SAN DIEGO (Legal Newsline) – A young woman representing herself has scored a victory in a California appeals court after arguing an arbitrator made inappropriate remarks about her.
The Fourth Appellate District in San Diego ruled recently for Joanna Grabowski, who argued the arbitrator hearing her medical malpractice claim committed misconduct by criticizing and laughing at her decision to be her own advocate.
That arbitrator, Byron Berry, ruled against her claim that Kaiser Foundation Health Plan failed to diagnose a large, benign ovarian tumor. Abnormalities were noted in an early radiological scan by a Kaiser doctor who recommended a follow-up, but Kaiser did not do so.
Grabowski said she experienced severe pain and discomfort in the subsequent years. Eventually, a melon-sized tumor was discovered while Grabowski was a teenager, and a surgery removed it.
Grabowski was college-aged when she took her claim to arbitration and aided by her mother. She introduced expert testimony in support of her claim over the five-day proceeding but Berry found her tumor could not have been diagnosed until it became as large as it was.
But Grabowski’s mom had been recording the hearings on her cell phone and accidentally left it taping when she left the room. It caught an ex parte discussion between the arbitrator Berry and a lawyer for Kaiser.
The cell phone caught Berry saying:
“How can you not have an attorney? Even in some union cases and stuff that I deal with quite a bit. (Laughs.) Private cases, uh, or what have you, ’cause even with, uh, in union cases, uh, they have representatives who are not attorneys, but they know this stuff so well, they might, uh, you know, they’re just as qualified as an attorney.
“So, she must have a representative that you can rely on, you know, to make sure that everything’s done correctly. You know, but this is . . . . (Laughs.) [She] picked one of the toughest, factual cases I’ve ever dealt with to have somebody in (pro per). (Laughs.)”
Grabowski and the lawyer she hired to take her appeal of Berry’s ruling to San Diego Superior Court said his comments, tone and laughter showed disrespect and disregard – grounds for disqualification.
She also said Berry failed to disclose two matters involving Kaiser in which he was appointed arbitrator. She said she would have moved to disqualify him if she’d known about them.
The San Diego judge found Berry’s comments did not amount to prejudice toward her and ruled against her other arguments.
“The communication showed that the arbitrator had concluded that Grabowski could not be an effective advocate for herself,” Justice Patricia Benke wrote for the Fourth District.
“While this conclusion may not necessarily evince bias in and of itself, the arbitrator’s decision to share his conclusion with Kaiser’s counsel certainly does. The arbitrator plainly felt a connection to Kaiser’s counsel, which made him comfortable enough to violate ethical rules and comment on Kaiser’s opponent.”
Benke called Berry’s tone on the recording “striking.”
“The arbitrator commiserated with Kaiser’s counsel about their shared predicament (in his view) and shared a hearty laugh at Grabowski’s expense,” Benke wrote.
Though Grabowski was represented by counsel in the San Diego trial court, she took on the job herself at the appeals court.
The decision orders the trial court to vacate the arbitration award, seemingly giving Grabowski another chance to make her medical malpractice case.
Kaiser is represented by lawyers at Davis, Grass, Goldstein & Finlay.