Category: Daily News

In 2014, Ryan Patrick Natividad, 32, Corona, while working as a Costa Mesa Police Department officer, reported a work-related injury. He falsely claimed that earlier in the day, he struck his hand against a brick wall near the CMPD jail while transporting an arrestee for booking.

Natividad claimed that the arrestee stumbled into the wall, prompting him to use his hand to prevent the arrestee from striking the wall. He was subsequently directed by CMPD to seek immediate medical attention. He listed a jail employee as a witness to the incident in his injury paperwork.The employee reviewed the jail surveillance camera footage, determined that the incident the defendant reported never occurred, and brought the video footage to his supervisor’s attention.

The City of Costa Mesa, the city’s insurance company AdminSure, and a private investigation firm hired by AdminSure investigated Natividad’s workers’ compensation insurance claim and reported the fraud to the Orange County District Attorney’s Office, who investigated this case.

Natividad was sentenced to six months in county jail for committing insurance fraud by presenting a false insurance claim and making false material statements related to the claim, after he was found guilty of one felony count each of insurance fraud and making a fraudulent statement, after a jury trial on Feb. 16, 2017.

Before trial, the prosecution filed a motion in limine to admit evidence of Natividad’s 2009 workers’ compensation claim for a right hand injury while booking an arrestee. The prosecutor argued that because of the similarities, evidence of the 2009 claim was admissible to prove knowledge, common plan, and absence of mistake in the 2014 claim even though the insurance provider did not contest the 2009 claim (although it suspected fraud).

The court ruled the prosecutor would be allowed to put on evidence of the 2009 claim, including the video, to establish intent, common plan, or knowledge, but she had to inform the jury the claim was paid. The court, however, ruled the prosecutor could not argue there was fraud in the 2009 claim. Natividad appealed his conviction because of this ruling. However the court of Appeal affirmed the conviction in the unpublished case of People v Natividad.

The Court agreed the trial court erred by admitting other acts evidence. There are similarities between the 2009 and 2014 claims were Natividad injured his right hand in the jail while booking an arrestee. But they differ in one important respect.

In 2009, the insurance company processed and settled his claim while in 2014 the insurance company denied his claim. The admission of Natividad’s prior legitimate 2009 workers compensation claim had little probative value. At most it indicated he knew how to file a claim.

It’s prejudicial value, on the other hand, was significant. Even valid claims of workplace injuries are viewed with suspicion. Here, the 2009 claim unfairly suggested a pattern despite the fact there was no indication there was anything improper about the that claim. A negative stigma attaches generally to workers compensation claims, and subsequent claims give rise to even greater doubts and misgivings. Repeat claimants can easily be perceived as not wanting to work and as using such an injury as an excuse to get out of work

But he was not prejudiced by this error. The trial court’s admission of evidence of the 2009 claim was harmless pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. . “It was not reasonably probable that had the trial court excluded evidence of the 2009 claim the result of the proceeding would have been different.”

Francisco Gonzales formerly worked as a driver for San Gabriel Transit, Inc. (SGT), a company that coordinates with public and private entities to arrange transportation services for passengers.

In February 2014, Gonzales filed this putative class action seeking to represent over 550 drivers engaged by SGT as independent contractors from February 2010 to the present.

Among other things, Gonzales alleged that by misclassifying drivers as independent contractors, SGT violated various provisions of the Labor Code and the Industrial Welfare Commission’s (IWC) wage orders, particularly Wage Order No. 9-2001 (codified at Cal. Code Regs., tit. 8, § 11090 [Wage Order No. 9]), which governs the transportation industry, and engaged in unlawful business practices under Business and Professions Code section 17200 (17200).

The trial court did not evaluate individual causes of action. Rather, analyzing the action as a whole, premised on terms contained in several lease agreements in effect during the class period, the court found that Gonzales failed to demonstrate the requisite community of interest or typicality among SGT drivers under the then-prevailing legal test, and denied the motion for class certification.

While this appeal was pending, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex), in which it adopted the “ABC test” used in other jurisdictions to streamline and provide consistency in analyzing the distinction between employees and independent contractors for purposes of wage order claims.

The Court of Appeal reversed in the published case of Gonzales v San Gabriel Transit, Inc. Because the trial court did not have the benefit of the Dynamex decision, it remand the matter with directions.

It conclude that: (1) the ABC test adopted in Dynamex is retroactively applicable to pending litigation on wage and hour claims; (2) the ABC test applies with equal force to Labor Code claims that seek to enforce the fundamental protections afforded by wage order provisions; and (3) statutory claims alleging misclassification not directly premised on wage order protections, and which do not fall within the generic category of “wage and hour laws,” are appropriately analyzed under what has commonly been known as the “Borello” test (referring to S.G. Borello and Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello)).

On remand, the trial court shall: (1) evaluate which alleged Labor Code claims enforce wage order requirements, and which do not; (2) as to the Labor Code claims that enforce wage order requirements, apply the ABC test as set forth in Dynamex to determine whether the requirements of commonality and typicality for purposes of certification of a class action are satisfied; (3) as to the Labor Code claims that do not enforce wage order requirements, apply the Borello test to determine whether the requirements of commonality and typicality for purposes of certification of a class action are satisfied; (4) as to the derivative claim under section 17200, apply the ABC or Borello test as appropriate for the underlying alleged unlawful business practice; and (5) in the event the court determines class certification is appropriate for any claims, complete the analysis by determining whether proceeding as a class action would be superior to alternative methods of adjudication.

Not many years ago, applicant attorneys aggressively filed workers’ compensation claims for professional athletes in California, alleging that the long term effects of head injury while playing caused a form of dementia known as CTE. Later, many thousands of those athletes were involved in major civil litigation which were consolidated in a Pennsylvania federal court and then settled by the NFL. Ultimately, in 2013, the California legislature passed AB1309 which limited claims for out-of-state athletes.

The subject of head trauma and athletes involved in hard-hitting contact sports has become a hot button topic among both the scientific and athletic communities in recent years. Many now believe that these athletes are putting themselves at a much greater risk of serious neurological and cognitive problems later in life, but a recent study has come to contradictory conclusions.

A study by researchers from the University at Buffalo compared former National Football League and National Hockey League athletes with current participants in non-contact sports. Due to recent research into chronic traumatic encephalopathy (CTE), a neurodegenerative disease caused by repeated head injuries, the researchers expected to find much higher rates of early-onset dementia among retired professional sports players. However, the study revealed no evidence of early-onset dementia in the retired players.

The study assessed 21 former players for the NFL’s Buffalo Bills and the NHL’s Buffalo Sabres based on neuropsychological measures associated with mild cognitive impairment (MCI) and executive function.

Many players who suffer from CTE also suffer from early-onset dementia, but complicating matters is the fact that CTE can only be diagnosed after death through an autopsy. There is also evidence that it’s possible to suffer from CTE brain damage without any clinical symptoms.

Seeking to discover just how prevalent CTE is in athletes, the researchers tested the 21 professional athletes for signs of MCI using a series of comprehensive neurological assessments. These assessments included questionnaires plying the participants with questions about personality and executive function.

Researchers also scanned each athlete’s brain to look for signs of MCI, which is thought to be a precursor of early-onset dementia. The participants were asked about their diet, lifestyle, drug and alcohol use, and common cardiovascular problems. They gave blood samples to test for cholesterol levels, and were given thorough physical exams.

Researchers then compared the professional athletes’ results to a control group of 21 amateur participants in non-contact sports such as swimming, cycling, and running. Surprisingly, they found little to no difference between the variable group and the control group in cognitive ability, memory, and executive function.

The largest differences in health between the pro hockey and football players and the non-contact athletes were that the professional players had significantly higher risks for obesity, chronic pain, orthopedic surgeries, and severe sleep or anxiety problems. But, those differences were mostly attributed by the research team to overall health differences among the two groups. The non-contact sport athletes were considerably healthier, more educated, and weighed less than the retired pro athletes.

Leddy and his co-author Barry Willer have long been known for their research on concussions, CTE, and early-onset dementia. They developed a new recovery method for concussions that assists concussion sufferers in becoming more active after only a relatively brief rest period.

The study is published in the Journal of Head Trauma Rehabilitation, the official journal of the Brain Injury Association of America.

A Reuters investigation concluded that judges regularly allow information pertinent to public health and safety to be filed under seal, even though court documents are, by law, presumed to be public. In nearly all jurisdictions, judges are required to provide an on-the-record rationale for allowing litigants to file information under seal – to protect trade secrets, for example, or an individual’s medical records – but they rarely do that.

In its analysis, Reuters found that information pertinent to public health and safety was filed under seal in 55 of the 115 biggest product liability cases consolidated in federal courts over the past 20 years. These mega-cases, known as multidistrict litigation (MDL), involved products used by millions of consumers.

The secrecy exacts a heavy toll. In just a handful of cases Reuters analyzed, hundreds of thousands of people were killed or seriously injured by allegedly defective products – including cars, drugs and guns – after judges allowed litigants to file under seal evidence that could have alerted consumers and regulators to potential danger.

It’s a measure of their role in maintaining court secrecy that in nearly all of the 55 big cases, it was plaintiff lawyers who filed the information under seal. That’s because of the way secrecy is baked into the process early on.

During pretrial discovery, when the opposing sides request information from each other to prepare their cases, the defendant usually won’t give plaintiffs any information until they agree to a protective order. In theory, these agreements are meant to keep under wraps potentially damaging proprietary or personal information. But in many cases, nearly everything ends up being stamped “confidential,” and plaintiff lawyers often just agree to the secrecy without complaint.

Later, when plaintiff lawyers begin filing motions or presenting their cases in court, the standard for imposing secrecy moves higher. Material obtained through discovery that is later submitted as evidence becomes part of the court record; as a matter of law, litigants must provide a reason for submitting such evidence under seal, and the judge must approve.

In most of the big MDLs, however, plaintiff attorneys actually cited the defense’s earlier claims of confidentiality to justify filing evidence under seal. Since judges rarely ask for a more specific rationale for the secrecy, documents marked as confidential remain so.

That’s true when the parties settle, which is how most product liability cases end. It can also be true after a jury decides in favor of the plaintiff. Sometimes, plaintiff lawyers even agree to keep evidence confidential that has already been aired in open court in other cases.

Lawyers who do fight secrecy seldom succeed. They challenged defendants’ claims of confidentiality for material relating to public health and safety in 23 of the 55 big cases Reuters analyzed. Judges nearly always refused to unseal the evidence.

Yet potentially harmful flaws in many products remain secret years after the first lawsuits are filed. Overly broad protective orders are a big part of the problem, legal experts and plaintiff lawyers said. In 45 of the 55 big MDLs Reuters analyzed, the protective order allowed most any document to be marked as confidential.

“Balance billing,” better known as surprise billing, occurs when a patient receives care from a medical provider outside of his insurance plan’s network, and then the provider bills the patient for the amount insurance didn’t cover. These bills can soar into the tens of thousands of dollars.

Surprise bills hit an estimated 1 in 6 insured Americans after a stay in the hospital. And the air ambulance industry, with its private equity backing, high upfront costs and frequent out-of-network status, is among the worst offenders.

Congress is considering legislation aimed at addressing surprise bills and air ambulance charges. And some states, including Wyoming and California, are trying to address the problem even though there are limits to what they can do, because air ambulances are primarily regulated by federal aviation authorities.

Here is an example of how a surprise bill might work. Before his double-lung transplant, Tom Saputo thought he had anticipated every possible outcome.  But after the surgery, he wasn’t prepared for the price of the 27-mile air ambulance flight from a hospital in Thousand Oaks, Calif., to UCLA Medical Center – which cost more than the lifesaving operation itself.

Saputo, 63, was diagnosed in 2016 with idiopathic pulmonary fibrosis, a progressive disease that scars lung tissue and makes it increasingly difficult to breathe. The retired Thousand Oaks graphic designer got on the list for a double-lung transplant at UCLA and started the preapproval process with his insurance company, Anthem Blue Cross, should organs become available.

But before a transplant could be arranged, he suddenly stopped breathing on the evening of July 7, 2018. His wife called 911. A ground ambulance drove the couple to Los Robles Regional Medical Center, 15 minutes from their house, where Saputo spent four days in the intensive care unit before his doctors sent him to UCLA by air ambulance.

He was on the brink of death, but just in time, the hospital received a pair of donor lungs. They were a perfect match, and two days after arriving at UCLA, Saputo was breathing normally again.

Much later, when Saputo opened a letter from Anthem, he discovered the helicopter company, which was out of his network, had charged the insurance company $51,282 for the flight. Saputo was responsible for the portion his insurance didn’t cover: $11,524.79.  By contrast, the charges from the day of his transplant surgery totaled $40,575 – including $31,605 for his surgeon – and were fully covered by Anthem.

In California, Democratic Gov. Gavin Newsom signed a bill in early October that will limit how much some privately insured patients will pay for air ambulance rides. Effective next year, the law, by state Assemblyman Tim Grayson, will cap out-of-pocket costs at patients’ in-network amounts, even if the air ambulance company is out of network.

Wyoming is moving to treat the industry like a public utility, allowing the state’s Medicaid program to cover all of its residents’ air ambulance trips and then bill patients’ health insurance plans. The state would then cap out-of-pocket costs at 2% of the patient’s income or $5,000, whichever is less. Wyoming needs permission from the federal government to proceed.

Ultimately, though, state authority is limited because the federal Airline Deregulation Act of 1978 prohibits states from enacting price laws on air carriers.

Congress is considering several bipartisan bills on surprise billing. One measure by Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., would ban balance bills from air ambulance companies. The bill passed committee and is now headed to the Senate floor for a vote, pending approval from Senate Majority Leader Mitch McConnell of Kentucky.