Attorney Benjamin Ikuta recently issued an analysis of Grabowski v. Kaiser Foundation Health Plan, Inc. (Cal. Ct. App. No. D076968) a landmark Kaiser arbitration case. The analysis, published in The Los Angeles Daily Journal, explains that the case is critical in helping to ensure a fair and unbiased process in arbitration. It is a long overdue ruling regarding improper ex parte communications in arbitration.

The case is the first opinion analyzing ex parte communication under the arbitrator’s disclosure requirements under Code of Civil Procedure section 1286.2(a)(6)(A).

An ex parte communication occurs when a party in a case, or someone involved with a party, communicates directly with a judge or mediator about the issues in the case without the other parties’ knowledge. In short, Grabowski held that an arbitrator’s failure to disclose an ex parte communication with the prevailing party that showed potential bias mandates vacating the arbitration award.

Grabowski held that the arbitration award must be vacated regardless of whether the aggrieved party can prove prejudice or that the improper communication impacted the final award.

Facts of the Grabowski Case

Grabowski involved a medical malpractice claim where the claimant argued that Kaiser Permanente healthcare providers failed to properly diagnose an ovarian tumor for years. As in nearly every medical malpractice case against Kaiser, the patient was subject to a binding arbitration agreement.

At arbitration, the claimant represented herself in pro per, with assistance from her mother, who was recording the proceedings on her cell phone. During a break, her mother inadvertently left the recording running as she and the claimant left the room.

Also during that break, the arbitrator and the Kaiser attorney engaged in ex parte communication without the claimant present. They discussed how difficult the case was factually and how it was “the wrong case” for the claimant. In addition, the arbitrator made certain comments making light of the claimant’s self-representation and her inability to provide effective representation for herself.

In the recording, the arbitrator and defense lawyer are heard sharing a hearty laugh regarding the claimant’s shortcomings as an advocate. The laughter was both mocking and disrespectful in nature.

Grabowski Ruling

The Grabowski ruling ultimately applied Code of Civil Procedure sections 1281.85, 1281.9(a) and the Ethics Standards, stating that an arbitrator has a continuing duty to disclose any matter that could cause doubt that the arbitrator is impartial.

The Court further explained that “the arbitrator’s ex parte communication with Kaiser’s counsel could cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial.” Accordingly, the arbitrator in this case was required to disclose the communication so that the claimant could decide whether to seek disqualification.

In Grabowski, “[t]he arbitrator’s failure to disclose a ground for disqualification requires that the arbitration award be vacated without any further showing of prejudice.”

Impacts of Grabowski

Prior to the Grabowski ruling, claimants may have frequently had their legal options regarding arbitration awards limited. In earlier cases, claimants had to show a nexus or connection between the improper communication and the adverse award. Instead, Grabowski allows arbitration awards to be vacated without any further showing of prejudice.

Ikuta explains in his article,

“Unfortunately, perhaps due to the more informal setting of arbitration, improper and prejudicial ex parte banter occurs far more than it should. Too often, such conduct occurred without any repercussion. Particularly in medical malpractice actions, which typically involve serious injury or death, such improper conduct is a stain on the entire process. The Grabowski opinion is crucial to dissuade the type of behavior that occurred there, behavior that was discovered by happenstance. Grabowski will help ensure all parties have access to a fair and impartial process in arbitration.”

Read Ikuta’s full analysis of Grabowski here.

About Attorney Benjamin Ikuta

Benjamin T. Ikuta is a partner at Hodes Milman Ikuta, LLP. He focuses his practice in medical malpractice cases on the plaintiff side. Ikuta has successfully litigated many cases involving birth injury, delay in cancer diagnosis cases, and elder abuse based on neglect.

He was also recently featured in the Daily Journal after settling two notable seven-figure cases: a $1.5 million settlement for a pedestrian hit by a car at a crosswalk, and a $2.1 million settlement against a fertility clinic on behalf of a couple who bore a child not biological to the father. Ikuta was featured in the Top Verdicts section of the publication.

About The Los Angeles Daily Journal

The Los Angeles Daily Journal provides California attorneys with the timely news and relevant information they need. Coverage includes updates on the courts, regulatory changes, State Bar, and legal community. It also provides California civil case summaries from attorneys and legal experts.

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