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S & J Rentals v. Hilti, Inc. – A Win for KCT in Oklahoma

Today, a District Court Judge for the Northern District of Oklahoma issued an order granting our request to re-transfer a case back to California—a very rare occurrence.

The case is S & J Rentals v. Hilti, a class action lawsuit brought on behalf of California business owners against a manufacturer of power tools, Hilti, Inc. Plaintiff alleges that Hilti has engaged in a fraudulent business scheme involving its tools’ “automatic shutoff” function which requires purchasers to pay roughly $600 for reactivation exclusively to Hilti. Class members were never fully informed of this mandatory cost and therefore seek redress under California Law for fraudulent business practices.

The issue was that, although this case only involves California residents and was filed in California federal court, Hilti asserted that the case belongs in Oklahoma federal court due to a forum-selection clause buried in its sale contracts. We opposed Hilti’s position since Oklahoma law limits class actions to only Oklahoma residents and Plaintiff would have no remedy there. However, the California judge adopted Hilti’s interpretation of the forum-selection clause—that forum was proper in state or federal court where plaintiff would have the same procedural protections under Rule 23 as in California—and transferred the case to federal court in Oklahoma.

Upon receiving the case, the Oklahoma district court judge interpreted the forum selection clause as requiring the case to be filed in Oklahoma state court and issued an Order to Show Cause as to why she should not dismiss the case. Contrary to its original position, Hilti asserted that the forum selection clause requires the case to be filed exclusively in Oklahoma state court and requested dismissal. We filed a brief, (1) arguing that Hilti waived enforcement of the forum-selection clause by initially requesting transfer to Oklahoma federal court, and (2) requesting re-transfer to California for a reconsideration of the original judge’s ruling.

In her Order, the Oklahoma judge accepted our argument in its entirety. She noted that, although reconsideration of a transfer order should be extremely rare, due to the extraordinary circumstances in this case, it would be a “manifest injustice” to not permit reconsideration here. She continued, “[t]his procedural muddle is a mess of defendant’s creation,” and since Hilti was familiar with the laws of Oklahoma, “[i]t would have been the height of incompetence for [Hilti] to draft a forum selection clause without understanding [which forum it required] and the Court does not believe that defendant behaved in such a careless manner when drafting this forum selection clause.” Ultimately, since the California judge’s original transfer “order relies on [Hilti’s] misrepresentations” of the forum-selection clause to its benefit and plaintiff’s detriment, the case was transferred back to the Eastern District of California for further proceedings.

Class Action Against CalPERS Proceeds to Trial

Kershaw, Cook, & Talley is one of the law firms appointed as Class Counsel in a class action against CalPERS on behalf of approximately 123,000 class members.  The case was filed in August 2013 in the Los Angeles County Superior Court.

The class action arises from CalPERS decision to implement an 85% premium increase on policyholders who purchased Long-Term Care (LTC) policies between 1995- 2004. Following announcement of this increase in 2013, the Plaintiffs filed a complaint asserting five causes of action against CalPERS: breach of fiduciary duty; breach of contract; breach of the implied covenant of good faith and fair dealing; rescission; and declaratory and injunctive relief.

In March 2017, CalPERS filed a Motion for Summary Judgement seeking to dismiss the case in its entirety. With respect to Plaintiffs’ breach of fiduciary duty, CalPERS argued that it had immunity.  With respect to Plaintiffs’ claim for breach of contract, CalPERS urged that it had the right to raise the policy premiums for any reason and, in any event, that the claim was barred by the statute of limitations.

Class Counsel vigorously opposed CalPERS’ motion, which was heard by the Court on June 2, 2017. During the hearing, Honorable Judge Ann Jones largely agreed with Plaintiffs and the Class.The Court rejected CalPERS’ argument that the Class’ breach of contract claims were barred by the statute of limitations.  The Court found the time period to contest the 85% rate increase did not begin to run until CalPERS actually announced the rate increase in 2013.  The Court also found that the rate increase potentially violated certain provisions in the insurance contract that prohibited rate increases that are “a result of” the increasing benefits that were being provide to policyholders who purchased inflation protection.  Since CalPERS primarily implemented the rate increase on policyholders who purchased inflation protection, the Court found that a jury could infer that the rate increases were implemented as a result of this benefit.

Although CalPERS has indicated that it will attempt to “decertify” the class, this was nevertheless a significant decision on behalf of the Class.  If the case is not decertified, the Class will likely proceed to trial in the Spring of 2018 in Department 308 of the Los Angeles Superior Court.

For more information about the class action against CalPERS, call Kershaw, Cook, & Talley at 916-779-7000.

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IUD Complications: Can I File a Lawsuit?

 

The IUD, or intrauterine device, is a birth control method used by many women. Although IUDs can be effective alternatives to the pill, IUDs can cause serious complications. Uterine perforation occurs in approximately 1 of every 1,000 insertions. If you have experienced this, or a similar IUD complication, you may be able to file a products liability lawsuit against the manufacturer or seller of the IUD.

Types of Product Defect

There are three categories of product defect lawsuits: Design Defect, Manufacturing Defect, and Marketing Defect.

  • A Design Defect occurs when the inherent design of the product is unsafe or flawed in some way—before it is manufactured. For an IUD case, you would need to prove that the design of the IUD is what caused your complication. You would have a stronger case if you could also prove that other people were injured by the same design. This type of case would best be pursued as a mass tort or class action.
  • Manufacturing Defect cases are applicable where the individual product was not manufactured properly, and this caused some sort of injury. Under this theory, you would need to prove that your specific IUD differs from the rest of the product line. You would also need to prove that the device was defective when it left the hands of the manufacturer or seller. In these types of cases, it is very important to keep the specific device so it can be examined by an expert.
  • Lastly, Marketing Defects occur when the manufacturer of a product did not adequately warn consumers of the product’s dangers or side effects. In a failure to warn case, you would need to prove that if you had known of the IUD’s dangers, you would not have chosen it as your method of birth control. These cases can be slightly tricky, since manufacturers only have to warn doctors of medical side effects, and it is your doctor’s duty to pass this information on to you.

 

Medical device product liability cases are fairly complicated, so it is important to have an experienced attorney with your best interests at heart. At Kershaw, Cook & Talley, our personal injury and civil justice attorneys have extensive experience litigating and settling cases on behalf of individuals injured by defective medical devices. We take lead roles in many medical injury lawsuits involving thousands of claimants against some of the largest corporations in the country.

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Medical Malpractice: Do you have a case?

 

Image: The Guardian

Medical malpractice claims can occur when doctors do not properly diagnose their patients and/or fail treating their patients.  Generally, medical malpractice cases involve suffering injuries because of a doctor’s action or inaction. However, someone can file a claim if doctors do not receive proper consent before treating a patient, or if the medical treatment is improperly documented. One third of medical malpractice claims filed relate to patient deaths and 54% of the claims allege major or significant physical injury due to negligent medical treatment.

You must satisfy certain requirements before filing a negligence claim against your doctor.  First, one must show a doctor-patient relationship between the person filing the lawsuit and the treating doctor. At times, the relationship is difficult to prove if the consulting physician does not treat someone directly.

One must then prove the doctor was negligent and caused harm. Usually, the standard question is if a competent doctor, under the same or similar circumstances, would have been more careful or acted the same. In other words, the doctor’s actions “more likely than not” caused one’s injury or death. It is important to show the injury led to one’s damages such as pain and suffering, excessive medical costs, and loss of income. You cannot file a medical malpractice lawsuit if you did not suffer an injury.

Medical malpractice claims are complex and require expert testimony. An expert’s testimony can show a doctor’s actions were below the standard of care expected from them and therefore they were negligent. The qualifications of an expert vary depending on the state in which one is filing a lawsuit. Also, depending on the state, there may be a limit on the award amount available for the medical malpractice claimant. It is important to file a complaint as soon as possible after an injury to fully exercise your rights as a patient.

If you were injured by a neglectful medical provider, call Kershaw, Cook, & Talley at 916-779-7000 for a free case consultation.

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Recovering Damages If I am Partially at Fault in an Auto Accident

Photo: Edmunds.com

Numerous automobile accidents happen every day, and it is possible for multiple people to be at fault.  Fortunately, if you were partially at fault in a car accident, you can potentially recover damages—depending on your state’s negligence laws.

Pure Comparative Fault

In states that recognize the “pure comparative fault” rule, injured parties to an auto accident may recover damages even if they were 99% at fault. Under this rule, drivers’ recoverable damages are proportionally reduced by the percentage they are at fault. So, if you were 70% at fault in a crash and suffered $100 thousand in damages, you could still recover $30 thousand from the other driver. Approximately 1/3 of states have adopted pure comparative fault—including California.

Modified Comparative Fault

Most states that follow “modified comparative fault” allow drivers to recover only if they are 50% or less at fault in the accident. Other states following this rule set the threshold at 49%, rather than 50%. “Modified” comparative fault works the same way as its “pure” counterpart—damages are proportionally reduced by the driver’s negligence. The key difference is, under modified comparative fault, drivers that are 51% (or 50%) at fault for the accident are prohibited from recovering entirely. Most states follow this approach.

Contributory Negligence

Contributory negligence is the least forgiving of the negligence rules. Under this standard, if a driver is even 1% at fault in an accident, they are prevented from recovering entirely. Although comparative fault is the modern trend, 5 states still follow contributory negligence.

If you were in an auto accident and you aren’t sure what you can recover—we can help. Call Kershaw, Cook & Talley for a free case evaluation today at 888-997-5170.

Click here for more information on negligence systems in US jurisdictions.

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