Mike Kelly: The Million Dollar Man

The cover of this year’s Northern California’s SuperLawyers Magazine features Walkup partner Mike Kelly, dubbing him “The Million Dollar Man.” The subcaption quips: “Michael Kelly is a very funny man. But facing him in court is no laughing matter.”

As the cover article elucidates, Mike is known as much for his accessible style and community involvement, as for his professional achievements. “Juries can relate to him—he's not stuffy—just a regular guy. But he can take a complicated subject and make it easy and understandable,” says Linda Ross, past president of the San Francisco Trial Lawyers Association.

Despite the “regular guy” label, it’s no accident that Mike has “tried, arbitrated or mediated more than 100 cases in which his client's recovery exceeded $1 million, including the largest personal injury verdict in Sonoma County history.”

Defense attorney Pat Galloway has tried a number of cases against Mike. He confides that Mike Kelly’s cross-examinations, even when taking on sophisticated medical experts, are “devastating.”

When Mike isn’t devastating expert witnesses with his cross examination technique, he is often teaching other lawyers. For “nearly 30 years, he has taught for the National Institute for Trial Advocacy,” the leading organization in teaching skilled and ethical advocacy.

He also teaches trial skills internationally - in Great Britain, the Republic of Georgia, and Japan, where rapidly evolving legal systems demand crash courses in cutting edge trial skills.

As Ken Gack, a San Francisco mediator puts it, Mike “doesn’t make a lot of money for teaching, but he’s a great believer in the obligations of lawyers.”

Congratulations to Walkup “Super Lawyers”

Our firm congratulates the seven Walkup attorneys who gained recognition as top attorneys inNorthern California via this year’s SuperLawyers ranking process. More than fifty percent of our lawyers were recognized this year, an achievement few firms can boast.

The SuperLawyers magazine is an influential, widely - circulated report which identifies the top attorneys inNorthern California. It is the law-firm equivalent to the U.S. News and World Report’s college ranking system.

Attorneys are selected for inclusion on the basis of peer nominations, professional achievement, verdicts and settlements, experience, honors, awards, scholarly lectures, writings, educational background, and other achievements.

Walkup partners Paul Melodia, Mike Kelly, Daniel Kelly, Rich Schoenberger, and Matthew Davis have all been selected as top attorneys for at least six years running. So it is no surprise that they were ranked among 2009’s top attorneys. Mike Kelly and Paul Melodia have also had occasion to be ranked among the “Top 10” attorneys in Northern California, and both are consistently on the “Top 100” list.

This year, Walkup partner Khaldoun Baghdadi and Associate Melinda Derish were identified among the “Rising Stars” of the profession, a title given to fewer than 2.5 percent of qualifying attorneys

Recorder Article Highlights Walkup Partner

San Francisco's legal newspaper, The Recorder, ran an article today about Saturday's MUNI crash highlighting Walkup partner, Matthew Davis, who is representing two of the victims and considering taking on others.

Preliminary information indicates that the collision could have been avoided if the driver had followed MUNI's safety policies and procedures, which required that the train be in automatic mode, rather than manual mode. The driver's union representative has stated that a medical condition caused the driver to black out, but MUNI has not explained why the driver was allowed to operate a train with this condition.

Walkup's Doug Saeltzer Interviewed by Channel 11

Doug Saeltzer was recently interviewed for the evening news on KNTV, Channel 11. In the video, he underlines the economic calculus that is part of public transit safety. Life altering injuries to just one individual in a collision such as this could result in a claim ranging into the several millions of dollars. Here's the video:



Because of the economic impacts of being unsafe, railroad operators like MUNI have every financial incentive to prevent collisions, and to follow their own public safety rules. As the Chronicle is reporting, however, it seems that the L train violated at least two rules when it rear-ended the K train at West Portal.

We've known for a few days that it switched from automatic mode to manual mode while still underground on approach to the West Portal station. While underground, MUNI trains are controlled automatically from a central control. This is to prevent collisions. Over the years, operators have developed the habit of switching out of automatic mode slightly early, a fact that, according to the operators' union, was known to SFMTA. Switching out of automatic made a collision like this one possible.

Second, the operator of the L train is now claiming, through his union, that he blacked out right before the collision. The union official providing the statement, Irwin Lum, also stated that a medical condition of the operator caused him to blackout. MUNI rules require that operators pass physical exams every other year. It seems that a medical condition that can cause blacking out would also cause the operator to fail such an exam.

Representing Those Injured in Saturday's Collision

Matthew Davis, who has a history of prosecuting major cases against MUNI (a recent $2 million recovery among them), has agreed to represent an individual injured in Saturdays' terrible collision.

Our firm's philosophy is to begin investigation immediately. Having agreed to represent individuals in the recent MUNI collision, we will now start our investigation into how and why this collision happened.

Matthew has a history has handling major litigation and making excellent recoveries for his clients. Last year, he completed a $20 million case against LensCrafters. In terms of governmental liability, examples of his cases include a $3 million bus-versus-pedestrian collision, a wrongful prosecution case in San Jose that resolved for $2.75 million, and a dangerous codition of public property case for $1 million.

We know he will do a great job on behalf of those injured in Saturday's collision.

Investigating the K Ingleside / L Taraval Collision

The newest development in yesterday's collision appears to be that the National Transportation Safety Board will investigate the collision. In fact, 2 investigators from the NTSB's Los Angeles office arrived here today to begin work.

As explained in the Chronicle, the investigators want to speak with the passengers on the trains, as well as with the driver. They will also do a 72-hour background check on the driver to see if he was doing anything that could hinder his driving abilities.

The Chronicle article points out that the operator has been in the employ of MUNI for just over 30 years, driving a MUNI light rail vehicle for the last 5 years.

The result of the investigation will be a report from the NTSB. The problem, however, is that the report will not be produced for 12-18 months. If any of the injuried passengers decide to pursue a claim against the City, they must file it within 6 months of the date of the accident (See Gov. Code Section 911.2). For this reason, if a person intends to file a claim against the City, he or she must be sure to retain an attorney before the deadline runs.

The delay on the NTSB report will place a premium on investigation performed by the City, as well as that done in any litigation resulting from the collision, both of which present problems and challenges.

The problems with the City's own investigation is that it may use City Attorney investigators--as opposed to police personnel--to do the work. The purpose in doing this would be to allow the City to claim that the results of the investigation are confidential because they are the "work product" of the City Attorney's office. This would obviously block access to the truth, and would hurt any injured person who seeks redress in court.

In our experience, we have seen the City alter its investigation practices to hide (or fail to gather) information and evidence after a MUNI collision. A common example is that, following a MUNI collision, it is City policy not to write a police report. Instead, it fills out an abbreviated, internal report that is far shorter on details than a normal police report (and good luck ever finding one that puts any blame on the MUNI operator).

Investigation will also happen as a part of any cases that arise from this tragic collision. Formally, that investigation is called "discovery," and consists of depositions, document requests, and written questions.

In a MUNI case, it is always very important to get the video footage from the train itself. MUNI light rail vehicles, such as those involved in this collision, are equipped with video cameras. Often, this footage is crucial to a case--though, sometimes, the City claims that it has lost that footage, or it is unavailable.

Informally, the playing field for investigation is changing as quickly new media startups come online. For instance, a quick Twitter search yesterday evening yielded several hundred tweets about the collision, many of them being actual accounts of the collision. For instance, Anton Ingudesman (@trackdude) was himself involved in the collision, and bruised his forehead. Kevin O'Connor (@kevinoconnor) shot some video of the scene right after the collision, and spoke with two men who were apparently eye witnesses.

Several Bay Area blogs also had coverage, including SFist, the N-Judah Chronicles, and SF.StreetsBlog. Along with those blogs, of course, come comments. One commenter, aellis at SFist, said she was standing directly across from the trains at the time of the collision. She also took pictures, and posted them on her personal blog here.

I could go on...but the point is this: when we handle cases such as this, we incorporate both formal discovery tools as well as knowledge of new media in the building of the case. Those skills will be especially important in a collision of this complexity and magnitude.

Another MUNI Accident

This appears to be another MUNI accident that was entirely preventable. Earlier this afternoon, an L-Taraval train rear-ended a K-Ingleside train at the West Portal Station. Several people were injured, many being taken from the train by gurney. The impact was serious enough to shatter the front end of the L-Taraval, and crumple in its steel nose. Unfortunately, it is difficult to see how this accident could have happened, had the operators been following the applicable MUNI rules.

UPDATE [8:38 p.m.]


It now appears that collision at West Portal was worse than previously thought. Pat Gardner, Chief of Operations for the SFFD, interviewed following the collision, told reporters that 44 passengers have been transported to San Francisco hospitals. Three individuals suffered "red" or severe injuries, 20 "yellow" or moderate injuries, and 21 had "green" injuries and were described as being the "walking wounded."

Among the three individuals badly hurt were the operator, along with two passengers with possible head injuries.

Video, via CBS 5, is available here and here.

Obviously, this was a traumatic scene, and our thoughts are with the individuals and families involved and affected.

UPDATE [9:12 p.m.]

While listening to KQED, I just heard the hourly newscast. Leading off the news was this collision, meaning that the accident has made national news. The New York Times is carrying an AP story online at its website. Several other major outlets are carrying the news, including CNN and The Los Angeles Times. As they point out, this is the third major rail collision in the United States since May, the other incidents occurring in Washington, D.C., and Boston.

Diagnosing Misdiagnosis

A recent piece in the Journal of the American Medical Association caught our attention. The article, by Dr. David Newman and Dr. Peter Provonost, focused on the “next frontier” of patient safety: diagnostic errors.

As the authors explain, the medical community has focused far more of its attention on treatment errors instead of on misdiagnosis-related harm. For instance, “A 2003 report of 93 AHRQ [Agency for Healthcare Research and Quality]-funded patient safety projects found only 1 focused on misdiagnosis.”

Given the numbers the authors cite, overlooking diagnostic mistakes is troubling. The authors explain that an alarming “40,000 to 80,000 US hospital deaths result from misdiagnosis annually.” One out of every 20 autopsies “reveal lethal diagnostic errors for which a correct
diagnosis coupled with treatment could have been averted.”

The authors go on to suggest several solutions to the problem. By and large, they call for a reassessment of the systems used for diagnosis, such as computerized diagnostic support systems, re-categorization of adverse-event data for better analysis, and building physician buy in for the solutions that are finally adopted.

The take-home lesson from a new focus on better diagnosis is that the mistaken diagnosis is, unfortunately, a common contributor to unnecessary adverse events in the hospital, including deaths. These preventable mistakes result in avoidable harm to surviving family members and loved ones.