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From Nichols Communications, Los Angeles
Monday 16 April, 2007 323.221.0821 • russ_nichols@yahoo.com Insurance company Attempting to Keep Jury From Seeing Letters Plaintiff’s Counsel Says Letters are Threats Against His Clients [Los Angeles] A case in Los Angeles involving a birth injury has produced unusual letters from Norcal Mutual Insurance Company, California’s largest medical liability insurance company and its law firm, Bertling & Clausen LLP. Norcal is attempting to quash introduction of the letters in an upcoming civil trial. It is also attempting to keep one of its senior investigators from appearing on the witness stand. The plaintiff gave birth to twins, a boy and a girl, prematurely in September, 2001 at Good Samaritan Hospital. The boy is healthy and well, but the girl suffered irreparable brain injury as a consequence of prematurity. Nathaniel J. Friedman of Beverly Hills, a personal injury lawyer specializing in medical malpractice cases resulting in serious birth injuries. is representing the child and her parents, Julie D. and Sergio Araiza, of San Bernardino. Friedman alleges medical malpractice on grounds that the mother was never offered cerclage, a procedure that would have delayed delivery of the premature infants and given them a chance to develop normally in the uterus. The defendants, Healthcare Partners Medical Group, San Gabriel Valley Perinatal Medical Group and several doctors, claim that the procedure was offered and declined. The case is set to go to trial on April. 19th. The letters in question are similar. Friedman says in 40 years of litigation he has never seen such letters. In essence, Norcal and their lawyers are promising to go after Friedman’s clients for recovery of costs in event of a defense win. Bertling & Clausen’s letter states: “In the event of a defense verdict, our offer to waive costs and rights to due for malicious prosecution in exchange for a dismissal will open the door for recovery of our expert costs at trial.” The law firm estimates those costs at $60,000. Friedman sees this letter as an attempt to frighten his clients into dropping the case. He sees a similar, although more pointed attempt to intimidate his clients in the letter from Norcal, which states: “In the event Norcal is forced to defend this case to trial, we will pursue collection of the costs we are entitled to recover after a defense verdict is obtained. I trust you will discuss this risk with your client. It is Norcal’s practice to attempt cost recovery and refer the matter to a collections agency in the event a plaintiff will not cooperate with payment." That letter is signed by Holly J. Lay, Senior Claims Investigator for Norcal. Friedman considers that both letters constitute a threat veiled in terms of an offer to compromise. He believes that the jury should be made aware of the letters. Friedman wants introduction of the letters in court to demonstrate “bias, interest and prejudice.” He also wants Holly J. Lay’s testimony at trial. In the motion to quash introduction of the letters and Lays’ appearance in court, Norcal claims that her appearance is “Privileged, Irrelevant and Otherwise Inadmissible”. Norcal claims that, “The letter is privileged as a settlement communication.” Norcal also claims that the subpoena to Ms. Lay was not properly served. Friedman disputes those claims. Jury selection begins in Los Angeles Superior Court on April 19th. Copies of both letters will be made available to interested parties. Mr. Friedman can be reached at 310.277.2889 The text of the Norcal letter is posted below: |
NORCAL Your Committment Deserves Nothing Less February 23, 2007 Mr. Nathaniel Friedman 8484 Wilshire Blvd. Suite 235 Beverly Hills, CA 90211 RE: Araiza vs. Sanchez, MD File No. 69139 Dear Mr. Friedman: This letter will serve to acknowledge your client's California CCP 998 Offer to Compromise for $1 million served to our insured, Dr. John Sanchez. As you know, the offer expired on 1/31/07. NORCAL appreciates your extension of the original offer, which allowed for a very thorough evaluation of this claim. We declined this Offer to Compromise because our experts are strongly supportive of Dr. Sanchez's care and tratment of your client, Julie Araiza. Our understanding of your theory against Dr. Sanchez is that he failed to offer and perform a cerclage. The medical record well documents that cerclage was discussed and offered by Drs. Leung and Skelton, but Ms. Araiza declined. By the time Dr. Sanchez became involved with your client, it was well established and documented that Ms. Araiza declined a cerclage; therefore, Dr. Sanchez didn't offer Ms. Araiza a cerclage. Further, as I'm sure you're aware, cerclage is usually performed by 16 weeks gestation, and Dr. Sanchez didn't become involved with Ms. Araiza until she was approximately 23 weeks. Please strogly consider the California CCP 998 Offer to Compromise for waiver of costs, which Mr. Clausen recently served on your client on behalf of Dr. Sanchez. In the event NORCAL is forced to defend this case to trial, we will pursue collection of the costs we are entitled to recover after a defense verdict is obtained. I trust you will discuss this risk with your client. It is Norcal's practice to attenpt cost recovery and refer the matter to a collections agency in the event a plaintiff will not cooperate with payment. Very truly yours, [signed] Holly J. Lay Senior Claims Investigator Professional Claims Department Link to Bertling & Clausen letter |