify.”
“We reverse the judgment of the Court of Appeal and remand for further proceedings.”
Governor Gavin Newsom signed SB 648 into law, and, as a non-urgency measure, takes effect on January 1, 2026. SB 648 primarily amends Section 351 of the California Labor Code, reaffirming and expanding enforcement of employee gratuity pay (tips) protections.
Under prior law, employers were already prohibited from taking, collecting, or deducting tips from employees’ wages, but enforcement relied heavily on private lawsuits or limited administrative actions. This left workers vulnerable to “tip theft,” where employers might withhold or misappropriate tips, particularly in industries like hospitality and service.
The bill’s purpose, as outlined in its legislative digest, is to strengthen protections by empowering the state’s Labor Commissioner (through the Division of Labor Standards Enforcement, or DLSE) to more actively investigate and penalize violations. This enhances compliance, deters misconduct, and provides a more accessible enforcement mechanism for workers without requiring them to pursue costly civil litigation.
The rationale stems from ongoing concerns about wage theft in tipped industries, aiming to ensure tips remain the sole property of employees and are not used to offset employer costs like credit card fees. According to the Legislative Analyst “some of the lowest paid workers are at risk of having their livelihoods stolen by unscrupulous employers through various violations of law including by taking their tips.”
“According to a 2008 study which surveyed 4,387 workers in low-wage industries in the three largest U.S. cities – Chicago, Los Angeles, and New York City, 12 percent of tipped workers in the sample experienced “tip stealing” during the previous work week.”
Unlike under federal regulations, in California an employer cannot use an employee’s tips as a credit towards its obligation to pay the minimum wage. California law requires that employees receive the minimum wage plus any tips left for them by patrons of the employer’s business.
Although existing law directs the Department of Industrial Relations to enforce the provisions of existing law regarding gratuities, the Labor Commissioner lacks citation authority to recover gratuities taken or withheld from workers. The only option available to the Labor Commissioner to recover stolen gratuities is through filing of an action in court.
Given the limited resources available at the Labor Commissioner’s office, granting the LC the ability to issue citations to recover owed gratuities would go a long way in helping workers. This bill would do just that by authorizing the Labor Commissioner to investigate and issue a citation or file a civil action for gratuities taken or withheld in violation of existing law.
SB 648 was supported by the California Federation of Labor Unions, AFL-CIO. There was no opposition noted in Legislative Analyst,s report.
Tyson Perez filed an Application for Adjudication of Claim on August 24, 2022, alleging a cumulative trauma injury while working as a professional baseball player for the Houston Astros from June 1, 2011, to June 25, 2022. He later filed an Amended Application joining the Chicago Dogs as a party defendant.
The Chicago Dogs and its carrier, Liberty Mutual, filed a Declaration of Readiness to Proceed seeking adjudication on the sole issue of personal jurisdiction. The matter was set for a trial on personal jurisdiction over the Chicago Dogs at the Mandatory Settlement Conference on May 23, 2024. The Pre-Trial statement listed the applicant, Tyson Perez, and also Trish Zuro, the Chief Operating Officer of the Chicago Dogs as witnesses, among other individuals. On June 11, 2024, the undersigned served all parties with an affidavit from Trish Zuro.
At trial, the Chicago Dogs offered a witness statement into evidence. Counsel for the Applicant and Co-Defendant, Houston Astros, objected to the witness statement of Trish Zuro because it was not served before the close of discovery and because admitting the written statement into evidence would deprive the parties of their due process to cross-examine the witness.
The applicant attorney and co-defendant objected to the testimony and the admission of the affidavit at the Trial date, and after 8 months when the affidavit was previously served to the parties and more than 8 months when the parties were notified on the Pre-Trial Conference statement that Ms. Zuro was listed as a witness. The witness was to rebut the applicant’s contentions of minimum contacts of the team with California.The WCJ denied Chicago Dogs’ request to permit witness Trish Zuro to testify by telephone.
The Findings and Order, dated May 13, 2025, found that the California Workers’ Compensation Appeals Board may exercise personal jurisdiction over the Chicago Dogs for the Applicant’s alleged cumulative trauma injury claim.
The WCJ did not permit Trish Zuro to testify by telephone because the Chicago Dogs did not file a petition before the trial, showing good cause for why she should be allowed to testify remotely. Per CCR 10618(a), “If a witness intends to testify electronically, a petition showing good cause shall be filed pursuant to rule 10510 by the witness or by the party offering the witness’s testimony before the hearing, and shall identify the witness and contain the witness’s full legal name, mailing address, email address, and telephone number. There was no such petition requesting remote appearance filed in this matter.
Chicago Dogs filed a Petition for Reconsideration, appealing the trial court’s decision not to allow the witness statement into evidence and not allow the witness to testify remotely. Reconsideration was granted in the En Banc decision of Tyson Perez v Chicago Dogs -ADJ16597333 (August 2025).
The issue was the interpretation and application of WCAB Rule 10817(a), which states in relevant part that: “If a witness intends to testify electronically, a petition showing good cause shall be filed pursuant to rule 10510 by the witness or by the party offering the witness’s testimony before the hearing, and shall identify the witness and contain the witness’s full legal name . . . .” (Cal. Code Regs., tit. 8, § 10817(a).)
“As a matter of due process, all parties to a workers’ compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers’ Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].”
A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal.
In 1890, the California Supreme Court opined: “The principal purpose of vesting the court with the discretionary power to correct ‘a mistake in any other respect’ is to enable it to mold and direct its proceedings so as to dispose of cases upon their substantial merits, when it can be done without injustice to either party, whether the obstruction to such a disposition of cases be a mistake of fact or a mistake as to the law, although it may be that the court should require a stronger showing to justify relief from the effect of a mistake of law than of a mistake of fact.” (Ward v. Clay (1890) 82 Cal.502, 23 P.50, 1890 Cal. LEXIS 591.
“Therefore, based on these principles, interpretation of our rules must necessarily incorporate California’s public policy in favor of adjudication of claims on their merits, rather than on the technical sufficiency of the pleadings.”
Thus the WCAB concluded “Therefore, based on these principles, interpretation of our rules must necessarily incorporate California’s public policy in favor of adjudication of claims on their merits, rather than on the technical sufficiency of the pleadings.”
Thus the WCAB concluded that “In considering the application of WCAB Rule 10817(c), we preliminarily conclude that a request on the record for electronic witness testimony at the beginning of the hearing, with an opportunity for any party to respond, satisfies the petition requirement and is sufficient to adjudicate the issue of electronic testimony. Moreover, we preliminarily conclude that the due process right to a fair hearing and a determination based on the merits is good cause to allow the electronic testimony of the witness. Therefore, when a witness is unable to appear in person, as a matter of due process, a request to testify electronically should be readily permitted.”
“Accordingly, we grant defendant’s Petition for Reconsideration, and order that a final decision after reconsideration is deferred pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law.”
Federal Rule of Evidence 702 was first adopted in 1975 as part of the original enactment of the Federal Rules of Evidence. Beginning in 1993 the Rule was interpreted by the U.S. Supreme Court in three landmark decisions that are now know as the “Daubert Trilogy.” The Rule requires a high level of scrutiny of scientific evidence in a “Daubert” hearing before a federal trial commences.
This Daubert standard is mandatory in all federal trial courts. And approximately 42 states have adopted the Daubert standard or a substantially similar standard for the admissibility of expert testimony in their state courts, either fully or with modifications. California state courts have not. Instead, California uses the “Fry” standard which is far more lenient. And in California experts who rely on controversial science in forming an opinion may testify, and the controversy applies for the “weight” of the evidence rather than admissibility, compared to the Daubert standard which makes controversial scientific evidence inadmissible.
Large corporate defendants who are sued in California may be entitled to remove the case to federal court under some circumstances such as diversity jurisdiction. Often, their reason for doing so it to take advantage of the mandated use of Rule 702.
This new published 9th Circuit Court of Appeals decision in Favor of Monsanto in one of its “Roundup” toxic injury cases is a clear example of why employers may move to have California state cases removed to federal courts when they meet the requirements to do so.
From 1990 to 2015, Peter Engilis, Jr. routinely hand- sprayed Roundup several times per month at each of his three homes in Florida. In 2014, he was diagnosed with a blood cancer known as chronic lymphocytic leukemia (CLL), which is a type of non-Hodgkin’s lymphoma (NHL).
In November 2019, Engilis filed a lawsuit against Roundup manufacturer Monsanto in the Middle District of Florida, invoking the court’s diversity jurisdiction and asserting claims under Florida state law that were premised on the allegation that exposure to Roundup caused him to develop CLL. The case was subsequently transferred to a multidistrict litigation proceeding in the Northern District of California, in which thousands of cancer victims have alleged that Roundup caused their NHL.
In a “toxic tort claim for physical injuries,” a plaintiff must “show that he was exposed to chemicals that could have caused the physical injuries he complains about (general causation), and that his exposure did in fact result in those injuries (specific causation).” Golden v. CH2M Hill Hanford Grp., 528 F.3d 681, 683 (9th Cir. 2008).
To demonstrate that Roundup caused Engilis’s cancer, Engilis relied on the expert opinion of board-certified oncologist Dr. Andrew Schneider. Dr. Schneider submitted an expert report offering opinions on both general causation and specific causation.
Monsanto moved to exclude Dr. Schneider’s opinion. At the hearing on the motion to exclude, Monsanto’s counsel extensively cross-examined Dr. Schneider about his basis for ruling out Engilis’s obesity as a potential cause of Engilis’s cancer. In response, Dr. Schneider sought to defend his assertion that Engilis was not obese. But after conceding that he had not examined Engilis and could not say whether Engilis was obese or not, Dr. Schneider testified that, regardless of whether Engilis was obese, he did not view obesity as a potential cause of NHL. During follow-on questioning, he stated that although some medical literature reports an association between obesity and the development of NHL, his clinical experience led him to believe that obesity does not contribute to NHL.
After the hearing, the district court issued an order excluding Dr. Schneider’s specific causation opinion. The 9th Circuit Court of Appeals affirmed in the published case of Engilis et al v Monsanto 3:19-cv-07859- VC (August 2025).
The admissibility of expert testimony is controlled by Federal Rule of Evidence 702. That Rule provides that, “before admitting expert testimony, the district court must perform a gatekeeping role to ensure that the [proffered] testimony is both relevant and reliable.” The parties parties dispute the significance of the 2023 amendment to Rule 702 and the effect of that amendment on existing precedent.
Thus the Court of Appeals reviewed the current precedent starting with the “Daubert Trilogy” which refers to three landmark U.S. Supreme Court cases that established the modern standard for admitting scientific expert testimony in federal courts. These cases clarified the admissibility of expert evidence under the Federal Rules of Evidence, particularly Rule 702, replacing the earlier Frye standard. In 2000, Rule 702 was amended for the first time to codify the holdings of the Daubert trilogy, and to resolve conflicts that had arisen within the courts about the meaning of that trilogy.
The Rule was amended again in December 2023 to expressly require a proponent of expert testimony to “clarify and emphasize” that proffered expert testimony must meet the admissibility requirements of Rule 702 by a preponderance of the evidence. Before the amendment, “many courts” had erroneously held “that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.”
“Here, the district court properly concluded that Engilis failed to establish by a preponderance of the evidence that Dr. Schneider’s conclusion was based on sufficient facts or data.”
SpineFrontier, Inc., founded in 2006 by Dr. Kingsley R. Chin, is a Massachusetts-based medical device company. SpineFrontier faced a multi-year investigation by the U.S. Department of Justice (DOJ) starting in 2016, initiated by whistleblower allegations under the False Claims Act. The civil case, settled in November 2023, alleged that SpineFrontier paid kickbacks to spine surgeons consulting with the company.
SpineFrontier products, such as doughnut-shaped plastic cages, titanium screws, and other spinal implants, are used by spine surgeons across the United States, including in surgeries reimbursed by federal health care programs like Medicare and Medicaid, which are active in California.
In addition to the civil cases, in 2021, SpineFrontier, Dr. Chin, and CFO Aditya Humad were indicted on criminal charges including conspiracy to violate the Anti-Kickback Statute and money laundering.
Dr. Chin pleaded guilty in May 2025 to one count of making false statements to the Centers for Medicare & Medicaid Services (CMS) under the Physician Payment Sunshine Act. The false statements involved misreporting a $4,750 payment to a surgeon as “consulting” fees, despite no actual consulting work being performed.
Money laundering charges were dismissed in December 2024, and all criminal charges against Dr. Chin and SpineFrontier were dismissed by May 2025, except for a guilty plea to one count of false statements to CMS.
Dr. Kingsley R. Chin was sentenced on August 7th by U.S. District Court Judge Indira Talwani to one year of supervised release with the first six months to be served in home confinement. He was also ordered to pay a fine of $9,500, in addition to $40,000 he personally agreed to pay as part of a related civil settlement, and $855,000 his wholly-owned company, KICVentures, agreed to pay as part of the same settlement.
KICVentures is a private equity firm led by Dr. Kingsley R. Chin. It focuses on advancing outpatient spine surgery through the Less Exposure Spine Surgery (LESS) philosophy. The firm manages a portfolio of spine technology companies aimed at improving patient outcomes and empowering physician-led innovation.
Pursuant to the Physician Payment Sunshine Act, device manufacturers, like SpineFrontier, are required to report any payments or transfers of value to physicians, including spine surgeons. CMS maintains a database, via the Open Payments website, which makes all such payments or transfers of value publicly accessible.
SpineFrontier offered surgeons the opportunity to engage in purported consulting on product development. Specifically, Chin directed his employees to report the payment of fees paid to a surgeon as consulting fees that were not compensation for actual consulting work.
Chin caused his employees to report a payment of $4,750 on Jan. 19, 2016, to the surgeon as a “consulting” payment, even though Chin knew that the surgeon had not performed actual consulting work for the payment. He also knew that he and SpineFrontier were required to accurately report any payments or transfers of value to the surgeon.
United States Attorney Leah B. Foley; Roberto Coviello, Special Agent in Charge of the U.S. Department of Health & Human Services’ Office of the Inspector General; Ted E. Docks, Special Agent in Charge of the Federal Bureau of Investigation, Boston Division; Christopher Algieri, Special Agent in Charge of the Veterans Affairs Office of Inspector General, Northeast Field Office; and Ketty Larco-Ward, Inspector in Charge of the U.S. Postal Inspection Service’s Boston Division made the announcement today. Assistant U.S. Attorneys Abraham R. George, Christopher R. Looney and Mackenzie A. Queenin prosecuted the case.