In one of the largest cases in our 33 year history, Gwilliam, Ivary, Chiosso, Cavalli, & Brewer filed a lawsuit on behalf of 130 former Lawrence Livermore Lab workers who claim that illegal widespread layoffs specifically targeted the highest salaried senior staff members who were closest to retirement. The defendant in the case is Lawrence Livermore National Security LLC, the mostly private-sector coalition managing the Lab since 2008, led by Bechtel and including University of California, BWX Technologies, Inc. and Washington Group International, Inc..

Rally Against Bechtel Run Lawrence Livermore Lab

In support of our upcoming trial on February 27, 2012, we are holding a rally of 130 former employees of Lawrence Livermore Lab, who were fired in the wake of the laboratory’s transition from public to private control. The former employees, all plaintiffs in individual lawsuits against LLNS, will discuss strategy and developments as the first of their lawsuits nears trial.

News Conference Prior to Rally

The five plaintiffs in the first trial will hold a news conference prior to the group meeting.  The purpose of the news conference will be to discuss their claims against LLNS, varying from wrongful termination to age, race and disability discrimination. Their consolidated lawsuits were orginally scheduled for trial on February 6, 2012 but have been moved to February 27, 2012.

Media Access to Former Employees and Counsel

Lead Counsel Gary Gwilliam will be available to the media to explain how privatization of the lab led to the discriminatory and unlawful layoffs. In addition, media  will have access to all former employees who attend the 6 p.m. group meeting immediately following the news conference.

Time and Location

The meeting is set for Thursday January 26, 2012 at 5:15pm. The location for the meeting is Robert Livermore Community Center, 4444 East Avenue  Livermore, CA 94550.

Cheif Justice of California Tani Gorre Cantil-Sakauye

Like so many of my colleagues and peers, a big part of staying in touch with our profession is participating in events. One of the best ways to stay connected, to people and the issues of the day, is to attend local industry association events. One of the best local events in Northern California is the 41st Annual Alameda-Contra Costa Trial Lawyers Association “Judges Night” event. This year’s event, January 17, 2012,  was held at the beautiful Claremont Resort & Spa in Berkeley, California.

Special Guest: Chief Justice Tani Gorre Cantil-Sakauye

One of the reasons this event is so successful is the outstanding special guests and contributors assembled each year. This year was no exception with California Chief Justice Tani Cantil-Sakauye in attendance as the Special Guest. Congratulations to Cheif Justice Cantil-Sakauye for her continued hard work and efforts to help California courts weather the budget-cut storm.

Honorees

Two stalwarts in our legal community were honored: Honorable Judge Judy Craddick and Honorable Judge Carol Brosnahan. Judge Judy Craddick serves as a judge for the Superior Court of Contra Costa County. Judge Carol Brosnahan serves as a judge for the Superior Court of Alameda County. Congratulations for a job very well done!

“We believe our list represents some of the absolute go-to employment law practices in the Bay Area” – Scott Graham Recorder Editor in Chief

The Recorder one of the most influential legal news agencies, billed as “Essential California Legal Content”, has named Gwilliam, Ivary, Chiosso, Cavalli, & Brewer one of the San Francisco Bay Area’s top 10 “leading employment law practices” in the Plaintiffs category. Recognized for their excellence is our employment law team of  Partners J. Gary Gwilliam and Randall E.Strauss, Associates Jayme L. Burns and Robert J. Schwartz, and Legal Assistant Marilyn Gee-Cartwright. Our team represents plaintiffs in discrimination, harassment, retaliation and whistleblower cases. I am proud to congratulate our employment team for their commitment  and results in the representation of plaintiffs who have suffered wrongful termination. The Recorder Leading Employment Practices list.

Our Holistic Approach to Representing Plaintiffs

We are committed to taking only cases we truly believe in. It is this commitment that allows us to perform, concentrate our efforts and resources to the highest level. If we are able to assist you in your case, we will provide you with a team dedicated to you consisting of an attorney, a paralegal and a legal secretary. You will always be able to access someone familiar with your case and its progress.

Over the course of 2011, we at Gwilliam, Ivary, Chiosso, Cavalli, & Brewer are proud to have published a number of articles on subjects including our verdicts and settlements, personal injuries, brain injuries including Chronic Traumatic Encephalopathy, and plaintiff rights issues which continue to come under fire. My goal and direction is to continue to publish important information on the current plaintiff and tort landscape, personal injury developments, and updates on employment and business issues as they evolve.

The following is a list and description of our top 5 most viewed posts for 2011. If you commented or shared any of these articles, thank you for your support and willingness to participate with me.

2011 Gwilliam, Ivary, Chiosso, Cavalli, & Brewer Top 5 Blog Articles

1. Stella Liebeck: The Facts and Myths Surrounding the “Hot Coffee” Case (July 15, 2011):  This is an inside look at the facts and myths surrounding the “Hot Coffee” case, interviews describing Stella Liebeck, statements and facts from doctors and family members, and it’s a true portrait of the woman who was wrongfully judged in the court of public opinion
2. Possible Breakthrough in Diagnosing CTE Brain Disorder  (February 16, 2011): Dr. Alexander Lin describes a relatively new treatment for CTE called Magnetic Resonance Spectroscopy or MRS. Statistics and commentary on this possible breakthrough
3. Contamination in Erin Brockovich Case Still Spreading Despite Orders for PG & E to Clean the Mess (November 10, 2010): This update to the famous Erin Brockvich – PG & E fight is a sad reminder of what can happen once groundwater and land is contaminated
4. Ten Longtime CSAA Employees File Age Discrimination Lawsuit (November 12, 2010): An inside look at one our cases involving  unfair, discriminatory treatment of older, loyal employees with the spotlight on one of the major plaintiffs in the case
5. Cognitive Decline: Chronic Traumatic Encephalopathy in Former NFL Players (January 14, 2011): Dr. Bennet Omalu, forensic pathologist and co-director of The Brain Injury Research Institute, provides a startling account of CTE’s effects on former NFL player Fred McNeill and basic physiology of this disease

GwilliamLawFirm.com

I invite you to provide your thoughts on future subjects that you would like to see covered here on my blog, feedback for the Top 5 of 2011, and opinions on what should be important issues we face in 2012.

“Corporate Greed Defeated: $9 Million Business Fraud Verdict in Favor of Gwilliam, Ivary, Chiosso, Cavalli, & Brewer” describes one of the largest verdicts in our firm’s history: $9,263,345 awarded to our plaintiff Peter Allen, owner of Allmed Systems, Inc. in Pleasanton, California. In order to provide a more complete account of this verdict, we will take a closer look at the details of this case. Considering the current worldwide climate of protests against corporate greed, corporate misconduct, and corporate misrepresentation, this verdict is very timely and illustrates what many disenfranchised people around the world are protesting against.

Attorneys and Experts:

Plaintiff attorneys: J. Gary Gwilliam and Jayme L. Burns of Gwilliam, Ivary, Chiosso, Cavalli, & Brewer of Oakland, California and Richard E. Korb,  Korb Law Offices of Berkeley, California. Defendant attorneys: Breck Harrison and Aldean Kainz, Jackson Walker, LLP of Austin, Texas and Bob Phelps, Glynn & Finley, LLP, Walnut Creek, California. Experts: Dr. Sal Lombardo, Urologist, New Jersey and David Nolte, economist from Los Angeles, California.

Case Facts: Allmed Systems, Inc. dba LISA LASER USA and LISA LASER OHG v. Healthtronics, Inc.

Plaintiff Peter Allen of Allmed Systems, a small corporation and distributor of medical products, sued Healthtronics, Inc. a multi-national corporation. The defendant corporation had an exclusive distribution arrangement to market the plaintiff’s surgical laser. The plaintiff contended that rather than using it’s best efforts to market the laser to the entire medical community, the defendant corporation (Healthtronics, Inc.) tried to maximize their own profits by entering into partnerships directly with urologists and others in the medical community. The jury found that the defendant, Healthtronics, Inc., breached the contract with plaintiff Peter Allen owner of Allmed Systems and made intentional and negligent misrepresentations to the plaintiff.

Allmed Systems Contentions: Breach of Contract

Mr. Allen contended that the defendant, Healthtronics, Inc., breached the contract by:

• Did not utilize their “best efforts”
• Did not use “good faith efforts”
• Refusing to sell the laser throughout the entire United States (there were no fly zones where they did not sell)
• Did not provide the plaintiff with rolling forecasts for sale and distribution of the laser
• Defendant lied about their intent to sell the product to urologists outside the partnerships they represented (approximately one-third of the urologists in the United States)
• Healthtronics, Inc. never intended to distribute the laser to anyone other than their own partners

2008 Allmed System’s Cure Provision

In September and November of 2008, Allmed Systems executed a cure provision signaling they would withdraw from the contract under their terms because of Healthtronic’s breach. Correspondence between the attorneys, in late September and November of 2008, disputed the anticipatory breach. During this time frame a new development occurred.

Healthtronics Sues Peter Allen and Allmed Systems in Texas

While negotiations were pending on the cure provision, Healthtronics, Inc. sued Peter Allen and Allmed Systems in Texas. The plaintiff contended this was in violation of the provisions of the contract which stipulated that any litigation on the contract needed to be in Alameda County Superior Court in the State of California.

Texas Litigation

The case was litigated in Texas for a year and a half before the Texas Supreme Court finally ordered the case back to the Alameda County Superior Court in California. The defendants then removed the case to  federal court. Subsequently, the plaintiffs were able to remand the case back to Alameda County Superior Court.

Facts of the Texas Lawsuit

The plaintiffs contended that the jury should know of the facts of the Texas lawsuit because of the contention for punitive damages. Unfortunately, the court excluded that evidence from the jury. The plaintiffs contend that the evidence can still be important to illustrate their bad faith under their contention for pre-judgement interest.

Tort of Interference With a Business Relationship

Plaintiffs also contended that the defendants are liable for the tort of interference with a business relationship. The Court entered a directed verdict on that cause of action against the plaintiffs- it did not go to the jury.

However, there was evidence that the defendants have threatened other doctors with litigation if they purchased lasers from Mr. Allen and Allmed Systems after the lawsuit was filed. Furthermore, the defendants contended by their website and otherwise that they had exclusive right to sell the lasers even after the litigation had begun.

Healthtronics, Inc. Disputes Plaintiff Contentions

Healthtronics, Inc. strongly disputed the plaintiffs’ contentions that they (Allmed) had in fact spent a great deal of money developing the product and were using their best efforts to sell it. The defendant denied any misrepresentations and contended Allmed breached the contract by promoting a new advanced laser product in violation of the exclusive distribution contract.

Verdict Results

• Breach of Contract                             $7,647,345.00
• Intentional Misrepresentation     $9,263,350.00
• Result: Total Plaintiffs’ Jury Verdict $9,263,345.00
  Defense verdict on Defendant’s cross-complaint
• Punitive: Defense verdict for punitive damages
• Settlement Discussions: Defense indication of $750,000. Plaintiffs’ final demand $4 million
• Injury Damages: Result $9,263,345 jury verdict
  The plaintiffs have the right to attorney’s fees under the contract and contend they have a right to pre-judgment interest for the last three years. Plaintiffs estimate the final judgment will be in excess of $10 million

“This case was very topical. It was exactly what the 99% are complaining about – corporate greed, corporate misconduct and corporate misrepresentations by a large company taking advantage of a small business owner. The jury agreed that this kind of conduct will no longer be tolerated.” -Gary Gwilliam

In one of the largest verdicts in the history of Gwilliam, Ivary, Chiosso, Cavalli, & Brewer, on November 4, 2011 a Alameda County jury awarded plaintiff Peter Allen, owner of Allmed Systems, Inc. in Pleasanton, California, $9,263,345. The defendant in the case, Healthtronics, recently purchased by ENDO Pharmaceuticals, was found by the jury to have  breached the contract and made intentional and negligent misrepresentations to Mr. Allen.  Allmed Systems, Inc. was represented by J. Gary Gwilliam and Jayme L. Burns.

Peter Allen and Allmed Systems

Allmed Systems, Inc. dba Lisa Laser USA in Pleasanton, California, is a small corporation run by Mr. Peter Allen. Allmed Systems, distributor of medical products, was on the cutting edge of prostate cancer treatment with it’s surgical Revolix lasers- the indisputable leader in surgical laser technology.

Mr. Allen entered into an exclusive distribution arrangement with Healthtronics in 2007. In the arrangement, Healthtronics agreed to use its best efforts to market and sell the Revolix laser and increase patient access to what was indisputably the best surgical laser on the market for prostate issues.

Healthtronics’ Agenda

Instead of using its best efforts to market the Revolix laser to the entire medical community, Healthtronics used it to entice urologists to build partnerships with Healthtronics thereby maximizing its own profits at Peter Allen’s expense.  In doing so, Healthtronics actions:

• Lost Momentum: Healthtronics stymied the Revolix laser in the marketplace
• Access: Healthtronics decreased patient access to the Revolix lasers treatments
• Business Failure: Healthtronics’ actions almost cost Peter Allen his business
• Blocked Market: Healthtronics refused to sell his laser to all urologists
• Threats: Healthtronics actively told the medical community not to buy the lasers from Mr. Allen and threatened doctors with litigation if they did

Business Litigation

At Gwilliam, Ivary, Chiosso, Cavalli, & Brewer our lawyers have extensive and important experience handling a wide variety of fraud claims and business disputes  including:

• Theft of trade secrets and intellectual property
• Investor fraud
• Breach of fiduciary duty
• Breach of contract, and fraud in contracts
• Promissory fraud and fraud in sales
• Consumer fraud

For more information on this case, please contact J. Gary Gwilliam at 510-832-5411 or ggwilliam@giccb.com. If Mr. Gwilliam is not available please contact Jayme L. Burns or Jane Gorelick at 510-832-5411 or jburns@giccb.com or jgorelick@giccb.com.

In “Monumental Wrongful Termination Suit Looms Over Lawrence Livermore Lab” we announced the largest case in the 33 year history of Gwilliam, Ivary, Chiosso, Cavalli, & Brewer : a lawsuit filed on behalf of 130 former Lawrence Livermore National Laboratory workers who claim that illegal widespread layoffs specifically targeted the highest salaried senior staff members who were closest to retirement. One of the most compelling stories in this case belongs to, our plaintiff and former Lab employee, Marian Barraza who launched her career, in 1969 at age 17, and spent 38 years as an employee of The Lab before being wrongfully terminated from her position.

Marian Barraza: 1969 A New Beginning

Marian Barraza started working at Lawrence Livermore National Laboratory in 1969 as a result of a successful stint as a participant in a high school program. “They offered me a full time position,” Marian said. “I graduated on a Friday and started full time on Monday. They began training me typing purchase orders on a teletype machine.”

Through hard work and perseverance, Marian rose to a position as a purchasing specialist. Her main responsibility was to review and process contract invoices from contract administrators. According to Marian, “We (unit) were responsible for reviewing and approving invoices, ensuring financial and property issues were resolved, and overseeing “allowable” expenses being turned in by the contractors.  .  . We worked on contracts on a monthly basis of $300,000+ with some contracts in the millions of dollars.” 

Life at The Lab Before Privatization

The Lab was a vibrant community of friends, family and co-workers who shared their lives through celebration in their work, holidays spent together, and memories made both on the job and during time away. It’s the place in the early 1970′s where Marian Barraza met her husband Martin “Benny” Barraza a requester in the Electronics Engineering department. It is where they celebrated the birth of their two daughters. And it is the place 10 years ago where her daughter joined The Lab “family” as a Computer Tech. As Marian fondly describes it, “The Lab was a city of it’s own; very friendly and always a family away from home.” At the time, Marian felt that she was treated fairly, her work was valued, and her path was set. That would not remain the case.

Discrimination

The last two years of Marian Barraza’s employment at The Lab were trying, difficult, and emotional. Subtle yet negative, changes were taking place and Marian took notice. “I had no problem until the last 2 yrs when senior employees were being pushed aside for special projects,” Marian said. “All of the special projects were going to younger employees and not us.” 

Other instances that Marian noticed began to concern her. Training classes were not being offered to senior employees. Her position as back up to their group leader, handling day to day operations in the leaders absence, was taken away and assigned to a younger worker. Most peculiar was the constant movement of people. In one of the most telling instances, Marian and  two senior employees applied for a coveted “lead” position. In a foreshadowing of things to come, The Lab hired a new employee with only nine months experience. It was Marian who trained this new employee prior to his landing the coveted lead position.

“Black Thursday” and Emotional Distress

May 22, 2008 is known as “Black Thursday” to long time Lab employees who were laid off that day. Upon arrival to her office, Marian was instructed to stay in her office until notified by her manager. When a supervisor walked in at 7:15am Marian was in shock. According to Marian, her first reaction to the supervisor was “You have to be kidding. . . me?”

Marian Barraza was handed a layoff letter, the supervisor would not answer her direct questions, and she was informed she had one hour to pack and clear the premises. The rest of the time was spent processing her out of the facility, guarding her office, and even in one instance escorting her to the bathroom. Tearful goodbyes with co-workers and her daughter were capped off by her final trip to the check-out point where Lab security and sheriff deputies performed the final processing. As Marian so succinctly stated, “I was treated like a criminal.”

The Lab: 12 Causes of Action

Lawrence Livermore National Security LLC, the private management organization running The Lab is facing 12 Causes of Action some beyond the scope of Marian Barraza’s claim. The Lab is being accused of the following:

• First Cause of Action: Age Discrimination
• Second Cause of Action: Retaliation
• Third Cause of Action: Disability Discrimination
• Fourth Cause of Action: Violation of California Family Rights Act
• Fifth Cause of Action: Wrongful Termination in Violation of Public Policy
• Sixth Cause of Action: Race/National Origin Discrimination
• Seventh Cause of Action: Gender Discrimination
• Eighth Cause of Action: Sexual Orientation Discrimination
• Ninth Cause of Action: Intentional Infliction of Emotional Distress
• Tenth Cause of Action: Breach of Express or Implied Contract
• Eleventh Cause of Action: Breach of Implied Covent of Good Faith and Fair Dealing
• Twelfth Cause of Action: Violation of Constitutional Right to Continued Employment

We, at the law firm of Gwilliam, Ivary, Chiosso, Cavalli, & Brewer, are delighted to announce Robert J. Schwartz as an associate attorney effective October of 2011. Robert comes to our firm after a successful stint as a staff attorney for Tri-Valley CAREs, a non-profit environmental organization.

Education

Robert J. Schwartz received his B.A. in English from the University of Michigan. He then went on to earn his Juris Doctor from the University of Oregon in 2007. Robert established a high standard of achievement during law school as a recipient of numerous certificates in the areas of Public Interest and Public Service Law, Environmental and Natural Resources Law and Pro Bono.

Areas of Practice

Robert J. Schwartz is a member of the California State Bar and has practiced in these areas:

• Employment Law
• Personal Injury
• Product Liability
• Civil Litigation
• Business Litigation

We are very excited to welcome Robert to our practice and we believe he will contribute a wealth of knowledge to our firm.

One of the nations’ hot spots for defective roadways is California where two thirds of roads are in “poor or mediocre” condition according to the National Transportation Research Group. Roadway maintenance, specifically construction and resurfacing,  is one of the three key factors that affect roadway safety and it is at the heart of the tragic 14 year history of serious vehicle accidents on Contra Costa County’s Marsh Creek Road.  Attorney Steven Brewer of Gwilliam, Ivary, Chiosso, Cavalli, & Brewer represented one of the earliest victims, in this tragic pattern of accidents, Yvette Harden and family in 1994.

Marsh Creek Road: Tragic History, Pattern of Serious Accidents 1994-2008

The tragic pattern of serious accidents on Marsh Creek Road began in  1994 where 15 serious accidents occurred in construction zones during three repaving projects, over a combined 21 days, spanning 14 years. Yvette Harden”s crash was one of seven during a 1994 repaving project where the following conditions were present:

• All occurred in construction zones
• Five occurred before 10 a.m. on residual gravel from the previous workday
• Each CHP accident report noted “loose material” or “loose gravel” on the roadway

Yvette Harden’s Accident

Yvette Harden’s catastrophic accident, like many of the others, was the result of loose material or gravel on Marsh Creek Road. Unable to control her car on the slick surface, Yvette careened onto the shoulder of the road skidding 70 feet and sailed off a driveway where the car rolled to a stop, upright, 50 feet from the road. The results were life changing as she suffered a spinal cord injury that would render her a quadriplegic as well as brain damage. Yvette, as it turned out, would require 24-hour-a-day care for the remainder of her life.

Pain and Suffering Leads to Tragic End

Although Mr. Brewer, who worked closely and diligently with Diane Hardin, was able to secure a $600,000 payment from Contra Costa County in 1997, the overwhelming pain from this accident would eventually exact the ultimate toll on the family. The brain injury suffered by Yvette left her with minimal impulse control leading to unpredictable and erratic behavior. According to Brewer:

“She could be charming one minute and scare the hell out of you the next. I liked Yvette. Deep down, if you could get through some of her issues, she was a nice, sweet person.”

Ending the Pain and Suffering

Diane, unable to properly care for her daughter, was forced to place her in a care facility. Thus, began a 15 year odyssey with Yvette moving from one facility to another.  It was a terrible 15 years filled with pain and suffering for Yvette and Diane. While residing in the Oakland Springs Health Care Center, Yvette accused staff of mistreating her.

Diane Harden argued that her daughter expressed a desire to die. In failing health herself, Diane Harden walked into the Oakland Springs facility, the night of September 13, 2009, and fatally shot her daughter. Diane then committed suicide. This was the culmination of 15 years of suffering endured by Yvette and Diane; this accident and the lives it wasted should have never occurred.

“If at any time before judgement it appears that the district court lacks subject matter jurisdiction over a case previously removed from state court, the case must be remanded.” -Title 28 U.S.C. S 1447

In an attempt to delay our case and change the Court where it would be heard, Elaine Andrews, et al., Plaintiffs v. Lawrence Livermore National Security LLC, the Lab filed a Notice of Removal on August 10, 2011. This had the immediate effect of taking our long scheduled September 2011 trial off calender. Removal jurisdiction is the right of a defendant to move a lawsuit filed in state court to a federal court in the same federal judicial district in which the state court is located. The removal was completed as soon as the Lab filed notice. Our best and only option was to file a Motion of Remand in federal court asking the judge to send the case back to state court. This was not the first time we were compelled to file a Motion of Remand.

Notice of Removal: 2009

On May 21, 2009 we filed the complaint on behalf of our plaintiffs in Alameda County Superior Court. In July, 2009 the Lab filed a Notice of Removal to have the case moved to federal court. In response, we dropped all of our federal claims and the Lab agreed not to remove the case again. Unfortunately, the Lab did not honor that agreement.

Notice of Removal: 2011

In moving forward with their Notice of Removal, the Lab may have been motivated by time factors:

• The Lab removed the case one day before a hearing on their motion to continue the trial date in state court. We strongly opposed the Lab’s motion and refused their repeated requests to push back the trial
• The Lab’s lawyer had other trials scheduled for this fall creating possible scheduling difficulties
• The Lab wanted more time to file their motions for summary judgment

Judge Grants Order for Plaintiff’s Motion to Remand & Attorney’s Fees

Wednesday August 31, 2011 the federal judge granted our motion and remanded the case back to state court under Judge Freedman where it will most assuredly stay. Due to our time spent in preparing the motion, and the lack of legal merit in the removal, the Federal Judge also awarded us attorney’s fees for our efforts in returning the case to State Court.