news 2019

Firm pushes back in class action against software maker

March 13, 2019 – The firm filed papers today in the federal district court in Boston opposing the efforts of Massachusetts-based eClinicalWorks to dismiss a class action brought against it by two plaintiffs on behalf of patients whose healthcare providers used ECW’s software and cloud-based services to maintain their medical records.  In 2017, ECW agreed to pay $155 million to settle with the U.S. Department of Justice over claims that ECW defrauded the federal government by falsifying reporting designed to assure the accuracy and integrity of patient records maintained by ECW; in fact, said the government, ECW’s software was unable to satisfy certification criteria relating to the accuracy and reliability of patient records.  Plaintiffs’ class action claims that by marketing and selling knowingly defective software to healthcare providers nationwide, ECW failed to secure and safeguard the medical records of patients and that, as a result, patients’ medical records have been compromised.  Firm partner David Given leads a team of three law firms representing plaintiff and class patients in the case.  A hearing on ECW’s motions is expected to be scheduled soon.

Firm scores million dollar plus verdict in personal injury case

March 12, 2019 – Following a three-week trial in Santa Clara County Superior Court, firm partner Nick Carlin, assisted by associate Michael Levinson and paralegal Kaylee Racs, obtained a $1.25 million jury verdict in favor of firm client Darrick Figg in his personal injury case against the driver of a car that rear-ended him at 50 m.p.h. on Interstate 880 near San Jose.  Mr. Figg sustained soft-tissue injuries to his shoulder, neck and back, as well as a mild concussion (a traumatic brain injury), on impact.  Because the crash occurred while he was at work, Mr. Figg’s medical care came through the workers’ compensation system; those doctors never ordered MRIs of the back and shoulder.  MRIs taken after the the firm was retained showed internal injury to those areas.  The jury took less than half a day before reaching its verdict, awarding Mr. Figg over $500,000 for past and future medical costs and lost earnings, and $750,000 for past and future pain and suffering.  The jury’s award more than doubled what the defendants ever offered in settlement.  Judgment is expected to be entered soon.

Trial begins in traumatic brain injury case

February 22, 2019 – Lawyers made opening statements today in the Santa Clara County Superior Court, kicking off client Darrick Figg’s jury trial against Cognizant Technologies and one of its employees who, while at work, rear-ended Mr. Figg on Interstate 880 in San Jose at approximately 50 m.p.h. while Mr. Figg was stopped in rush hour traffic. The client, a fire inspector for the Central County Fire Department, was knocked out cold by the collision and his car was totaled; he sustained injuries to his neck, back and shoulder and has had ongoing issues with those injuries.  His doctors have since recommended shoulder surgery.  His concussion has led to other neurological (traumatic brain injury) issues. Mr. Figg is seeking past and future medical expenses and lost wages, as well as general damages for the years of pain and suffering his doctors have told him to expect as a result of his injuries.  Partner Nick Carlin leads the firm’s three-person trial team, which includes associate Mike Levinson and paralegal Kaylee Racs.  Trial is continuing day-to-day before the Honorable Paul R. Bernal; the jury will likely begin its deliberations in early March.

UPDATE – March 12, 2019 – A 12-person jury returned a verdict today in favor of firm client Darrick Figg in the amount of $1,253,865.  Further proceedings in the matter are pending.

Case against makers of FEAR THE WALKING DEAD lives on

January 31, 2019 – Federal district judge Lucy H. Koh today accepted the firm’s arguments on behalf of its client Mel Smith, declining to dismiss his case against the AMC Network, its affiliates and other individuals and entities responsible for the hit television series FEAR THE WALKING DEAD.  In his lawsuit against them, Mr. Smith contends that these parties infringed his copyright in the comic book series DEAD AHEAD and breached their fiduciary duties to him by using elements of his comic book (for example, its plot, setting, certain characters and the like) without his permission.  Judge Koh agreed with the central argument of the firm’s brief in opposition that defendants’ position that those elements were “stock” or “generic” or “unoriginal” was factual in nature, and that the client’s claims were otherwise legally sound.  The parties expect to appear in court before Judge Koh on March 19th; trial is scheduled to begin early next year.

UPDATE – March 6, 2019 – The parties advised Judge Koh today that they have completed a mediation and resolved the matter.  They expect the case to be dismissed in its entirety shortly.

Firm presses insurer to pay client’s costs

January 17, 2019 – Firm partners Nick Carlin and David Given, together with associate Brian Conlon, today filed an opening brief in the State’s Second Appellate District on behalf of client Aaron Samsky, pressing his case for reimbursement of legal fees and costs against his insurer, State Farm, arising from an underinsured motorist claim following a car crash in Los Angeles.  In Sept. 2018, the client (represented by Nick Carlin and associate Mike Levinson) prevailed in an arbitration against State Farm, after which he asked the Los Angeles Superior Court to confirm the arbitration award as well as to award him his costs of proof (legal and expert fees and other out-of-pocket expenses, totaling almost $200,000) incurred as a result of State Farm’s failure to admit certain facts – for instance, that Mr. Samsky was not at fault for being rear-ended.  While the court confirmed the arbitration award and entered a judgment in Mr. Samsky’s favor, it refused to award him those costs.  The client’s appellate brief challenges the court’s failure to award those costs on various grounds.  Further proceedings in the Court of Appeal are pending.

UPDATE – March 1, 2019 – The firm filed a reply brief for the client today, responding to State Farm’s arguments over his cost and fee request.  A hearing in the appellate court is expected to be scheduled soon.

Firm launches copyright/trademark case for DEAD KENNEDYS

January 9, 2019 – Firm partner David Given and associate Mike Levinson today filed an action against online vendor Viralstyle on behalf of the legendary punk rock band DEAD KENNEDYS.  The client’s complaint contends that its name and iconic DK logo have been copied and used without its permission on apparel and other merchandise manufactured and sold by Viralstyle, in violation of federal copyright and trademark law.  Late last year the band discovered the Viralstyle website and asked the company to remove that apparel from its website, which it refused to do.  Filed in the federal district court in San Francisco, the client’s lawsuit includes state law claims for common law trademark misuse and unfair trade practices in addition to the infringement claims under federal law.  Further proceedings in the matter are pending.

UPDATE – March 4, 2019 – The parties have resolved their dispute, and DEAD KENNEDYS filed a dismissal of its lawsuit today.