Experienced Trial Attorney
Resume:
HOWARD R. WEBER BIOGRAPHY
March ****
************@*****.***
Personal
Date/Place of Birth: Married:
Children: Home:
October 18, 1954; Los Angeles, California
January 16, 1988 Two
Novato, California; 1992 - present
Education
University of California Los Angeles (B.A. 1976 [Economics])
University of California, Hastings College of the Law, San Francisco (J.D. 1979)
Mediation Training: Straus Institute for Dispute Resolution, Pepperdine University School of Law (Extension)
Law Practice
Admitted to California Bar and US District Court, Northern District of California
Richards & Weber in San Francisco, California
November 1979-August 1988
General trial practice
Preovolos & Weber, LLP in Napa, California August 1988-July 2017
(Firm established in Vallejo, California in 1946)
Joined firm (then Dunn, Rogaski & Preovolos) in 1988; became partner in 1993; firm moved to Napa, California in 2009 (then Rogaski, Preovolos, Weber & Patterson, LLP and thereafter, Preovolos & Weber, LLP)
Practice Concentration: General civil trial practice, with emphasis on medical malpractice litigation defense, general casualty litigation defense and health care law
Lewis Brisbois Bisgaard & Smith, LLP, San Francisco, California
August 2017 - December 2018
Partner - civil trial practice with emphasis on medical malpractice defense and health care law
J Supple Law, A Professional Corporation, Sausalito, California
January 2019 – March 2019
Associate - civil trial practice with emphasis on medical/dental malpractice defense and health care law
Past Service and Memberships
Solano County Bar Association, Judge Pro-Tem, Solano County Sup. Court Pro Bono legal service, Solano County Association of Defense Counsel, Various Northern California Sup.Ct. Mediation panels, Assn. of Defense Counsel, Northern California, San Francisco Special Olympics [coach and Board of Directors]
Leisure/Hobbies
Running, hiking, rowing, fitness/weight training, international travel
HOWARD R. WEBER BIOGRAPHY [cont.]
CIVIL LITIGATION EXPERIENCE
A. Civil Jury Trial Experience
1. Stefanie Rawlings v. City of Oakland, David Hurth, et. al.
Date of Trial: March 6, 2017
Type of Case: Automobile Versus Pedestrian Struck During Protest at Port Of Oakland
Venue: Alameda County Superior Court
Case No.:RG14736248
Length of Trial: Three weeks
Party Represented: Defendant David Hurth
Verdict/Outcome of Case:Judgment for defendant on special verdict finding that David Hurth did not intend to harm plaintiff [no battery] and defendant Hurth was not negligent; co-defendant City Of Oakland [Oakland Police Department] found negligent and 40% responsible for $50,000 damages; plaintiff found negligent with 60% fault. Co-defendant City Of Oakland appealed, but on October 31, 2018, the First District Court Of Appeal affirmed the Judgment.
Additional Information & Documentation:
Please see attachment 1 and/or request a copy of the Appellate Court opinion [2018 WL 5629840] in the above-referenced action. [Only the Westlaw cite is available - - the opinion was not officially published.] The opinion is attached as illustrative of my jury trial experience and advocacy skills. The case was not briefed on appeal on behalf of Mr. Hurth, because neither plaintiff nor co-defendant had appealed from Mr. Hurth’s defense verdict or judgment thereon including defense costs of $33,855.82. [Defense expert fees were awarded based on plaintiff’s rejection of a pretrial offer of $15,000 policy limits pursuant to Code of Civil Procedure section 998.] The co-defendant’s appeal was monitored to ensure to the extent possible, that the case not be remanded for retrial. The concern was that while neither plaintiff nor co-defendant directly attacked Mr. Hurth’s defense verdict on appeal, both plaintiff and co-defendant argued in post-trial motions that it was “illogical” for the jury to find the City Of Oakland liable while concluding Mr. Hurth was not negligent; and the Appellate Court noted “[t]he more troubling issue is the City's argument that given the jury found Hurth was not negligent, the City cannot be negligent.” The Appellate Court upheld the judgment, reasoning that the verdict in favor of Mr. Hurth is not inconsistent with the verdict against the City Of Oakland. There remains a Judgment Lien to recover defendant Hurth’s cost award/judgment from any monies that might otherwise be paid plaintiff by the City Of Oakland.[ Please see endnote 1 for further information re this case.]
2. Paul Lopez and Misty Lopez v. Noah Weiss. M.D.
Date of Trial: September 9, 2016
Type of Case: Alleged Medical Negligence/Failure to Diagnose Popliteal Artery
Occlusion Following Knee Replacement
Venue: Sonoma County Superior Court
Case No.: SCV 252729
Length of Trial: Four weeks
Party Represented: Defendant Noah Weiss, M.D., Orthopedic Surgeon
Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Weiss was not negligent
Additional Information:
Plaintiff Paul Lopez alleged medical negligence in the failure to diagnose a popliteal artery occlusion following bilateral knee replacement surgery. The claimed damages included pain, suffering, numerous additional surgeries for debridement of necrotic tissue, revascularization and repair of structures of the lower leg, permanent disability and loss of income. [The patient’s wife had a loss of consortium claim that was dismissed at the start of trial.] After the four-week trial culminating in October 2016, the jury returned a special verdict that the defendant orthopedic surgeon was not negligent. Judgment entered for the doctor included over $170,000 in costs including defense expert fees based on plaintiffs’ rejection of a pretrial offer of a mutual cost waiver pursuant to Code of Civil Procedure section 998.
3. Leopoldo Jorge, Jr. v. Almir Da Fonseca, et al.
Date of Trial: July 11, 2014
Type of Case: Automobile Versus Pedestrian Crosswalk Accident/Brain
Damaged Minor
Venue: Case No.:Sonoma County Superior Court SCV247676
Length of Trial: Three+ weeks [for liability phase only]
Party Represented:Defendant Almir Da Fonseca
Verdict/Outcome of Case:
$30,000 settlement and dismissal of Mr. Da Fonseca after jury verdict for plaintiff in liability phase of bifurcated trial; $885,083 damages awarded against co-defendant Culinary Institute, but judgment reversed on appeal. [ Jorge v. Culinary Institute of America, 3 Cal.App.5th 382 (2016)]
4. Stanley Fife v. Michael Lazar, M.D.
Date of Trial: April 27, 2012
Type of Case: Alleged Medical Negligence/Urinary Sphincter Severed During BPH [Enlarged Prostate] Surgery
Venue: Sonoma County Superior Court
Case No.: SCV244617
Length of Trial: Three weeks
Party Represented: Defendant Michael Lazar, M.D., Urologist
Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Lazar was not negligent
5. Stanley Wiencek and Clara Wiencek v. Noah Weiss, M.D
Date of Trial: January 18, 2008
Type of Case: Alleged Medical Negligence/Median Nerve Transected During
Endoscopic Carpal Tunnel Release Surgery
Venue: Sonoma County Superior Court
Case No.: SCV 238156
Length of Trial: Two weeks
Party Represented: Defendant Noah Weiss, M.D., Orthopedic Surgeon
Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Weiss was not negligent, and that plaintiff Stanley Wiencek gave his informed consent for endoscopic carpal tunnel release surgery
6. Lawyer H. Hague and Joyce Hague v. Steven Cardey, M.D.
Date of Trial: January 2005
Type of Case: Alleged Medical Negligence/Failure to Diagnose Hemorrhagic Stroke
Venue: Napa County Superior Court
Case No.: 26-14296
Length of Trial: Three weeks [for liability phase of bifurcated trial]
Party Represented: Defendant Steven Cardey, M.D., Emergency Medicine Physician
Verdict/Outcome of Case: Judgment for defendant [in liability phase of bifurcated trial] on special verdict finding that Dr. Cardey was not negligent
Additional Information: Plaintiff Lawyer Hague presented to Dr. Cardey in the emergency department of Queen of the Valley Hospital after having been found by his wife, plaintiff Joyce Hague, unresponsive in the bathroom of plaintiffs’ home. Dr. Cardey, after evaluating Mr. Hague, found the patient to be suffering from vertigo and malaise of unknown etiology. Dr. Cardey called Mr. Hague’s primary care physician to report the patient’s condition. The primary care physician admitted Mr. Hague to Queen of the Valley Hospital and consulted with a neurologist. Ultimately, Mr. Hague was diagnosed as having suffered a stroke resulting in paraplegia and severe disability despite extensive treatment and rehabilitation. Mr. Hague required 24-hour attendant
care. He claimed approximately eight to ten million dollars [$8,000,000-
$10,000,000] for special damages and maximum [$250,000] general damages.
Ms. Hague had a loss of consortium claim which would have resulted in an additional $250,000 general damage award had plaintiffs prevailed. Queen of the Valley Hospital, Mr. Hague’s primary care physician, and the consulting neurologist were co-defendants. All three co-defendants entered into confidential settlements, leaving Dr.Cardey as the sole remaining defendant at the time of trial. Judgment entered
for the doctor included approximately $80,000 in costs including defense expert fees awarded [over objection/motion to tax costs] based on plaintiffs’ rejection of a pretrial offer of a mutual cost waiver pursuant to Code of Civil Procedure section 998. Plaintiffs paid the cost award less a 10% reduction given in exchange for plaintiffs’ waiver of their right to appeal.
7. Hope V. Robichaud v. Eric J. Kraut, M.D.
Date of Trial: October 2003
Type of Case: Alleged Medical Negligence/Common Bile Duct Severed During
Laparoscopic Cholecystectomy
Venue: Sonoma County Superior Court
Case No.: SCV 229708
Length of Trial: Two weeks
Party Represented: Defendant Eric J. Kraut, M.D., General Surgeon
Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Kraut was not negligent
8. Catherine Krakower, et al. v. Robert Schaeffer, M.D.
Date of Trial: September 17, 2001
Type of Case: Alleged Medical Negligence/Wrongful Death/Failure Diagnose
Colon Cancer
Venue: Sonoma County Superior Court
Case No.: SCV217992
Length of Trial: Four weeks
Party Represented: Defendant Robert Schaeffer, M.D., Internal Medicine Physician Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Schaeffer was not negligent
9. Raymond Dedini v. Barry Witman, M.D.
Date of Trial: October 23, 2000
Type of Case: Alleged Medical Negligence/Failure Diagnose Cauda Equina
Syndrome
Venue: Napa County Superior Court
Case No.: 26-06693
Length of Trial: Three weeks
Party Represented: Defendant Barry Witman, M.D., Family Practice Physician Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Witman was not negligent
10. Arthur Tong [and minor child] v. Marshall Cooperson, D.O.
Date of Trial: March 6, 2000
Type of Case: Alleged Medical Negligence/Chronic Migraine Treatment/
Wrongful Death/Mother of Teen Daughter
Venue: Napa County Superior Court
Case No.: C70788
Length of Trial: Four weeks
Party Represented: Defendant Marshall Cooperson, D.O.
Verdict/Outcome of Case: Plaintiffs' verdict of $578,000, reduced by 70% to $173,400 based on comparative fault of decedent and her husband, plaintiff Arthur Tong
11. Mark Donohue v. Steven Souza, M.D.
Date of Trial: 1998
Type of Case: Alleged Medical Negligence/Punctured Gallbladder During Liver
Biopsy
Venue: Sonoma County Superior Court
Case No.: SCV210635
Length of Trial: Three weeks
Party Represented: Defendant Steven Souza, M.D., Interventional Radiologist
Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Souza was not negligent
12. Eric Crystal v. Anthony Way, M.D.
Date of Trial: June 9, 1998
Type of Case: Alleged Medical Negligence/Failure to Diagnose Testicular Torsion/ Loss of Testicle of Twenty-Two-Year-Old Plaintiff
Venue: Sonoma County Superior Court
Case No.: SCV 210227
Length of Trial: Two weeks
Party Represented: Defendant Anthony Way, M.D., Urologist
Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Way was not negligent.
13. Berneice Jonsen v. Michael Maioriello, M.D.
Date of Trial: 1997
Type of Case: Alleged Medical Negligence/Failure to Diagnose DVT
Venue:Marin County Superior Court
Case No.: 172470
Length of Trial:Three weeks
Party Represented:Defendant Michael Maioriello, M.D., OB/GYN Physician
Verdict/Outcome of Case:Judgment for defendant on special verdict finding that Dr.Maioriello was not negligent.
14. Jan Eaton and Michael Eaton vs. Richard Andolsen, M.D.
Date of Trial: December 1995
Type of Case: Alleged Medical Negligence/Failure Diagnose Ectopic Pregnancy/Hemorrhage
Venue: Sonoma County Superior Court
Case No.: SCV207423
Length of Trial: Three weeks
Party Represented: Defendant Richard Andolsen, M.D., Family Practice Physician
Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Andolsen was not negligent
Additional Information
& Documentation: Please see attachment 2 and/or request a copy of an excerpt from NORCAL Mutual Insurance Company Annual Report 1997, at page 11, referencing Dr. Andolsen’s comments: “My gratitude toward my attorney (Howard Weber of the law offices of Dunn, Rogaski, Preovolos & Weber in Vallejo, CA) was almost more than I could express. His concern, his attention to detail, his courtroom skills - all had contributed to my salvation.” For a comprehensive account of the above-referenced action from the perspective of the defendant, see Andolsen, RJ; I Almost Enjoyed My Malpractice Trial, Medical Economics, 73. 192, 194, 197-9 passim. [A copy of Dr. Andolsen’s journal article will be provided upon request.]
15. Shawna Renaud v. Scott McMurtrie, M.D.
Date of Trial: 1995
Type of Case: Alleged Medical Negligence/Failure to Diagnose DVT Sonoma Venue:Sonoma County Superior Court
Case No.: SCV206070
Length of Trial:Three weeks
Party Represented: Defendant Scott McMurtrie, M.D., OB/GYN Physician
Verdict/Outcome of Case:Judgment for defendant physician on special verdict finding that Dr. McMurtrie was not negligent
16. Joseph Ruffino [and minor children] vs. John Dermody. M.D.
Date of Trial: June 23, 1995
Type of Case: Alleged Medical Negligence/Wrongful Death/Delayed Diagnosis of Osteosarcoma
Venue: Napa County Superior Court
Case No.: C68439
Length of Trial: Three weeks
Party Represented: Defendant John Dermody, M.D., Family Practice Physician
Verdict/Outcome of Case: Judgment for defendant on special verdict finding that Dr. Dermody was not negligent.
17. Agnes Webb and George Webb vs. Bruce Scarborough. M.D. et al.
Date of Trial: March 12, 1991
Type of Case: Alleged Medical Negligence/Urinary Stress Incontinence Surgery
Venue: Napa County Superior Court
Case No.: C51109
Length of Trial: Three weeks
Party Represented: Defendant Kenneth Woods, M.D., Urologist
Verdict/Outcome of Case:Judgment for defendant on special verdict finding that Dr. Woods
was not negligent
18. Henry Randall, et al. vs. Ford Motor Company
Date of Trial: 1984
Type of Case: Products Liability/Motor Vehicle Accident/Personal Injury
Venue:San Francisco County Superior Court
Case No.:754404
Length of Trial:Two weeks
Party Represented: Plaintiffs
Verdict/Outcome of Case: Jury returned a verdict in favor of the plaintiffs
B. Civil Litigation [Other Than Jury Trial] Experience
Several decades of practice in civil litigation and general practice, short cause bench trials, arbitrations, mediations, law and motion, and administrative hearings in matters ranging from health care licensing to [in prior years] contracts, public utilities, landlord/tenant and family law.
C. Appellate Experience
Miscellaneous appellate experience over years of practice includes reversal of summary judgments in Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777 [disapproved in Wilson v. Parker, Covered & Chidester (2002) 28 CaL4th 811]; and Gigliotti v. Gill Industries, First District Court of Appeal, Division One, Appellate Case A029187, Santa Clara Superior Court Action Number 516466; $350,000 judgment reversed on appeal March 24, 1987 in unpublished opinion [of which a copy will be provided upon request].
Endnote 1 re Rawlings case, item (A)(1):
The defense of Mr. Hurth was particularly challenging for reasons not apparent from review of the above synopsis [section (A) (1)] or from the Appellate Court opinion affirming the judgment.
David Hurth was alleged to have intentionally “accelerated” his car into the picket line. He had a limit of $15,000 auto liability coverage which was offered but rejected by plaintiff prior to trial. Mr. Hurth was therefore subject to personal exposure for compensatory damages above $15,000, as well as 100% of any punitive damage award.
It was undisputed that a dark car struck Ms. Rawlings. [There was TV news video showing Ms. Rawlings falling back onto the hood, then rolling off to the driver’s side of the car.] It was also undisputed that Mr. Hurth drove a dark car to the Port of Oakland on the morning of the protest. [There was video of Mr. Hurth, a longshoreman, sitting in his car, repeatedly honking his horn and appearing unhappy that the protesters were preventing him from entering the Port to get to work.] But there was no testimony or other direct evidence that Ms. Rawlings was struck by Mr. Hurth’s car. Plaintiff could not identify the driver or license plate number of the car that struck Rawlings; nor could the driver or license plate be identified from the video of the subject incident.
Mr. Hurth emphatically denied in pre-trial discovery that he had struck anyone when he drove into the Port of Oakland on the morning of the protest. I retained an accident reconstruction expert in the hope that forensic evidence would support Mr. Hurth’s testimony that he was not the driver of the car that hit the plaintiff. The defense consultant, Dr. Kelkar, came to the contrary conclusion. By cross referencing and synchronizing some 900 still images and video from TV news media, Oakland Police Department body cams and cell phone video from individuals at the protest, Dr. Kelkar opined that it was Mr. Hurth’s vehicle that struck Ms. Rawlings. Given said conclusion, Dr. Kelkar was tasked with further analysis and reconstruction of the accident. In so doing, Dr. Kelkar determined, inter alia, that Mr. Hurth drove very slowly and braked several times as he approached and drove past the picketers; and that plaintiff walked out in front of Mr. Hurth’s moving vehicle.
The more daunting question was how Mr. Hurth could have been unaware that Ms. Rawlings “fell back onto the hood” of Mr. Hurth’s car. Absent a viable explanation, the jury would likely find that Mr. Hurth had willfully given false testimony, causing the jury to disbelieve Mr. Hurth’s other testimony and potentially find defendant not only negligent, but liable for battery - - especially given the video evidence showing Mr. Hurth was clearly frustrated and upset at the conduct of the protesters. Dr. Kelkar explained that Ms. Rawlings approached the projected path of defendant’s car from the passenger side. She was likely not in front of Mr. Hurth’s car as he allowed the car to move across the path of the picket line. Simultaneously, Dr. Kelkar explained, the video evidence shows a male protester drawing Mr. Hurth’s attention to the driver’s side window. Given these circumstances, the noise and other distraction of protesters surrounding Mr. Hurth’s car, the plaintiff may well have walked into the path of Mr. Hurth’s car, briefly coming down and off the hood, without knowledge of Mr. Hurth.
Neither plaintiff nor co-defendant retained an accident reconstruction expert. Despite the lack of an expert, the trial Judge would have allowed the jury to decide whether Mr. Hurth was the driver of the car that struck plaintiff. It’s likely that even without forensic evidence, the jury would find it was the defendant’s car that struck Ms. Rawlings. Without the exculpatory defense expert testimony described above - - and with a defendant who flatly denied he was involved in the accident - - there was a serious risk of an adverse result subjecting Mr. Hurth to personal liability.
Hence, we were in the unusual position of supplying plaintiff with expert testimony proving defendant was the driver of the car that injured plaintiff, in order that we could present expert testimony that allowed the jury to find that Mr. Hurth was not responsible for the accident.
Mr. Hurth understood that for his defense to be successful, he had to remain candid and calm. If he became angry, the jury would believe he drove into plaintiff out of “rage.” If he became defensive or changed his testimony, he would lose credibility. Fortunately, Mr. Hurth maintained his composure throughout the trial; explained that he didn’t know he was even accused of injuring plaintiff until some 15 months after the protest; but after hearing Dr. Kelkar’s trial testimony, Mr. Hurth acknowledged that despite his effort to cautiously move through the picket line to get to work, Ms. Rawlings may have walked into his path and “brushed” against his car while Mr. Hurth was distracted by other protesters surrounding his car as he entered the Port.
HRW/hrw
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