I, JOHN P. BLUMBERG, declare as follows.
1. I am an attorney licensed to practice law in California. I have been a practicing civil trial attorney since 1976 and am board certified in Civil Trial Advocacy by the National Board of Trial Advocacy. A copy of my resume is attached hereto. I have represented personal injury plaintiffs in hundreds of lawsuits and claims and I am familiar with the standard of care of attorneys practicing personal injury law in California.
2. I have reviewed the deposition of [underlying attorney], the accident reports of California Highway Patrol officer [Amy N], and the declaration of [underlying attorney] supporting his motion for summary judgment. I am also assuming that the following facts are true:
A. Plaintiff suffered serious injuries in the collisions and was almost entirely immobilized for the following year. She incurred over $100,000 in medical expenses.
B. There were two primary claims in the underlying lawsuit: (1) that the plaintiff struck the back of the truck because it did not have its lights on and she never saw it, and (2) that the bus driver who subsequently struck plaintiff’s car negligently failed to avoid plaintiff’s disabled car.
C. The case against the trucking company was settled for $15,000 and plaintiff received little, if any, money therefrom.
D. Jury was waived and the parties agreed on trial by reference. No expert testified on behalf of plaintiff, but an accident reconstruction expert testified on behalf of the bus company defendant. The referee found there was no liability because plaintiff did not produce any evidence from which he could hold in plaintiff's favor.
E. An accident reconstructionist or human factors expert could have been retained who would have testified on plaintiff’s behalf that (1) it was foreseeable that plaintiff would not have seen the truck with its lights out, (2) it was foreseeable that plaintiff would have been traveling 70 miles per hour, and (3) that in the act of changing lanes, plaintiff would not have seen the truck.
3. An attorney who is practicing within the standard of care is not to be faulted by making a judgment that is based on a choice of reasonable strategic alternatives. However, the dismissal of the truck company was not a reasonable strategic alternative, and, for that reason, it is my opinion that Mr. [underlying attorney] fell below the standard of care in advising plaintiff to settle with the trucking company and to proceed against the bus company.
4. Officer [Amy N] wrote in her report (under “Scene”) that “the collision occurred during the hours of darkness and there were no lights illuminating the scene.” She further wrote (under “Other Factual Information”) that “I noticed that V-2 did have the required rear lights on the trailer. However I am unable to determine if the lights were in good working condition at the time of the collision.” Officer [Amy N] also wrote that “the witness, [Timothy R] related he noticed there were no lights on the rear trailer of V-2.”
5. In his deposition, Mr. [underlying attorney] testified that “the big issue on that case was, even assuming whether the lights were off, whether the trailer could have still nonetheless be seen...” He also testified that “there was a dispute as to how long Brenda’s vehicle was disabled there on the highway and I seem to recall Witness [Timothy R] put the two accidents virtually one after the other.” He also testified that he spoke with an accident reconstruction expert – [Mr. S] – about the liability of the bus and [Mr. S] did not want to be associated with the case. Mr. [underlying attorney]’s declaration states that in making decisions about how to present the case against the bus company, he interviewed both [Mr. S] and [Mr. V], another accident reconstructionist, and that neither would support plaintiff’s case. According to the declaration, he therefore proceeded without an expert.
6. In my opinion, there was a strong liability case against the truck company based on strong evidence from the CHP officer that there were no lights illuminating the roadway and from the independent witness that the truck’s trailer did not have its light on. The lack of lights is a violation of the Vehicle Code and a negligence per se argument could be made that crashing into the back of a truck is precisely the type of harm that the statute was enacted to avoid. Accordingly, there would have been a presumption of negligence against the truck company defendant. This argument would have been buttressed by an accident reconstructionist or human factors expert who would have testified why it was that plaintiff did not see the truck. Even if plaintiff might have been charged with some contributory negligence, the truck company’s liability was clear. Conversely, the case that Mr. [underlying attorney] had prepared against the bus company was extremely weak because the independent witness was going to testify (and at the hearing, apparently did testify) that the two collisions were not five minutes apart, but rather were “virtually one right after the other” so that there was no time for the bus driver to be able to react to avoid the collision. Additionally, the defense had an expert who would testify that the bus driver was not negligent.
7. The only reliable way that the bus driver could have been proved to have been negligent was if the plaintiff had an expert to testify that, under the conditions immediately preceding the collision, the bus driver should have seen the plaintiff’s car and been able to avoid it. Mr. [underlying attorney] spoke with two such experts and neither one could support that theory. When one then adds the testimony of the independent witness that there was virtually no time between the two collisions, it was foreseeable that the referee would similarly not be convinced.
8. A so-called “judgment call” presupposes that an attorney makes a choice of a reasonable option. In this case, however, because of (a) the anticipated testimony of the independent witness regarding the timing of the crashes, (b) the unwillingness of two expert accident reconstructionists to testify that the bus driver was negligent, (c) the fact that the defense had an accident reconstructionist to support its position, (d) the relative strength of the liability case against the truck company, and (e) the fact that plaintiff would net virtually nothing from a $15,000 settlement, there was only one reasonable option, and that was to keep the truck company in the case.
I declare under penalty of perjury that the foregoing is true and correct. Signed on January 21, 2008 at Long Beach, California.