S.C. Denies Review to Woman Who Saw Brother Die

Thursday, March 28, 2013

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S.C. Denies Review to Woman Who Saw Brother Die

By a MetNews Staff Writer

The California Supreme Court yesterday left standing a ruling by this district’s Court of Appeal that denied recovery for the emotional distress of a woman who saw her brother die after his diving gear allegedly malfunctioned.

The justices, at their weekly conference in San Francisco, unanimously denied review in Fortman v. Förvaltningsbolaget Insulan AB, 2013 Cal. App. LEXIS 14, decided by Div. Three on Jan. 14.

Because Barbara Fortman believed her brother was having a heart attack, and did not sense that he was actually being deprived of oxygen due to an object stuck in his second stage regulator, she does not meet the stringent standard for bystander recovery under California law, Justice Richard Aldrich wrote for the Court of Appeal.

Fortman and her brother Robert Myers—a database administrator at Kirkland & Ellis in Chicago—were diving off Catalina when she realized during ascent that he was not moving and was unresponsive. She later testified that she did not believe he was breathing at the time, but was not certain.

After she got him to the surface, he was taken to the USC Hyperbaric Dive Chamber at Two Harbors on Catalina Island, where he was pronounced dead. Fortman admitted that she believed he suffered a heart attack until she was told, months later, of the results of the Sheriff’s Department investigation into his death.

Myers’ death was determined to have been caused by a cylindrical object, known as a “flow restriction insert,” that was found in a location that investigators said “would appear to restrict normal airflow.” The insert came from the hose in the dry suit that Myers was wearing, which was manufactured by Forvaltningsbolaget Insulan AB, a Swedish company doing business as SI Tech.

The ensuing lawsuit was brought on behalf of Fortman and Myers’ heirs. It included Fortman’s claim that while her “brother was being fatally injured by defendants’ defective and unsafe products . . . [she] was present at the time and place of the occurrences described herein, and contemporaneously observed, witnessed, and saw that her brother’s eyes bulged out of his head and that he was unresponsive to her signals, and perceived that her brother had stopped breathing and was being fatally injured by said products.”

The company argued in its motion for summary judgment that under Thing v. La Chusa (1989) 48 Cal.3d 644, Fortman could not recover emotional distress damages as a bystander because she could not establish that she was “present at the scene of the injury-producing event at the time it occur[red] and [was] then aware that it [was] causing injury to the victim.”

The plaintiff argued that she could recover because she met the other prongs of Thing—she was a close relative of the victim and suffered emotional distress beyond that which a disinterested observer would be expected to experience—and because she witnessed the events leading to her brother’s death, even though she did not know at the time it was the defendant’s faulty products that were causing his demise.

Los Angeles Superior Court Judge Roy L. Paul sided with the defense and granted summary judgment rejecting Fortman’s claim, and the Court of Appeal said he was correct.

Aldrich explained that recovery under Thing often involved automobile collisions, and reasoned that Fortman’s case is more like the medical malpractice cases in which the courts have held the plaintiffs could not recover because they didn’t see and perceive that malpractice was being committed.

Attorneys on appeal were Roland Wrinkle and Lars C. Johnson of Grassini & Wrinkle for the plaintiff and Steven M. McGuire of Lesser & Associates for the defendant.

The high court yesterday also denied review in several other cases, including:

•People v. Milstein (2012) 211 Cal. App. 4th 1158. This district’s Div. Seven ruled that prosecutors waited too long to bring charges against Leonard R. Milstein, a Southern California attorney who resigned from the State Bar in 2004 with disciplinary charges pending.

The State Bar and criminal charges both arose from Milstein’s involvement with American Justice Publication, a magazine distributed to inmates in California jails and prisons and containing lawyer ads.

Milstein allegedly advertised services that he didn’t, and couldn’t, provide, including the seeking of “early release” for inmates, some of whom complained to the State Bar. He was convicted of conspiracy, but the Court of Appeal ruled that the charge was time-barred because the three-year statute of limitations for conspiracy, rather than the four-year statute for fraud, applied.

Milstein is a former Los Angeles deputy district attorney who became a prison inmate himself after being convicted in 1995 of helping a client construct a false defense in a murder trial. That conviction was thrown out after the Court of Appeal said he was convicted on uncorroborated co-conspirator testimony.

Milstein then sued the prosecutors, then-Deputy District Attorneys Steve Cooley and Robert Foltz, saying they had attempted to frame him.

He also sued Cooley for defamation, based on a published statement in which Cooley reaffirmed his belief in Milstein’s guilt after the Court of Appeal ruling. Both suits were unsuccessful.

•Veronese v. Lucasfilm, Ltd. (2012) 212 Cal.App.4th 1, decided Dec. 10 of last year by the First District’s Div. Two. The court vacated an award of more than $1.2 million in damages for pregnancy discrimination and attorney fees, saying the defendant was entitled to jury instructions that it could not be held liable solely because it “made a wrong or unfair decision” or “an error in business judgment.”

The plaintiff, Julie Gilman Veronese, was represented by her husband, Joseph Alioto Veronese, and her mother-in-law, former San Francisco Supervisor Angela Alioto.

•Tom Jones Enterprises, Ltd. v. County of Los Angeles, B242535, decided by this district’s Div. Five Jan. 17. The panel held that singer Tom Jones’ negligence claim against the Los Angeles County Sheriff’s Department, for allegedly instructing a bank to transfer levied-upon funds back to a judgment debtor’s account, was barred by the litigation privilege.

The court said the privilege extends to the act of carrying out the directive of a writ of execution.

•Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, decided Dec. 11 by the First District’s Div. Five. The court affirmed a San Francisco Superior Court judge’s ruling that the San Francisco Police Department is not required to give an administrative assignment to a former officer who can no longer perform strenuous duties for health reasons.

The department was not required to accommodate Kenneth Lui with a desk job because he was not qualified to perform such tasks as making forcible arrests and chasing fleeing suspects, Judge Curtis Karnow Jr. said in his statement of decision.