January 1998 Vol. 4 No. 1 ISSN 1087-6219
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In This Issue

• En banc Ninth Circuit upholds term limits
• Proposition 213's restrictions on recovery by drunk drivers, uninsured motorists and felons are constitutional
• MICRA limits apply to federal anti-patient dumping claim
• Deponent may be required to provide nonverbal responses at a videotaped deposition
• Workers' compensation award estops plaintiff from pursuing disability discrimination claim
• Supreme Court revisits primary assumption of the risk doctrine
• UPDATES

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En banc Ninth Circuit upholds term limits

The en banc Ninth Circuit has ruled that Proposition 140 (which imposes lifetime term limits on California state legislators) passes constitutional muster. The decision reverses an October 1997 three-judge panel opinion, which was discussed in the November 1997 issue of Appellate Decisions Noted. (Because of the Ninth Circuit's size, its en banc court consists of just the Chief Judge and 10 additional judges drawn by lot from the active judges of the court. See Circuit Rule 35-3.)

As interpreted by the California Supreme Court, Proposition 140 bars State Senators from serving more than two terms in their lifetimes, and Assembly Members from serving more than three terms in their lifetimes. California State Legislature v. Eu, 54 Cal. 3d 492 (1991), cert. denied, 503 U.S. 919 (1992). The three-judge panel ruled the ban unconstitutional because the ballot materials had not given sufficient notice that Proposition 140 imposed a lifetime ban, instead of a ban on consecutive terms. The en banc court disagreed, holding that the ballot materials and other information available to voters made the initiative's intent sufficiently clear.

To determine whether the term limits initiative was constitutional, the court weighed “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule. Burdick v. Takushi, 504 U.S. 428 (1992).

The plaintiffs in the case were a former state legislator and several of his constituents. Their interests were an incumbent's “asserted” right to run again, and the constituents' right to vote for the candidate of their choice. The court did not apply strict scrutiny, because Proposition 140's impact on the plaintiffs' rights was “not severe.” Incumbents may enjoy incumbency in a particular office for a number of years, and may then run for other offices. The restriction is content neutral. It does not discriminate against members of any protected class.

California's legitimate interests justify the limited restriction. Without term limits, incumbents may garner unfair advantages. They may acquire excessive power that will discourage other candidates from running for office. Term limits may encourage fresh ideas and new perspectives. They also may decrease the likelihood that representatives will lose touch with their constituents.

Bates v. Jones, No. 97-15864 (9th Cir. Dec. 19, 1997).

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Proposition 213's restrictions on recovery by drunk drivers, uninsured motorists and felons are constitutional

The First District Court of Appeal in San Francisco has upheld the constitutionality of Proposition 213. The decision agrees with the ruling by the Second District Court of Appeal in Yoshioka v. Superior Court, 58 Cal. App. 4th 972 (1997).

Proposition 213 passed in November 1996. It bars a convicted felon from recovering any negligence damages caused by commission of the felony. Uninsured motorists and convicted drunk drivers may recover economic damages, but not emotional distress damages.

The Congress of California Seniors and other interest groups sued the Insurance Commissioner and other government officials. They claimed that the restrictions violated equal protection and due process, burdened the right to travel and denied the affected groups the right to petition government for redress of grievances. The Superior Court overruled the defendants' demurrer and issued a preliminary injunction. The Court of Appeal issued a peremptory writ of mandate directing the Superior Court to vacate the injunction and to sustain the demurrer.

There was no due process violation, because no hearing was required. There was no equal protection violation, because the restrictions were rationally related to the legitimate goals of restoring balance to the justice system and reducing the costs of mandatory automobile insurance.

The court also rejected an argument that uninsured motorists had a right to “explain” their lack of insurance. If a plaintiff cannot prove that he or she was insured, Proposition 213's restrictions apply. The fact that reduced damages might discourage lawyers from accepting cases on contingency likewise did not violate anyone's rights.

Finally, the proposition's incidental impact on travel was not unlawful. The restrictions were no more onerous than many other provisions that regulate the conditions of travel, such as licensing, registration, gasoline taxes and trucking regulations.

Quackenbush v. Superior Court, No. A078530 (Cal. Ct. App. Dec. 24, 1997).

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MICRA limits apply to federal anti-patient dumping claim

The Second District Court of Appeal in Los Angeles has applied California's limit on noneconomic damages in medical malpractice actions to a claim under the federal Emergency Medical Treatment and Active Labor Act (EMTALA). The ruling conflicts with two recent federal district court decisions. See Jackson v. East Bay Hosp., 1997 WL 627515 (N.D. Cal. Oct. 6, 1997); Burrows v. Redbud Community Hosp. Dist., No. C-96-4345 SI (N.D. Cal. 1997).

Mychelle Barris was taken to the King Drew Medical Center Emergency Room with a 106.6-degree temperature. She was suffering from septicemia, which required treatment with antibiotics. The emergency room doctor thought that she had a viral infection. He treated her with fluids and fever reducers. He wanted to do a complete blood count and blood culture. Mychelle was covered by a Kaiser health plan. The emergency room doctor spoke to a doctor at Kaiser Permanente Hospital, who said that the count and culture would be done at Kaiser. Mychelle was transferred to Kaiser, where she died from cardiac arrest.

EMTALA was enacted in response to concerns that hospitals were refusing emergency treatment to patients who could not pay, and transferring such patients before their emergency conditions were stabilized. It requires hospitals with emergency rooms to conduct “appropriate medical screening,” if requested to do so. Such hospitals must also stabilize an emergency patient's condition before transferring the patient. Anyone who suffers personal harm as a result of a violation may sue to recover “those damages available for personal injury under the law of the State in which the hospital is located.” 42 U.S.C. § 1395dd(d)(2)(A).

MICRA limits noneconomic damages to $250,000 in actions against a health care provider based on “professional negligence.” “Professional negligence” is a negligent act or omission in the rendering of professional services. Cal. Civ. Code § 3333.2(c)(2).

Mychelle's representative based her appeal on the hospital's failure to stabilize Mychelle's condition before transferring her to Kaiser. That failure resulted from the emergency room doctor's faulty diagnosis. Therefore, the claim was based on “professional negligence,” and MICRA's limits applied.

Barris v. County of Los Angeles, No. B105216 (Cal. Ct. App. Dec. 24, 1997).

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Deponent may be required to provide nonverbal responses at a videotaped deposition

The California Supreme Court has resolved a split among the Courts of Appeal about whether nonverbal acts may be compelled at a videotaped deposition. It affirmed a decision discussed in the October 1996 issue of Appellate Decisions Noted. It disapproved the contrary result reached in Stermer v. Superior Court, 20 Cal. App. 4th 777 (1993).

California Code of Civil Procedure section 2025(l)(1) provides that examination of a witness at a videotaped deposition proceeds as permitted at trial under the Evidence Code. Nonverbal answers may be required at trial. There is no good reason why they may not also be required at a deposition.

Emerson Elec. Co. v. Superior Court, 68 Cal. Rptr. 2d 883 (1997).

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Workers' compensation award estops plaintiff from pursuing disability discrimination claim

The Second District Court of Appeal in Los Angeles has applied the doctrine of judicial estoppel to a workers' compensation award in a disability discrimination lawsuit. The decision may provide a powerful weapon for employers caught between the conflicting demands of the two statutory schemes.

Eddie Jackson was a safety police officer who sustained a back injury in the course of his employment. He filed a workers' compensation claim, which was resolved by an agreement that he had a permanent disability. The agreement recited that Jackson should not engage in work that required heavy lifting, repetitive bending and stooping. His disability also required a stress-free environment. The County relieved him of his law enforcement duties because of the work restrictions. The County classified the safety police position as “arduous.” It required heavy work, and frequent stress.

Jackson claimed that the County's action deprived him of his right to a reasonable accommodation of his disability under the Americans with Disabilities Act (ADA). However, an injured worker has no claim under ADA unless he or she can perform the essential functions of the job. Jackson had persuaded the workers' compensation tribunal that his injury prevented him from engaging in heavy work. The doctrine of judicial estoppel precluded him from contending in his ADA lawsuit that he could somehow perform heavy work. Therefore, the Superior Court correctly granted the County's motion for summary judgment.

Jackson v. County of Los Angeles, 1997 WL 780789 (Cal. Ct. App. Dec. 19, 1997).

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Supreme Court revisits primary assumption of the risk doctrine

The California Supreme Court has ruled that a skier does not owe a negligence duty to avoid running into another skier. A flurry of concurring and dissenting opinions may signal the need to reexamine the assumption of the risk doctrine.

In Knight v. Jewett, 3 Cal. 4th 296 (1992), a three-justice plurality of the Court divided assumption of the risk into primary and secondary versions. In a sports setting, the primary version absolves a participant of liability for damages incurred as a result of dangers that are inherent in the sport.

This case was complicated by the existence of a county ordinance that purported to establish a code of conduct for skiers. In Ford v. Gouin, 3 Cal. 4th 339 (1992), the Court had split badly over the impact of a statutory duty on assumption of the risk. In that case, as in this one, the Court avoided a definitive answer as to whether the negligence per se doctrine could overcome the absence of a duty dictated by primary assumption of the risk.

The lead opinion in this case found that the doctrine did not apply, because the plaintiff did not fall within the class of persons that the ordinance was designed to protect. It is unclear what the answer will be when a future case squarely presents the question.

In a concurring opinion, Justice Chin (author of the majority opinion) opined that primary assumption of the risk would avoid any liability that negligence per se would otherwise impose. Justice Werdegar would hold that negligence per se can create a duty of care that primary assumption of the risk could not negate. Justice Kennard adhered to her preference to preserve voluntary assumption of the risk in its traditional form, which would have absolved defendant of liability in the instant case. Justice Mosk would discard the assumption of the risk concept, and approach the whole area as a question of duty.

Cheong v. Antablin, 68 Cal. Rptr. 2d 859 (1997).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Berger v. Hanlon (December 1997 issue), now reported at 129 F.3d 505 (9th Cir. 1997).

California Dep't of Corrections v. State Personnel Bd. (December 1997 issue), now reported at 69 Cal. Rptr. 2d 34 (Ct. App. 1997).

Emerson Elec. Co. v. Superior Court (October 1996 issue), superseded by 68 Cal. Rptr. 2d 883 (1997).

Fletcher v. Kalina (September 1996 issue), affirmed, 1997 WL 756635 (U.S. Dec. 10, 1997).

Jones v. Bates (November 1997 issue), now reported at 127 F.3d 870 (9th Cir. 1997), superseded by en banc decision (Dec. 19, 1997).

Jones v. United States (December 1997), now reported at 127 F.3d 1154 (9th Cir. 1997).

N/S Corp. v. Liberty Mutual Ins. Co. (November 1997 issue), now reported at 127 F.3d 1145 (9th Cir. 1997).

Reno v. Baird (October 1997 issue), review granted (Dec. 17, 1997). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

Wellpoint Health Networks, Inc. v. Superior Court (December 1997 issue), now reported at 59 Cal. App. 4th 110 (1997).

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