Articles Posted in Uncategorized

Recently, a man has pleaded guilty to raping a 94-year-old woman in a Northern California nursing home. According to the San Jose Mercury news, 43 year old Roberto Cruz Recendes pleaded guilty to a sex count, elderly abuse and an enhancement of inflicting great bodily injury, and he is facing a 17 year prison sentence. Recendes was arrested in Mexico in 2008, six years earlier the police arrested the wrong suspect. Under the Elder Abuse and Dependent Adult Civil Protection Act, Section 15657 expresses the remedies available and states: Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse or neglect, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the specific remedies (as provided by law) shall be applied. The Act is based on legislative findings that explain how elderly persons and dependent adults are a disadvantaged class, that cases of abuse of such persons are seldom prosecuted as criminal matters, and that few civil cases are brought in connection with this kind of abuse due to problems of proof, court delays, and lack of incentives to prosecute these suits.
Even though the Act is was written in 1991, it is still young and there remains some uncertainty regarding the issue of fighting a claim for civil remedies under the Act. That is why anyone who believes they have a claim should seek out an experienced attorney who is aware the delicacy of the law of and knows how to fight such cases, as each case must be specifically dealt with in relation to its facts in compliance with rules requiring specifics based on fact. Here at the Brod Law Firm, we have over ten years experience fighting for the rights of victims and are prepared to handle any type of elder abuse claim. Whether they deal with neglect, physical abuse, recklessness, oppression, fraud or malice–we will carefully and astutely fight for the victim.

According to the Huffington Post, 10 people have been injured in a roller coaster accident at Knott’s Berry Farm in Orange County. The accident happened Thursday night on a rollercoaster called the Pony Express. The injuries reported were minor, however. A spokesperson for the park stated that a train leaving the station didn’t make it over the first hill and rolled back into another train, and one person who getting into a waiting train and nine people on the train that rolled back were injured. All the victims were taken to the hospital. The cause of the accident is now under investigation.

Roller coasters and amusement rides are usually associated with fun for children, adults, and families. Most people who visit amusement parks and ride roller coasters with suffering an injury; however, each year thousands are injured while on roller coaster or any other amusement park ride. Tragically, in the most extreme situations, some visitors don’t leave an amusement park or water park alive. Most amusement park injuries result from equipment malfunction, but people can also be injured on water rides, water slides, in wave pools, and rides that use inflatable devices. Serious injuries associated with amusement parks can include:

• Deadly Falls – riders can die after being thrown from rides.

Fisher-Price is recalling more than 10 million products made for infants and toddlers in the US and Canada. The recalled products are linked to 24 reported incidents of injuries to young children. The massive Fisher-Price recall includes 7 million Trikes and Tough Trikes toddler tricycles sold in the US, and 150,000 of the same sold in Canada. According to the recall notice, a child can strike, sit or fall on the protruding plastic ignition key resulting in serious injury, including genital bleeding. The US Consumer Products Safety Commission (CPSC) and Fisher-Price are aware of 10 reports of incidents resulting in injury. Six of the incidents required medical attention after young girls, ages two to three years old, fell against or on the protruding disc-shaped and D-shaped pretend key.

Fisher-Price is also recalling Healthy Care, Easy Clean and Close to Me High Chair and includes 950,000 high chairs sold in the US and 125,000 sold in Canada. Children can fall on or against the pegs on the rear legs of the high chair resulting in injuries or lacerations. The pegs are used for high chair tray storage. The CPSC and Fisher-Price are aware of 14 reports of incidents, including seven reports of children requiring stitches and one tooth injury. One of these incidents was reported in Canada. Additionally about 100,000 Little People Wheelies Stand ‘n Play Rampway toys were recalled. The wheels on the purple and the green cars pose a choking hazard to young children, as the are easily removable and are small enough to swallow. Fisher-Price has received two reports of a wheel detaching from a vehicle. So far no injuries have been reported, though.

Also included in today’s recall is are the Baby Playzone Crawl & Cruise Playground, Baby Playzone Crawl & Slide Arcade, Baby Gymtastics Play Wall, Ocean Wonders Kick & Crawl Aquarium (C3068 and H8094), 1-2-3 Tetherball, Bat & Score Goal. The valve on an inflatable ball on these toys can come off and pose a choking hazard to young children. The CPSC and Fisher-Price are aware of 46 reports of incidents where the valve came off, 14 reports of the valve found in a child’s mouth and three reports of a child beginning to choke. Luckily, so far no injuries have been reported.

Walmart faces what may turn out to be the biggest class-action suit in U.S. history-a class action that claims systematic discrimination against women in promotion and pay. Walmart has already asked the US Supreme Court to overturn a ruling from the Ninth US Circuit Court of Appeals in San Francisco, that would allow 1.5 million current and former female Walmart employees to file the largest class-action lawsuit in history. The case started in San Francisco in 2001 when six women filed suit claiming Walmart discrimination, in part because they were passed over for promotion in favor of men — one says she was told, “It’s a man’s world.” The case, known as Dukes v. Walmart Stores, Inc., claims that Walmart actively discriminated against its female employees by denying them job assignments, promotions, training, and compensation equivalent to their male counterparts.

The suite claims women who were hired in 1996 earned, on average, $0.35 less per hour than men doing the same job. Of these women, those who were still working for Walmart in 2001 earned, on average, $1.16 less per hour than men doing the same job. In 2001, women in salaried management positions earned an average of $14,500 less than men per year. Additionally, testimony by plaintiffs document numerous accounts of sexist and discriminatory behavior coming from men in upper management positions such as being told that men “need to be paid more than women because they have families to support” and that “men are here to make a career and women aren’t. Retail is for housewives who just need to earn extra money.”

Recently Walmart’s lawyers have argued against the validity of the class-action suit based upon its size and its centralization of claims. They contend that discrimination is the result of specific acts committed by individuals, not company policy, and that decisions made by local manages did not have the same effect on all female workers, which would all become members of the potential class action. Yet, previously, the district court held that “although the size of this class action is large, mere size does not render a case unmanageable” and Judge Jenkins, of the United States Court of Appeals for the Ninth Circuit recently wrote that plaintiffs ‘assertion that managers’ actions were in line with an extremely centralized and “strong corporate culture that includes gender stereotyping.” If the suit is allowed to go forward, with its class of 1.5 million U.S. women, it could cost the retail giant billions of dollars.

Today, the U. S. Consumer Product Safety Commission has announced a voluntary recall of lithium-ion batteries that were sold with, or sold separately to be used with the following notebook computer models: Satellite A100, Satellite A105 and Tecra A7. The battery model is printed on the battery. The lithium-ion batteries can overheat, posing a fire hazard to consumers. This recall affects a good 41,000 notebooks sold worldwide and includes the Satellite T135, T135D, and Satellite Pro T130 notebooks. The issue is due to the potential overheating of the notebook’s AC adapter power plug, and Toshiba has already received several incidents of the notebooks overheating and deforming the plastic around the power plug. Owners of affected models can check if their notebook is affected by downloading a new BIOS update that will check if the notebook is overheating, disable the external power port when necessary, and display a message to bring the notebook to Toshiba for a free repair.

The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products under the agency’s jurisdiction. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard. CPSC is still interested in receiving incident or injury reports that are either directly related to this product recall or involve a different hazard with the same product. They are asking consumers to tell them about related incidents by visiting https://www.cpsc.gov/cgibin/incident.aspx. Here at the Brod Law Firm, we wonder if Toshiba faces a class-action lawsuit regarding these faulty laptops, with their faulty batteries. Similar suits against laptop makers rest on the contention that an aspect of a faulty device is “substandard”. A defective laptop is a major inconvenience in today’s world, as many people rely on their notebook computers as a means of earning a living and for educational purposes. And a laptop that could potentially burn consumers is completely unacceptable. To date, Toshiba has received 129 reports of the notebook computers overheating and deforming the plastic casing area around the AC adapter plug, including two reports of minor burn injuries that did not require medical attention and two reports of minor property damage. It is only fair that Toshiba offers to fix faulty laptops, as people should not be forced to spend hundreds of dollars to fix or replace their laptops, when Toshiba should have known about this problem at the time they initially sold the computer. If you are the owner or a defective product or if you have questions about product liability, please call our firm.

We are always following issues of nursing home abuse and think it’s important to talk about cases from time to time. We look at it as a way to remind our readers about the dangerous issues seniors face when they are in a nursing home. Last month a Superior Court Judge in Sacramento upheld a $29 million verdict in a nursing home abuse case. Judge Roland Candee rejected Horizon West Healthcare’s arguments seeking a new trial or significantly reduced damages in the case involving Frances Tanner, a 79 year old retiree who worked for the FBI and the IRS. Tanner suffered from mild dementia when she moved into Colonial Healthcare. During her time there she fractured her hip, which was left undiagnosed, and seven Months later she died due to an infected bedsore. Testimony revealed that Horizon illegally understaffs its sites and conducted business based predominantly on a concern for the bottom line, not on sympathetic patient care. The jury awarded tanner’s daughter $28 million in punitive damages and $1.1 million for pain and suffering, which the judge reduced to $800,000.

In addition to neglect, some nursing homes give residents medications for seemingly no reason. Antidepressants, antipsychotic and sedatives are sometimes given without consent and without valid diagnosis. Some facilities actually use these kinds of drugs as a chemical restraint to silence residents. As a consequence some seniors suffer a variety of adverse responses that include tremors, dangerous lethargy and a higher risk for falling or even death. According to Medicine Net, the risk of a senior dying increases by more than double when they are abused through neglect, physically, financially, sexually, or emotionally. If someone close to you is the victim of nursing home abuse, please contact the Brod Law Firm. Or if you have questions regarding nursing home abuse laws, feel free to contact our office.

California’s Elder Abuse and Dependant Adult Civil Protection Act (the “Act”) is relatively new legislation, which was intended to protect the abuse of an elder or a dependent adult. The abuse can be physical or financial, and may be evident in a case of neglect, abandonment, isolation or abduction. As cases of elder abuse become reported, the Act helps to provide a way in which violations can be addressed, extreme wrongdoers can be punished, ideally to prevent others from becoming victims of elder abuse.

In Humboldt County, a jury awarded a verdict of nearly $619 million based upon health code violations against Skilled Healthcare, one of the largest nursing chains in the United States. The verdict did not include punitive damages, which were to be decided at a later time. The class action lawsuit involved approximately 32,000 patients. The facilities involved with the health code violations were: Eureka Healthcare and Rehabilitation Center, LLC; Granada Healthcare and Rehabilitation Center, LLC; Pacific Healthcare and Rehabilitation Center, LLC; Seaview Healthcare and Rehabilitation Center, LLC; and St. Luke Heathcare and Rehabilitation, LLC .

Ideally, jury verdicts like the recent one in Humboldt County will send a message to nursing facilities across California and the rest of the country. If you abuse elderly or dependent citizens, you will pay. If you or an elderly member of your family has been the victim of ) Financial Abuse; 2) Physical Abuse and Neglect; and 3) Abduction, please call the Brod Law Firm, P.C. for a free consultation.

There is a growing concern over how the instant accessibility of information online is affecting, even threatening, the legal system. The following is a scenario that is becoming popular: Prior to a trial a prospective juror conducts a few quick Google searches of the parties involved in the trial. During the trial, evidence is presented, and the juror Googles whatever info there is regarding that evidence (even though the judge already admonished the jurors regarding this particular practice). Then, during deliberation, the juror tells another juror about what was found during the web search prior to trial and during trial. Some other jurors hear the exchange. Finally, the jury reaches its verdict, let’s say for the defense. Next, a motion is filed by the plaintiff, and the trial court sets aside the verdict, finding that one juror had introduced extrinsic evidence into deliberation that prejudiced the jury and swayed the outcome. For those of you who don’t know, extrinsic evidence includes knowledge relevant to the facts in issue not obtained through the introduction of evidence but acquired prior to trial. So, it goes without saying, that all such types of internet research by a juror prior to trial without notice to the court and counsel can lead to mistrials, which not only delays justice but furthers the cost, inconvenience and emotional stress of all parties.

The flip side of the internet’s influence over a case or trial has to do with attorneys using it to find evidence against opposing parties or information on prospective jurors. Divorce attorneys, especially, are using the internet, usually via social networking sites, to gather personal information about their client’s soon-to-be-ex and use it as leverage or as a way to cast doubt on the character of the soon-to-be ex. Also, a lawyer can check their client’s presence on the web for any information that could be used by the ex’s legal team. And when it comes to picking a jury, lawyers sometimes pay more attention to their computer screens during a voir dire than on the answers jurors are giving. Any attorney that thinks this is a good idea should consider the ethical and legal rules that may apply. Here at the Brod Law Firm we are noticing more and more how an individual’s presence on the web could potentially hurt them if they become involved in a lawsuit. It is a brave new world out there, people. Proceed with caution.

According to the Times-Herald, five people face criminal charges in the fiery deaths of three Casa de Vallejo retirement home residents nearly two years ago. The five consist of owners, operators and managers of the building and have been charged with two counts of manslaughter, two counts of elder abuse causing death and one count of elder abuse. Those killed in the blaze are John Argente, 74: Robert Bennett 68: and Harold Fortune, 61. As it turns out, they all died due to the lack of an audible fire alarm system. An investigation revealed that the fire was accidentally sparked by Bennett when he fell asleep in his room with a lit cigar, while on a medical oxygen tank. Also according to the investigation, the fire system’s audible alarm had been disconnected two months before the fire, during rehabilitation work on the building. Solano County District Attorney David Paulson’s office states that there was “a complete failure of notification of the elderly and infirm residents that the building was on fire.” As a former resident of the building said: “I thought they (meaning the building owners, operators and managers) got away with murder.”

Remember that elder abuse refers to any intentional, reckless, or negligent act by a care giver or other that person that causes harm or serious risk of harm to a vulnerable adult and deprives the vulnerable adult of the necessities of life, which is similar to nursing home abuse. Nursing home abuse refers to elder abuse or neglect committed in an institutional setting such as a skilled nursing facility, rest home, convalescent home, or residential facility or long term care home. People who reside in nursing homes do so because they have special care needs due to their age or medical condition, making them especially vulnerable to abuse and neglect. Sometimes, because of Alzheimer’s or dementia, they may not be able to recognize or speak-out when they are neglected or abused. Also, they may have physical limitations that prevent them from caring for themselves and are utterly dependent on nursing home staff to provide for their every need. And as mentioned in previous blogs, nursing homes sometimes underpay and overwork their staff in order to maximize profits, which may lead to a higher probability of injury or neglect of an elderly adult. In this case, it is the building owners, operators and managers who have cut corners and put the residents at risk.

Here at the Brod Law Firm, we believe one of the most important laws in California is the Elder Abuse and Dependent Adult Civil Protection ACT. California Legislature has declared, under the Act, the intent to enable interested persons to engage attorneys to take up the case of abused elderly persons and dependent adults, as well as provide for attorneys fees and damages for pain and suffering. The Act targets institutional care givers and health care providers and aims to deter those in charge from trying to cut corners and make it expensive to risk neglecting their residents and patients. As declared in the Act, living elders, defined as adults 65 years of age and over, and dependent adults, defined as adults with disabilities, have rights to monetary compensation for their injuries. And if the elder or dependent adult is deceased, then their estate, heirs, next of kin and other family members may have rights to monetary compensation due to injuries suffered by the elder or dependent adult prior to death and for punitive damages for abuse or neglect committed with oppression, fraud or malice. Despite legislative efforts to protect elders, abuse and neglect continue. If you believe a member of your family is or was the victim of elder abuse, or if you have questions regarding the laws that pertain to nursing home abuse, please contact us.

Lawsuits are mounting on behalf of the environment and communities around the gulf coast. One Lawsuit has been filed by the Sierra Club and Gulf Restoration Network against the U. S. Interior Department and Minerals Management Service (MMS) over permits. According to the suit, the agency gave BP and other oil companies illegal waivers. The suit states, “Had MMS not waived the regulatory requirements, had BP done a proper Blowout Scenario and Worst Case Oil Spill Response analysis, theses critical planning flaws may have been avoided.” And in other related news, it turns out that BP cut corners on safety in order to save money. According to the Wall Street Journal, as of 2003, U.S. regulators decided that remote-controlled safeguards, known as acoustical valves, needed more study; and a report commissioned by the MMS said “acoustic systems are not recommended because they tend to very costly.”

Needless to say, the spill is destroying wetlands and delicate ecosystems around the gulf and poisoning life in the ocean. And the spill poses long term health concerns for the safety of communities around the gulf. The toxins can persist for years in the food chain, as oil contains traces of heavy metal such as mercury, arsenic and lead, all of which raise the risk of cancer and neurological problems. Several restaurants from Louisiana and Florida have decided to take proactive steps toward recovery by filing a class action lawsuit against BP, whom they see as the responsible party, according to the Oil Pollution Act. The class action, dated, May 18, was filed on behalf of several plaintiffs who are restaurant owners and others in the seafood service industry who have or will suffer lost profits as a result of the spill. The action states that due to the dangerous environmental contamination as a result of the oil leak, “fishing, shrimping, oystering and other commercial activities have been suspended and will likely continue to be legally and/or effectively reduced,” thereby causing a loss of revenue and earning capacity for the industry.

Here at the Brod Law Firm, we believe unchecked development over the past century has put us in this devastating situation. Up until now, coastal erosion, land loss and vulnerability to hurricanes and flooding have been the end result of wreckless pillaging of the earth and sea for oil. But now, as the oil continues to gush–at a possible rate of 1million gallons a day–we wonder how long before the spill and/or byproducts of the it will show up other places around the globe, or perhaps, here in San Francisco, and ultimately place all of us in peril.