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CA Appellate Law Podcast - Ben Ikuta

The Coming Changes to Med-Mal Caps, with Ben Ikuta

Tim Kowal     January 3, 2023

The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone?

Ben shares some of his secrets and insights:

Winning a medical-malpractice trial requires flawless planning and execution, so hyper-preparedness is essential, including hiring experts even before filing a case.

The right expert is important. Jargon and confusion work to the defendants’ benefit. So the plaintiff’s experts need to be able to thread the needle between showing expertise while also being intelligible and relatable.

The MICRA caps limit general damages to $250,000, upending the economics of litigating even the most heart-breakingly devastating injuries caused by egregious negligence. So the only way to bring justice to the bad actors in the healthcare field is to find high-earning victims—the MICRA caps don’t apply to economic damages.

In 2023, the $250,000 MICRA caps will be relaxed slightly to $350,000, and the amount may be recovered against the provider defendant, the institutional defendant, and unaffiliated defendants, for a total possible non-economic damages recovery of $1,050,000.

Firm culture matters: Ikuta Hemesath is fully virtual, which keeps costs low and gives staff flexibility. What about firm culture and relationships? Ben shares that the firm takes off one day a month for a group outing.

Ben Ikuta’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:


Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Cole wall in the California appellate law podcast. We tried to bring trial attorneys and appellate attorneys some news they can use in their practice. Both Jeff and I are appellate specialists, but we split our time about evenly between trial and appellate courts. And a quick announcement. This podcast is sponsored by case text case text is a legal research tool that harnesses AI and a lightning fast interface to help attorneys find case authority fast. I've been a subscriber since 2019. Jeff has been a subscriber since 2019. I've been in subscribers since 2021. And we both highly endorsed the service listeners of the podcast receive a 25% lifetime discount available to them. They sign up at case text.com/c A LP and today we welcome Ben Ikuta. To the show. Ben publishes frequently on issues of interest to trial attorneys and Jeff I thought it'd be great to bring Ben on to talk about his med mal practice. Ben has practiced medical malpractice defense for eight years after graduating from UC Hastings in 2008 and then later transitioned to being a med mal plaintiff's attorney Ben beat Dan holds prominent Mt. med mal attorney in one trial and Dan Hodes hired ban in 2016, and at his firm Ben became a named partner in 2021. After several successful jury verdicts and multi million dollar settlements about a year ago, Ben started his own med malpractice with Michelle Hemesath. Since opening the firm Ben's firm has already recovered over $17 million. On behalf of clients. Ben is published and given presentations many times on med mal issues, including for the Consumer Attorneys of California, the Consumer Attorneys Association of Los Angeles and the Orange County Trial Lawyers Association. So welcome to the podcast. Ben, thanks for being with us today. Appreciate it. All right. Well, Ben, if I gave a little bit of an introduction to your practice, is there anything I missed that that we should cover right off the bat here?

Ben Ikuta  2:06 
No, nothing else is everything I do better than

Tim Kowal  2:09 

no guy. The med mal guy. Now there are all that many of you. I know. We talked about mutual colleague who just found it. It's a very tough practice it there's a lot of attrition in it, especially especially for younger attorneys who see a lot of regular you know, general personal injury attorneys, you know, winning nice awards, and they tried to replicate it in the med mal field, and it doesn't quite pan out quite the same. What is the secret we know about the micro caps and everything? We'll talk about that a little bit more. But tell us a little bit about why you got into med mal when it is such a tough practice? Sure.

Ben Ikuta  2:40 
So I started my career and I fell defense I absolutely loved it. I loved doing doctors and physicians and hospitals. I'm hated the insurance company to pay our bills, but we like to practice and then as you noted, previously, I switched sides and plaintiff side with being Hodes, I love it here on the plaintiff side as well. It's extremely interesting. It's fascinating. And absolutely, just really enjoy it. Love it, everybody, people who really can't find a lawyer. So one of the very few Midvale lawyers out there on the plaintiff side, and the reasons for that, and it's a lot of reasons there's migrant, obviously we talk about it later. But the biggest reason, frankly, because doctrines, it's have a lot of credibility, instinct, credibility, the moment they step inside the court. And it's not like, you know, stealing a bad driver or suing, you know, Walmart in the Flint case, there's already an advantage towards doctors for credibility is everything. It's very hard to overcome that. And also, the drains just don't feel qualified, they feel qualified to judge bad driver, the ultimate qualified to judge a doctor who, you know, perform a procedure they never even heard of right, much less performed. So it's very difficult to win these cases. I think the overall numbers show that 90% of all men, donkeys that go to trial, by the Miss J get to trial go in favor to the vets.

Tim Kowal  3:48 
Yeah, and everyone, everyone's got a doctor and maybe they envision their doctor sitting in the witness stand and they wouldn't want to they wouldn't want to fight, you know, give a verdict against their own doctor.

Ben Ikuta  3:57 
That's exactly right. Yeah, it's almost like a reverse reptile, if you will. People don't want to believe that their own doctor would harm them. It's almost like a self preservation issue. It's very difficult when these cases,

Tim Kowal  4:06 

well, maybe we'll get into this a little bit more. But when it comes to we have you know, there has been tort reform in this specific field we have the microcap in in California. It makes me wonder if there's already a bias that juries have against awarding giving awards against doctors was there a need for such a strenuous cap didn't sound like there were a lot of runaway verdicts against doctors even before the microcap or misremembering things.

Ben Ikuta  4:30 
Well, you probably didn't remember it was 1975. Before I was born, really it was insurance companies. It was driven by the insurance companies, it made some bad investments and they want to find a way to save money and they convinced the legislation to pass this micro law that it's not just a 250 cap. There's like eight different laws that really are all pro Doctor anti plaintiff, anti patient and yet passed 48 years ago and has not written the Center for inflation until the new year until what? Till 23 But it has been devastating. It's been absolutely devastating. for victims of malpractice, particularly those that aren't big wage earners or the wrongful death cases of those who aren't big wage earner. So death of a child, for example, the most you can get in that case, at least previously was 250 makes it extremely difficult take these cases, particularly when there's no adjustment for inflation, you know, my average trial cost six figures now, that wasn't the case, you know, decades ago. So it's cost prohibitive makes it impossible to take these cases.

Tim Kowal  5:25 
So let's just kind of finish off the bullet points of what the microcap entail. So we were already discussed that there's kind of an institutional or a jury bias against giving big big awards against doctors but once you get let's assume that you can get over that that hurdle that bias and get the jury to agree to give you a big award. Now you're faced with a micro cap give us the broad strokes of what the Micra caps impose on you as a plaintiff side med mal attorney?

Ben Ikuta  5:48 

Sure the cap is again $20,000. It's only for pain, suffering, general damages, grief, anxiety and positive mental life etc. for wrongful death case, it'd be loss of love and companionship at the most you can get or non you know, damages. And so again, unless you have a big wage earner and you have somebody that's still alive, and that's catastrophic insurance, it's just very difficult to take these cases. So death of an elderly person death of a child death with the mom death of a low wage earner, it really makes it difficult. I can go to my last trial if you'd like I actually what I think is very, very pertinent. It shows how definitely this cap is bolding, that'll work. Yeah, let's do it. Yeah. So this case, you know, I tried it in August, and I thought it took this case a heartbroken family bought the death of a two year old girl. And this little girl had at birth at a VP shockwaves it helps to train you know, people spinal fluid from the brain into the stomach and a well known issue with this BP shut that it can malfunction. It's flailing started can get blocked and then there's excess fluid in the brain while she goes to er, she's never seen by a doctor, the PA the physician assistant said no, she's fine and central home even though she came in with complaints of nausea, vomiting, not being yourself. She was just really really under the weather. And in the waiting area. She started throwing up this pink rock material for heartstopper breeding stocks. They do a code blue on her right there in the waiting area. They bring her back the heartbeat back with epinephrine and chest compressions. But she brain at this point, and she dies a day later. That's a case where I was offered exactly $0. Not a penny before Friday. And the reason why because these insurance companies, only a small handful that now insurance companies know the worst case scenarios to them. I can't wait for a million dollars. They want to send a message they want to this is a

Tim Kowal  7:29 
little girl who came in presenting the symptoms and then was turned away and wound up dying a day later.

Ben Ikuta  7:35
Well, I mean, she went into cardiac arrest cardiopulmonary arrest right there in the waiting room. Two hours later, she's not admitted she was sent home while in the waiting area mom's filling out paperwork. She dies basically right there and

Tim Kowal  7:47 
right in the waiting room of the hospital. Correct? Correct.

Ben Ikuta  7:50 
I tried that case in August because the opportunity dollars, I didn't win that case, the drinking back deadlocked six, six, which in my role is a loss. I spent $100,000 my case I think about that, wow. That I could do. I mean, it's a very extra heavy case, I begin your day, the best that I could do at trial is to pick right so I get an attorney fee of 150 grand and I spent 100,000 My time and 100 grand in case my family ends up getting $100,000 in their pocket. The death of the little girl is devastating. And just shows how difficult is pick these cases. I mean, those are two weeks or three weeks that I tried working on the other cases, it really is devastating. And it works right. And now, I cannot take that case again in the future because I will go bankrupt if I did.

Tim Kowal  8:33 
Well and you have gone bankrupt in the last nine months, you've racked up $17 million in victories. So tell us how you how you count up to 17 million in a short amount of time facing up against the quarter million dollar microcap? Sure.

Ben Ikuta  8:46
So we have two cases that either involve the death of a high wage earner or the death of a catastrophic ly injured child or person who needs a lifelong in these lifelong dollars and cents medical care, those are the only cases that are economically viable. And the majority of my 17 million are those cases,

Tim Kowal  9:03 
because if you can get the economic side of the damages is not subject to the micro cap.

Ben Ikuta  9:08 
Exactly. The micro cap only applies to non economic but again, a child you only have

Tim Kowal  9:14 
children. That's it is McCobb when you think about it, that that way that a child basically is just a loser from the standpoint of the law governed under the microcap and

Ben Ikuta  9:24 
then she doesn't even know about the cat that I'm talking about the cat so they can have a great first trial on the plaintiff side I want to child death case. Again, no surprise no offer case not a single set because they want to force me to trial and and dissuade me picking the future cases highlight case 112 zero at trial. So all 12 jurors and my favorite Riverside and they gave me $500,000 And the judge it was such a gut punch Washington judge cut that verdict in half the 250.

Jeff Lewis  9:48 
Hey, Ben, California is not known for being a conservative states rather blue. How is it that the legislature has left these limits in place for so long? Why hasn't there been more of a push to reform the reform And to lift

Ben Ikuta  10:00 
micro insurance companies have a lot of power but also the California Medical Association the CMA has had a tremendous amount of power and again, you know, people like doctors, people, like you know, the the physicians in the health care industry, they don't like these, you know, quote, greedy travelers and quote When in reality, really the Fallen victims not practice and can't find a lawyer and when they do they lose a trial or they don't do they deserve because of that microcap. Now, that being said, the law did change, we're going to go up in the new year. So there has been some positive change here, but it's really it's a game changer.

Jeff Lewis  10:30 
Well, well, that impact your decision in terms of what cases you might be willing to take enormously. Yeah. Okay. So let me ask you go ahead.

Ben Ikuta  10:37 
I'm sorry. So did that same child death case. So now wrongful death case, the cats went from 250 to 500. However, there's more to that prior to the New Year does a total of 250 Regardless number of bad guys regarding number of you know, the negligent party, so the dogs or animals both grew up, the most you can get total is 250. In the new year, that's going to be two different cats, and even three in some limited circumstance. So instead of 250, now you're looking at a million dollars. And don't forget to CCP three, seven 7.34 was changed this year. Another point to which allows propias pain and suffering as well, which is an additional possible 700 Or the virus infection. So a 250 case could potentially be $1.7 million case now, is that justice the death of a young girl? No, but it's certainly a step in the right direction and make these cases at least viable.

Jeff Lewis  11:25 
Do you think settlement company the insurance companies will be a little more interested in making decent settlement offers before trial to capsular? But did like that?

Ben Ikuta  11:33 
Yes, I absolutely do. I think the attitude of no offers at all zero offers enforcement trial that will be less common because getting the 250 number is such a devastating number because I cannot make a profit I cannot stay in business if I took those cakes but just wouldn't you know that was a cap put in 500 for wrongful death case. Now I actually can possibly profit but when the case so is a game changer. Absolutely.

Tim Kowal  11:56 
Yeah, well, yeah, cuz you have to fly your X Wing down through the little goalie of the Deathstar and file those little torpedoes into the exhaust chamber, all for not to blow up the Death Star just to get $250,000. I mean, it's just no one's gonna take that Gambit. But now if you got more people who if you start doubling, tripling quadrupling that it's still like you said, it's not going to be justice. But you may have more people more med mal plaintiffs who are willing to take the gambit. And you know, just being able to get your foot in the courtroom into the courtroom door is I mean, that's at least what we call the definition of justice, you get your day in court, whereas a lot of people may not even be getting their day in court. They're just they can't find a med mal attorney to take up six figures and costs just to get to a near guarantee loser. Exactly.

Ben Ikuta  12:38 
We we at our firm, we take 2% of cases that come in the door, which actually is much higher than most mid mount firms. Wow, took less than 1%. We take about we take 2% According to our stats here, and a lot of those cases are legitimate cases that we simply cannot take due to the microcap and the cost of litigating these cases. And so what the new law change, certainly that will go up.

Jeff Lewis  12:59 
Yeah. Hey, Ben, early in our conversation, you'd identified two ways that the deck was a bit stacked against you in terms of jurors belief in doctors and their feeling of not understanding or not being qualified to understand things like medical compensation and that kind of thing. What are the techniques that you used with that you've used successfully with a jury overcome those two issues, the trust issue in terms of doctors and educating a jury to understand these medical issues?

Ben Ikuta  13:25 
Sure, biggest, most important thing that a child is learning to do on the plaintiff side is to dumb it down, you need to make it as simple as possible, you need to make sure that, you know, a sixth grader can understand what you're saying. And so the defense of the opposite I mean, either the best lawyer in med mal is doing the opposite, make it as complicated as possible. Make it so the judges throw up their hands in the air and I don't know who's right. It sounds like the two good experts a call and tie and then the defense wins ties, right. So you know, the key is to dumb it down make it as simple as possible. I also make a lot of comparisons to auto cases. And explain that negligence does happen in the operating room, explaining these doctors are human and make mistakes, sometimes unreasonable mistakes. So but again, I think the biggest issue is make it as simple as you possibly can so that Jared can understand it. I think it's extremely important we show demonstrative that you show the visuals, you know, you have your experts draw to show it very most churches, most people are visual learners, but also very, very important in courtroom. That's how that's how I do it at least.

Tim Kowal  14:23
How important are our experts and expert battles in med mal lawsuits.

Ben Ikuta  14:28  
Enormous ly important if you don't have a case, you have an expert. And the big challenges are too, right. It's not hard for these these dependents and these insurance companies to find experts who are supportive of their colleagues. It's much more difficult to find experts who will go out on a limb and be critical. But yeah, the experts are enormous ly important is oftentimes a battle of the experts. And so getting a well qualified expert who was you know,

Tim Kowal  14:51 
to do that as a defense, despite the fact side often put up a big fight to try to exclude plaintiffs experts.

Ben Ikuta  14:57 
Yes, generally, yes. Not with me as much as me i I've tried to get the best experts in the field. A lot of times you don't want a general practitioner, you know, commenting on OB GYN care, whatever. So it's important to have an expert in the field, it's extremely important. I'm going to be facing a motion to exclude experts. But for me, I tend to try and get the best.

Tim Kowal  15:16 
Yeah, do do the same experts make appearances. And in a lot of your cases, or if there's a lot of sub specialties, does it mean that there's always going to be a different expert?

Ben Ikuta  15:25 
Yes, you need to get an expert in the specialty that you're saying. You're saying? I don't think surgeon or surgeon you certainly know Diane OB. But, you know, it's not uncommon. seasame experts, in fact, like the trial was mentioning earlier in the trial where Miss tried right at that deadlock during the expert guests meeting wasn't equidistant by the fork in the trial previous to that, so it's not uncommon to see the same base.

Tim Kowal  15:47 
Yeah. Here's a hard to find someone who is an expert who has the qualifications you want who is a true expert in his or her field, but can also speak to the jury. You mentioned that as the plaintiff, you want the jury to be able to understand you if you're the defendant, you just want you know, probably the more jargon the better. You know, if you can go over the the juries head that almost guarantees defense verdict, but you want an expert to be able to make it understandable to the jury is that hard to find?

Ben Ikuta  16:10
It's tough, it is hard. It's a fine line, right? You want an expert to seem intelligent building talking about but also to dumb it down enough to understand it. It's in the show. It's not just a judgment call. I love those cases, right? Oh, judgment call or discretion. When a doctor, I need everyone in this case to get the show they truly acted on accurate polls standard care that any other reasonable doctor would not have taken that same approach. So yeah, it can be tough, but you know, they're well versed in, you know, trying cases are spiking cases. And we do parent a lot before trial. So

Tim Kowal  16:40 
yeah. Now, Ben, you'd mentioned you're familiar with our episode that involve Brooke both. She was the attorney who wrote the successful motion for new trial and in what we refer to on the podcast as the victory bell case, that was the case where there was a defense verdict and a med mal case. And the trial attorney on that case by the name of Robert McKenna had gone back to his office where someone had videotaped him on an on a cell phone and put it on made it available online, where he had mentioned that we won that case by sort of making it look like someone else did it although there What did he say that it probably was negligence, but we sort of made it look like someone else did it? And we haven't said anything, you know, beyond just quoting or paraphrasing what happened in that case, but I understand you may have crossed paths with with Mr. McKenna at some point in the past. Yeah, no, I,

Ben Ikuta  17:24 

you know, I like I used to work for mechanic for several years. On the defense side, I'm gonna need them. And then since then, I've had cases against him, but a few cases against him this firm. I like McKenna, I he's a he's usually a very upstanding and straightforward guy. And I was a little surprised to hear those comments, but I think it does show the difficulties we haven't been now. I mean, you had the case where the defense lawyer knows malpractice and jury came back and 26 minutes but Bobo verdict. So no, Robert feeds, the trial lawyer. He likes to boast like sobriety, he likes to tell stories, and I think he was boasting and bragging in that video. If you liked the video. It's actually a laptop in front of him. I think he's LA office in Orange County's LA office was watching while he was, you know, touting his child victories. Oh, wow. They he was definitely bragging and bragging and boasting? Look at back kids that exact case before it was filed to see without picket, and we decided to pass on that case, I thought that was malpractice. In that case, frankly, that inappropriate or improper insertion of a G two, but in case I was capped at 250, would be too difficult to try and too difficult to win. And I ended up being right, clearly. But I know what that's meant to the plaintiff's lawyer like Milan expect him quite a bit. And obviously both did a fantastic job on that motion pending trial.

Tim Kowal  18:36 
Yeah, I did think that an interesting backstory, the way that Brooke was able to get that verdict reverse, because there was, as we pointed out, during that episode, there were a lot of commentary from you know, those of us in the peanut gallery, you didn't know any of the inside information about the case at all. Well, how would you know, those comments may be untoward. But how are they going to relate to a new trial motion, but apparently there had been there had been this instruction about an empty chair defense. And I guess Mr. McKenna had said there's not going to be any empty, empty chair defense, Your Honor. And so that that video indicated that maybe they had been kind of sub Rossa angling at an empty chair defense, and that was what the jury had picked up on. And so the judge did not like that. No,

Ben Ikuta  19:13 
that is frustrating. Bring up a kind of a tangential point here, you know, I've been my lawyers were forced to sue more than the primary wrongdoer in a case because these defense lawyers in that mound, they really find a look for the empty chair defense at the beginning of the case, who else can we blame other than our guy, especially with the bad results? And you know, we're almost required, I mean, it's malpractice, not to arguably not include these other peripheral dependents. So they we forced them to file MFJ and then we get the protections of 437 cl we're now they can't they can't blame the empty chair. It's unfortunate that we have to drag doctors into losses that don't deserve it but in the killer case is a prime example why? Yeah.

Jeff Lewis  19:50 
Hey, let me ask you what you worked for the guy what would he say or what would other defense lawyers say is unique about the way you practice law coming up against you as a You boy, what makes you different than all the guys on all the billboards up and down the 405 freeway?

Ben Ikuta  20:04
Well, I mean, frankly, those guys in the billboards don't don't do that. Now. In fact, for me those cases it's one of those cases from verticals billboards lawyers, but I'm extremely prepared. I both important thing is to get an expert before you even file that are battling the case you have an expert support, we're not just adding care but causation as well. So for example, give a college ball hit case where I don't know Max, it's not read appropriately, whether ideologists I will have both the radiologist and an expert oncologist who will be supportive of my case before I even found a case, reputable positions and they know that it needs defense lawyers know that if I file a case, I have the goods, I have the expert support the case. I'm also very, very thorough. I know that now extremely well. I know what's often not producing discovery, I will ask for you know P and Q depositions on incident reports on stuff that may or may not become better than Evans code, lengthy seven, just peer review and quality assurance. I will go above and beyond I will uncover every stone that I know about it. I didn't know.

Tim Kowal  21:04
Yeah, well, that also I

Jeff Lewis  21:05 
use sounds like somebody who doesn't like to be surprised at trial.

Ben Ikuta  21:08 

Tim Kowal  21:10 
Absolutely. Correct. Yeah. Well, if you retain an expert or most multiple experts, before you've even gotten a case number, that means that you've got significant hard costs already, before we even get a case number.

Ben Ikuta  21:19 
Absolutely. It's not even five figures.

Tim Kowal  21:24 
Yeah, well, and is that and yet, you mentioned that in a lot of these cases where they're where you're facing the microcap and you don't have a lot of economic damages on the other side of it to get around those micro limitations, you may have just a dead bang winner, and you still might not get settlement offer before before the verdict.

Ben Ikuta  21:40 
I mean, we've had to litigate cases where they pour acid instead of instead of solution in a woman's ear. I've had to litigate cases with the upper end and the wrong leg. I mean, it's don't settle easily. They they look at the record here. They don't they want to dissuade me from taking the next case. And so it's difficult. I mean, less than 5% of my cases settle pre litigation. Yeah,

Jeff Lewis  22:03 
well, let me ask you, one of the things I enjoy about meeting guests on our podcast, not just learning about substantive law, but how they manage their practice, how they run the business of a law firm, and I understand you have a remote office, everybody works remote. Tell us about that. Your decision to do that, and how it is you're able to keep an eye on all the pieces and all the moving parts of litigation remotely.

Ben Ikuta  22:23 
So we started a firm about less than a year ago, and I was a partner at a law firm holds Milman love those guys are fantastic trial attorneys, but a little bit older, and a little old school when they're their ways. And we had a fundamental disagreement regarding how long it should be run. And so I started this firm, we have four lawyers, we have four paralegals to intake coordinator, we're pretty large, or a plaintiff side and Melbourne. But we're completely remote, we do not have a brick and mortar office. Frankly, it's been been wonderful for a lot of different reasons. We have a huge competitive advantage when it comes to hiring staff, we hired two paralegals away from that event site, because they were they they liked the idea of working remotely, they want to get ready for work and drive to work, which could take hours out of your day. And wonder paralegals books start at 6am when she's done by 30, she loves that this really helped us get an advantage. And frankly, the pandemic has made huge, enormous strides and changes to our legal industry. I mean, could you imagine arguing MSJ pending ruling your arguments? Jane, would you ever appear my phone record call five years ago? Of course not. But now is standard to appear remotely to argue in MSDN or even or even an appeal? Right. So you know, depositions be taken remote, it's really helpful. Lutton and frankly just costs I mean, that's a quarter million dollars a year that we're saving in costs, we can now pass one bleed, so it's helped tremendously. And all the ServiceNow is by email, not by mailing. So it's it's really wonderful. We work out of a center called justice HQ, which is like a we work for plaintiffs lawyers, right. It's a wonderful organization. We can rent offices, we can write compensation depositions, if necessary.

Tim Kowal  23:51 
So yeah, kind of a home base for an office center if you do need conference rooms.

Ben Ikuta  23:55 
Exactly. Yeah, it's been great. It's been a game changer. For us. It's been wonderful. And frankly, we have you know, we have every day we have a zoom call, we can touch a lot of ways. Obviously we see a lot of emails, I mean, frankly, I think the Generation Z and millennial generation, they work

Tim Kowal  24:10
more efficient from Have you noticed any downside on the on the full, the firm culture aspect of things. If you're not, you're not interacting in person every day. Do you feel that you say you have daily zoom conference calls? Do you think that bridges enough of the gap? Or do you do other things to kind of to promote firm culture and interaction?

Ben Ikuta  24:26 
Yeah, so once a month, we do a firm day we did last month in the escape room. This Thursday, we're going off dairy farm for the firm, we do a firm day, we take a day off and just take our staff out something nice, you know, I read a movie theater or go boating on Lake and it's different activities that we did and keep

Tim Kowal  24:42 
keep morale up. But you do that on a weekday on the work that we

Ben Ikuta  24:45 
do in the weekday? Yes. So they love it, obviously. Yeah. But I think it just helps morale and just you know, I think good luck to you know, we want you to deploy as well want to pay them appropriately. We want to show that we care. We want them to feel involved in the berm and so when they love working from home. It's great. It really is for everyone. Yeah.

Tim Kowal  25:03 
Well, tell us a little bit. You talked a little bit about the you know, the economics of a med mal case you came from med mal defense background, which is a lot easier to pencil out. Right? If you're doing hourly, I assume that's mostly hourly work, right? When you move to to the plaintiff side, you're taking these on contingencies, you're dealing with a cap that kept him out and lower likelihood of prevailing, what was it hard to figure out how to make that pencil out? When you start a new practice your own firm? You've got to be a little bit scary, wasn't it?

Ben Ikuta  25:29 
Yes, yes, very scary. And frankly, I think even compared to other personal injury firms are in med mal or income is so variable, it just it really goes up and down every case in litigation, we don't have the cases pretty when we don't have a steady stream of income, we can make a good amount of money one month and make none next month, it is very stressful, or the part of the job or the business. That is one of the barriers to entry, you need a lot of money to to fund these cases. And it makes it very difficult. So absolutely. The defense side obviously doing for our steady paycheck on the plaintiff side. Yeah, it's especially mid mountain because I'm very up and down, it can cause a lot

Jeff Lewis  26:02
of stress. Well, let me ask you this, I do a lot of defamation work on the defense side, where somebody's filed a lawsuit, usually to shut somebody up for making online statements, and in cases sometimes settle. And the other side, the person who's sued usually it sits on a confidentiality clause. I hate confidentiality clauses, I wish I could have every client just refuse it out of principle, what is your view on confidentiality clauses in medical malpractice with doctors who maybe shouldn't be practicing, and I

Ben Ikuta  26:31 
hate them so much, you know, part of what I do is not just to help my clients is to try and rate change, right. And I think you want to see a change in the hospital system, especially those cases where the, you know, the breakdown the system, they don't report a critical test to a patient or the other problem they're at, you want to make it public, you want to be able to talk about it. But my obligation is to my clients, not the public at large. And so the defense firms will insist in that informal mediation or saying writing you're going to go unless you will be there probably jelly beverages out of it. So almost all of my cases, especially involving doctors, involved confidentiality provisions, it's extremely frustrating. It's unfortunate. But again, I don't see an easy way around it. Interesting. And that's different from elder abuse cases. Right? I think he had cash never gone a few months ago, where there actually is a code a CCG code that says, you know, we have a policy, there's, you know, one is some become, you know, private we don't we discourage confidentiality, that does not exist in our case. Yeah. Basically don't want to lose reputation. So oftentimes, I'll almost always be to confidentiality.

Tim Kowal  27:36 
Let me ask you this question. If we talked about how used to work as on the defense side of bed, Mal cases now your your plaintiff side, if if one of your former if a hospital or insurance company came to you and said, We know your we know, you know, both sides of this, and you're you know, operating at the top of your game, would you be willing to to serve as our defense attorney for some of our upcoming med mal cases? No,

Ben Ikuta  27:56 
no. I love the plaintiff side. And I think not just about any victims of malpractice. I also know the collaboration. I'm putting aside, you know, especially that balance that many of us but but you know, we're we truly are friends on the side, the human mount lawyers that we have in California, we work together we collaborate and have a rule there are unwritten rule that don't do defense work if we're doing, you know, part of these groups.

Tim Kowal  28:20 
And so you don't you don't cross the aisle. I know a

Ben Ikuta  28:23 
lot all across the aisle. I also, I don't want to be conflicted out in future cases as well. Yeah. Yeah. Really bad doctor leave that hospital. I don't want to be conflicted out when they do against me, but in our practice to different victims. So no, I will not work on the defense side. Yeah. Didn't want me on.

Tim Kowal  28:41 
Was there a moment in your practice as a defense med mal attorney, that you felt that you're working for the wrong side? Not to be, you know, black and white about the thing? But you know, did you Was there a change in ethos in your mentality?

Ben Ikuta  28:53 
Yes, absolutely. Other events? I certainly we saw frivolous cases that she didn't bail them out. Totally, totally meritless. We saw cases where my doctor made a mistake, unreasonable, they shouldn't settle the case. But you know, you still want to have mistake. There were a few, maybe 5% of our case where we tell the same doctor over and over and over again, where can they were not changing the practices. They're killing it killing killing patients, and just the total menace to our system. And they were getting on over and over over and I was helping them get off, you know, by making micro arguments and timeliness issues and technicalities and simply winning case because you know, for Dr. Frey about practice lawsuits and private practice injuries are not admissible at trial. They're not your ability at one case, one case Oh, you still win those cases in front of a jury even though no, absolutely. There is no practice there. So dealing with those two bad apples. Yeah, it was tough, but really believe hard working on the defense side with those two doctors that truly were bad doctors.

Jeff Lewis  29:48 
Yeah. Hey, Ben, I'm not pushing my services on you. But I wonder in big money cases, big dollar cases without caps. Do you ever consider using an appellate attorney to fit in as an embedded appellate counsel? Hold on, watch the trial, make sure you're dotting the I's and crossing the t's and protecting your verdict.

Ben Ikuta  30:04 
Respectfully. No.

Jeff Lewis  30:07
That's okay. Most dope

Ben Ikuta  30:10 
practice is so I know most law firm and other thing I'm no more than than peltonen. Certainly done. Okay. But when it comes to metadata, you have to know Microsoft back of your hand, you have to know the jury instructions. If I'm available six, you need to know all the different intricacies metallbau law. And so because it's such a hyper focused technical area, I'm not sure if an appellate specialist in the next movie help.

Jeff Lewis  30:32 
Are you telling me that when you lose, and I'm not saying you do lose, but on those rare occasions when you lose? It's more of a fact base than legal base, the jury just didn't believe your guides as opposed to a jury instruction or a legal error. Yes, yeah. Okay, that makes sense.

Ben Ikuta  30:46 
It's not a legal error. I will say the three unfortunate two. But this is absolutely true. A lot of times in monopolies when there's no consent of events, no matter how bad law practices, if the insurance companies want to settle the case, always in the night in opera for $0. And those minimum rental costs are an enormous amount of money after at least, you know, 10s, if not $100,000, and many. And for me, I oftentimes put a position where I almost have to agree to waive my appellate rights in exchange for a waiver of their costume. So that's the reality that Madeline's very unusual where we will actually go to an appeal. And for that reason, it's just too expensive to under we have the higher appellate lawyers and everything else needed to try to piece together, it just becomes cost prohibitive in a calf case.

Jeff Lewis  31:28 
Yeah, that makes sense.

Tim Kowal  31:29
All right. Jeff, did you have a case that you wanted to talk about?

Jeff Lewis  31:33 
Yeah, let's shift to the tidbits part, boy, imagine you have your kids and you're going to take them to a Laker game or a football game and at the metal detectors security takes you aside and say I'm sorry, Mr. colwall, we're not going to let you come in your kids can come in, but we're not gonna let you come in. I read this story about something that happened back east involving the Rockettes. And a mom who took her kid part of a Girl Scout activity to Radio City Music Hall. And the management company had set up face recognition software, so that any lawyer affiliated with any law firm that was actively litigating against the management of the Radio City Music Hall, which is Madison Square Garden, entertainment would be automatically barred from entering the story surprised me on so many levels, the privacy issues in terms of facial recognition, a kind of a public venue and booting a lawyer who, by the way, wasn't even working on the case just happen to work for that law firm. I came across a story and I thought you bet might have some thoughts about it.

Tim Kowal  32:29 
Yeah, it's this is the pan Opticon the cameras are everywhere. And you know, I remember the old signs, I don't see him that much these days anymore. We used to go into a restaurant, it says we reserve the right to refuse service to anyone. And I was wondering, you know, are they you know, I thought they were just kicking out the homeless people who had come in and they put that put up those signs, you know, just for cover, but you know, that takes it to a new extreme, just like we're gonna kick you out. Boys are

Jeff Lewis  32:51 
warriors for justice. They should be given box seats. They're the heroes of our community. They shouldn't be denied entry, they should be greeted with flowers and chocolate.

Tim Kowal  32:59 
I don't want special treatment. I'm asking for special treatment, just not negative treatment, either.

Jeff Lewis  33:05 
Anyway, that story caught my eye and I thought I would throw it by there. Yeah.

Tim Kowal  33:09 
I agree with you that this is it's you know, we talked about access to justice a lot. But somewhere downstream there's an access to justice problem isn't there? If you're depriving denying services to people who represent certain causes or persons that becomes a problem for our society? We start vilifying it's kind of Shakespeare's character dictum, the butcher who said first thing we do let's kill all the lawyers. Yeah. You know, we're not, we're not exactly killing them. We're just going to start, you know, denying them certain access to services and products and things that if we don't like the the persons and causes they're representing, it seems a problem to me.

Jeff Lewis  33:47 
Yeah. Big time. Imagine that daughter and that mom and that conversation. Mommy, why won't they let you in? Well, Mama's got to make a living. I mean, it's yeah, it's a problem. Yeah. Well, tidbits today.

Tim Kowal  34:01 
Yeah. Let me ask them one other one other question more. More broadly, speaking about tort reform, generally we talk specifically about Micra, you know, the tort reform on med mal cases. I wondered if you had you certainly have opinions on those. And we talked about how maybe there's some counter reforms that are going to be enacted this next year, that may relieve some of the burdens that the micro law is put on plaintiffs in your field wondering if your work and in struggle with the tort reform in med mal cases is given you any broader perspective on tort reform, generally, like you know, there's no product liability or you know, there have been people who've talked you know, endlessly about the tobacco cases and some people think that it was a black guy for the judicial system that you know, just a lot of attorneys got made rich out of the tobacco litigation, even people who don't hold any brief for the tobacco industry think that the judiciary provided a pretty good payday to a lot of well heeled firms litigating against the tobacco companies and that was kind of a there I guess every industry is a little bit different when it comes to Different kinds of tort reform. I wonder if you had any any broader takeaways on tort reform in the judicial system more generally, or if your work is more specific on med mal,

Ben Ikuta  35:08 
I'll just say that have treats for me, right, Sixth Amendment Marine, and in my opinion, the best system in the world when other countries are copying on system, why would we take away the power from the jury, we let the jury there to decide whether the whether or not there was wrongdoing and the amount of damages that resulted in that wrongdoing? And to take that away from the jury? It really is, I think we can in our entire system, great John Harris system. So performance, it goes directly against our entire jury system.

Tim Kowal  35:34 
Yeah, we have the jury system, and then we have the judge is can work the brakes, if the judge feels that the jury has just said that the judge is dealing with the Runaway Jury, the judge has the opportunity to pump the brakes a little bit. You think that's that's enough in the main that legislature shouldn't step in too onerous Lee to restrict that basic framework that we have,

Ben Ikuta  35:51
that 13 Jurors are for a reason as well, that's kind of a safety parachute, if you will, there's no reason to take away and as you know, and this is especially true right now, I mean, you're only seeing the outliers, you see these big, huge enormous verdicts in the papers and these facts that are you know, that always aren't always accurate. I mean, it all is complicated, for example, right? I mean, you're it's not a true representation of what's happened not seeing the $5,000 verdicts, not seeing the defense verdicts. So I mean, yeah, well, why take away the juries? Right, I think where the power from the jury finding greater entire system reformat that?

Tim Kowal  36:20 
Yeah, yeah. You know, we all of us attorneys who have worked a jury or work on a jury case, you know, we go through the the exercise of explain to the jury the important role that they play, and then at the end of the process, we thank them for their service, it's one of the most important things you can do as a citizens is to sit on a jury. And you know, sometimes these reforms, you say, maybe they take too much of that roll away when the jury is in any danger of actually, you know, doing something that will help society we take away that and limit that role. Exactly. Right.

Ben Ikuta  36:47  
And that's particularly fitting that in my practice, where we see the same doctor, same hospitals over and over and over again, you know, hardboard more patients and the same exact way that's there is not just compensation, there's not an incentive to change.

Tim Kowal  36:59 

All right. Well, Ben, thank you again for joining us today. This has been a really fun conversation. I wish you continued success in your practice. And yet that's gonna wrap up this episode. We want to thank case techs again for sponsoring the podcast each week when we include links to the cases we discussed, we use case text and listeners to the podcast can find a 25% lifetime discount available to them if they sign up to case text at case text.com/c A LP that's case text.com/scalp.

Jeff Lewis  37:25 
And if you have suggestions for future episodes, please email to info at Cal podcast.com. Or if you're a medical malpractice defense lawyer and you want to come on to talk about the benefits of Mike, Greg, give us a call. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. All right. Thanks,

Tim Kowal  37:40 
everybody. Thanks again, Ben.

Announcer  37:42 
Thank you so much. You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"A judge is a law student who grades his own papers."

— H.L. Mencken

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

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