Paula Hawkins & Joe Pat Hawkins
(Joseph according to your records)
3 Marlin Drive
Pittsburg, CA. 94565
Wife of Applicant and Applicant 4-28-02
Your Honor, it is a pleasure to be approaching you again as I know that according to the scriptures you are assigned your position and allowed that position by Jehovah God to punish the evil doers as the scriptures bring out. We are truly sorry to have to take up so much of your time in this matter. The Statue of Limitations should not even be a issue here.
Definition of "Know" From "Random House College Dictionary" :
Definition of "Known" From "Random House College Dictionary":
Insurance is corrupted and tries to make the victims of injury the liars and cheats: http://inscobadfaith.com/information/bad_faith_coverage_disputes/2.html#b
Quote:
""The insurance product damages policyholders and others in many ways. First, if the insurance industry is to be believed, insurance corrupts. Second, this corruption then justifies corruption on the part of insurance company adjusters who engage in corrupt claims-handling tactics. When insurance executives, underwriters, adjusters and insurance lawyers believe that their policyholders and beneficiaries are cheats, the entire insurance mechanism is askew. Forcing policyholders to cheat or to be treated as cheats is counterculture and brings out the worst in people involved in insurance claims handling; the system encourages and may even demand "padding" by policyholders and other beneficiaries. Insurance company vigilantes do battle against the dishonest hordes and in the process develop a mentality that permits a "little deception and a little dishonesty". Since the end is noble, the means can be ignoble.
The insurance product sold to policyholders to protect policyholders and the public is not the same product sold by the insurance company to the courts. Nearly every word in every insurance policy has a precise meaning. But all too often, the plain meaning of those words, whether common or technical, is far afield from the meaning attributed to them by insurance companies in insurance coverage disputes. Compounding the injury (and expense) are the legal theories spun by insurance law professors, insurance company lawyers, industry representatives and judges which complicate what should otherwise be a straightforward issue: If tens of thousands of automobile tires exploded, every judge in the United States would know the tires were defective and would not listen to any nonsense from law professors about the economics and theory of automobile tires and the automobile industry. Automobile manufacturers are not permitted to sell lemons and deliver lemonade. The massive amount of insurance coverage litigation indicates that something is terribly wrong with the insurance product and that it has yet to be fixed.""
What this above shows your honor is that turn around here is fair play. They are trying to say my husband is a liar because he is chemically injured by his job at Levitz. They are trying to make him out to be the bad guy when in actuality the record stands as to who the real bad guy is in this case. It is not my husband. What person in their right mind would say "Yes, I want to be disabled for the rest of my life with a autoimmune disease and brain damage. Yes, I want to be a burden on my family for the rest of my life. Yes, I want to have pain all over for the rest of my life. Yes, I want to die years before I should have died in the first place." These people are painting my husband as the evil person because he was injured and was not trained by his employer to protect himself in the first place. He was not given the training so he is the villain here now according to these spin doctors, the defense? They are ignoring the fact that no real diagnosis was made until 1996 in connection with my husbands health and the chemicals he worked with. They are ignoring the fact that all my husbands knowledge did not really begin concerning chemicals and so forth until he had the necessary documents and information after June 1995. What ever he said after that time period was hindsight speaking. It is general knowledge that some chemicals can cause ill health. But no one related any chemicals to my husbands health as a fact until after 1996. The defense wants to put my husband on trial and not his diagnosis so lets look at their record your honor. This sword the defense is welding has a double edge.
To Show Traveler's record here as a honest insurance carrier when it comes to Environmental damage/chemical injuries:
http://inscobadfaith.com/shame/index.html
Travelers - on April 22, 1998, the California Court of Appeal upheld a $25,000,000 punitive damage award against Travelers, for breach of the duty to defend an environmental claim brought against the operator of an auto body repair business. The court held that "Travelers' behavior toward Vann, personally, and as indicative of a broader recalcitrance to honor contractual obligations and the rule of law, manifests a high degree of reprehensible conduct." The court also noted that "Travelers had a nationwide practice of refusing to honor claims arising from environmental damage."
_________________________________________
GORDON VANN,
) NO.: A078272
)
Plaintiff, Cross-Defendant and
)
Respondent,
)
)
v.
) (Alameda County
TRAVELERS INDEMNITY COMPANY
) Super. Ct. No. 727815-4)
et al.,
)
)
Defendants, Cross-Complainants
)
and Appellants.
)
_________________________________________)
Discussion on Traveler's unblemished reputation:
So here we can see they do not like chemical injuries and will go to extremes to fight it. As in my husbands case they prefer to ignore it. "Travelers had a nationwide practice of refusing to honor claims arising from environmental damage." As they are doing know in my husbands case and trying to make it into a three ring circus act when it is plain and simple as we will later show. Federal Law preempts state laws on the Statute of limitations issue concerning toxic exposures.
According to the information we have found since seeing you last your honor. The fact that the defense did not provide the initially requested MSDS in January 1991 constitutes Insurance fraud. ("knowing and material omission" ) The fact that it took us literally months to get the requested MSDS after June 1995 from Levitz and still longer from Defense is also showing Insurance fraud on the employer's part. The fact that Francie Lehmer said "no medicals" in their files suggesting toxic exposures later in her letter she wrote to My husbands lawyer at that time in 1996 when there where "medicals" in her files also is considered Insurance Fraud your honor. It also smacks of a cover up on defenses part. Something they are trying to side track in all this. (You have to read her deposition she took on my husband in 1996 your honor.) Also the fact that Francie Lehmer denied Dr. Pletz was set up as a QME in front of your honor and us shows she was committing insurance fraud again. (That was when we again informed you of Dr. Pletz being threatened to not produce my husbands QME report.) Which we later showed your honor the document where he was set up as a QME. (Yet, no report ever came out of those visits to Dr. Pletz which proves something scared him from producing that QME report.) Francie Lehmer also denied a amended claim for 1996. Trying to put the initial amendment in 2000. Way past Dr. Toth Sr.'s initial diagnosis time period. But not way past the time we found the actual physical brain damage through SPECT scan's testing.
And now Francie Lehmer's crony who wrote this last document for her misquotes all that was said in your chambers your honor which I am not bothering to correct if they can not get it correct concerning Mr. Healy. We can not help it if Francie Lehmer takes lousy notes for her assistants and only writes down what she wants to hear.
The problem is in their documents they say only a portion of what was said. They do not take what was said in context. They only take parts of the whole and say that is fact. That in itself is deception. Leaving out facts that are pertinent is deception and as you can see my husband now understands what he says can hurt him also but he says it any way because he wants you to see the truth. The truth of the matter is he did not have enough knowledge or training to see what was the possibilities for him and his health at that time or in the future. He did not know about the auto-immune response from chemicals until after the ANA's where found around the end of 1995-96. He did not know that his brain was actually injured until proper testing was done and that was not done until after the SPECT scan's where taken. Before that there was no physical evidence that the chemicals actually damaged his brain. I believe that was around 2000 but I am not sure the actual date right now. My husband never even heard of MCS until Dr. Toth, Sr. who also tested him for reactions to minuet amounts of chemicals on a skin test and measured the reaction on the skin. No one ever told him he would be sensitive to other chemicals until he read that also in a Hazardous handling book at the library after August 1995 ER visit. He did not know about any liver damage until after August 1995 ER visit also. He later found out about left kidney damage. Until the problems are first found on my husband and someone who is a expert in this area of expertise relates them specifically to the chemicals the Statute of Limitations does not begin to run on that specific injury. We will get into the preemptive federal law on that later.
Concerning the Defenses not providing the MSDS as originally
requested in 1991.
Labor Code 5401 (a) Legal Duty upon employer/defense:
The East San Jose Community Law Center has also proposed that an employer's "knowing and material omission" that delays, discourages, or deprives an injured worker from receiving benefits should constitute fraud to the same extent as an affirmative representation. They note that Insurance Code section 1871.4 makes it unlawful to knowingly make, or cause to be made, a material misstatement in order to deny or discourage a claim. The Law Center states:
"Labor Code Section 5401(a) imposes the legal duty upon employers to provide employees within one day of a reported injury, a claim form and notice of potential eligibility for benefits. The Law Center regularly counsels clients who are denied benefits because their employers violate this duty; we commonly see cases where employers have failed to inform the employee of the right to file a claim or of potential eligibility. These victimized employees suffer the same direct and proximate damages as those in the fraud and uninsured employer situation. We therefore suggest that measures be taken to make it explicitly unlawful to prevent, delay, deny, or discourage a claim through material omission. This should at least be done when the material omission is a violation of a statutory duty."
Which the above is what the defense did in not providing the requested MSDS in a timely manner also your honor when they where requested in January 1991!!! Also by not providing proper training in the first place. Traveler's is just as guilty as Levitz in that they where the insurance carrier and had a responsibility to all the employer's costs by making sure that all their clients had proper protection and training to their employee's of their clients including Levitz. (Labor Code Section 5401 a ) Traveler's is a fiduciary and thus has that responsibility that they themselves ignored. By law the employer has to provide Worker's Compensation Benefits and thus Traveler's has to make sure that everyone is protected including both the employer and the employee's. They knew about these types of chemical claims yet they did not make sure Levitz was properly training and protecting its employee's.
My husband was not told what symptoms to look for or what tests would prove those symptoms exist and for that matter he could not order the tests himself without a doctor doing so which never happened in my husbands case until way later after August 1995. Even though my husband had a strong suspicion by the End of August 1995 that he actually was chemically injured all along he still went to many doctors to have all other possibilities rules out. He could have had hepatitis or something of that nature for all he knew. And as you have seen in Dr. Allems, the defenses doctors reports, that he even eludes to those types of diseases except my husband and I already had them all checked out before we made this claim in 1996. Up until 1996 when Dr. Toth, Sr. actually came out with a real written diagnosis we did not have anyone link my husbands symptoms to chemicals directly. Dr. Toth Sr.'s 1996 diagnosis is when the Statute of Limitations discovery rule began to run concerning chemical injury and my husband according to the preemptive federal laws concerning the statute of limitations which is what we will get into now.
Concerning the Statute of Limitations and the Jolly Defense we found this below. The Jolly rule is "no longer to be accepted to be good law":
Your honor the civil defense used the "Jolly" defense and another case that used the same rule. We already objected to the use of the civil defenses case because it is not fought properly to begin with by our civil attorney's. Plus it is discriminatory concerning my husbands injury as he does have memory and concentration problems and every day is different depending on various uncontrollable conditions. Some days he was unable to stay focused enough to catch those trick questions the defense attorney's liked to throw at him. That is what they used in the summary judgment to the judge and our civil attorney did not refute it with actual testimony to show my husband corrected defense later when he regained his concentration a bit. In fact my husbands civil attorney's assistant Ms. Hawes (Volume III, Oct. 30, 1996, Page 215 line 1, 2, 12; Page 216 line 18, 24; Page 217 line 15 - 21) where the defense was even informed by my husband that the previous day he was "zoning a lot". Page 218 lines 16 -19 where my husband even said he did not feel like being there because he felt so ill basically which right then and there should have stopped that days deposition. Instead they used the tricky questions knowing my husband was not doing good that day.) was telling my husband to listen to the questions at the very beginning on one of those days the civil defense used because my husband was loosing focus and rambling about something else for a answer. He does that a lot. Or he just answer's "Yes" or "right" or "huh uh", something affirmative. He does that when he is spacing out and not paying attention a lot also. He has a hard time controlling those times periods himself. Now recently he has been catching himself more afterwards and will ask that you repeat the question and try to listen harder. He also forgets the question before it is finished if it is long or tricky and only remembers the end of the question. Not the beginning. If it has two different time frames in the same question he remembers that last time frame only, if his concentration is not there. These are thing we notice at home. He does not always even understand the simplest of questions and gets them backwards completely. He has to re-read articles on many occasions to get the real meaning and it may still sometimes elude him. He never even should have had to go through a deposition due the fact that he has brain damage. That is how the civil defense discriminated against his disability and that is how this defense is re-discriminating against my husbands disability again by using that discriminatory deposition. In fact your honor the civil defense was suppose to have taken my deposition also, I wonder why they did not? They took advantage of my husbands memory and concentration problems is why. The civil defense and worker's comp. defenses where hired because they know all that and are experts in this type of injury. They knew right at the beginning that he has memory and brain damage and used it against my husband. They knew that chemicals cause brain injury. Or they would not have been hired. We will be submitting other parts of the Civil Deposition with protest to the use of the Civil Law suite to begin with as we already have said. We are only submitting this to defend my husbands position here. Since they are making the civil deposition a issue. The WC defense is stalling and making everything a issue here when what is said next will show that concerning the Statute of Limitations, none of this is a issue. It is all mute!!! It is preempted by federal law. But I suggest you read what is submitted. We do not have all of that deposition as the recorder quit giving us copies.
On the Jolly Defense subject this is what has to be said:
The leading case in California regarding the commencement of the running of the statute of limitations when the plaintiff suffers a latent toxic injury is Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 245 Cal. Rptr. 658.
The Jolly court held that in delayed discovery cases, "a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period," i.e., "the limitations period begins when the plaintiff suspects, or should suspect that she has been wronged." Id. at pp. 1112 and 1114.
However, the Jolly court did not explain what "knowledge of the cause" of injury will suffice to begin the running of the statute.
For example: Did the client's belief that his leukemia was caused by occupational exposures trigger the statute? Was the statute triggered by his belief that the solvents he worked with caused his leukemia? Did the statute begin to run when he first learned that benzene was the culprit? Or does it begin to run when the products containing benzene are identified?
These questions were not resolved by Jolly. Nor are these questions answered by any appellate decisions interpreting Jolly. Indeed, a recent appellate case indicates that the answers to these questions may not depend on an interpretation of Jolly at all.
Although the California Supreme Court has never disapproved Jolly, the rule it created is no longer accepted to be good law in some toxic tort cases. This is so, because the Jolly rule is preempted by federal law which mandates a more liberal accrual rule than Jolly in certain personal injury and property damage cases involving hazardous substances. This conclusion logically follows from a recent construction defect case, Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112.
The preemptive statute is 42 U.S.C. § 9658, which was adopted by Congress as part of the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), which amended the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").
"The Act commissioned a study 'to determine the adequacy of existing common law and statutory remedies in providing legal redress for harm to man and the environment caused by the release of hazardous substances into the environment.'" Angeles Chemical Co., Inc., 44 Cal.App.4th at 122, quoting, Pub.L. No. 96-510 (Dec. 11, 1980).
"The study group was expressly charged with examining, among other things, "barriers to recovery posed by existing statutes of limitations. It was also directed to address "the need for revisions in existing statutory or common law" and "whether such revisions should take the form of Federal statutes." Id., §§ 9651(e)(4)(A), 9651(e)(4)(B).
The study group submitted its report to the President and the Congress in July 1982. The report stated in part as follows: "Commencement of the running of the statute of limitations can be a barrier to recovery under both common law and statutory remedies. This issue does not arise specifically from the applicable period of limitations which depends on the cause of action; the question is when the statute begins to run -- the time when the action accrues. The plaintiff's ability to recover will often depend on whether a liberal discovery rule is applicable. [¶] Exposure to certain hazardous wastes may result in cancer, neurological damage, and in mutagenic and teratogenic changes. Most of these types of injuries have long latency periods, sometimes 20 years or longer. With long latency periods, a rule which starts the running of the statute from the time of exposure will defeat most actions before the plaintiff knows of his injury." Id., 44 Cal.App.4th at 122-123.
In response to the study group's report, Congress passed the Superfund Amendments and Reauthorization Act (Pub.L. No. 99-499 (Oct. 17, 1986) 100 Stat. 1613). Title II, section 203(a) of that act became section 309 of CERCLA. It states in pertinent part:
"In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute." Angeles Chemical Co., Inc., supra, 44 Cal.App.4th at 122; quoting, 42 U.S.C. § 9658(a)(1).
CERCLA defines "federally required commencement date" as the "date the plaintiff knew that the personal injury or property damages ... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." Angeles Chemical Co., Inc., supra, 44 Cal.App.4th at 122; quoting, 42 U.S.C. § 9658(b)(4)(A).
The statute "creates a federally mandated discovery rule for the accrual of state law claims involving releases of hazardous substances that cause or contribute to personal injury or property damage." Angeles Chemical Co., Inc., 44 Cal.App.4th at 123.
"Practically speaking, CERCLA essentially preempts state statutes of limitations if those state law claims are based upon exposure to hazardous substances released into the environment and the applicable limitations period provides for an earlier commencement date than federal law." Id.
"Under the CERCLA preemptive statute ... plaintiffs' cause of action accrues when the plaintiffs knew or reasonably should have known that their damages were caused or contributed to by the contaminant at issue." Hawks v. City of Coffeyville, 1994 U.S. Dist. LEXIS 15163 (D. Kans. Sept. 8, 1994).
While there are similarities between the Jolly rule and 42 U.S.C. §9658, the Jolly rule appears to operate somewhat more niggardly.
Under the preemptive statute, California's statute of limitations cannot begin to run until the "date the plaintiff knew that the personal injury or property damages ... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." Angeles Chemical Co., Inc., supra, 44 Cal.App.4th at 122; quoting, 42 U.S.C. § 9658(b)(4)(A).
Whereas Jolly does not necessarily require the plaintiff to have knowledge of the particular injury-causing hazardous substance for the statute to run, the CERCLA preemptive rule apparently requires such knowledge.
Applying the preemptive CERCLA rule to the client's case, it would appear that Jolly is preempted and the statute of limitations began to run only when the client's oncologist suggested to him that it was benzene in the solvents he worked with that caused his leukemia. Whereas the case may be time-barred under Jolly, it is apparently not to be time-barred under the CERCLA preemptive statute.
Discussion of Federal Preemptive Statute and my husbands case:
So you see your honor, my husband should not have lost his civil law case. He did not suspicion that chemicals where the causes until after June - August 1995 and he did not even know he had a auto-immune response or permanent brain injury and dysfunction or a sensitivity to other chemicals and medications caused by his work environment initially until after August 1995 ER visit. We still where being on the safe side after August 1995 when he had all other causes ruled out up until Dr. Toth Sr. diagnosed him as injured by the industrial chemical exposures. Dr. Toth, Sr. was the first person to factually connect his work environment and chemicals to my husbands symptoms.
Dr. Donnelley was stonewalled by the defense in not providing the necessary information to make such a diagnosis. No one told my husband that he personally was injured by the chemicals until Dr. Toth Sr. Diagnosed it. Discovery was never allowed by the defense prior to that and prior to my husband being given the MSDS to the products he worked with on a daily basis. That is the omission of "Material Evidence" by the defense. Before June 1995 my husband only had a general knowledge that chemicals can cause complications from who knows where, according to a document he does not even remember writing, but no specific knowledge as to what those complications where concerning his health and his exposures to the chemicals. Until he was given that knowledge and it was substantiated by medical tests and a expert saying it was a direct result of his chemical work environment the statute of limitations did not and has not commenced according to the preemptive federal law concerning the statute of limitations.
In fact if my husband later does show up with cancer, so far he has not, his statute of limitations has not commenced until such a date and a diagnosis that it was a direct result of the chemicals he worked with. It could be 10 years from now that he shows up with cancer or he may never show up with it at all. So until then his statute of limitations has not commenced according to Federal preemptive statute of limitations law. Even though he knows that some of those chemicals can cause cancer he has to know he has cancer first and it has to be said by a professional that it was caused by the chemicals for the statute of limitations to begin to run. It has to be diagnosed first according to the Statute of Limitations preemptive federal law. That is the law!!! Like we already said, no civil attorney will even touch it until it is a diagnosed by a expert, period. It does not matter if my husband figured it out himself, he is not a expert and thus it is not a diagnosis until such expert does say so according to the Federal Preemptive law. And again no judge would believe my husband if he made a claim without a medical experts diagnosis. So for the defense to have even claimed statute of limitations is ludicrous!!!
We did present all the symptoms my husband was experiencing to Dr. Kaplan in March 1991 after my husband saw Dr. Donnelley in Dec. 1990, as in the record. We did not know that those symptoms where from his environment at work but I asked to be on the safe side myself. Dr. Kaplan flat out told me and my husband that my husbands work environment could not cause all those symptoms we reported to him on the doctors entrance application. Dr. Kaplan said that in front of my husband so my husband had no knowledge otherwise to differentiate which was correct, nor the proper chemical training to know better. As the defense already presented a accident report in April 1991 showing that my husband a year after his April 1990 accident report still thought it was a abdominal strain or groin strain, how ever it was worded. My husband did not say it was a chemical injury. He did not know!!! He just knew it was a sharp extreme pain like the year before and was being on the safe side by reporting it. He reported many accidents and was ignored also. So he tried to continue working with the pain until it was to much for him to handle. He was even told to work with the pain by upper management once when he reported it.
Dr. Donnelley was paid and worked within the Worker's Compensation system and rules at that time. Dr. Kaplan who was not in that system of rules to our knowledge at that time. He did not have any loyalty to any lawyers to our knowledge. So who would you believe? My husband trusted Dr. Kaplan on the chemical issue because my husband did not have the knowledge to know otherwise. Thus he could not have known being that we where told "no" to his work environment as a causation in March 1991 by a medical expert, Dr. Kaplan. Dr. Kaplan acted knowledgeable on this subject and these types of chemicals my husband worked with. Dr. Kaplan even called them organic compounds, yet apparently he did not know himself on us looking back now. He did not explain the blood abnormalities as being a serious matter to look into and even gave a explanation or impression saying that my husband was fine and normal basically to both of us. My husband is not and never was a doctor so how would he have known one way or the other? My husband just attributed all those symptoms to the severe pain he was experiencing from his abdomen and to his back for all that time and all the years afterwards. He can not and could not self diagnose himself. So until you have a diagnosis by a expert according to the Federal preemptive law over state law, the statute of limitations does not begin to run until then. That positive diagnosis was in 1996 by Dr. Toth Sr. in my husbands case here before you, your honor. And more later in 2000 for other more significant findings.
Just one other point. Your honor. You see how fast we found this information here. That is what happened when my husband started seeing the records in June 7th, 1995. He saw what was in the records which was not what he was lead to believe before and he began to research into it real fast and started to find more and more and our knowledge grew as the years went by after June 1995. After August 1995 ER visit he found out that his liver enzymes where what was running off in March 1991 blood test. Recently he found out that non-immune hemolytic anemia which is suspected to be caused by chemicals explained the low total iron binding capacity back then in March 1991. He searched that test a few years back and did not find anything then but recently since we have been closing this case he found the link between chemicals and Low TIBC on the net. Dr. Kaplan did not tell us that. Also after August 1995 he found that he had high ANA readings and that he had no double stranded DNA which he was then told means it was not genetic as a causation of the high ANA readings and meaning it was environmental in nature. Also that he has damage to his left kidney. The only thing that he was around that could cause environmental damage to his whole body was his work environment. Then Dr. Toth Sr. tested him for allergic reactions to various chemicals in 1996 and took into account my husbands work history and etc. to come up with a real diagnosis then he went even further after diagnosis and did more testing and more testing to find what we know now, that my husband has organic brain damage and dysfunction and it also is caused by the chemicals which Dr. Bastien diagnosed properly along with the SPECT scans.
Both Dr. Toth Sr. MD. and Dr. Bastien diagnosed my husbands injuries. Dr. Toth is the first doctor to even diagnose Multiple Chemical Sensitivity as being caused by his work environment. Plus since 1996 other doctors have told in reports to my husbands case that his injury is caused by chronic industrial chemical exposures such as Dr. Bobrove and the loss of pigmentation on my husbands hands which his report says is a sign of chronic solvent exposure. Dr. Munday initially and Dr. Harrison. There are many doctors who did not even do any proper testing to base their evaluations on my husband. Or they just plain did not have the necessary knowledge needed to know themselves.
It was not until the ER visit around August 1995 that we where even told what the blood abnormalities where. Me, from the ER Doctor and I remembered Dr. Kaplan's report having that SPGT abnormal so I went back to his office and got all the records later. My husband was in and out of it during the ER visit so he did not remember that at all. My husband figured it out when we got the read out to the medication my husband reacted to afterwards that told us what to look for concerning liver problems. It was the SPGT or SGOT or what ever that is called? Then he remembered that was what was also running abnormal when we saw Dr. Kaplan back in March 1991and he had blood test run on my husband. After the ER visit in August 1995 I also went in and got the rest of Dr. Kaplan's records concerning my husband, because all we had was the copy of the blood tests up to the time of the August ER visit. We found that all the symptoms where marked already. We did not remember what was filled out back then. My husband did not even associate his blood abnormality to the chemicals until after he received the records in June 1995. Then it al feel into place for him concerning the blood not being right when he saw other things where not what he was led to believe initially. But he still did not know what it meant until the ER visit in August 1995.
Concerning the Federal Preemptive Law it says "the statute of limitations began to run only when the client's oncologist suggested to him that it was benzene in the solvents he worked with that caused his leukemia."Know one actually told my husband his injury was from chemicals as it could not even be determined until receipt of the MSDS was given to the doctor or lawyer or my husband for that matter nor until diagnosis by a expert which would require testing and etc. .
This same law or rule that preempted "Jolly" in the civil arena would also apply to the Worker's Compensation laws. As this is a Continuos Trauma Injury. It is still progressive to this day and will be as long as my husband has to be around chemicals which are also in the modern environment of this nation. Since he is already sensitive to them. Plus there is more than likely a hidden time bomb still inside my husbands body from the chemicals that we have yet to uncover here. Maybe 10 years from now some doctor will find some strange disease that is only caused by chemicals that we have never heard of yet and tell my husband it is from the chemicals he worked with. Then a new claim will begin and a new statute of limitations will start all over again. He may have some genetic mutation that no one has found yet? Who knows at present? You see your honor. For them to claim statute of limitations in both Civil court and Worker's Comp. is ludicrous concerning these types of insidious injuries. Many people do not even know that they are damaged by chemicals even when they find their health is damaged. That we even figured it out at all is a miracle in itself. We thank our God, Jehovah for that.
There is no way my husband or I could have suspicioned or even imagined that chemicals are this dangerous with the lack of knowledge they gave him at his employment and in his years before in schooling. There are medical experts even today who should know and do not know what these chemicals are capable of yet the defense claims my husband should have known then with no proper training and with the defense interfering with the discovery phase by not producing the MSDS when requested initially? Which is illegal as we have shown here!!!
My husband was never told that he would get a autoimmune response to his Peripheral Nerves from chemicals by any expert. My husband was never told he would get permanent Physical Brain Damage prior to 1996 and even still that it was questionable until Dr. Toth and Bastien figured it out for sure using the SPECT scan's (Which have been used now for over 15 years concerning chemical injury diagnosis) and testing. My husband was never told he would be sensitive to other chemicals or chemicals in general, even the ones he worked with. These are all things that where found way later than August 1995. He would not have known what "systemic poison" meant prior to August 1995. No one told my husband he specifically had liver or kidney damage until well after August 1995. Once we got hold of the records June 7, 1995 and came to see that things are not what he was led to believe they where initially, he reacted immediately. Once I went through the records after his August 1995 ER visit, I reacted also.
They do not like hearing the same story but our story has not changed. It is the truth where as they tried to lie and hide the truth by denying any medicals even after my husband informed them of what he found in June 1995. Even after my husband requested the MSDS he found out he legally could request on June 7th, 1995.
They are using a deposition that they did not take, as their evidence. We are submitting the deposition the WC defense (Francie Lehmer) did take, as we where incorrect in that we did have it after all, which we recently found. (We are officially correcting that misstatement now in this document.) The defense will have to refer to there own copy in court. So we are requesting that they bring their copy on June 3rd, 2002. We ask that your honor take the time to read the Traveler's defense deposition in it's entirety. My husbands story has not changed. He may have a few details incorrect but he does have brain injury. They would not matter anyway as the time of the running of the Statute of Limitations is preempted by federal law and it was when he was specifically told his injury was from chemicals not when it was suspicioned as a possibility and required the MSDS to verify it which the defense would not allow to happen. That Statute of limitations did not begin to run until Dr. Toth Sr. diagnosed it positively as a direct result of the chemical exposures.
There is something else that is different here concerning Worker's Compensation and Civil that needs to be considered. In Civil the burden of proof is on the Plaintiff. In Worker's Compensation the burden of proof is on the Defense. What the defense did not present was that they had nothing from my husband or his attorney telling them not to send the requested MSDS. It does not exist in the records. On the contrary Mr. Healy did stay it pending the receipt of the MSDS. Traveler's was not informed by either my husband or Mr. Healy to not pursue it or send the requested MSDS. They did not send the MSDS any way. As we said all along, it was legally in their ball park all that time. They tried to hide the ball completely. The Defense messed with the Statute of Limitations by doing so and consequentially caused my husband to be exposed to chemicals further up to August 1995 ER visit. When we realized that even medications are chemicals. Due to my husbands reaction to medication. And we where already putting the pieces of the puzzle together on our own.
We challenged the defense at the last meeting in document to find proof that my husband did have the proper knowledge and training to self diagnose himself and to show he had proper training in chemicals and their safety usage and precautions to protect himself. (According to the preemptive Federal Law it would not have been enough even still as it had to be diagnosed by a expert.)They did not provide that information again. They did not provide any proof of any formal education that would have prepared my husband for such a eventuality as these chemical injuries he suffered here. Levitz did not show my husband had proper training in the protection of himself from such chemicals as he was exposed to here. For that matter Levitz did not even train his own shop supervisor at that time. Nor any of the shop personnel at that time. Even after it was suspected that chemicals could be dangerous they still did not train the worker's up to when my husband went out of work in June 13, 1991.
(They also have the record wrong in the Civil Case on that date. It was not June 12, 1991. My husband went to work the day of June 13,1991 and could not finish the day due to the severe pain.)
My husband would like the option of calling all of his fellow employee's at that time of his employment with Levitz if he so chooses as his witnesses. The reason being is that the defense may find one or two to say what they want but when the majority show that my husband was not trained it will show the truth in the matter. The defense apparently will try to fire or intimidate those witnesses who are still in employment with Levitz as they are ruthless going by how they did my husbands Dr. Pletz when he was assigned to do a QME report. Plus going by what we already learned concerning one of our witnesses whom still works for Levitz.
The question is your honor, do you want to retry the whole civil law suite in worker's compensation, even though the preemptive federal law over rules that civil case or is the evidence we just provided enough to satisfy you that his statute of limitations is not damaged? Dr. Donnelley did not come out and tell my husband that his injuries where caused by the chemicals he worked with. He could not until he had all the MSDS and other requested information. He did not explain to my husband what systemic poison meant or any of the other things or what symptoms they would cause. Or how to recognize those symptoms if they happened to him. No one did until diagnosis by Dr. Toth, Sr. Previously to August 1995 no tests where done, no records where produced, no MSDS where given and there was not a diagnosis relating chemicals to my husbands health positively. It was not able to be determined until Dr. Toth, Sr. made that diagnosis. Thanks to the defenses lack of cooperation.
Dr. Donnelley apparently did ask if my husband felt dizzy but my husband was not dizzy even when my husband remembered that he was asked the same question by the ER people in Delta Memorial the night before his first appointment with Dr. Zai in April 1990. They had my husband on oxygen due to his oxygen level being below normal in his blood. But my husband did not feel dizzy and his body would not at that time accept the extra oxygen so they told him it must be normal for him. That visit information was requested by Dr. Donnelley in his first report along with the MSDS and what is curious is that Delta Memorial had no record of that ER visit ever taking place in 1995, 1996 when we tried to find it ourselves. My husband later went back trying to find all those record and they all had been messed with our disappeared. There is no record of that ER visit in April 1990 yet someone had to pay for that visit back then and Traveler's was also my husbands normal health insurance carrier also back then. Not just the Worker's Comp. Carrier. We do find it curious that those records have disappeared as we "suspect" tampering with evidence in this case by the defense.
My husband found a lacquer spray can in June 1995 and it did say it interfered with the oxygen carrying ability of the blood on it. It seems like it was introduced to Levitz with that wording after my husband's case required the MSDS to be given to get a diagnosis in January 1991. Because in the kits they have various wording as if they where bringing in the new wording to replace the original wording of "may be harmful" if breathed as some of the cans in his kit still say. When my husband started working for Levitz it only said it may be harmful if breathed to his knowledge. He was not told that the can formula had ever changed. A can of hair spray said the same thing back then and we never heard of anyone getting ill from using hair spray.
The only thing the defense has is that one document from Social Security that has its date messed with and that has changing in the hand printing from thick to thin and then on the next page to handwriting. My husband has no memory of filling it out in the first place and he thought it said something different than it says here from what he saw at the Civil Deposition. It was not specific in nature as to the types of symptoms or diseases chemicals can cause. He has no memory where he learned that term "complications" concerning chemical exposure. He may have had a friend or someone tell him? He does not know if he even said that at all? If you look at the first page the date is 5 -6 - 93 but the last page says 8 - 2 -93. It is like someone changed the date and pieced two different documents together here. The 5 -6- 93 is not my husbands handwriting. All the pages are copied in different sizes also which seems abnormal? On looking at this document defense used we question its validity as it is presented here by the defense. It seems like it was tampered with. The copies do not look right.
Again in the letter that my husband mailed to Traveler's, June 8, 1995, he already had all the records in his possession and a couple cans. (My husband did not even remember his kits in the shed. I dragged those out after his ER visit in August 1995 when I wanted to find out what he had worked with chemically speaking and Levitz had still not sent the requested MSDS to us. Debbie the new personnel manager who replaced Dick Pugh told me when I tried to get the MSDS, after the ER visit in August 1995, from Levitz that they had to get them from the Corporate office. The MSDS where not even at the Concord Store apparently at that time.) My husband also said he recently read a article that told him something about spray can fabric cleaners. He had the records June 7. 1995 from his last attorney and thus he saw that things where not what he was led to believe by previous other professionals. He saw the letter from Healy to Traveler's requesting a amendment and MSDS and that he was staying the case pending the receipt of the requested MSDS. My husband already found out on June 7, 1995 he legally could request the MSDS for himself which he did that same day. His employer never trained him of that nor told him anything about the dangers of his work environment and symptoms to look for. They never even gave him proper respirator training also. As you can see from our already submitted records he did request them and did not receive them for a long time afterwards.
He also said in that letter to Traveler's in June 8, 1995 on page 2, "Healy started it but that was the last I heard about it." Then the only symptom he could think of relating to himself possibly was " I have been told I have the back of a 58 to 60 year old by doctors, you get the point." The problem is no one said it was caused by chemicals so you can see my husband still did not have all the pieces of the puzzle even here when he wrote this letter. He was guessing pretty much. Besides he was not a expert. It does not matter according to the preemptive Federal Law concerning the statute of limitations. It had to be diagnosed by a expert and had to relate the symptoms to the chemicals specifically in my husbands health situation. Which again never happened until 1996 by Dr. Toth, Sr. .
We did see that medications (which are chemicals) he was taking for his back injury where making my husbands back worse and it got better where he did not have to use a cane after he quit completely taking medications after the August 1995 ER visit. We figured that out on hind sight as we figured out a lot of what we learned here. But he still has very bad days from time to time. Last year his back flared up real bad and he tried to take some pain killers he never remembered trying to use before in the hopes of some relief. He only took them once every week to two weeks hoping that he would not get a chemical intolerance to them also. It worked for a while then he started having side effects to them so he stopped taking those. That has been the story of his life ever since he worked for Levitz and since his April 1990 injury. He always had side effects to medication/chemicals since working for Levitz starting in 1986 the first time we know of on record.
The defense submitted the letter my husband wrote you, your honor dated right before the ER visit caused by a reaction to medications. Your letter he wrote you was dated 8-1-95. At the bottom of page 2 it says:
" I am sending copies of lab work done on me on 3-4-91. This is one reason I have always been concerned about the toxic exposures I was exposed to for all those years. I do not know what it means, I am not a doctor." So you can see here my husband did not know what that blood work up meant at that time. Showing he was oblivious of any liver damage at that time. Especially since Dr. Kaplan did not tell him his liver was damaged when that test was done. Dr. Kaplan did not even accept chemicals as a causation to all my husbands symptoms and tests period. We both, days later found out what it meant the hard way after the ER visit in August 1995 and around a week after the 8-1-95 letter was written to you your honor.
Then on Page 3 of the same letter to you, your honor concerning my husbands request of MSDS in June 1995 he says: "I thought it is suppose to be a law that Material Safety Data Sheets have to be given if requested. ... I have not as of this date received anything from them about the chemicals I worked with at Levitz Furniture up to 6-13-91." My husband did not receive them in January 1991 nor in June - August 1995 when requesting them after he received a Worker's Comp. Booklet he received from the Assistance officer on June 7, 1995 (Tani Perez) saying he had a right to request the MSDS legally.
He had little pieces of a puzzle but they did not come together until after the ER visit in August 1995. You can not see the picture of a puzzle until after the puzzle is finished and it is still being pieced together at this time as you yourself may have noticed in our meetings with you, your honor. We are still actually in a discovery stage and this stage can last for years to come as more evidence health wise pops into the picture concerning my husbands health.
In Dr. Donnelley's Dec. 1990 report on page 6 he said concerning the possibility of a toxic exposure "The degree of this patient's injury may well be greater than first thought, though as I said, it cannot be confirmed without additional information." Which the defense made sure was not made available to the doctor by never producing the MSDS for review as the doctor requested. Also by all the evidence to that ER visit the night before my husbands first appointment with Dr. Zai where his blood would not accept oxygen, which disappeared completely and only Dr. Donnelley's report refers to it now.
(Concerning the MSDS which is withholding material evidence that precluded my husband from getting proper treatment at that time and a proper diagnosis and would have interfered with the statutory requirement had we not found this preemptive federal law saving the Statute of limitations issue for us but which was unlawful on the defenses part from what we have already presented in this case.)
Then Healy wrote a letter 1-19-1991 to Traveler's requesting the MSDS and staying the case pending the receipt of the requested MSDS. Since it was not diagnosed there is no statute of limitations issue thanks to the preemptive federal law I already discussed.
Mr. Healy never received the MSDS and as we challenged the defense to produce documentation that my husband did not want it pursued to explain why they did not send the requested information to Mr. Healy or his doctor at that time or to produce a letter from Mr. Healy telling the defense not to send the MSDS, they up to this time have failed in that request and challenge. So ethically speaking the defense had a moral and legal obligation to make sure my husbands health was protected and they failed to due so in a timely manner and all that time my husband was being exposed further to those toxic chemicals not realizing they where going to effect his whole life from then on.
Levitz even after those MSDS where requested in January 1991 did not train my husband that these chemicals could become dangerous to him. In fact afterwards his own supervisor told him that they removed Benzene when him and a Ken Cooper where talking to my husband and that they where not dangerous because benzene was removed even before My husband started working with Levitz. After Dr. Donnelley's visit Dr. Kaplan told us both "No" He explained that organic compounds can not cause all the symptoms my husband was having. Also my husband did not know any specific symptoms at that time period as he only said "complications" in 1993 supposedly, (which we still question that document as it seems it was tampered with), and does not even know where that general knowledge came from? He can not remember.
To top it off, because my husband had a chemical injury the medications he was taking that the doctors prescribed for him only made the situation even worse. They also are chemicals up and my husband used them for his back pain and other pains up until August 1995. So the injury continued to accumulate up to that point due to the prescribed treatment of his back pain. My husband could not have foreseen these things or had knowledge that this would have become a permanent injury. No one told him prior to him starting to find the truth out himself after June -August 1995 and diagnosis in by a expert, Dr. Toth, Sr., in 1996.
Laws that the Employer broke:
California Proposition 65: In 1986 California voters overwhelmingly adopted Proposition 65 which is now formally known as the Safe Drinking Water & Toxic Enforcement Act of 1986. Cal. Health & Safety Code § 25249.5 et seq. The Act has two main provisions. The first prohibits businesses from discharging carcinogens and reproductive toxins into sources of drinking water. Health & Safety Code § 25249.5. The second prohibits businesses from exposing individuals to such toxins without first giving them clear and reasonable warning of such toxic hazards. Health & Safety Code § 25249.6.
The purpose of the Hazard Communication Standard is "to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees." 29 C.F.R. § 1910.1200(a).
Chemical manufacturers and suppliers must provide their customers with a Material Safety Data Sheet (MSDS) for each hazardous chemical they produce. 29 C.F.R. § 1910.1200(g)(1) see also, 8 C.C.R. § 5194(g)(1) [the regulation in California's approved plan].
The Material Safety Data Sheets must disclose the identities of all hazardous ingredients which comprise 1% or more of the composition, and all carcinogenic ingredients which comprise .1% or greater of the composition, or which could be released in concentrations which could present a health hazard to employees. 29 C.F.R. §§ 1910.1200(g)(2)(i)(C)(2); 8 C.C.R. § 5194(g)(2)(A)(3)b.
For each hazardous chemical, the manufacturer or supplier must list on the Material Safety Data Sheet "the health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical." 29 C.F.R. § 1910.1200(g)(2)(iv); 8 C.C.R. § 5194(g)(2)(D).
Employers must "maintain copies of the required material safety data sheets for each hazardous chemical in the workplace," and "ensure that they are readily accessible during each work shift to employees when they are in their work areas." 29 C.F.R. § 1910.1200(g)(8); see also, 8 C.C.R. § 5194(g)(8).
The premise of Haz-Comm is that by requiring chemical manufacturers and suppliers to give toxic hazard information to their customers, and by requiring all employers to make the information available to their employees, workers will receive the information provided by the manufacturer. 29 C.F.R. § 1910.1200 et seq.
Our Comments on Proposition 65:
This last two laws I can guarantee you where not done during my husbands time with Levitz Furniture. In fact as the evidence proves my husband did not get the MSDS's until way after June 1995. Levitz did not even train him he could get them. Levitz never explained or showed him what a MSDS was. Without them even Dr. Donnelley could not make a evaluation concerning chemical injury. My husband would not have known what they where had they given him them since he had no knowledge or training as to what it all meant even then when he did work for Levitz.
We object to the Defense bringing in new documents concerning the civil cases Statute of Limitations issue first of all. You yourself your honor told us to go by what was already in the record. These documents where not and the only response for us to make would be to show how my husband clarified those questions at that time on other pages of the deposition. Not just that, how did they get the civil deposition unless they are working with the civil defense and chemical companies to get a hold of these records? This also means the whole deposition would have to be brought in and that is volumes.
The civil defense lawyers hammered my husband until he was completely vulnerable due to his memory and concentration problem. It was similar to a brain washing session where they ask and ask until your memories start to falter and you are not sure what you do remember or what they want you to remember. They did this to my husband for months while they dug and we think changed the wording to some of the documents. Such as Dr. Donnelley's report. Besides that as I already said the civil defense took advantage of my husbands disability or injury knowing he had a hard time concentrating and used trick double time framed questions and long questions knowing chemically injured people have lousy memories and concentration and can forget the beginning of a question before they get to the end and etc. One of those days the defense used the depositions as evidence (Volume III, Oct. 30, 1996, page 220, lines 18-26) on the first part of that deposition they showed my husband was not able to concentrate at the very beginning and his own lawyers representative in the deposition told him aggressively to listen to the question more than once, as I already brought out previously in this document, when she should have stopped as soon as she saw my husband was having a hard time following the questions from the very start of the deposition that day. My husband later after they used the trick question that they later used in the civil defense did come a bit out of it and clarify the question but the defense did not show that to the judge and neither did my husbands lawyers nor this defense here. (Volume III, Oct. 30, 1996 page 221, line 5-10; and on page 222, lines 9 - 14 my husband did not even remember Dr. Kaplan's visit which he should have remembered easily, because I did ask Dr. Kaplan if my husbands work environment could possibly be the cause of all those symptoms he was having at that visit. This shows he was having a hard time remembering events and time lines and etc. They took advantage of my husbands disability plain and simple. That is what they base the summary judgment on. A man with a Brain injury and memory and concentration problems deposition. They discriminated against his disability.)
The burning gun concerning time lines and my husbands ability to understand questions with respect to time lines here in Volume III, Oct. 30, 1996 page 228, Lines 19 - 26 to Page 229 lines 1 :
"Q. Is there any doctor, other than Dr. Toth, that you can think of who has told you since August of '95 that your abdominal pain was related to chemical exposure?
A. No. What's his name, Henry Donolly. He suspicioned it.
Ms Hawes: He's talking about since 1995.
The WITNESS: I'm sorry, no."
Volume III, Oct. 30, 1996 page 229 Lines 18 - 23:
"Q. Did you have any of the similar stiffness - you referred to it as stiff to achy feelings in your stomach - between 1990 and August of 1995 that you can recall?
A. I'm not sure is the only problem. I can't remember."
This is the problem your honor with my husbands memory. He can not recall things he recalled yesterday in many cases. Then I have seen him remember something a month later that he wanted to remember a long time ago. He has no control over his memory. Sometimes he seems sharp then others he seems completely dementia like. He has a hard time remembering what is happening to him through out this unless it is happening at that very moment in time, same with his symptoms. I knew something was not right and I tried to get him to get help when I dragged him to Dr. Kaplan back in March 1991. But I did not know he had memory damage. I did not know that chemicals could effect that in him at that time. I asked about his work environment for all those symptoms written down in the entrance form to the doctor and was told "no" and as you can see my husband has a hard time remembering things from this deposition. His concentration and memory where not working for him period. He could not even remember Dr. Kaplan in that question above. They took advantage of his memory problems and concentration problems which is basically discrimination against his disability. I knew something was not right but I could not put my finger on it for all those years. My husband made excuses for all his symptoms such as the always thinking he had a flu bug that would not go away or that the pain was causing his pains in other areas of his body and he did not converse right. He was a good conversationalist prior to Levitz. He use to pace in the kitchen after he got off work at Levitz and I would ask what was wrong? He said he felt angry. I would ask why and he would say he did not know why? He did not have any reason to have that feeling yet he had it. He was not like that prior to Levitz. He was the same way when he was on medications after he went out of work. He is not like that anymore since we figured out the cause and have been treating it naturally.
In Worker's Compensation the defense has the burden of proof here. Not the applicant. Have them show me where my husband was positively diagnosed as a chemical injury and the chemicals as the cause of any of his injuries prior to Dr. Toth, Sr. . Dr. Donnelley did not do so and neither did any other doctors prior to Dr. Toth, Sr. . Until then according to the preemptive Federal Law concerning the statute of limitations it did not begin to run until a expert diagnosed it. Dr. Toth, Sr. was that expert that finally diagnosed it. That is that plain and simple!!!
Now since the Defense here wants to retry the civil law suite in Worker's Compensation court we want to bring out that as we already said our civil attorney did not do a very good fight. In most of there response to the Civil defense they said "that is irrelevant". Rather than proving that my husband did correct many of the answers the defense gave him or was just plain out of it at the time of the deposition as he was most of that time. Also they did not show all the times that my husband was even told by his own attorney in the deposition to "listen to the question" or all the times my husband said "I do not remember". My husband had his disability taken advantage of by seasoned attorneys for the defense who know how to play word games and mislead my husband in questions when my husband is spacing out. That is why I now say my husbands disability was discriminated against. And this defense is doing the same thing all over again even though federal law preempts state law concerning the statute of limitations and thus is started at the time of diagnosis as you yourself your honor initially told defense one of the times she claimed the statute of limitations. Dr. Donnelley's report was not a diagnosis. He could not determine the possibility of chemical injury without the necessary information and tests which was never allowed by defense.
Here is a bit more on the subject of the Statute of limitations and laws:
"http://www.law.berkeley.edu/journals/btlj/articles/07_2/Poulter/html/text.html"
"Judge Markey has succinctly stated an essential distinction between science and technology on the one hand, and law on the other:
The differences between the judicial and scientific-technological processes are profound and pervasive. Failure to recognize that difference has led to judicial expressions of frustration and an unfortunate tendency to rest judicial decisions on current, often transient, "truths" and "facts" of science and technology. The purpose of science is to learn physical facts. The purpose and function of technology is to provide a means of using that learning. All that is important and necessary, but that's all it is-learning and using physical facts.
The purpose and function of law is to resolve disputes and to facilitate a structure for the organization of a just society-in a word, to provide justice.80"
Your honor, justice must be served in this case also or you are going to have a society that is out of control. I know that justice will be your goal so I continue to make these points and produce these laws to back them up. I feel that justice will be on our side and prevail over this injustice, willful act of misconduct on the employer's and defenses part. The record stands here as to who is the liars and who is not. My husband has many pieces of memory lost to him. That does not mean he is a liar. He can not remember if he shampooed his own hair before he gets out of the shower all the time. It is proven he has memory and concentration problems and to take advantage of that is not right nor just. He does not even remember most of his children's childhood as they grew up. That bothers him greatly. He has lost important moments in time also not just what happened at Levitz and afterwards. Is that Justice to allow someone to take advantage of a definite disability such as my husband has and use it against him.
The preemptive Federal Statute of limitations law is more just than "Jolly" law your honor. How can a person get a fair trial if he can not even get a lawyer hired until he has a diagnosis by a expert. Even if my husband had of figured it out years earlier and yet could not find a doctor who knows this type of injury and chemicals effects he would have been up the creek according to that "Jolly" law the defense likes to use. Everyone knows that breathing car exhaust is bad for them but do they know that is what caused their stroke? No, they do not. Everyone knows that chemicals cause health problems but do they know that it happened to them and that is the reason for all their health problems without a doctor telling them so? No. Dr. Donnelley did not tell my husband that his health problems where from chemicals. Dr. Donnelley could not make that determination so how could my husband? My husband is not a expert and Dr. Kaplan afterwards said "No" to my husbands work environment and he is suppose to have been a expert.
1. Many jurisdictions employ the discovery
rule to determine when the statute of limitations begins to run. See Black
& Lilienfeld, supra
note 37, at 780; Strand, supra note 35, at 580-81
Discovery was not allowed until after June 1995. The time of the "possible toxic exposure" suggested by Dr. Donnelley was stayed pending the requested MSDS and medical tests according to Mr. Healy's only letter concerning this to Defense. Defense never allowed discovery and at that time applicant was still in the toxic environment and was never given training concerning MSDS or how to request them himself. No record of any letter from Applicant's attorney to defense concerning the stopping of the discovery phase was ever found in the Civil Law suite of applicant when subpoenaed and after the Civil records where given to applicant. What was found where a internal document between Traveler's and Defense attorney dated 1996. Showing that all the documents where given to the Civil Attorney and some. Applicant has subpoenaed all information and investigative evidence to defense and they never complied so any evidence would not be admissible at this stage due to defenses defiance of subpoena and would be suspected as being recently fabricated.
L. C. § 6361. (a) The Legislature finds and declares the following:
(1) Hazardous substances in the workplace in some forms and concentrations pose potential acute and chronic health hazards to employees who are exposed to these substances.
(2) Employers and employees have a right and a need to know the properties and potential hazards of substances to which they may be exposed, and such knowledge is essential to reducing the incidence and cost of occupational disease.
(3) Employers do not always have available adequate data on the contents and properties of specific hazardous substances necessary for the provision of a safe and healthful workplace and the provision of information and training to employees as is the responsibility of the employer under existing law.
(4) Many effective employee information and training programs now exist, and with the increased availability of basic information and with the extension of such programs to all affected employees, preventable health risks in the workplace would be further reduced.
L. C. § 6300. The California Occupational Safety
and Health Act of 1973 is hereby enacted for the purpose of assuring
safe and healthful working conditions for all California working men and
women by authorizing the enforcement of effective standards, assisting
and encouraging employers to maintain safe and healthful working conditions,
and by providing for research, information, education, training, and enforcement
in the field of occupational safety and health.
L. C. § 9000. This part shall be known and may be cited as the Occupational Carcinogens Control Act of 1976.
L. C. § 9003. "Affected employee" means an employee who, as part of his or her employment, is involved in the use of a carcinogen, or an employee with respect to whom there is a substantial probability that he or she will become so involved as the result of his or her employer's use of a carcinogen.
L. C. § 9004. "Carcinogen" means and includes the following recognized cancer-causing substances for which standards have been adopted pursuant to Chapter 3 (commencing with Section 9020):
(a) Any of the following substances and any compound, mixture, or product containing these substances:
(1) 2-acetylaminofluorene.
(2) 4-aminodiphenyl.
(3) Benzidine and its salts.
(4) Bis(chloromethyl) ether.
(5) 3,3'-dichlorobenzidine and its salts.
(6) 4-dimethylaminoazobenzene.
(7) Beta-naphthylamine.
(8) 4-nitrodiphenyl.
(9) N-nitrosodimethylamine.
(10) Beta-propriolactone.
(11) Methyl chloromethyl ether.
(12) Alpha-naphthylamine.
(13) 4,4'-methylene-(bis)2-chloroaniline.
(14) Ethyleneimine.
(b) Asbestos, including chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite.
(c) Vinyl chloride.
(d) Any other substance for which standards
are adopted and in effect due to cancer-causing properties and any compound,
mixture, or product containing such a substance, except as specifically
exempted from the standards.
The Below Quotes where taken from:
"T H E P H Y S I C I A N ' S G U I D E 18 OCTOBER 1997 CHAPTER 2 Basic Concepts:
Compensability Workers' Compensation" "http://www.dir.ca.gov/imc/ch2.pdf"
""The question of whether an injury is work-related is divided into two parts (LC §3600): s Did the injury "arise out of employment" (AOE), and s Did the injury "occur in the course of employment" (COE) (LC §3600). Arising Out of Employment (AOE) The physician plays a critical role in determining compensability, and therefore, in the injured worker's access to all benefits. Because the physician provides direct evidence on whether and how the activities of work have led to the current injury, the physician answers the question of whether the injury arose out of employment (AOE). ......
What we expect to be in this case concerning the Defense:
If it can be shown that the worker was injured "by reason of the serious and willful misconduct" of the employer or the employer's managing representative, the workers' compensation benefits will be increased by one-half (LC §4553).""
Comments on above quotes:
It shows that they did not provide willfully the requested MSDS for a discovery phase to take place medically in the applicants injury and this is serious and willful misconduct on the defenses side. They did not provide proper training and in accordance with the laws to prevent this injury and that also is serious and willful misconduct on the part of the employer and defense after the injury initially took place and before. This is obvious in that they did not provide the information in a timely manner while the applicant was still working for the employer in question. It also shows that even afterwards that the employee or applicant due to his being misdiagnosed and that information never provided to the doctor who mentions that there may be "possible toxic exposures", they are responsible by law for any further consequences caused by that serious and willful misconduct to the applicant. In the course of treatment the applicant was exposed further to medications/chemicals which only acerbated the symptoms and continued the injury to the point it is today. In fact, The applicant was never even informed of his rights to that information by the employer or defense concerning the MSDS. The employer never even told him what a MSDS was. The applicant was not allowed discovery until after June 7th, 1995 when applicant came to the knowledge that he could by law request the MSDS himself. That knowledge came in the form of information given to applicant on June 7, 1995 by the WC assistance officer at that time (Tani Perez) not by his employer or defense even though he was still working for his employer at that time it was initially brought up as a possibility by a doctor. Also the applicant did go to a doctor (Dr. Kaplan) and was told that the chemicals he worked with could not do what they did to him in March 1991. The applicant had no other way of knowing otherwise being that the defense did do this serious and willful misconduct to the applicant in not providing the requested MSDS initially in a timely manner nor any chemical safety training to begin with and afterwards. The applicants rights where violated and are still being violated to this day in defenses denial of responsibility.
The reason's they do not like the fact that my husbands story has not changed and the reasons they may be trying to retry to civil case in Worker's Compensation:
The reason the applicants story is the same as defense brought out is because it is the truth which is something the defense does not understand. They have made a career of lies and deception and the twisting of the truth and the truth is out of their grasps. It is not within them is why they can not understand why my husbands story has not changed from that of when it was the civil case. It has not changed from the time of the WC deposition Francie Lehmer gave my husband also. He may get a few details wrong now because of his bad memory but let the record show that until Dr. Toth Sr.'s diagnosis my husband was not told his injury was chemical related specifically by any doctors and the defense made sure that it was not going to happen as their record shows from that case we found. The defense could not prove my husbands education was sufficient for him to have known then of any detailed injuries caused by chemicals until my husband started checking into it in 1995 and still know expert told my husband he was injured by the chemicals until Dr. Toth Sr. in 1996. Even to the present day my husband is still learning new details to the extent of his injury caused by the chemical exposures and more can still be discovered except it is costly and defense has denied to pay anything on false grounds. Showing the lack of ethics and responsibility towards the employees who are injured
They are using the civil defense deposition and summary judgment because they where avoiding the issue of any medicals concerning toxic exposures during their own deposition with the applicant. They where trying to continue their lie. Now that it is out in the open though they are now trying to claim statute of limitations based on a civil case that should never have been lost in the first place and still excuse their initial lie that there was no medicals concerning toxic exposures to begin with.
Unconstitutionality of these laws as they stand!!! They are not equal as they should be.
Defense has the money to hire as many lawyers as they wish yet our lawyers are stuck at a measly 12% which is unequal and unconstitutional. This is allowing for corruption by lawyers taking money under the table to compensate for the lack of compensation they get through the system thus opening up the legal system to corruption and employee's being turned out to the wolves basically. Same goes for the doctors. Defense can pay their experts high amounts but applicant's doctors are limited as to what they can charge for their services by the Worker's Comp. System. It is unfair and unethical and unconstitutional. The defense can have as many doctors as they can pay for where as the applicant who has no money due to the loss of work only gets one QME doctor of choice. These rules are unconstitutional and unethical and plain outright unjust. Defense gets a little slap on the hand when it commits fraud where as applicants get prison sentences and large fines. This whole system is corrupted and needs a major overhaul without the insurance and employer's input in how it should be written.
Defense makes large sums of profits from a State enforced system yet does not live up to its responsibility and ethical obligation. They rather fight the injured worker with legal tactics and ploys rather than face the responsibility for the lack of protection concerning toxic injuries as the record is showing. The have the unfair advantage of money and are allowed to use it unhampered where as the injured workers are treated as the liars and cheats in this system. Limited to the resources they are allowed to use by unfair and unequal laws.
The defense has all these laws in their favor yet they are breaking them anyway! For them to even be allowed to claim statute of limitations and have my husband have to prove otherwise is unjust and shows this is not a no fault system here. They caused irreparable harm to my husbands health in ignoring the possibility of toxic injury and they are to be held responsible since it is a on-going continuos trauma injury for the rest of his life. There can be latent damage that will surface even later such as cancer or some other dangerous disease or diseases due to my husbands employment with Levitz. The worst part was this was all preventable just by properly protecting and training my husband to begin with. My husband would not have taken the job if he had of known that it would have been able to effect him this way from the very beginning. We could go on concerning this subject but it is not worth it. You know the truth concerning the fairness of this system. It is broken and corrupted and breeds corruption. When the defense can not be punished then what recourse does a injured worker have? You do not want to know.
Concerning a counter settlement offer!
Your honor as of the writing of this document they have not offered a counter offer to our latest offer. We could tell you wanted this settled and so we gave them what we feel was a fair offer to write off everything including future medical and etc. We know it was way below what it would have cost them in the long run if we took medical for life for his whole body. We offer them was a legitimate offer.
They will not settle with a reasonable offer of settlement and in a timely fashion here. Once this statute of limitations issue is over we leave it in your hands your honor. We would like it where they have no say as to what is paid for and that say is only in the hands of our treating doctor and any experts he refers us to for further evaluation and discovery if other problems pop up later.
My husbands injury is just as much Traveler's Fault as it is Levitz. Traveler's to keep insurance premiums down should have protected these types of worker's by requiring proper training from the very beginning. Levitz could have prevented my husbands injury and they did not and Traveler's should have made sure it was prevented and they did not.
In our offer we covered the fact that my husband has to have a home completely toxic free and environmentally safe for him to live in. He was told by Dr. Toth to fortify himself with supplements and we use herbs also which are costly. My husband will have to have toxic free products such as shampoo's and soaps and etc. All of our furnishings will have to be replaced with completely toxic free furnishings.
We already offered them a reasonable offer and it will not stand once we reach the court. All these things we mentioned add up as they are all special needs for my husband and we also will not be able to use chemical products around my husband and at the present time we do not have the finances to afford to buy the alternative chemical free products as they are substantially higher than normal chemical laden products. Furniture has to be custom made. He can not have synthetic carpets or bedding and clothing. Cleaning will also be a problem as he can not be around carpet and upholstery cleaning products and normal store bought household cleaning products now thanks to his employment with Levitz. These are expenses that they want to ignore but can not be ignored. They are special needs due to his injury.
Even in my husbands Worker's Compensation Deposition Francie Lehmer herself acknowledged that Formaldehyde is very toxic and yet that is what we later found out that my husband has elevated IgG's to, formaldehyde, which are worse than the IgE's in a normal allergic reaction. The furniture industry is full of formaldehyde and so was my husbands work environment as most of Levitz stock is particle board products and etc. that emit formaldehyde all the time for years. My husband at that time did not know that formaldehyde was dangerous. It was not that dangerous to his knowledge when Francie Lehmer did that deposition, but she knew it was. That may be why they are trying to use the Civil Defenses deposition instead of hers. At the time of her deposition they where still busy denying any medical existed concerning chemical exposures. Just like now they are denying they had a responsibility to provide those requested MSDS in January of 1991. Refer to Workers' Comp. Deposition, OAK 0188747, Tuesday, April 23, 1996, Page 53, lines 10 - 25 to Page 54, lines 1 - 6. This is the one Francie Lehmer did herself on my husband. Not the horde of lawyers at the civil defenses interrogation on a mentally disabled man. The ( ) will be my comments in these quotes:
"Q. Okay, and who are you currently seeing besides Dr. Toth?
A. Just -- I basically narrowed it down to him right now because he seems to know what he is doing.
Q. What is he trying to desensitize to you, and I doubt it would be formaldehyde. Nobody is suppose to be exposed to that stuff. (This is from Francie Lehmer's own mouth! Yet they are denying responsibility to my husbands injury.)
A. He said from all the chemicals I was allergic to, he calls it a microscopic amount inside in my mouth and tries to get your body used to it so it doesn't fight it.
Q. Did anyone ever tell you there was something wrong with your liver?
A. Let's see. I didn't find that out until after the hospital. (My husband is talking about the ER visit in August 1995 here)
Q. When you say "the hospital" are you talking about last year?
A. Yeah.
Q. And what hospital, then?
A. When I went for the -- because of the Ambien, and then I found out what the S -- SGPT stands for then. Then I started --"
So you can see that my husband did not even find out his liver was damaged until after the ER visit in August 1995 then he had to find out if it was chemicals that caused it? Francie Lehmer's first question quoted here, if you call it a question rather than a statement, says that Formaldehyde is dangerous basically and no one should be exposed to that stuff yet that is what was off gassed at that time by almost all the furniture my husband was exposed to and it more than likely is in some of his spray products. Here you have a lawyer for the defense saying that the one thing my husband so far has shown elevated IgG's to, which we learned after the Civil law suite was shut down in that Last specialized blood work up Dr. Toth, Sr. had done that also showed the ANA's to the myelin in my husband and T and C cell abnormalities around the year 2000, that this chemical is not suppose to be around anybody according to this deposition. According to Francie Lehmer's own statement!!! All the particle board at that time off gassed it. When my husband was in sales at Levitz-Pinole in 1987-88 he was exposed to a brand new store that was full of it from the new furniture and the building materials. It was even a brand new building. New carpeting and etc. . His warehouse he worked in was loaded with Formaldehyde from all that new furniture stored in those racks and under his nose. And they want to say he should have know? He did not know until after Dr. Toth, Sr. according to any experts.
What knowledge the medical files show my husband had:
Dr. Munday's Report Dec. 17, 1996 found in medical file:
Page 2 of 15, paragraph 2; "I then asked him his understanding of how he had been injured. He told me that he didn't realize it had happened to him until recently. In 1990, a doctor suspected chemicals, but the patient himself didn't believe this. He had worked with these chemicals for years and did not know there was anything wrong."
Page 3 of 15, paragraph 4; After the August 1995 ER in history it says ""His wife pulled down his kits out of the shed and wrote down the names of chemicals he had been working with, they started researching them. They got the Material Safety Data Sheets on some of them. He found out what the chemicals were like, "and we both started crying." Things where now starting to make sense after all these years.""
Page 4 of 15 paragraph 2; ""He says that in his deposition, "I guess I'd miss the point all the time."""
Page 5 of 15 paragraph 2; I am speaking about my husband here. "With regard to his concentration, it sometimes seems all right, and at other times it is really lousy. At a recent get-together, he couldn't keep a conversation at all. When he doesn't feel well, his concentration is worse."
Page 6 of 15 paragraph 10 to Page 7 of 15 ; ""Headache is present " all the time." It goes from temple to temple, across the forehead, and is pretty much steady pain. The headaches comes and goes and will stay for a couple of hours and then go. He doesn't know what makes it happen. He was having them before he left Levitz. Paula indicated that he would have a headache every day, and she started saying to him he was having headaches way too much."" (Which is one of the reasons I took my husband to see Dr. Kaplan in March 1991.)
Page 8 of 15 paragraph 1; "He says that he would sit down in the chemical and be drenched with it on numerous occasion. He remembers the guys laughing at him, and nobody realized how deadly these things are." (This is speaking about when my husband would sit on a Scotchgarded recliner or sofa to repair the piece of furniture in front of it on his repair dock. The chemical dried on his body and cloths on those occasions. He had no idea they where dangerous to him. My husband would not have allowed them to push those pieces of furniture on his dock until they where dry if he had of known they where dangerous.)
Dr. Sheila Bastien's report February 23, 2000 concerning the Statute of limitations issues found in the medical file:
Page 2 last paragraph; "He reports that while working for Levitz he was "soaked more than once" with Scotchgard. The furniture would be drenched in Scotchgard by the warehouse people, who would then push them into the repair shop. He sometimes would have to sit on the furniture to repair a lower portion of it, and the warehouse people would laugh at him, knowing that the furniture was soaking wet with the Scotchgard. He did not know that it was toxic at the time." (Instead of "repair shop" it should have said "repair dock". And it was usually to repair the lower portion of the piece of furniture in front of it. Just a few technicalities that where incorrect but you get the jest of this.)
Page 43 paragraph 7; "In reviewing the Material Safety Data Sheets (MSDS), those chemicals are known sensitizers. In addition, the problems from the MSDS reads like a Joe Hawkins symptom checklist. He has had nose, throat and respiratory tract irritation, breathing problems, headaches, nausea, vomiting, gastrointestinal irritation, diarrhea, skin dryness, rash, reddening, burning and irritation edema, liver and kidney problems, enlarged spleen, heart palpitations, aggravated allergy and sensitization, dizziness, vertigo, fatigue, confusion, dullness, central nervous system problems, and possibly convulsions." (This was not like this ever before he worked for Levitz furniture.)
Then you can refer to Dr. Kaplan's, Concord Family Practice Center, March 1991 medical information where we where trying to find out what was wrong with my husbands back then while he was at Levitz. The reason we think this information did not disappear was because we did not know that these symptoms where chemically related. So we never produced it as evidence until way later when we started figuring out this stuff after June 1995 and after we went to the August 1995 ER visit and after the ER I went to get Dr. Kaplan's information from that old doctors visit years earlier. Plus Traveler's was not my husbands normal carrier at that time. If they had of been I am sure this would have disappeared as soon as he went to see the doctor and they got the bill. That is what happened to the ER visit in 1990 the night before his first appointment with Dr. Zia at Delta Memorial in Antioch.
As soon as Dr. Donnelley mentioned that Hospital ER visit in April 1990 in the report it was probably made to disappear in the medical records of Delta Memorial. We saw first hand how fast records disappear when my husband went to the ER in August 1995 and before the doctor even got to see my husband his medical history we had already given to the entrance people disappeared both in hard copy and off the computer and the doctor got everything we said all backwards when she rewrote the medical history. For example we pointed out the hives or large red bumps on my husbands forearms to the doctor and as she was talking to us they went away on their own. That was not even noted in the medical report at all. But it was originally in the medical history on the computer that disappeared that very day.
Dr. Donnelley's first report originally said that he did not think my husband knew what he was working around yet now that whole section is gone and we do not remember it saying the words Material Safety Data Sheet in August 1995 yet now it says it.
On one of the ultra sound reports that we submitted to you the initial date on the top was altered so it seemed like it was the last ultra sound report when it says at the bottom when the date was and puts it in the middle. It is the one that says his spleen was at the top of what is considered normal. It said they could not find anything wrong with his Kidney yet the one before it and the one after it says that he does have something wrong with his kidney so to make it look like it cleared up the just changed the top date in hand writing, when in actuality the last one shows that the damage was even worse than the first one to his left kidney.
Documents are being altered and reports are produced such as Dr. Allems with the time line all askew on purpose. My husband has a bad memory, granted, but we both remember Dr. Donnelley's originally saying in his first report that my husband did not know what he was working around. Even recently we called him to see if we could have him find the original first report. He said he could not but he said he did recall saying something like that in the first report. It is not there now. He also just went through heart surgery and was weak.
Our story has not changed as if it is suppose to have because it is the truth. My husband has to read things himself to remember anything and even still he does not remember much of what he supposedly said back then. He does not remember that stuff in the Social Security file back then ever being written and he does not know where he would have learned that chemicals cause many complications period but again that is a generalization and is not a diagnosis or showing that he had any specific knowledge prior to June 1995. My husband did not even know he had liver damage until after August 1995 ER visit caused by medications he was on for his back injury here. This is plain and simple. They tricked him up into thinking what he read from Dr. Donnelley is what he was told at that visit or insinuating it using two different time lines and the fact is he knew nothing or we would have sued the chemical companies right then and there for what they had done to him.
In conclusion your honor:
Again my husband saw Dr. Kaplan March 1991 after Dr. Donnelley December 1990 and he was told "no" to his work environment as a cause for his symptoms. Accident Report Defense presented Dated in April 1991, a year later,shows my husbands real knowledge concerning that front injury he had. Which was none. In the letter in June 1995 to Traveler's the only thing he refers to that he seems to think at that time might be caused by the chemicals was being told his back was that of a 58 to 60 year olds. In other words he was not knowledgeable then also. What we know now is not what we even imagined then. And again the Preemptive Federal Law concerning the Statute of Limitations says that it is when a doctor says that my husbands chemicals caused his injury.
""Under the preemptive statute, California's statute of limitations cannot begin to run until the "date the plaintiff knew that the personal injury or property damages ... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." Angeles Chemical Co., Inc., supra, 44 Cal.App.4th at 122; quoting, 42 U.S.C. § 9658(b)(4)(A).""
""Applying the preemptive CERCLA rule to the client's case, it would appear that Jolly is preempted and the statute of limitations began to run only when the client's oncologist suggested to him that it was benzene in the solvents he worked with that caused his leukemia. Whereas the case may be time-barred under Jolly, it is apparently not to be time-barred under the CERCLA preemptive statute.""
That did not get diagnosed as a direct cause of chemicals until Dr. Toth, Sr. in 1996.
Dr. Donnelley did not diagnose it that day in Dec. 1990 and afterwards as he could not. The defense stonewalled the process of investigation. As they have a record of doing as the court case we presented in this document concerning Traveler's already shows. This your honor is willful misconduct on the Defense part. (Case No.: A078272, Vann vs. Travelers Indemnity Company ; "Insurance Code Section 1871.4"; "Labor Code 5401 (a)") The defense could not produce the documents saying not to produce the MSDS to the doctor. In 1996 the defense lied saying that they had no medicals in the files suggesting toxic exposures in other words, to our new attorney.
The defense could not produce the proof that my husband had proper training from his employer in the use of these chemicals nor that the MSDS where made available. That he was even told and trained about the MSDS by the employer. That the MSDS where made available in his work area at all times concerning the chemicals he worked with as was the law. [L. C. § 6361; 29 C.F.R. § 1910.1200(g)(8); see also, 8 C.C.R. § 5194(g)(8); California Proposition 65:In 1986 California voters overwhelmingly adopted Proposition 65which is now formally known as the Safe Drinking Water & Toxic Enforcement Act of 1986. Cal. Health & Safety Code § 25249.5 et seq.; Health & Safety Code § 25249.6.]
These are all laws the employer violated concerning my husbands work environment at the time he worked there. Showing a "willful act of misconduct" and that the Defense Council continued to violate in partnership with the employer after January 1991 requested MSDS where made by the doctor and applicant lawyer.
Even in June 1995 he did not know that he had liver damage. He did not know that he had kidney damage. He did not know that he had brain damage. He did not know that he had a sensitivity to chemicals. He did not even equate the medications as being chemicals that he was taking at that time after April 1990 to August 1995. Not until after the ER visit in August 1995. He is still yet to find all the real damage done to him. There may be a lot more happening that has yet to be seen in his body from those chemical and as the record shows they can even mutate cells and cause new problems which would not show up for even more years afterwards. His hands are without pigmentation and show he had them in solvent's way more than most his coworkers. He always thought he cut his hands so often that they where one big scare tissue as a reason for that. Dr. Bobrove did say that was a sign of chronic solvent exposure in his medical report. My husband always thought he was growing old was why all those things where happening to him. Or he thought he had the flu bug all the time. He did not even know that it was abnormal because of that mentality he had about his health. He did not know and I did not know why!!!
Remember your honor, "The court also noted that "Travelers had a nationwide practice of refusing to honor claims arising from environmental damage." (Case No.: A078272, Vann vs. Travelers Indemnity Company) They are just doing it again here in my husbands case as they have been doing since 1991. They made sure that it was ignored. They made sure the necessary information to make a diagnosis was never provided in the first place. Then after my husband figured it out the defense lied about it. (Insurance Code Section 1871.4) That is why they did not use there own deposition your honor. You need to read their 1996 deposition.
Due to the Preemptive Federal Statute of Limitations law we found what the insurance company says is mute or as my husbands ex-civil attorney would have said "irrelevant". Same goes for my husbands old worker's comp. attorneys. It is all mute! The fact of the matter is no one told my husband he had any Autoimmune response problems or brain problems or chemical sensitivity or allergic reactions or anything like what he has now until after Dr. Toth, Sr. and he was diagnosed in 1996. Not a "possible" but a definite diagnosis. So until then it was all mute.
Except that due to the lack of the defenses cooperation in 1991 my husbands health suffered even worse thanks to the medications he was using unknowingly for his pain and etc. And the fact that this was all preventable if they would have only properly trained him and informed him in the first place. Now he has to live with their negligence for the rest of his life since you can not turn off a autoimmune response. But legally speaking the Statute of Limitations is not a issue now and even the civil defense should have lost on the issue due to this law that was around back then if my husbands lawyers where on there toes. They did not even bring out these laws your honor that we showed you here. We still have not written off those chemical manufacturers either encase of a new finding which we are sure we will have the more we dig. Sorry this did not get settled as you seemed to wish it would. We tried though. They do not care to so we leave it in your capable hands and may Jehovah God be with you in your decisions.
As to the Mr. Healy as their witness issue:
They misquoted what was said in the Judges chambers. We are not going to correct them either as it was not us that took their notes. It strikes us strange that the only witnesses they produced on paper where Case worker's for them and my husbands first attorney? Who's side was he really on? It really makes one wonder?
We did not produce any written communication between my husband and his attorney and this is not a criminal prosecution case against Mr. Healy at present. So, at present my husband refuses to release the attorney client privilege. (He would like this privilege explained to him if you do not mind?)
All the rest of the documents that where produced and the one they refer to came from the doctor's and the defense's themselves and where not to my husband and where already made public record as soon as they where introduced to the civil deposition by the civil defense lawyers.
If for some reason you decide it is necessary to call him, still, since we protest him as a witness. Then we fell it is only fair that Dr. Donnelley and Dr. Swartz and Dr. Kaplan be called as witnesses to personally testify also in this case.
You already said no to breaking the attorney client privilege issue in a court order and as we said it really seems that they are pushing this very hard as they must have control over him as we suspected.
The defense was also the ones who produced the forged document concerning the 1987 injury from Mr. Healy, not us. In fact it is suspicious that it was used as it was used because it had nothing to do with the Toxic injury case in reality except to inflame my husband further as to what has happened to him.
We reject him as a witness and petition that he be refused as such!!!
Thank you your honor,
Wife of Joe Pat Hawkins, Paula Mae Vitko-Hawkins and this was read
and accepted by Joe Pat Hawkins.
Date _________
Signed ______________________ & ____________________________
CC:
Defense : Francie Lehmer
(Just so you know the Defense lawyer "Francie Lehmer" claimed "Res Judicata and Collateral Estoppel" Because the where had a lien on my case in the civil law suite. We will handle them in the next document we submit. They are going down legally speaking and they know it and are grabbing at straws hoping we will lose due to our ignorance. The problem is we have someone higher than any man on earth helping us be victorious, Jehovah God "Psalms 83:18" as is in the older translations before man has removed his name from all the newer versions and translations of the bible which is another issue we plan on getting to soon. Placed on the net 6-26-02 This is our situation and story and you can see it all at a later date when this case is over with. Press back on your browser to return to the previous page!)