The Institute of Governmental Advocates (IGA), California’s professional association of lobbyists and government relations specialists, has announced the election of Wilke Fleury Partner, John Valencia, to its Board of Directors.

Founded in 1974, IGA’s mission is to protect and defend the First Amendment rights of lobbyists and government relations professionals to advocate on behalf of their clients before California’s Legislature and the Executive Branch of state government. The Institute of Governmental Advocates (IGA) is a voluntary, non-partisan association representing the leading professional lobbyists and lobbying firms in California’s Capitol.

IGA members subscribe to a voluntary code of conduct and professional ethics that go beyond what is required under the Fair Political Practices Act. IGA also works instill core values of integrity, honesty, and professionalism among the members of the “Third House” and pass along those values to the next generation of lobbyists.

In 2010, Wilke Fleury raised $2,890 for Teaching Everyone Animals Matter (TEAM) through its “Jeans Friday” program. Jeans Friday is an initiative that allows Wilke Fleury employees to wear jeans on Friday if they contribute $5 toward a charity that has been selected by employee vote. The charity selected for 2010 was TEAM, a non-profit organization that works with Sacramento County Department of Animal Care and Regulation to help provide for the care and treatment of the animals at the Sacramento County Animal Shelter. Dan Baxter, a Wilke Fleury partner, is a member of the Board and Secretary of TEAM. Wilke Fleury is proud to support TEAM’s efforts in our community.

Robert F. Tyler of the firm’s litigation department recently prevailed in a major complex medical malpractice case brought against one of the firm’s longstanding clients. The case involved a 48 year old man who was brought into the client’s hospital with a severe brain bleed after falling as the result of an apparent loss of consciousness. Various tests done shortly after admission disclosed cardiac abnormalities, which were ultimately felt to have been caused by the injuries resulting from the fall, rather than being the cause of the loss of consciousness and fall itself. Twenty months later, the patient died in his sleep.

At the time of his death, the patient was 50 years old and earning between $150,000 and $350,000 per year. Both before and after his hospital stay, the patient never complained of any significant medical problems and never took any sick leave. On autopsy, it was found that he had suffered a major heart attack at some point in the past, and that all of his cardiac arteries were severely clogged, with the cause of death stated as untreated cardiac problems.

The wife and the two minor daughters of the patient brought a wrongful death claim, contending that the events leading up to the fall were caused by cardiac problems, which they claimed should have been found and worked up by the hospital. The plaintiffs contended that had that taken place, the patient’s severe underlying cardiac disease would have been demonstrated, and steps would have been taken to avert the patient’s untimely death.

The trial itself involved 32 witnesses, with strongly conflicting testimony from experts in cardiology, intensive care, neurology, clinical laboratory operations, and emergency room care. Plaintiffs postulated an earnings loss of $3.9 million, and ultimately requested a total award in excess of $11.7 million. After a six week trial, the jury returned a 9-3 verdict in favor of the defense, finding that the defendant hospital had correctly interpreted the abnormalities shown on the test in question as being due to the injury caused by the fall (rather than causing the fall), and that the hospital’s workup of the patient was correct and complete. While those conclusions were and are medically correct, they were complex and were very vigorously contested by well-credentialed experts on both sides. Therefore, the fact that the jury ultimately came to appreciate the defendant’s position despite their obvious sympathy for the plaintiffs, clearly constituted a very successful result for the client.

Wilke Fleury associate Samson R. Elsbernd recently became a member of the District of Columbia Bar.  Mr. Elsbernd was sworn in on December 6, 2010 by a three-judge panel of the District of Columbia Court of Appeals, the highest court in Washington, D.C. Mr. Elsbernd is now eligible to practice before the courts of the District of Columbia, in addition to all California courts and the U.S. Court of Appeals for the Ninth Circuit.

Introduction
The Americans with Disabilities Act of 1990 (ADA) is a civil rights law that was enacted to eliminate discrimination against the disabled. Title III of the ADA pertains to equal access to places of public accommodation, stating: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” The ADA defines “public accommodation” as specifically including the “professional office of a health care provider.” Accordingly, optometry offices are clearly covered by the law. It is important to note that the ADA can implicate not only the owner of the facility or business, but also anyone leasing or operating in the space.

Compliance with the ADA involves, among other things, adherence to a vast array of detailed structural requirements. Unfortunately, some people have seized upon the well-intentioned ADA as a lucrative business opportunity: they scope out businesses for violations – say, a handicapped parking space that is too narrow, or steps with no ramp access – and file a lawsuit. These “career plaintiffs” generally make their money by forcing small businesses – including medical offices – to settle for thousands of dollars, rather than face the expense of a lawsuit. ADA lawsuits are often preceded by a letter informing the business operator of their non-compliance, though plaintiffs are not required to give notice or to allow the facility to cure their violations before filing suit (many who receive these letters dismiss them as bogus or a scam, but they should be taken seriously). Sadly, these predatory tactics force many businesses to shut down if they cannot afford the expense of retrofitting their premises to comply with the ADA.

ADA Requirements
Given the stakes of noncompliance, it is important for every optometrist to become familiar with the ADA. Title III of the ADA outlines three main requirements for places of public accommodation such as an optometrist’s office. First, they must “make reasonable modifications in policies, practices, or procedures” to assure that individuals with disabilities have equal access to services and facilities, unless such modifications would “fundamentally alter” the nature of the optometric service. This requirement is rarely at issue in litigation – most often, a violation of this provision involves a refusal to allow a service animal inside the facility.

Second, optometrists must offer “auxiliary aids and services” to the disabled to ensure they are treated equally and inclusively, unless providing such services would “fundamentally alter” the nature of the service or would create an “undue burden.” Common examples of auxiliary aids and services include providing sign language interpreters, assistive listening headsets, television captioning, telecommunication devices for the deaf (TDD’s), and videotext displays. Optometrists need not provide the auxiliary aid or service requested by the patient, or even the most effective one – they simply must provide an aid or service that allows the patient an equal opportunity to obtain the same results as a non-disabled patient. Optometrists should consult with any disabled patient before his or her visit to determine what is a necessary accommodation.

Third, optometrists must “remove architectural barriers, and communication barriers that are structural in nature,” from facilities constructed before 1993 “where such removal is readily achievable.” (Buildings constructed in 1993 or later must fully comply with the ADA Accessibility Guidelines, or ADAAG.) This requirement is often the most cumbersome because it can involve costly retrofitting projects, such as installing wheelchair ramps, making curb cuts at sidewalks and entrances, and widening doorways. If making these changes is not readily achievable, optometrists must provide alternative measures, such as retrieving merchandise from inaccessible shelves, or relocating activities to an accessible location. Whether a removal of barriers is “readily achievable” is based on a variety of factors, including the cost of the removal and the financial status of the facility involved. However, only a court can ultimately determine whether the removal is readily achievable or not – and by that point, any defendant will have spent large sums on legal fees.

Finally, some ADA requirements are specific to professional offices of health care providers. Most notably, any building with two stories or more must have an elevator (other places of public accommodation need only have an elevator if the building is three stories or more). Optometrists should also be aware that making significant alterations or renovations to a facility may trigger additional responsibilities, as outlined in the ADAAG. Although compliance with all of these requirements may be expensive, the government offers some relief in the form of tax incentives to offset costs.

Recommendations
For existing facilities – especially those built before 1992 – it is important to assess whether the building is ADA compliant. If possible, it’s a good idea to hire an ADA compliance consultant, such as a Certified Access Specialist (CASp), or an attorney familiar with ADA requirements to perform an audit of the facility. Another option might be to consult with disability rights organizations to help identify any problematic structural barriers. When undertaking any improvements, it is best to prioritize tasks from the perimeter inwards – i.e., ensure access to the facility from sidewalks, parking structures, and public transit stops first, then access into the building itself, and finally internal facilities such as public restrooms, phones, and drinking fountains. This approach will help minimize the premises’ vulnerability to “drive-by” career plaintiffs. Finally, be sure to document any access improvement plans for use in any actual or threatened litigation in the future.

When constructing new facilities (or making significant renovations to existing ones), be sure to select an architect who has expertise in ADA compliance. The ADAAG also offers detailed information on all of the ADA structural requirements, as well as technical standards specific to medical care facilities.

Finally, since compliance with the ADA is an ongoing obligation, it is essential to establish procedures for ongoing compliance assessments. Being proactive in this regard is both a good business practice and a benefit to the disabled community and the community at large.

ADA Resources

• ADA Accessibility Guidelines for Buildings and Facilities (ADAAG): Available at http://www.access-board.gov/adaag/
• ADA Guide for Small Businesses (published by the Department of Justice, or DOJ): Available at http://www.ada.gov/smbusgd.pdf
• ADA Standards for Accessible Design (published by the DOJ): Available at http://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf
• List of Certified Access Specialists (CASp’s), provided by the Division of State Architect: Available at https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx
• ADA Best Practices Tool Kit for State and Local Governments (published by the DOJ): Available at http://www.ada.gov/pcatoolkit/toolkitmain.htm
• ADA Title III Highlights (published by the DOJ): Available at http://www.ada.gov/t3hilght.htm
• The DOJ’s ADA Information Line: (800) 514-0301 (voice); (800) 514-0383 (TDD)

Wilke Fleury is pleased to announce that Sarah Scott and Stacy Hunter have joined the firm as associates. Ms. Scott and Ms. Hunter are both 2010 graduates of the University of California Davis School of Law (King Hall), and join Wilke Fleury following successful clerkships with the firm during the summer of 2009. While at King Hall, Ms. Scott served on the Law Students Association (the student governing body), worked as a faculty research assistant and teaching assistant for first-year law students, volunteered at the Employment Law Clinic of Sacramento’s Voluntary Legal Services Program, participated in the Prison Law Clinic, and interned for Prisoner Legal Services in the San Francisco jails. Ms. Scott also acted as the student liaison for the Sacramento County Bar Association, Civil Rights and Constitutional Law Section. Among her law school accomplishments, Ms. Hunter served as Associate Articles Editor for the U.C. Davis Law Review and copy editor for the Journal of Juvenile Law and Policy. She was also a member of the Jewish Law Students Association, and interned for the California Building Industry Association. We are excited to welcome Sarah and Stacy aboard!

On Friday, October 22, a federal jury in Sacramento returned a punitive damages award of over $10,000,000 in a case brought by Wilke Fleury on behalf of plaintiffs Brian Dawe, Gary Harkins, and Flat Iron Mountain Associates. That award was in addition to the same jury’s October 18 award of $2.58 million in compensatory damages.

Represented by Wilke Fleury partner Dan Baxter, the plaintiffs sued the California Correctional Peace Officers’ Association, Corrections USA, and two individual defendants for breach of contract and defamation—among other claims—stemming from a campaign of misconduct perpetrated by the defendants in 2006 and 2007. After a three-month trial, the jury found in favor of Dawe, Harkins, and Flat Iron on their claims, as well as on an assortment of counterclaims made by Corrections USA. Of the total damages awarded to plaintiffs, over $12 million was against CCPOA, the largest correctional officers’ union in the country and a powerful force in California politics.

Continuing its long tradition of community involvement and support, Wilke Fleury is sponsoring the Down Syndrome Information Alliance’s 6th Annual fundraising walk, the 2010 Step Up for Down Syndrome, at William Land Park on Sunday, October 17. The DSIA is a local non-profit organization that promotes Down Syndrome awareness and inclusivity, and offers support and community to people with Down Syndrome and their families. Wilke Fleury partner Trevor Stapleton, along with associate attorneys Latika Sharma and Natalie Johnson, will be participating in the event as well as staffing the Wilke Fleury informational booth. Please be sure to stop by and meet our attorneys and enter the drawing for a festive Fall gift basket.

For more information on the event, click here.

Wilke Fleury partner Daniel Egan recently spoke at the 2010 CALAFCO Annual Conference on the topic of municipal and public entity bankruptcy and dissolution. Mr. Egan explained the procedures, as well as the advantages and disadvantages, of bankruptcy and dissolution for public entities facing financial distress.

CALAFCO is an organization dedicated to assisting member LAFCOs (Local Agency Formation Commissions) with educational and technical resources.

Wilke Fleury partner, David A. Frenznick, successfully negotiated the settlement of one of the longest running construction defect cases in Northern California history. Filed in 2003, the case involved the design and construction of a multi-unit co-housing project located in Chico. Wilke Fleury combined forces with another local attorney to represent the Valley Oaks Village Homeowners’ Association against the general contractor and multiple subcontractors, all of whom constructed the project in 1996. The case was weeks away from trial when a Butte County judge erroneously ordered its dismissal. The Third District Court of Appeal ultimately reversed the trial judge’s order and reinstated the case.

“The case focused on the design and construction of roofs, balconies and other structural elements. The bottom line was that each and every unit leaked badly and mold developed in many of them,” Frenznick said. “Ultimately our client received sufficient settlement funds to make repairs. Unfortunately, it took much too long for that to happen.”

Wilke Fleury associates Samson R. Elsbernd and Natalie A. Johnston have recently been admitted to the Milton L. Schwartz/David F. Levi American Inn of Court. The Schwartz/Levi Inn is designed to improve the skills, professionalism and ethics of the bench and bar, and is affiliated with the American Inns of Court. The Inn meets monthly in Davis, California, and is made up of members from the Sacramento and Yolo County legal communities. Samson and Natalie are among the most recent additions to the Inn, which includes area judges, lawyers, legal scholars, and law students.

The Sacramento Business Journal recently reported Wilke Fleury’s representation of over 50 West Sacramento homeowners in a construction defect lawsuit against national builder Meritage Homes. The litigation, headed up by partner David A. Frenznick, seeks rescission of the sales contracts or money damages sufficient to make repairs.

“Our experts believe that all of the homes were built to the wrong wind exposure standards,” Frenznick said. “The homes are moving, which causes cracking, which then allows the entry of water into the homes."

Read more: 50 homeowners file suit against Meritage Homes

As recently reported in the Sacramento Bee, the firm has filed suit on behalf of Falcon Technologies against Pro-Tech Industries. The suit alleges that Pro-Tech executives, once installed as Falcon officers, assumed control of Falcon and subsequently resigned before the merger was completed. The suit charges that Pro-Tech then instituted a "reverse merger," using former Falcon employees, contracts and equipment.

Read more: Falcon Technologies Sues Merger Target

Six of Wilke Fleury’s attorneys have recently been named either "Super Lawyers" or "Rising Stars" by the 2010 Northern California Super Lawyers Magazine. Phil Birney, Tom Redmon, Ron Lamb, and Dan Egan were named "Super Lawyers." It was Mr. Birney’s fifth year to receive this honor and Mr. Redmon’s fourth. Dan Baxter and Megan Lewis were named "Rising Stars" for the second year in a row. The list of honorees is compiled through a multiphase process of peer nominations and evaluations, as well as third party research. Just five percent of the lawyers in California are selected for the "Super Lawyers" designation, and no more than 2.5 percent are named "Rising Stars." Wilke Fleury congratulates these six outstanding lawyers on their achievement.

Michael G. Polis and Natalie A. Johnston recently presented a day-long continuing legal education seminar for the National Business Institute entitled Accounting 101 for Attorneys. The seminar took place in Sacramento and was attended by a variety of private attorneys, in-house legal counsel, business managers, and controllers. Mr. Polis and Ms. Johnston lectured on a variety of topics, including basic accounting terms, how to read financial statements, understanding GAAP, interpreting the numbers, identifying fraud, using accounting and financial records as evidence, and complying with ethical standards. Mr. Polis has a wealth of experience in accounting, both in his previous career as a certified public accountant and in his current position as managing partner of Wilke Fleury. Mr. Polis also has extensive experience teaching. He has been an instructor for the California State University, Sacramento, University of California, Davis, and the University of Phoenix. Ms. Johnston obtained her accounting knowledge from the University of California, Davis, Graduate School of Management, where she received her Masters in Business Administration in 2008.