Hernandez v. Hopkins, et. al.

The story you are about to hear is true. No names have been changed to protect the innocent or guilty. Some testimony has been condensed due to mind-numbing boredom.

Israel Hernandez and his wife Vilma Hernandez sued Dr. Hopkins and a company called Safco.

Israel claimed that he contracted HIV after being stuck by a needle left in the regular trash of Dr. Hopkins’s office, which was leased from Safco.

This Safco is not related to the large office supply company. It’s a small property management company owned by a man named John Safi.

I was chosen to be a juror on this trial on Monday, 9/27. During the selection process, I was asked about my knowledge of HIV (not that stellar,) whether I’d ever owned rental property, and various other questions that seemed completely random at the time. I was almost certain that my shaved head alone would get me excused, but unlike some people on the street, they seemed to understand that I was in no way a racist or neo-nazi.

Many people have asked, “Why didn’t you just say something like, ‘I hate all black people’ to get off the jury?” Well, as often as I can, I faithfully pursue a policy of truth. I would never lie in a situation like that, or in most other situations. Everyone complains about jury duty. Everyone on this jury complained about the time the case took out of their lives. But we all understood that this was a very serious situation, and it was our duty to be as attentive and diligent as we could. In a very real sense, lives were at stake.

And so I suddenly found myself standing and taking the oath that made me Juror #9. “Crap,” I thought, “This is going to screw up my Big News schedule.” Well, I was soon to be reminded of just how incredibly lucky I am, and how incredibly lucky most of the people who can read this are.

The first witness was Israel Hernandez. He speaks no English, and so we had to wait for each question to be translated by an interpreter, then for his answer to be translated back to English. This made his testimony basically twice as long as “normal.”

Israel is 34 years old, and from Guatemala. He has no education whatsoever. He cannot read or write in Spanish or English. On the stand, he was a little woozy and had to stop several times due to diarrhea. This was due to the drugs he was taking for HIV. Before this trial, I had no idea that many people react very badly to the “drug cocktails” that control HIV. It’s quite a bargain: to not die of AIDS, but to suffer from headaches, nausea, diarrhea, and liver problems. Not everyone gets these side effects, but Israel had them bad.

In 2002, Israel was a janitor working for a small company called K&P Janitorial. He and his wife were the two night janitors for the Crenshaw Medical Building, a medical office building, at least 5 stories tall, in a “bad” part of town. Their job was to dust, vacuum, mop, and take out the trash. But only the regular trash. Sharps containers, those red boxes where doctors and nurses throw needles, were not their responsibility. In fact, they had been told to never touch those boxes, as they might be dangerous.

Around January 21, 2002, Israel was working in suite 507, which belonged to Dr. Hopkins, a cardiologist. He pulled the trash out of a trashcan, put it in his bin, and pushed down on it to make it fit. He felt a sharp prick and found that a syringe was sticking into the palm of his hand. It looked like there was some blood in the syringe. He pulled it out, and his wife put some alcohol and a band-aid on it.

Israel could not read. Neither could his wife. Although it was never specifically stated, my guess is that they knew nothing about infectious diseases and how to protect against them. To them, a needle stick was not an emergency. It was an inconvenience. Reflect for a moment on how different their world is (or was.)

The next day, Israel called his supervisor, Araceli, (only he and Vilma were on site) and told her he had been stuck by a needle in the trash of 507. Araceli told Israel a few days later that the problem was taken care of.

Still, Israel was careful with the trash from 507 for a couple of months. Then,
once he was relaxed back into his regular routine, he was stuck again by a used syringe in the same suite. Feeling that Araceli would ignore him, he never told her about that incident. From then on, he used a stick to poke around in the garbage of 507 to make sure he wouldn’t get pricked by a needle.

In August, Israel wasn’t feeling well, and he went to a clinic. They gave him a blood test that included an HIV test, and he was positive. This was pretty devastating to an uneducated man from Guatemala.

He said on the stand that he never used drugs and that he had always been faithful to his wife. They had four children together, the oldest 13, the youngest a little over two years old. The baby was conceived while Israel definitely had HIV, but his wife and the child have tested negative.

Now, I don’t know that much about HIV transmission. I knew far less at the start of the trial. But based on what I do know, I’d be off to the emergency room if I got stuck. I would be, well, in a panic. Not so much because of what I know, but because of what I don’t know.

At this early point in the trial, I was mostly willing to believe Israel Hernandez. But I could never quite get a perfect read on him because of his constant squirming and head rubbing. Also, hearing someone through a translator is not a good way to gauge someone. I just wasn’t 100% sure about him. On the other hand, it was 100% proven that he was HIV positive. So. what happened? And how else could he have gotten it?

Next up was Araceli (I didn’t write down a last name.) She was K&P’s off-site supervisor for Crenshaw Medical as well as a few other buildings. She would check in with the various buildings at least once a week to make sure everything was being cleaned properly.

Araceli said she had a third-grade education in Mexico. She could understand some English and write some, but she used an interpreter for her testimony.

She said Israel had called her the day after the first needle stick and told her about it. Araceli also failed to see any significance to the event beyond it being a source of minor pain. She didn’t report it to her boss, the owner of K&P.

Not having any direct relationship with the tenants of Crenshaw Medical, Araceli decided to tell Tom Klugeman, the off-site building manager for Safco. They already had a meeting scheduled, because Israel and Vilma were not setting the building’s alarm properly, and the police had shown up a couple of times. During their meeting, Araceli, to the best of her English abilities, told Klugeman about the needle stick. Klugeman, speaking no Spanish, said he would take care of the problem. I don’t have it in my notes, but I think she said that Klugeman later told her the problem was taken care of.

And to me, this is where we see the first big problem. Araceli and the Hernandezes did not understand the significance of a blood-filled syringe sticking Israel. They also didn’t seem to understand the significance of syringes in the regular trash. Tom Klugeman should have. He has at least a high school diploma. He manages multiple properties. He’s lived in American culture for the last 20 years. His reaction should have been somewhere in the range of HOLY FUCKING SHIT! Instead, he sent a letter to Dr. Hopkins saying, basically, “Hey, the janitor found a needle in your trash. Could you check that out and make sure it’s not a regular problem?
You know, if it’s not too much trouble?”

At this point, I was also ready to throw the book at K&P. The janitors were supervised by a woman with almost no education, whose qualifications were that she could sort of speak English and write a little bit, and she’d been with the company for a while. I’m all for promoting from the inside, but Araceli should not have been supervising those janitors. So many things could have gone wrong that she would have no idea how to handle. In this case, she didn’t even realize there was a BIG problem.

To clarify the needles-in-the-trash aspect: It is not okay, nor legal, to put syringes or ANY biomedical waste into the regular trash. Needles go in sharps containers, waste goes into special red bags. Both the containers and bags are picked up by a special company that deals in that kind of waste. For a doctor or nurse to put needles – on purpose
– into the regular trash is completely unethical, dangerous, illegal, and,
well, evil. It’s almost like driving down the street and occasionally tossing a hand grenade out the window.

Next on the stand was Kelly Lynch, owner of K&P. She bought out “P” over a decade ago. Her janitorial business has grown over the past few years. She has contracts with dozens of buildings now.

She said, and eventually broke down in tears, that if she had known about the needle stick, she would have driven Israel to the hospital that very night. But Araceli never told her about it.

She also said that the original Safco contract had been for a more “thorough” cleaning, but they had asked for a much cheaper service level. This was our first definite indication that Safco was a commercial property “slum lord.” She also toured the building when the contract was first signed, and thought that it was not that clean, and not in the best repair.

When Israel was diagnosed in August, she was panicked. She called her worker’s comp insurance guy and he told her to go to suite 507 and take pictures. For a whole week, Kelly and sometimes the insurance guy went to 507 at night to take pictures. They found several used syringes and bloody rags in the trash every night. The office seemed to be in disarray. There were Playboys in the bathroom and a bottle of Jack Daniels on the doctor’s desk. What the hell was going on there?

Kelly Lynch wrote a letter to Safco saying that they would not be cleaning suite 507 due to dangerous conditions.

She seemed to be genuinely broken up about what happened. I think for her, this should be a time of soul-searching. Without realizing it, has she become someone who exploits illegal immigrants for her own gain? Has she become willing to look the other way until a major problem occurs with one of her employees? Is she willing to, for lack of a better term, let the blind lead the blind by putting people with no education into supervisory roles? The Dark Side calls her. I hope she doesn’t answer.

Also, I don’t think she should have been employing illegal immigrants. I just don’t think the people who have strived to come here legally should be passed up for those who just moseyed in. Also, employment of illegals encourages more illegals, and thus more people are exploited by unscrupulous businesses. No no no. I’m not saying any more about this. Whole ‘nother issue.

We heard from Vilma Hernandez, who told the same story as Israel about the needle sticks, and how she thought nothing of it at the time. She also mentioned that suite 507 always seemed to be really messy.

Next we heard from a couple of economists, insurance agents, and CPA‘s. Israel was the one suing. But if he won, $320,000 of the award would go to K&P’s worker’s comp insurance company. They had settled with Israel for that relatively small amount. Coffee came in handy here.

We also heard that the plaintiff’s expert felt it would cost $1.2 million over the next 20 years to keep Israel alive and semi-healthy. The defense’s expert said it would only cost $300,000. Then there was an objection. We had to leave the room. When we came back in a few minutes later, we were told to disregard the defense expert’s testimony. We found out why much later.

Tom Klugeman, the off-site manager of the building for Safco, took the stand. A lot of the questions asked of him were objected to (sustained.) He basically talked about his duties, such as they were. Safco only has a few employees. He would show up at the building once in a while, maybe every couple of weeks, and check to make sure nothing was obviously broken. He would also show up if a tenant had a plumbing problem, etc. Basically, he would do the absolute minimum needed.

He said Araceli told him about a problem with needles in the trash of suite 507. He wrote a letter to Dr. Hopkins, who was on the lease, and then called about a month later. Someone answered the phone, “Doctor’s office.” He asked if they’d gotten the letter. The person on the phone said yes, and the problem was taken care of. That was the extent of Klugeman’s actions. No visit to 507. No double-checking with Araceli.

To me, this reeks of negligence. Not only could a janitor get stuck (he was unclear on whether Araceli told him if someone was actually injured,) but this means needles are going into the regular trash! To not act on this is negligent. Criminally negligent, if you ask me. This seemed to be Safco’s mode of operation: maximize profit by minimizing service. and safety.

John Safi, the owner of Safco, took the stand. He tried to map out the relationship between the four entities involved in the building: Safco Capital Corp., Crenshaw Medical LLC, Crenshaw Capital LP, Safco Holding General Partners. what? He said that Klugeman never told him about a problem at Crenshaw Medical Building. That was about it for his testimony.

Safi seems to form companies on a daily basis. This is to avoid taxes and liability. I think he has no interest beyond maximizing profits at the expense of things like building upkeep and safety.

The plaintiff’s expert doctor, Dr. Galpin, took the stand. A major-league expert in infectious diseases and specifically HIV. He explained the difference between HIV and AIDS. It’s basically just a matter of severity. If you have HIV, you have HIV. If you have a really low t-cell count and any of a number of opportunistic infections, you have AIDS. So basically, AIDS is really bad HIV (oversimplification, yes.) People who get to the AIDS level will suffer major health problems even if they manage to get their t-cell count back up.

Dr. Galpin said IV drug use is the most common source of infections. Thus the implication that a needle stick would be a common way to get HIV. But on cross, he admitted that there are only 50-60 cases of an accidental needle stick actually infecting someone with HIV. This is in the whole history of AIDS.

He also said that Israel did not have any other STD‘s, nor any diseases commonly associated with IV drug use. So it was his opinion that he didn’t get it through sex or drugs.

He said that in his opinion, we can’t tell when a person was infected with HIV.

This was all very eye-opening. Then came the defense’s doctor.

Dr. Daar. Also a major-league AIDS doctor. Has had 17 studies in peer-reviewed journals. Regularly works with over 300 patients living with HIV and AIDS.

He plays up and expands on what Dr. Galpin said: There are only 50-60 cases of a needle stick ever causing an infection. He said there are around 700,000 accidental needle sticks a year nationwide. Of those, at most 3 will get HIV. If they get immediate therapy, they may become HIV-free.

He said there are currently over 20 drugs that can be used in various “cocktail” combinations to try to control HIV. Most people have relatively mild side-effects.

He contradicted Dr. Galpin’s testimony by saying that around 85% of U.S. infections are from sexual contact, not needles. He also talked about how many of the people he councils (he works almost exclusively with poor, uninsured individuals) cannot remember or will not admit to any high-risk behavior. Denial is not a river in Egypt.

He also drew a graph showing that people usually get a very high virus load early, then it drops off after a few months. Israel didn’t have that high virus load in 2002, so Dr. Daar said it was likely he had had HIV
for more than just a few months in August of 2002. Another contradiction to the plaintiff’s doctor.

And now I had switched sides. Would I be willing to admit that I’d had an affair, or been with a couple of hookers in a situation like this? Would I be able to wash memories of my own high-risk behavior from my mind and blame it on a different, accidental event? I don’t know. Maybe. Maybe Israel could, too. Or maybe not. But 50-60 cases total? Was this really case #61? I wasn’t convinced.

Over the course of the testimony, this is the picture that was starting to emerge: Dr. Hopkins was a 78-year-old cardiologist. He never did any invasive procedures in his office. In January 2002, he was in the early stages of Alzheimer’s. He was phasing out his practice.

Someone named Dr. Jones asked if he could use Dr. Hopkins’s now-empty exam rooms for his gynecology practice. Dr. Hopkins sub-leased his office to Jones. But he never told the building management that he was doing this, as required by his lease. Dr. Hopkins only came in to the office once every week or two, to collect his mail. He admitted to getting the letter from Tom Klugeman saying there was a problem in his suite, but there’s no record of what he did about it. We do know he didn’t call Klugeman up right away, or ever. Klugeman called his office and someone said the problem was handled. Was Dr. Hopkins already out of it to the point where he didn’t respond to the letter, or did he want to keep Dr. Jones’s sublease a secret for some reason?

In December of 2002, Dr. Hopkins terminated his lease. In December 2003, he died. By the time he passed, he was completely out of it due to the Alzheimer’s.

Who was Dr. Jones? Why wasn’t he being sued? It sure sounded like he was the one using syringes, and probably throwing them in the trash.

Closing arguments from the four different lawyers took almost a day. Then, it was time to deliberate. For the first time, we could talk about the case with each other. Up to that point, we’d had to talk about anything but the trial. I quickly established myself as the comedian, and was able to get the other jurors to laugh so loud the judge asked us to “keep it down.” You know, making 11 strangers laugh with improvised material is pretty cool.

We were given a verdict form with 8 questions on it. If we answered “yes” to a question, we could move on to the next one. If we answered “no,” we would stop and be done. For example, “Did Safco own the building?” Yes. “Go to the next question.” “Was Safco negligent?” Yes. “Then decide damages.” That was the general form of it. This being a civil case, we had to have at least 9 people vote the same way to record a verdict.

And now came the shock. There were only two of us who thought it was possible that Israel had gotten HIV from some other source. We argued for hours back and forth about the various minutia of each witness’s answer, of what we knew and didn’t know. Vilma had gotten pregnant in July of 2002. Her and the baby were negative. Is this common in the very early stages of HIV? Not common? More common if the father has had
HIV
for a couple of years?

We convinced two more people to come over to our side. So now the vital votes would be 8 to 4. Not enough for a decision.

The next day, one juror swung back to the “yes” side and now there were the necessary 9 votes to award Israel damages. Us hold-outs had answered “yes” to the question, “Did Safco’s negligence cause harm to the plaintiff?” Harm? Well, yes. No question about the needle-stick. “Harm” we could all agree on. But the hold-outs limited “harm” to a stick. The majority defined it as “HIV.” So the majority wanted to award millions of dollars. The hold-outs wanted to award zero.

The three hold-outs (me included, remember) didn’t participate very much in the awards decision. Rather quickly, the majority decided on $1.2 million for future medical, $2 million for pain and suffering, and $1 million for Vilma’s pain and suffering and loss of consortium. While I didn’t vote for this, I was not upset that Israel would get what he needed to live. And as I told the others, “I have no problem with spanking Safco.”

On the third day, the “how he got it” question was re-opened. A couple of people in the majority wavered, and many old arguments and some new ones were brought up again. Why was the baby negative? What is a “normal sex life?” Would he even have time for an affair? And always. only 60 cases.

Who was trying to convince whom? I think quite a bit of it was the majority trying to convince the hold-outs. These debates went on long after the majority had the nine votes needed to move on. Yet they still wanted to sway us. We were all close enough after two weeks to have some sense of unity. Why were these three guys not seeing it our way? We know them. We should be able to convince them.

I found myself on a few occasions reminding the others that they had the 9 votes needed. They’d heard us, we’d heard them. Take the majority and move on.

Finally came the assigning of blame. We had 100% to divide up between: Safco,
Dr. Hopkins, Dr. Jones, K&P, and Israel himself. Here’s what I wrote in my notes as my original answer:

Safco 10
Hopkins 10
Jones 35
K&P 35
Israel 10

Safco: Before the first needle stick, they were merely guilty of being slum lords.

Dr. Hopkins: May not have been in the office, may not have seen what was going on, may have been too out of it.

Dr. Jones: He was the one throwing the needles away. To me this was paramount.

K&P: If someone at a level lower than the owner had known how serious the problem could be, Israel might have gotten treatment.

Israel: On more than one occasion, he was told not to push down on trash. Another janitor had been cut by broken glass by doing that.

Here is how the majority voted:

Safco 35
Hopkins 50
Jones 0
K&P 10
Israel 5

Safco: Very negligent after the stick. Should have been more follow up. Can’t argue with that.

Dr. Hopkins: The lease holder. Didn’t notify Safco. The majority felt he knew what was going on in his office and yet did nothing.

Dr. Jones: Not on any legal document. Some fear that blame allocated to Jones would mean less money for Israel.

K&P: Their number is mainly what was left over after filling in the other blanks.

Israel: Some responsibility based on the “don’t push down” instruction. Not so much, because that’s what janitors do.

I felt that I could not give zero percent to the person who actually threw out the needles. The majority felt that that responsibility fell to the lease holder alone. However, there were four people demanding that Jones get some blame. But after a few more hours of debate, someone caved (I forget the exact reason,) and the majority had the 9 needed votes.

And so, after another vote of 9 to 3, we were suddenly done. It was over. The foreman quickly signed the verdict form and sent it off. Now there could be no more second thoughts. We could, perhaps, begin to free ourselves, at least a little, from the case.

I was not unhappy. I told the other jurors so. I could not feel sorry for Dr. Hopkins or Safco. I was hopeful that Israel would be able to lead a long life, and that a “better” (non-free-clinic) doctor might switch him to a cocktail that didn’t cause him such health problems. Israel’s four kids might have a father for a long time.

But everyone wondered: Who is Dr. Jones? Is he even real? Is he in jail?

The verdict was read. The jury was polled. The plaintiffs were awarded $4.2 million.

Outside the courtroom, the lawyers met with us. Now there were no taboo subjects. The plaintiff lawyers wanted to know what convinced us. The defense lawyers wanted to know what would have changed our minds. But first, we demanded to hear the story of Dr. Jones.

Dr. Jones may or may not have an actual medical license. He finds a doctor with some extra space and asks if he can sublease it. After a few months, he leaves without paying a cent. His clientele is mainly street hookers. He provides a cheap OB/GYN service for a cheap price, and maybe a little something extra on the side. He’s declared bankruptcy several times to avoid liability. He’s also moved from city to city and state to state to avoid prosecution. His current whereabouts are unknown. Due to some sort of legal complication with his bankruptcy, we were not allowed to hear this during the trial.

Upon hearing this, I instantly changed my point of view and joined the majority. Now instead of women (as a whole, less likely to be HIV+) being treated by an OB/GYN, we had street hookers (as a whole, a very high-risk group) being mangled by a butcher. I was convinced. Israel was case number 61. No doubt in my mind.

Oh, the sudden chill. What if I, or the other hold-outs, had convinced the rest? What if we all had voted (as I did) to give him noting, because we thought he’d gotten HIV some other way? To have done that, then come out and heard this new information. I would find it hard to live with myself. That would rank as the worst thing I’ve ever done in my life. No matter that I couldn’t have known beforehand. It would have been devastating. I thank the other jurors so much for not following me down that road, for using just as much logic as me but coming to a different conclusion.

And what have I learned?

  • What you don’t know can kill you.
  • Dr. Nolan Jones is a fucking asshole who should be put away for the rest of his life. He is a no-good, scum-sucking turd. Nobody knows where he is, but if you want to see his picture, just look up “evil” in the dictionary.
  • Sometimes winning the lottery is a bad thing.
  • I was the wrongest I’ve ever been in my life.
  • Take a random sample, and you’ll find that Los Angeles is full of good people. I served with 11 of them.
  • Capitalism can lead the nicest person down the path of greed and exploitation.
  • It’s very hard to make a decision when you don’t have the whole picture.
  • Twelve people will see any event twelve different ways.
  • There’s a third-world country just a couple of miles down the road. We’re doing nothing to make it better.
  • Drug cocktails have not made HIV a mere inconvenience.

 

So I return to my nice condo on the 7th floor and my big TV and relatively clean kitchen and bathroom, and my big comfy bed. And now if someone asks how I am, and I answer, “Can’t complain,” I mean it.

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