Present: IRELAND, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.1 Leslie W. O'Brien for the defendant. Fawn D. Balliro Andersen, Assistant District Attorney (John C. Verner, Assistant District Attorney, with her) for the Commonwealth.
The defendant was indicted for the armed robbery and murder of Paula Doherty. The victim was last seen alive on Saturday, September 30, 2006, at her Medford residence, where she, a friend, the defendant, and the defendant's nephew had been using cocaine. When the friend left at 5:30 P.M. that afternoon, the defendant had passed out in a chair in the victim's room and the victim was preparing to go to sleep. On Monday, October 2, after the victim failed to return telephone calls, the friend went to the victim's house to check on her, and discovered the body of the victim, who had been beaten to death. A Superior Court jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, with armed robbery as the predicate felony.
On appeal, the defendant contends that the trial judge erred in denying his motions for a required finding of not guilty, because the circumstantial evidence of guilt was insufficient to establish that the defendant was at the scene of the crime during the period when the victim was robbed and killed. The defendant argues also that the judge erred in allowing the admission of expert testimony concerning the potential absence of blood on the victim's killer. We conclude that there was no error requiring reversal and, after a careful review of the record, that there is no reason to exercise our authority under G.L.c.278, § 33E, to order a new trial or to reduce the conviction to a lesser degree of guilt.
The following day, Friday, at about 6 P.M., the victim's childhood friend, Jean McCarthy, arrived at the victim's home in Medford, where they planned to use cocaine, consume alcohol, and play cards. The victim had been in the process of renovating the house, and although there was electricity, there was no running water, some windows were missing, and some walls were torn down. Tools were scattered throughout the interior, including saws, drills, hammers, and crowbars. The victim led McCarthy to a back room, which the victim had set up as her living space. The bed, consisting of two mattresses on the floor, piled on top of each other, was in a corner, with one side flush along a wall and a chair at its foot. When McCarthy arrived, the defendant and Kanode were present. The four spent the rest of that evening and the early morning hours of Saturday drinking, using cocaine, and playing cards; McCarthy gave the victim $50 for some cocaine, which the victim put into her pants pocket; the victim kept cocaine in another pocket. Kanode left at approximately 5 A.M. on Saturday morning, but the others stayed until late in the afternoon.
Soon after McCarthy left, Barbara Welch, one of the victim's customers from the previous night, began to call the victim on her cellular telephone, but was unable to reach her. A call Welch placed to the victim's telephone around 6 P.M. was answered by a male; when Welch asked him if “Paula” was there, he responded that she was asleep. On Sunday, October 1, Welch tried to telephone the victim many times, but there was no answer, and, contrary to her usual practice, the victim did not return Welch's calls.
b. Discovery of victim's body. On the evening of Monday, October 2, after the victim had failed to return telephone calls placed the previous day, McCarthy went to the victim's house to check on her. McCarthy found the porch door standing open, the front door to the house unlocked, and the victim dead in the back room. Her body was partially on the bed. Everything else appeared to be almost exactly as it had been when McCarthy left the previous Saturday at 5:30 P.M. Responding police officers observed that the victim was lying diagonally across the mattress, face down, with her head towards the corner of the room and her left shoulder resting on the floor. After an initial sweep to secure the house, police contacted emergency medical services.
c. Police investigation. At approximately 5 A.M. on Tuesday morning, police began a canvass of the neighborhood. Later that morning, State Trooper Michael Banks observed the defendant and Kanode sitting on the front steps of their house a few doors away. Banks and other officers asked the two whether they had seen anything unusual at the victim's home, and they replied in the negative. The following day, after police interviewed McCarthy, Banks returned to the defendant's house and asked him if he would speak with police. The defendant and Kanode drove to the police station and were interviewed.
i. Defendant's first statement. The defendant told police that he knew the victim because she lived down the street, and that he had purchased cocaine from her in the past. He recently had relapsed and had gone to her house on Saturday, where he had stayed from approximately 8:30 A.M. until about 2 or 3 P.M. He brought an antique clock to the victim's house, for which he received $30 that he used to purchase an “8–ball” of cocaine, and left when he had run out of money to purchase additional cocaine. The defendant then walked to a nearby park to consume his remaining cocaine, returned home, and went to bed.
The James Street house was the home of Gary Young, Wolfe's uncle and a longtime friend of the defendant, and Young's girl friend, Madeline Osborne, and also was a “crack house” where people gathered to purchase and use drugs, including “crack” cocaine. Wolfe, who had been released from jail at 7:05 P.M. that evening and arrived home approximately forty minutes later, testified that the defendant had arrived at the James Street house after 8:30 P.M.3 Young and Osborne said that the defendant was at their house twice on Saturday, once earlier in the day, while it was still light out, and then later that night.4 Osborne said that the defendant returned sometime between 11 P.M. and midnight; he appeared a little shaky and nervous, and told everyone in the house that if anyone came looking for him, he was not there.
At some point, the defendant asked Osborne to wash the clothes he had been wearing when he arrived and some other laundry he had with him.7 During the day on Sunday, Osborne took the clothes the defendant had been wearing, as well as two of his shirts and a pair of pants, some clothes belonging to Young, and some of her own clothes, to a nearby laundry. She saw a maroon stain on one pair of pants. In the ten to fifteen years that they had known each other, the defendant had not previously asked her to do his laundry.
iii. Defendant's second statement. On the evening of October 6, 2006, police again requested that the defendant come to the police station; the defendant agreed to be interviewed, was given Miranda warnings, and agreed to having the interview tape recorded.8 The defendant told police that after leaving the victim's house on Saturday afternoon sometime between 2 and 3 P.M., he went to Young and Osborne's James Street house.9 He shared “a little pot” with others at the house, and “mooched drugs from” others. At some point in the early morning hours of Sunday, October 1, he fell asleep at the James Street house, after using some heroin provided by Young. Late Sunday night, the defendant called his son to come pick him up. Lacking a vehicle to use, the defendant's son and Kanode came to meet him, and the three of them walked back to their home.
d. Trial proceedings. i. Forensic evidence. The Commonwealth's forensic pathologist, Dr. Phillip Robert Croft, who conducted the autopsy, determined that the cause of the victim's death “was blunt force injuries of the head with skull fractures and brain contusions.” The victim suffered fourteen abraded lacerations to the back and top of her head; the injuries were caused by blows that could have numbered up to fourteen, depending on the object with which the victim was struck. The victim had wounds to the back of her hands that were consistent with a person “trying to protect themselves or ward off blows.” In Croft's opinion, it was equally possible that the victim was killed on Saturday or Sunday, but it was not likely that the death occurred later than very early Monday morning.
A State police criminalist who assisted in processing the crime scene observed and made a chart of nine damaged or dented areas (“impact areas”) located on the wall above the victim. The impacts were located in an circular area of approximately one square foot. Red-brown stains were observed in seven of the impacts. In the criminalist's opinion, the damage was caused by an object hitting the wall. No bloodstains were observed either leading out of the bedroom or in the hallways and areas exiting the dwelling. The blood and blood spatter was focused in the corner of the room where the victim's body was found. There was what appeared to be brain matter on the victim's pillow.
The clothing the victim had been wearing was examined by a technician in the office of the medical examiner. No currency was found in the pockets of the victim's jeans, or anywhere amongst her personal possessions. The Commonwealth's deoxyribonucleic acid (DNA) expert, Cailin Drugan, who conducted an analysis of DNA recovered from inside the pockets of the victim's jeans, testified that the major DNA profile in all four of the pockets matched the DNA profile of the defendant.13 She also testified that it was probable that the major profile was the result of a primary transfer, meaning that the contributor made direct contact with the inside of the victim's pockets.
The defendant's motions for a required finding of not guilty at the close of the Commonwealth's case and at the close of all the evidence were denied. After the jury convicted the defendant of armed robbery and murder in the first degree on theories of felony-murder and extreme atrocity or cruelty, the judge dismissed the armed robbery conviction as duplicative. Because the defendant was convicted of murder on both theories of murder advanced by the Commonwealth, the conviction of armed robbery should not have been dismissed. See Commonwealth v. Felder, 455 Mass. 359, 370–371, 916 N.E.2d 990 (2009), citing Commonwealth v. Brum, 441 Mass. 199, 200 n. 1, 804 N.E.2d 902 (2004) (“Where, as here, the conviction of murder is based on a theory in addition to the theory of felony-murder, the conviction of the underlying felony stands”).
2. Discussion. The defendant argues that the evidence was insufficient for the jury to convict him on either theory of murder advanced by the Commonwealth, and that his motions for a directed verdict should have been allowed. He argues also that the admission of certain testimony by the Commonwealth's blood spatter expert requires a new trial, because the testimony erroneously invaded the province of the jury. We conclude that the evidence was sufficient to support both of the Commonwealth's theories, and that there was no error in the admission of the expert's testimony. In addition, in our review pursuant to G.L.c. 278, § 33E, we note an error not raised by the defendant; we conclude that certain portions of the prosecutor's closing argument were impermissible because they were not based on evidence admitted at trial, but that the improper argument did not create a substantial likelihood of a miscarriage of justice.
Commonwealth v. Woods, 466 Mass. 707, 712–713, cert. denied, ––– U.S. ––––, 134 S.Ct. 2855, ––– L.Ed.2d –––– (2014).
Under the theories of murder advanced by the Commonwealth, it was required to prove that the defendant unlawfully killed the victim either with extreme atrocity or cruelty or in the course of committing a felony. Because the jury convicted the defendant on both theories, evidence supporting either theory would suffice to affirm the verdict. Commonwealth v. Whitaker, 460 Mass. 409, 416–417, 951 N.E.2d 873 (2011), citing Commonwealth v. Hensley, 454 Mass. 721, 734 n. 9, 913 N.E.2d 339 (2009). The evidence presented was sufficient to support both theories.
i. Felony-murder. To prove that the defendant was guilty of felony murder, the Commonwealth was required to establish that the defendant committed a homicide during the commission of a felony, here, armed robbery. See Commonwealth v. Stewart, 460 Mass. 817, 821, 957 N.E.2d 712 (2011). “It would be enough that the homicide[ ] occurred as part of the defendant's effort to escape responsibility for the underlying felony.” Id., quoting Commonwealth v. Ortiz, 408 Mass. 463, 466, 560 N.E.2d 698 (1990).
The evidence presented would have permitted a rational trier of fact to find, beyond a reasonable doubt, that the defendant killed the victim during an armed robbery. The jury could have found that the defendant was aware that the victim possessed a large amount of cash, which she kept in the pockets of her jeans, along with a supply of cocaine. On September 28, the defendant cashed a check for the victim in the amount of $1,100, and was present when three people, during the evening of September 29, gave the victim cash that she put into her pants pockets. After an initial purchase of cocaine, the defendant was not seen with any money during the approximately twenty-four-hour period that he was at the victim's home ingesting cocaine provided by the victim and others. This evidence is sufficient to establish the defendant's motive to rob the victim. See Commonwealth v. Lao, 443 Mass. 770, 780, 824 N.E.2d 821 (2005) (evidence sufficient based on evidence of motive to kill coupled with identification of defendant standing, at approximate time of killing, outside residence where wife was killed).
The evidence also allowed a rational jury to infer that the defendant had the means (one of the tools lying around the victim's house) and opportunity to kill the victim. Based on the testimony of the forensic pathologist who conducted the autopsy, the victim likely died on Saturday, September 30, or Sunday, October 1. The last witness to have seen the victim alive saw her at approximately 5:30 P.M. on September 30, when the witness left the victim alone with the defendant. The jury reasonably could have inferred that the victim was killed within the three-hour time frame between 5:30 P.M., when McCarthy left the victim's house, and 8:25 P.M ., when the last activity for the victim's cellular telephone was posted and the victim ceased responding to calls. When Welch, who did not know the defendant, attempted to telephone the victim around 6:00 P.M., the call was answered by a male who told Welch that the victim was asleep. Based on this, the jury could have inferred that the defendant hit the victim repeatedly in the head when she woke up unexpectedly as he was reaching into her pockets to take the cash and cocaine. Cf. Commonwealth v. Fitzpatrick, 463 Mass. 581, 593 & n. 21, 977 N.E.2d 505 (2012) (evidence established that fatal shots fired shortly before 8:00 A.M.; based on reasonable inferences, jury could have concluded that defendant had driven distance from his home to location of shooting shortly before 8:00 A.M., providing evidence of opportunity, and that he had taken gun from victim's house).
Witnesses present at Young's James Street house differed about when the defendant was there. While a number of witnesses testified that the defendant was at the house after 9 P.M., none of the witnesses saw the defendant present at Young's house throughout the period from 2 or 3 P.M. to 9 P.M. on September 30. Several witnesses said that the defendant was at Young's house sometime in the afternoon, arriving around 4 or 5 P.M., and staying for one-half hour to an hour before leaving and returning later in the evening. Others testified that the defendant only arrived sometime after 9 P.M. According to Wolfe, who arrived around 8 P.M., after his release on bail, the defendant arrived after he did.
The jury took a view and traveled the distance between the victim's house and Young's house; they also heard testimony that walking between the houses took approximately thirty to forty minutes. The jury could have considered this evidence, along with evidence that some of the DNA in the victim's pockets matched the defendant's, that there was no money in any of the pockets when the victim's body was found, and that the defendant was in sudden possession of a large amount of cash, to infer that the defendant remained at the victim's house after McCarthy left; the victim, who has been sleepy, fell asleep; and, sometime between 5:25 and 8:25 P.M., the defendant reached into the victim's pockets and robbed her.
ii. Extreme atrocity or cruelty. To convict a defendant of murder in the first degree on a theory of extreme atrocity or cruelty, the jury must consider the Cunneen factors and determine that the manner of the killing met one or more of them: “(1) whether the defendant was indifferent to or took pleasure in the victim's suffering; (2) the consciousness and degree of suffering of the victim; (3) the extent of the victim's physical injuries; (4) the number of blows inflicted on the victim; (5) the manner and force with which the blows were delivered; (6) the nature of the weapon, instrument, or method used in the killing; and (7) the disproportion between the means needed to cause death and those employed.” Commonwealth v. Linton, 456 Mass. 534, 546 & n. 10, 924 N.E.2d 722 (2010), citing Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 (1983).
The evidence here was sufficient to support the defendant's conviction of murder on a theory of extreme atrocity or cruelty because there were sufficient facts from which the jury reasonably could infer that at least one of the criteria established in Commonwealth v. Cunneen, supra, were met. The forensic pathologist testified that the victim suffered at least fourteen blows to the head, and other evidence indicated that at least some of the blows were delivered with so much force that there was brain matter on the victim's pillow. Defensive wounds indicated that the victim attempted to ward off those blows with her hands, and blood spatter evidence suggested that she had been sitting up when the blows were delivered, and then slid down the wall at some point. Thus, the victim was conscious, and the jury could conclude that she endured great suffering as she was beaten to death.
iii. Consciousness of guilt. The Commonwealth argued that the defendant's actions and his inconsistent statements after the victim was killed showed consciousness of guilt.14 “In conjunction with other evidence, a jury may properly consider actions and statements of a defendant that show a consciousness of guilt.” Commonwealth v. Woods, 466 Mass. 707, 715 (2014), quoting Commonwealth v. Rojas, 388 Mass. 626, 629, 447 N.E.2d 4 (1983). See Commonwealth v. Best, 381 Mass. 472, 483, 411 N.E.2d 442 (1980); Commonwealth v. Montecalvo, 367 Mass. 46, 52, 323 N.E.2d 888 (1975). The jury reasonably could have concluded that a number of the defendant's statements indicated consciousness of guilt.
In his initial, unrecorded statement to police on October 3, 2006, the defendant asserted that he had been at the victim's house on September 30, consumed cocaine with her beginning at about 8:30 A.M., and left at approximately 2 or 3 P.M.15 He then took a walk on a specific route he described to police, which included a park, during which he consumed a single remaining gram of cocaine in his possession. After he consumed the cocaine, it was night and he returned home and went to bed. At that point, he had no money and no energy, following three days of drug use, and stayed home Sunday and Monday. The defendant did not make any reference to his trip to James Street. A number of these statements were inconsistent with the defendant's later statements to police, and with the testimony of other witnesses.
During his second interview at the police station, the defendant told police that, after he had been “partying” for two days at the victim's house, from Friday into Saturday, his son and nephew came to the victim's house looking for him, sometime between 2 and 3 P.M.;16 and after they had gone, he left, walking a particular route to a location with a wooden tower, where he ingested a gram of cocaine. He then walked into Somerville. He had no money to get more cocaine,17 so he went to the homes of several friends, ending up at the home of a friend named Gary, where he “mooched” drugs provided by others throughout the night, finally using heroin provided by Gary, fell asleep, and slept there all day Sunday. The defendant said that when he woke up Sunday it was dark and he was hungry and cold; he used someone else's cellular telephone to call his son, telling him he was walking home and would meet him on the way. The defendant, his son, and his nephew met up and walked home together.
As stated, other testimony at trial did not accord with the defendant's assertions regarding the time of his arrival at the James Street residence and his statement that he had had very little money with him at the James Street house and could not afford to purchase any drugs. Contrary to the defendant's statements, several witnesses testified that the defendant did not arrive at the James Street residence until well after 9 P.M. No witness testified to seeing the defendant there between 6 and 8:30 P.M., including Young, the victim's childhood friend. Several witnesses testified to the defendant's purchases of cocaine after his arrival at the James Street house; his leaving the house to purchase more cocaine, which he brought back to the house; and, on one occasion, his trip into Boston in an attempt to locate a prostitute. Moreover, telephone records indicate that, at 11 P.M. on Sunday night, a call was made to the defendant's house from a landline telephone number assigned to Milonopoulos's residence, and not from an unidentified cellular telephone. Thus, the jury could have viewed the defendant's statements to police as an attempt to conceal his whereabouts from 5:30 to 8:25 P.M. on Saturday evening, and to deflect police attention from his possession of large amounts of cash. See Commonwealth v. Woods, 466 Mass. 707, 715–716 (2014). On that basis, the defendant's statements properly “could be seen as an attempt to hamper the police officers' investigation by preventing them from locating witnesses.” See id. at 715.
In sum, the evidence supports the reasonable inference that it was the defendant who answered Welch's telephone call and then attempted to rob the sleeping victim of the cash and cocaine in the pockets of her jeans; that she was awakened by this action and sat up on the mattress to confront the defendant; that the defendant at some point picked up a crowbar or similar implement from among the tools lying around the house, and used it to strike the victim in the head as she turned away from the blows toward the wall, raising her hands in an effort to protect herself. Based on the DNA evidence, the jury could have inferred that the defendant reached into at least three of the victim's pockets. The jury also reasonably could have inferred that the defendant took the victim's cellular telephone, which police were unable to locate, and disposed of it and the murder weapon, which was also never located, as he walked from the victim's Fellsway residence to the James Street residence of his friends Young and Osborne, where he arrived sometime after 9 P.M., flush with cash and in possession of cocaine.
The defendant contends that this case is like Commonwealth v. Mazza, 399 Mass. 395, 399, 504 N.E.2d 630 (1987), in which we held that the circumstantial evidence was insufficient to convict the defendant of murder. In that case, the defendant went to a restaurant where he planned to meet the victim. The victim's body was discovered about an hour later, lying facedown in a vehicle parked in the restaurant lot. Id. at 396, 504 N.E.2d 630. Although acknowledging evidence of the defendant's presence at the crime scene “together with the evidence of motive and consciousness of guilt,” id. at 398, 504 N.E.2d 630, we noted also that there was no evidence of the time of death, or evidence that the particular vehicle had been in the restaurant parking lot when the defendant arrived, or that the defendant had had a gun when he entered the parking lot. Id. at 399, 504 N.E.2d 630.
The facts in that case differ significantly from the circumstances here. As in Commonwealth v. Mazza, supra, the time of the victim's death was uncertain, others could have had means, motive, and opportunity to kill her, and the evidence was almost entirely circumstantial. The theory of the defense was to point to other possible perpetrators who might have entered the victim's room, including the victim's former boy friend, who had been convicted of an assault and battery against her and who had been ordered to keep away from her house, and a real estate broker and business associate of the victim to whom she owed substantial amounts of money. Nonetheless, the evidence in this case established that the defendant was the last person seen with the victim, in the bedroom of her locked apartment, and that he had the opportunity to commit the crime during the approximately three-hour window thereafter before the victim's cellular telephone ceased accepting calls. In addition, DNA matching the defendant's was found in the victim's pockets and, along with his sudden possession of a large amount of cash, and the absence of any cash on the victim's person where she normally kept it, is sufficient for the jury to have found that the defendant robbed and killed her.
b. Expert testimony on blood spatter. The defendant claims error in the admission of testimony by Martin, the blood spatter expert, over the defendant's objection, that there would “not necessarily” be any blood found on the victim's assailant. The defendant argues that this line of questioning did not aid the jury because they could have understood the evidence without the expert testimony, and that the testimony culminated in a conclusion by the expert that invaded the province of the jury.18 We review a judge's decision concerning the admission of expert testimony for abuse of discretion. Commonwealth v. Federico, 425 Mass. 844, 847, 683 N.E.2d 1035 (1997). Commonwealth v. Colin, 419 Mass. 54, 59, 643 N.E.2d 19 (1994). Where the error is preserved, we consider whether the admission was harmless error. Commonwealth v. Federico, supra at 852, 683 N.E.2d 1035.
Expert testimony “is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide.” Commonwealth v. Dockham, 405 Mass. 618, 628, 542 N.E.2d 591 (1989), quoting Simon v. Solomon, 385 Mass. 91, 105, 431 N.E.2d 556 (1982). There was no abuse of discretion in the decision to permit Martin's testimony.
Martin explained to the jury that blood stain analysis or blood spatter analysis is “the study of blood once blood leaves the body and a force has acted on it.” He explained further that, if a strike with a weapon is of sufficient force to break the skin, blood from the wound would be projected in a certain direction, based on the rules of physics. He testified that in the area of bloodstain pattern analysis, it is generally accepted that if a person is struck and the skin is lacerated, a subsequent strike would result in projected blood and there would potentially be cast-off from the blood found on the implement. When the implement is brought back, as a result of centrifugal force, blood is projected off the weapon and onto a surface such as a wall. Demonstrating, Martin testified that the shape of the tails on the blood stains would be different depending on the manner in which the implement was swung.
Although the defendant argues that the expert testimony was not necessary and the jury could have understood the evidence without such testimony, Martin's explanation regarding cast-off spatter could have assisted the jury in understanding the various directions in which blood may travel after a person is struck with an instrument. Without this explanation, the jury might have believed, for example, that the perpetrator of such an attack will always end up covered with blood spatter. Cf. Commonwealth v. Federico, supra at 851, 683 N.E.2d 1035 (in case involving child sexual abuse where there is no evidence of physical injury, “a medical expert may be able to assist the jury by informing them that the lack of such evidence does not necessarily lead to the medical conclusion that the child was not abused”). Martin did not opine whether the perpetrator in this case would have had cast-off blood on his person. Rather, Martin testified to observations he made at the scene, and explained the variables that could affect whether cast-off might be found on a person wielding a weapon and striking another in a position similar to that in which the victim was found.
Because “DNA evidence that a particular individual could not be excluded as a potential contributor of the DNA at issue should not be admitted without accompanying statistical evidence of the likelihood that the test could not exclude other individuals in a given population,” Commonwealth v. Bizanowicz, 459 Mass. 400, 409–410, 945 N.E.2d 356 (2011), citing Commonwealth v. Mattei, 455 Mass. 840, 851–855, 920 N.E.2d 845 (2010), we consider the issues raised by the lack of such evidence to determine whether “there is a substantial likelihood that a miscarriage of justice has occurred.” Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d 621 (1992). See generally Commonwealth v. Riley, 467 Mass. 799, 807 (2014).
Because it was based, in part, on evidence that was not before the jury, the prosecutor's argument should not have been made. See Commonwealth v. Beaudry, 445 Mass. 577, 580, 839 N.E.2d 298 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730, 774 N.E.2d 623 (2002). In closing arguments, prosecutors may not misstate the evidence, but must tailor their remarks to ensure they remain properly grounded in the evidence. See Commonwealth v. Roy, 464 Mass. 818, 831–832, 985 N.E.2d 1164 (2013). Nonetheless, the improper argument did not create a substantial likelihood of a miscarriage of justice. Whether the defendant's DNA matched that of the major profile in three of the victim's pants pockets, or four of those pockets, was not likely to have influenced the jury's conclusion. See Commonwealth v. Wright, supra at 682, 584 N.E.2d 621. It was not essential to the Commonwealth's case that the evidence establish that the defendant put his hand into four of the victim's pockets.23 Even if it had been established that the defendant's DNA matched that of the major profile in only three of the pockets, the jury could have inferred that the victim woke up before the defendant completed the search of her pockets.
Having reviewed the entire record pursuant to G.L.c. 278, § 33E, we discern no reason to reduce the conviction of murder in the first degree to a lesser degree of guilt or to order a new trial.


text:
The Advanced Solid State Lasers 2017 Conference (ASSL) was held from October 1 to 5, 2017. It was an extraordinary conference at the Nagoya Congress Center in Nagoya, Japan. ASSL 2017 again suggested an impressive platform where miscellaneous perceptions with a variety of approaches to optics, photonics, sensing, laser technology, laser systems, and solid state lasers were presented. This international meeting was highly selective, leading to high level contributions through one plenary conference, 17 invited presentations, 70 regular talks, and 121 posters. The present joint issue of Optics Express and Optical Materials Express features 27 articles written by ASSL 2017 authors and covering the spectrum of solid-state lasers from materials research to sources, and from design innovation to applications.
B. Zhao, Y. Ye, J. Chen, H. Lin, G. Zhang, X. Mateos, J. M. Serres, M. Aguiló, F. Díaz, P. Loiko, U. Griebner, V. Petrov, and W. Chen, “Growth, spectroscopy, and laser operation of “mixed” vanadate crystals Yb:Lu1-x-yYxLayVO4,” Opt. Mater. Express 8(3), 493–502 (2018).
S. Cante, S. J. Beecher, and J. I. Mackenzie, “Characterising energy transfer upconversion in Nd-doped vanadates at elevated temperatures,” Opt. Express 26(6), 6478–6489 (2018).
J. Huynh, M. Smrž, T. Miura, O. Slezák, D. Vojna, M. Čech, A. Endo, and T. Mocek, “Femtosecond Yb:YGAG ceramic slab regenerative amplifier,” Opt. Mater. Express 8(3), 615–621 (2018).
H. Uehara, S. Tokita, J. Kawanaka, D. Konishi, M. Murakami, S. Shimizu, and R. Yasuhara, “Optimization of laser emission at 2.8 μm by Er:Lu2O3 ceramics,” Opt. Express 26(3), 3497–3507 (2018).
P. Šušnjar, V. Agrež, and R. Petkovšek, “Photodarkening as a heat source in ytterbium doped fiber amplifiers,” Opt. Express 26(5), 6420–6426 (2018).
M. Dubinskii, J. Zhang, V. Fromzel, Y. Chen, S. Yin, and C. Luo, “Low-loss ‘crystalline-core/crystalline-clad’ (C4) fibers for highly power scalable high efficiency fiber lasers,” Opt. Express 26(4), 5092–5101 (2018).
X. Mateos, P. Loiko, S. Lamrini, K. Scholle, P. Fuhrberg, S. Vatnik, I. Vedin, M. Aguiló, F. Díaz, U. Griebner, and V. Petrov, “Thermo-optic effects in Ho:KY(WO4)2 thindisk lasers,” Opt. Mater. Express 8(3), 684–690 (2018).
J. Wei, S. C. Kumar, H. Ye, P. G. Schunemann, and M. Ebrahim-Zadeh, “Performance characterization of mid-infrared difference-frequency-generation in orientation-patterned gallium phosphide,” Opt. Mater. Express 8(3), 555–567 (2018).
F. Guo, D. Lu, P. Segonds, J. Debray, H. Yu, H. Zhang, J. Wang, and B. Boulanger, “Phase-matching properties and refined Sellmeier equations of La3Ga5.5Nb0.5O14,” Opt. Mater. Express 8(4), 858–864 (2018).
A. A. Boyko, P. G. Schunemann, S. Guha, N. Y. Kostyukova, D. B. Kolker, V. L. Panyutin, G. M. Marchev, V. Pasiskevicius, A. Zukauskas, F. Mayorov, and V. Petrov, “Optical parametric oscillator pumped at ~1 μm with intracavity mid-IR difference-frequency generation in OPGaAs,” Opt. Mater. Express 8(3), 549–554 (2018).
T. H. Runcorn, R. T. Murray, and J. R. Taylor, “Highly efficient nanosecond 560 nm source by SHG of a combined Yb-Raman fiber amplifier,” Opt. Express 26(4), 4440–4447 (2018).
W. Tian, J. Zhu, Y. Peng, Z. Wang, L. Zheng, L. Su, J. Xu, and Z. Wei, “High power sub 100-fs Kerr-lens mode-locked Yb:YSO laser pumped by single-mode fiber laser,” Opt. Express 26(5), 5962–5969 (2018).
S. Aparanji, V. Balaswamy, S. Arun, and V. R. Supradeepa, “Simultaneous Raman based power combining and wavelength conversion of high-power fiber lasers,” Opt. Express 26(4), 4954–4960 (2018).
L. Su, X. Guo, D. Jiang, Q. Wu, Z. Qin, and G. Xie, “Highly-efficient mid-infrared CW laser operation in a lightly-doped 3 at.% Er:SrF2 single crystal,” Opt. Express 26(5), 5558–5563 (2018).
V. Yahia and T. Taira, “High brightness energetic pulses delivered by compact microchip-MOPA system,” Opt. Express 26(7), 8609–8618 (2018).
M. R. Oermann, N. Carmody, A. Hemming, S. Rees, N. Simakov, R. Swain, K. Boyd, A. Davidson, L. Corena, D. Stepanov, and J. Haub, “Coherent beam combination of four holmium amplifiers with phase control via a direct digital synthesizer chip,” Opt. Express 26(6), 6715–6723 (2018).
W. M. Kunkel and J. R. Leger, “Gain dependent self-phasing in a two-core coherently combined fiber laser,” Opt. Express 26(8), 9373–9388 (2018).
S. Arun, V. Choudhury, V. Balaswamy, R. Prakash, and V. R. Supradeepa, “High power, high efficiency, continuous-wave supercontinuum generation using standard telecom fibers,” Opt. Express 26(7), 7979–7984 (2018).
A. Sincore, J. Cook, F. Tan, A. El Halawany, A. Riggins, S. McDaniel, G. Cook, D. V. Martyshkin, V. V. Fedorov, S. B. Mirov, L. Shah, A. F. Abouraddy, M. C. Richardson, and K. L. Schepler, “High power single-mode delivery of mid-infrared sources through chalcogenide fiber,” Opt. Express 26(6), 7313–7323 (2018).
S. Liang, L. Xu, Q. Fu, Y. Jung, D. P. Shepherd, D. J. Richardson, and S. U. Alam, “295-kW peak power picosecond pulses from a thulium-doped-fiber MOPA and the generation of watt-level >2.5-octave supercontinuum extending up to 5 μm,” Opt. Express 26(6), 6490–6498 (2018).
J. C. E. Coyle, A. J. Kemp, J.-M. Hopkins, and A. A. Lagatsky, “Ultrafast diode-pumped Ti:sapphire laser with broad tunability,” Opt. Express 26(6), 6826–6832 (2018).
Y. Wang, W. Jing, P. Loiko, Y. Zhao, H. Huang, X. Mateos, S. Suomalainen, A. Härkönen, M. Guina, U. Griebner, and V. Petrov, “Sub-10 optical-cycle passively mode-locked Tm:(Lu 2/3 Sc 1/3) 2 O 3 ceramic laser at 2 µm,” Opt. Express 26(8), 10299–10304 (2018).
Y. Yu, H. Teng, H. Wang, L. Wang, J. Zhu, S. Fang, G. Chang, J. Wang, and Z. Wei, “Highly-stable mode-locked PM Yb-fiber laser with 10 nJ in 93-fs at 6 MHz using NALM,” Opt. Express 26(8), 10428–10434 (2018).

matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V.


text:
Posted on February 4, 2019	by Richard J. Reibstein, Esq.
This past month may well be regarded as one of the more legally satisfying for businesses using independent contractors. Courts issued three decisions in favor of companies on the issue as to whether certain workers are ICs or employees: the U.S. Court of Appeals for the Sixth Circuit found insurance agents to be ICs in an ERISA case; the Indiana Supreme Court held that a referral company met the state’s “ABC” test for IC status under the state’s unemployment compensation law; and the National Labor Relations Board reversed an Obama-era test for IC status and promulgated a new, more IC-friendly standard to be used when unions seek to represent workers classified as 1099ers or franchisees.
At the same time, however, two major decisions favored workers in class action IC misclassification cases arising in the transportation industry: one where the U.S. Court of Appeals for the Third Circuit held that the federal transportation deregulation law did not preempt New Jersey’s “ABC” test for wage and hour claims; and the other where the U.S. Supreme Court ruled that the federal arbitration statute, which exempts interstate transportation workers from arbitration under that law, applies not only to employees but also to ICs engaged in interstate transportation, and a court, not an arbitrator, is the appropriate decision-maker for determining if a worker is covered by the exemption – even in the face of an arbitration agreement between the business and the worker delegating all disputes to an arbitrator.
The news last month also provided a financial impetus to class action lawyers who represent workers in IC misclassification cases. Two high-profile class action cases settlements were approved: one for $9.25 million and another for $1.3 million.
These cases, as more fully discussed below, send a clear message to companies using ICs: while courts and administrative agencies are more willing to accept company arguments that certain workers have been properly classified as independent contractors, class action lawyers are unlikely to be deterred from challenging companies’ classification of workers as ICs because these types of cases often lead to sizable settlements, including payment of considerable legal fees.
Are companies nonetheless able to minimize their legal exposure to these types of class and collective action lawsuits, including the substantial costs associated with defending and settling them? Yes. As we noted in our blog post this past month about the Supreme Court case involving ICs, there are two actions businesses can take: (1) maximizing their level of compliance with IC laws, thereby reducing the likelihood they will be subject to a judicial or regulatory challenge to their IC relationships, using a process such as IC Diagnostics™; and (2) entering into IC agreements containing state-of-the-art arbitration provisions with class and collective action waivers, using the tips discussed in that blog post. Prudent businesses that use ICs to supplement their workforce or as part of a business model have taken these very types of steps to enhance the structure, documentation, and implementation of their IC relationships and upgrade the effectiveness of their arbitration agreements.
INSURANCE AGENTS ARE INDEPENDENT CONTRACTORS, NOT EMPLOYEES, FOR ERISA PURPOSES. Many insurance companies have utilized independent contractor agents to sell policies to prospective and existing policyholders. So, it came as a shock to most insurance companies when a federal district court held in mid-2017, in an employee misclassification class action case brought under ERISA, that American Family Insurance had misclassified thousands of agents as ICs and consequently may owe hundreds of million dollars in allegedly unpaid pension, life, disability, and health insurance benefits. On January 29, 2019, the U.S. Court of Appeals for the Sixth Circuit reversed, holding that, under ERISA, some 7,200 current and former agents selling American Family policies has been properly classified by the company as independent contractors.
As more fully detailed in our comprehensive blog post published that day, the appellate court reviewed 12 factors under ERISA’s “common law” test for IC status, as set forth in the U.S. Supreme Court’s Nationwide Insurance Co. v. Darden, and found that “the district court incorrectly applied the standards relating to (1) the skill required of an agent and (2) the hiring and paying of assistants.” The Sixth Circuit concluded that “[h]ad the court applied those standards properly, it would have found that those factors actually favored independent-contractor status” and tipped the balance in favor of an independent contractor determination. In addition, the Sixth Circuit held that the district court failed to give sufficient weight to the parties’ written agreement, which expressly stated the parties’ intent was to create an independent contractor relationship and that the agent was “not an employee of the Company for any purpose” – and if it had done so, it “would have further swung the balance in favor of independent-contractor status.” A dissenting judge submitted a dissent emphasizing American Family’s own internal writings characterizing its agents as employees and instructing managers to exercise direction and control over them. Jammal v. American Family Insurance Co., No. 17-4125 (6th Cir. Jan. 29, 2019).
We note in our January 29 blog post that this is the type of internal documentation that insurance companies should eliminate in an undertaking to re-document and re-implement their IC relationships in a state-of-the-art manner. We also noted in our blog post that this decision, while important, is limited only to claims under ERISA, which has a far less challenging test for IC status than other federal and most state laws.
In assessing the “ABC” test’s impact on prices, routes, or services, the court recognized the test does not mention carrier prices, routes, or services; does not single out carriers as opposed to all businesses; and does not regulate carrier-customer interactions or other product outputs; rather, it only concerns employer-worker relationships. The opinion of the Third Circuit follows decisions by other federal appellate courts and distinguishes a contrary holding involving the “ABC” test in Massachusetts that is different than New Jersey’s “ABC” test. As noted in a January 30, 2019 article by Linda Chiem in Law 360 entitled “3rd Circ. NJ Classification Ruling Curbs Scope of Preemption,” quoting the publisher of this legal blog, “the decision in this case is “not groundbreaking,” but by limiting the applicability of the FAAAA as has been done in similar cases, it “may nonetheless bury most arguments by transportation companies that state ABC independent contractor tests are preempted by the federal transportation deregulation laws.” Bedoya v. American Eagle Express Inc., No. 18-1641 (3d Cir. Jan. 29, 2019).
INDIANA SUPREME COURT HOLDS “ABC” INDEPENDENT CONTRACTOR TEST MET BY REFERRAL COMPANY. The Indiana Supreme Court has ruled that a driver for Q.D.-A., a company that matches drivers with businesses needing vehicles like RVs delivered to them, is an independent contractor and not an employee under the state’s unemployment insurance laws. After filing for unemployment benefits, the state’s Department of Workforce Development concluded the driver was an employee. After that decision was affirmed by an Administrative Law Judge, an intermediate appellate court reversed. On further review, the Indiana Supreme Court affirmed, holding that all three prongs of the state’s ABC test for IC status under Indiana’s unemployment laws had been satisfied. Under Prong A, the court found that the driver was not under the company’s control or direction, under either his contract or in fact. Under Prong B, the court determined that the driver performed a service outside of the company’s usual course of business: the driver provided “drive-away” services, while the company did not “regularly or continually provide such services.” The court found that Prong C was satisfied because neither party disputed the agency’s initial finding that the company “provided sufficient evidence to demonstrate that [the driver] was customarily engaged in an independently established trade, occupation, profession, or business of transporting commodities.” Q.D.-A. v. Indiana Department of Workforce Development, No. 19S-EX-43 (Sup. Ct. Ind. Jan. 23, 2019).
TRANSPORTATION COMPANY SETTLES IC MISCLASSIFICATION CLASS ACTION FOR $9.25 MILLION. A California federal court has granted final approval of a $9.25 million settlement between drayage transportation company, Roadrunner Intermodal Services LLC, and a class of 896 truck drivers claiming violations of state wage and hour laws due to their alleged misclassification by the company as independent contractors. The drivers also sought reimbursement of expenses including fuel, liability and property damage insurance, maintenance, and equipment repair. In approving the settlement, the court stated that “while plaintiffs potentially have meritorious claims, it is far from certain that they would have prevailed on those claims, given the uncertain nature of relevant case law.” The court also stated that, given the plaintiffs’ serious concerns regarding the impact of protracted class action litigation on the company’s financial condition and its related ability to pay a settlement, the proposed settlement “provides compensation that is available now, without the additional time and risk of a decision that would likely be subject to a lengthy appeals process.” The settlement provides for $5.8 million to the drivers (or approximately $6,550 on average to each class member), slightly over $3 million (one-third of the total) for class counsel, and $75,000 in payments under the California Private Attorneys General Act. Singh v. Roadrunner Intermodal Services LLC, No. 15-cv-1497 (E.D. Cal. Jan. 24, 2019).
Under the agreement, the company will pay a maximum gross settlement amount of $1,304,250 of which $734,294 will be paid to class plaintiffs who have opted in (or on average, under $150 per driver). One-third of the settlement proceeds will be paid in attorneys’ fees and the remainder is earmarked for legal expenses, service awards, and the fees of the settlement administrator. In their submission in support of settlement, the drivers acknowledged that the company had a “‘significant chance’ of either prevailing on the merits, by a finding that the drivers are independent contractors, or of achieving a reduction of liability if not required to compensate for drivers’ wait time.” Hood v. Uber Techs., Inc., No. 1:16-cv-00998 (M.D.N.C. Jan. 3, 2019).
FEDERAL ARBITRATION ACT EXEMPTION FOR INTERSTATE TRANSPORTATION WORKERS COVERS INDEPENDENT CONTRACTORS AND BARS COMPANY’S MOTION TO COMPEL ARBITRATION. After an intermodal trucking company, New Prime Inc., was sued in a proposed class action by a truck driver whom New Prime classified as an independent contractor, the company filed a motion to compel arbitration under its independent contractor agreement containing a mandatory arbitration provision. The district court denied the motion, holding it lacked authority to compel arbitration because Section 1 of the Federal Arbitration Act (FAA) exempts from arbitration all disputes involving “contracts of employment” with interstate transportation workers. The U.S. Court of Appeals for the First Circuit affirmed. The U. S. Supreme Court reviewed the decision and held that a court, not an arbitrator, should decide whether the transportation worker is excluded from the provisions of the FAA. In rejecting New Prime’s argument that the question should be determined by an arbitrator, the Supreme Court determined that the parties could not, by agreement, bypass the interstate transportation worker exclusion of Section 1 of the FAA.
As more fully discussed in our blog post of January 15, 2019, the Supreme Court decision is of limited value because it only applies to the federal arbitration statute. State arbitration laws generally do not include an exception for transportation workers. As noted in a January 16, 2019 article entitled “Supreme Court Gives Truckers a Victory” by Margot Roosevelt in the Los Angeles Times, quoting the publisher of this legal blog: “An argument can be made that this decision will have little or no effect on the right of employers to compel arbitration of any worker’s dispute. Those who suggest that this decision is momentous … may wish to reconsider their exuberance.” New Prime Inc. v. Oliveira, No. 17-340 (U.S. Sup. Ct. Jan. 15, 2019).
BAKED GOODS COMPANY UNABLE TO DECERTIFY CLASS AND COLLECTION IC MISCLASSIFICATION LAWSUIT. Distributor/drivers in Maine have gained class certification in a class and collective IC misclassification lawsuit against Flowers Foods, Inc., one of the largest producers of packaged bakery foods in the United States. The distributor/drivers allege violations of various state wage/hour and the federal Fair Labor Standards Act. Flowers Foods claimed that individual questions of fact preclude maintenance of the lawsuit as a class and collective action, but the court disagreed. It held that questions of fact or law common to class members predominate over questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the misclassification controversy. In addition, the court denied the company’s motion to decertify the FLSA collective action, concluding that the distributors are similarly situated to the named plaintiff and the maintenance of a collective action is preferable to potentially conducting many individual trials. Noll v. Flowers Foods, Inc., No. 1-cv-493 (D. Me. Jan. 15, 2019).
NLRB REVERSES OBAMA-BOARD’S UNION-FRIENDLY TEST FOR INDEPENDENT CONTRACTOR STATUS IN FRANCHISEE CASE. The National Labor Relations Board has revived the “common law” test for determining independent contractor status and overturned the union-friendly test adopted during the Obama Administration. An NLRB Regional Office found that shuttle drivers who owned and operated franchises of SuperShuttle DFW, Inc. were independent contractors and not employees eligible to be represented by a union under the National Labor Relations Act. In reaching its decision finding IC status, the NLRB Regional Office had applied the Board’s traditional common law agency test. That decision was reviewed at the behest of the union. But instead of simply affirming the decision, the NLRB (in a 3-1 decision) overruled an earlier union-friendly NLRB decision issued during the Obama Administration. The NLRB reviewed eight factors under the common law test and found that five factors supported IC status; two factors supported employee status; and one factor was neutral. In concluding that the franchisees were ICs, the Board majority discounted the importance of two factors favoring employee status, finding them to be “relatively less significant” than those favoring IC status.
As discussed in our blog post of January 25, 2019, this decision, while perhaps noteworthy politically, has limited application to most companies for two reasons: First, it is only applicable to union efforts to organize and represent workers classified as independent contractors. It has no application under any other laws, including federal and state wage and hour laws, state wage payment laws, unemployment insurance and workers’ compensation laws, and the federal law governing retirement and employee welfare benefits. Second, the NLRB adopted the common law test used by the U.S. Court of Appeals for the District of Columbia, which had rejected the NLRB’s prior test. As noted in a January 25, 2019 article in the Los Angeles Times by Margot Roosevelt entitled “NLRB Empowers Companies to Treat More Workers as Independent Contractors,” quoting the publisher of this legal blog, “The NLRB’s decision is . . . limited to determining only if certain individuals are employees that can be represented by a union. It has no application to state or federal wage and hour laws.” SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019).

matches: v. v. v. v. v. v. v. v.


The Dell decision presents a straightforward application of 35 U.S.C. § 315(e)(1). In the ‘549 IPR, Dell petitioned for review of U.S. Patent No. 6,978,346 (“the ‘346 Patent”) based on claims 1-9 being obvious under 35 U.S.C. § 103 over the Mylex and Hathorn references. In its decision, the Board explains that Dell had previously asserted both Mylex and Hathorn against the ‘346 Patent in Dell, Inc. v. Electronics and Telecommunications Research Institute, Case IPR2013-00635 (“the ‘635 IPR”). Dell’s ‘635 IPR Petition challenged the ‘346 Patent claims on the following grounds: (1) claims 1-3 and 8 as obvious under 35 U.S.C. § 103(a) over Weygant and Mylex (’635 IPR Pet. 20-23); (2) claims 4 and 9 as obvious under 35 U.S.C. § 103(a) over Weygant, Mylex, and Serviceguard5 (’635 IPR Pet. 23-39); (3) claims 5-7 as obvious under 35 U.S.C. § 103(a) over Weygant, Mylex, and ANSI6 (’635 IPR Pet. 39-45); (4) claims 1-3 and 5-8 as anticipated under 35 U.S.C. § 102(b) by Hathorn (’635 IPR Pet. 45-60). The Board instituted trial in the ‘635 IPR solely on the ground that claims 1-3 and 5-8 were anticipated under 35 U.S.C. § 102 by Hathorn, but ultimately held in its final written decision that these claims were not shown to be unpatentable based on Hathorn.
In comparing the instant ‘549 IPR to Dell’s previous ’635 IPR proceeding, the Board found the patent, challenged claims and asserted prior art to be the same. The only difference, according to the Board, was that the Petitioner combined the prior art in a different combination than previously presented. Specifically, in the ’635 IPR, Hathorn was asserted as anticipating the claims, whereas in ‘549 IPR, Hathorn was combined with an additional reference, Mylex, which was also previously presented by Dell in the ‘635 IPR.
"On this record, the differences in how the references have been asserted in these proceedings have no weight on our determination of whether the grounds raised in the instant Petition could have been raised in the ‘635 IPR. Both Mylex and Hathorn were known to Petitioner as prior art to the ‘346 patent, and Mylex has been asserted as an obviousness reference in this Petition and in the ’635 IPR. It makes no difference to us that Petitioner may have believed Hathorn to be anticipatory reference in the ’635 IPR, and that such a belief may have changed during the trial of the ’635 IPR, where we ultimately determined in our Final Written Decision that Hathorn did not anticipate any claim of the ‘346 Patent. (‘549 IPR at 5-6).
In other words, not only could Dell have raised the arguments in the prior filing because they relied upon the same prior art references, but it makes no difference to the Board whether or not the arguments were, in fact, raised.
An important limitation of 35 U.S.C. § 315(e)(1) is that estoppel only attaches on a claim-by-claim basis when a final written decision has been rendered by the Board in the IPR proceeding. 35 U.S.C. § 315(e)(1). The impact of this rule is two-fold. First, a decision denying institution of review is not a final decision and estoppel therefore does not attach to these decisions. As a result, additional petitions using the same prior art may still be filed by a petitioner, subject to the provisions set forth in 35 U.S.C. § 315(b) and (d). Second, estoppel attaches on a claim-by-claim basis. For example, in the ‘635 IPR, trial was not instituted on claims 4 and 9 of the ‘346 Patent and estoppel thus did not attach to these two claims. Although Dell was not estopped from review of those claims, the Board denied instituting trial on either claim under 35 U.S.C. § 315(b) for failure to seek review of these claims within one year of Dell being served with a complaint alleging infringement of these claims.


OGE reminds agencies that the recent changes to the gift thresholds are not reflected on the public financial disclosure form. OGE is revising the form to reflect the current thresholds.
Eligible former senior employees may engage in representational activities before a component of their former department or agency if that component has been designated by the Director of OGE pursuant to 18 U.S.C. § 207(h) as a separate agency or bureau within the department or agency.
Pre-meeting activities, such as reviewing written materials, by advisory committee members in preparation for a meeting might rise to the level of personal and substantial participation under 18 U.S.C. § 208(a). Waivers under 18 U.S.C. § 208(b)(3) must be granted prior to such participation by an advisory committee member.
(Legal) 92x26: Exclusion of Complimentary Newsletter Subscriptions from the Definition of "Gift"
A free subscription to a newsletter that is offered to all Federal employees is excluded from the definition of "gift" found at 5 C.F.R. § 2635.203.
Loans between superiors and their subordinates are to be discouraged. Because of the debtor-creditor relationship, the subordinate would be a person with whom the superior would have a "covered relationship" within the meaning of 5 C.F.R. § 2635.502(b)(1).
OGE discusses the filing cycle for confidential financial disclosure (Oct 1 through Sep 30), the filing of the form by special Government employees, the designation of positions as filing positions, and several other issues.
The Standards of Conduct prohibit a Federal employee from soliciting funds or services from representatives of companies doing business with the Federal Government and using those funds for purposes of the private organization.
Agencies are required to develop written procedures for reviewing, collecting, and evaluating the public and confidential financial disclosure systems.
OGE announces that OMB and GSA have approved the new confidential financial disclosure form (SF 450).
A charitable contribution made on behalf of a Federal employee may not qualify as a gift if it were made as part of a settlement. However, individual circumstances must be evaluated to determine whether such a contribution is consistent with the Standards of Ethical Conduct prohibiting gifts from outside sources.
(Legal) 92x20: Definition of "Senior Employee" and "Very Senior Employee"
OGE discusses the methodology of determining whether a person falls within the statutory definition of "senior employee" or "very senior employee" for the purposes of 18 U.S.C. § 207(c)-(d).
A noncareer member of the Senior Executive Service was deemed to have taken compensation from an outside position that involved a fiduciary relationship in violation of 5 U.S.C. app. § 502 and 5 C.F.R. § 2636.303(b) when he received payments from his medical practice while serving as a public official.
OGE discusses whether a senior Government employee could preclude conflict of interest questions under the "seeking employment" restriction by giving his resume to an employment search firm and asking that it not disclose to him the identity of those to whom the resume has been distributed.
OGE summarizes the changes to the public financial disclosure system and to the qualified trust program which the new interim regulation implements. OGE also highlights the differences between the public financial disclosure system and the new confidential system.
(Legal) 92x15: Definition of "Procurement Official"
Authority to render opinions about who is and who is not a "procurement official" is specifically given to designated agency ethics officials or their delegatees by 41 U.S.C. § 423(k), not OGE.
Certificates of Divestiture are available to parties who qualify as "eligible persons" under the Internal Revenue Code. Such certificates were not intended to be generally available to trustees of a trust which is eligible under the code section, but rather were intended to be available only where all alternative remedies were impracticable.
A federal employee who owns stock in a company that creates a conflict of interest under 18 U.S.C. § 208 may divest the stock or request a recusal, reassignment, or waiver.
Certificates of divestitures are not available for previously divested investment holdings, but rather must be sought from OGE prior to the sale of such holdings.
Where an agency has determined that an employee has a conflict of interest under 18 U.S.C. § 208 with the outside employment of his/her spouse, and has determined not to grant the employee a § 208(b)(1) waiver, OGE is not statutorily enabled to hear appeal or review of the employing agency’s discretion decision.
The acceptance of hospitality gifts by non-GSA employees must be determined on an agency-by-agency basis taking into account the possibility of appearances of impropriety.
When Congress has specifically provided that the Federal Government must continue to pay employees their usual Government salaries during the time they are engaged in union activities, those employees should be considered "on the job" for purposes of pay and compensation. Any additional payments made by outside sources would violate 18 U.S.C. § 209.
Under the circumstances described, the payment for utility services by an occupant (a Government contractor) of her husband's residential property did not constitute a gift.


Patricia J. Van Horn and Crist, Griffiths, Bryant, Schulz, Biorn & Clohan for Plaintiff and Appellant.
Robert H. Sulnick as Amicus Curiae on behalf of Plaintiff and Appellant.
Richard J. Heafey, Peter W. Davis, James C. Martin, Crosby, Heafey, Roach & May, Richard T. Davis, Jr., Robert D. Phillips, Jr., Robert H. Roe, Adams, Duque & Hazeltine, Robert L. Rickson, Ralph A. Campillo, Robert L. Kaufman, Roxanne M. Wilson, Joseph R. Zamora, Haight, [44 Cal. 3d 1107] Dickson, Brown & Bonesteel, Sedgwick, Detert, Moran & Arnold, Kevin J. Dunne, Michael F. Healy, Bruce A. Edwards, Frederick D. Baker, Gudmundson, Siggins & Stone, Richard J. Siggins, William S. Ginsburg, Tarkington, O'Connor & O'Neill, Tarkington, Carey, O'Connor & O'Neill, John D. O'Connor, Patrick J. Hogan, Gibson, Dunn & Crutcher, G. Edward Fitzgerald and Eric McCurdy for Defendants and Respondents.
This case presents the following questions: whether a plaintiff, in a suit for personal injury caused by a defective drug, who is unaware of any specific facts establishing wrongful conduct on the part of any drug manufacturer, may delay bringing an action until she discovers such facts; whether a claim, otherwise barred by the statute of limitations, can be revived due to our decision in Sindell v. Abbott Laboratories (1980) 26 Cal. 3d 588 [163 Cal. Rptr. 132, 607 P.2d 924, 2 A.L.R.4th 1061], in which we held that a plaintiff who is unable to identify the particular manufacturer of a fungible drug that caused injury to her can state a claim by joining defendants who manufactured a substantial percentage of the market share of the allegedly defective drug; and whether the filing of the class action in Sindell, supra, tolled the statute of limitations for members of the putative class until the class was denied certification. We answer these questions in the negative and so conclude that the suit is time-barred.
Plaintiff Jolly was born in 1951. In 1972, she first learned that while she was in utero her mother had ingested the synthetic drug estrogen diethylstilbestrol (DES) for the prevention of miscarriage. Plaintiff was told in 1972 that DES daughters could suffer injuries. Therefore, she went to a DES clinic at the UCLA Medical Center for a checkup. She was diagnosed as having adenosis, a precancerous condition that required careful monitoring. In 1976, she had an abnormal pap smear and underwent a dilation and curettage, a surgical procedure to remove abnormal tissue. In 1978, plaintiff underwent a complete hysterectomy and a partial vaginectomy in order to remove malignancy. As of 1972, plaintiff was aware, or at least suspected, that her condition was a result of her mother's ingestion of DES during pregnancy.
Starting in 1972, plaintiff attempted to discover the manufacturer of the DES ingested by her mother. Efforts were increased in 1976 and 1978 when plaintiff's condition became acute. Unfortunately, the doctor who [44 Cal. 3d 1108] prescribed the drug had died, fn. 1 and plaintiff was unable to locate his records. Although the dispensing pharmacist did remember filling the DES prescription, he did not recall or have records pertaining to the specific brand used. This was not unusual since DES was a fungible drug, that is, hundreds of pharmaceutical companies made DES from a single agreed formula. The hospital where plaintiff was born was of no assistance because plaintiff's mother did not use DES while there.
In March 1980, we decided Sindell v. Abbott Laboratories, supra, 26 Cal. 3d 588, and held that if a plaintiff could not identify the precise drug manufacturer of the ingested DES, she could state a cause of action against the DES manufacturers of a substantial percentage of the market share of the drug. Defendants would be liable, assuming the remaining material allegations in the complaint were proven, unless they could disprove their involvement. Almost one year after Sindell, plaintiff Jolly brought this action.
Defendants moved for summary judgment, asserting that the action was barred by Code of Civil Procedure section 340, subdivision (3), fn. 2 setting forth a one-year statute of limitations period for an action "for injury ... caused by the wrongful act or neglect of another." Although conceding the applicability of the one-year statutory period, plaintiff denied that the suit was time-barred. She asserted that the statute did not commence until she [44 Cal. 3d 1109] learned of the Sindell decision, because only then did she realize that she would be able to successfully bring her claim.
Plaintiff maintained that Sindell created a new cause of action by redefining "causation." Prior to Sindell, she claimed, only the specific manufacturer of the pills that were ingested was deemed to have "caused" the injury. After Sindell, according to plaintiff, it was the generic drug DES that "caused" the harm, and therefore all DES manufacturers were tortfeasors.
The trial court granted defendants' motion and entered judgment in their favor. The Court of Appeal reversed, relying on its earlier decision in Kensinger v. Abbott Laboratories (1985) 171 Cal. App. 3d 376 [217 Cal. Rptr. 313]. The Court of Appeal did not address Jolly's main argument, that the statute could not begin to run until after our decision in Sindell, supra, 26 Cal. 3d 588, except by way of a footnote declining to adopt her position. fn. 3 We granted defendants Eli Lilly and Company, Rexall Drug Company, and E.R. Squibb and Sons, Inc.'s subsequent petition for review.
As previously noted, both sides agree that the one-year limitations period of section 340, subdivision (3) applies to this case.  Both sides also agree that the common law rule, that an action accrues on the date of injury (Lambert v. McKenzie (1901) 135 Cal. 100, 103 [67 P. 6]), applies only as modified by the "discovery rule." The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. fn. 4 (Sanchez v. South Hoover Hospital, supra, 18 Cal. 3d 93, 99.) A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her. (Id. at p. 101.) The parties differ as to what constitutes sufficient knowledge to start the statute running.
However, the key point in Kensinger was its determination that one "critical fact" was knowledge of some wrongful conduct. Specifically, the court held that a plaintiff may have "no knowledge of facts indicating wrongdoing by a particular defendant. In such a situation, litigation might be premature for lack of knowledge of any factual basis for imputing fault to a manufacturer rather than ignorance of supportive legal theories. ... [¶] Knowledge of the occurrence and origin of harm cannot necessarily be equated with knowledge of the factual basis for a legal remedy. ..." (171 Cal.App.3d at pp. 383-384; italics added.) Accordingly, the Kensinger court held that the statutory clock did not begin to tick until the plaintiff knew or reasonably should have known of the facts constituting wrongful conduct, as well as the fact of her injury and its relation to DES. fn. 5 The Court of Appeal, applying Kensinger, held that it could not be said that "as a matter of law" Jolly was or should have been aware of facts establishing wrongdoing, e.g., "either failure to test or failure to warn," until within one year of the date she filed suit.
 The rule proposed in Kensinger goes too far. fn. 6 Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. fn. 7 As we said in Sanchez and reiterated in Gutierrez, the limitations period begins once the plaintiff "'"has notice or [44 Cal. 3d 1111] information of circumstances to put a reasonable person on inquiry ...."'" (Gutierrez, supra, 39 Cal.3d at pp. 896-897, quoting Sanchez, supra, 18 Cal.3d at p. 101 (italics added by the Gutierrez court).) A plaintiff need not be aware of the specific "facts" necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.
[5a] Plaintiff's major argument, which was summarily rejected by the trial court and the Court of Appeal, is that our landmark decision in Sindell v. Abbott Laboratories, supra, 26 Cal. 3d 588, constituted the "fact" that activated the statute. Plaintiff does not dispute the general rule that ignorance of the identity of the defendant does not affect the statute of limitations. (See, e.g., Gutierrez, supra, 39 Cal. 3d 892, 899; Neal v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal. 3d 176, 194 [98 Cal. Rptr. 837, 491 P.2d 421]; Gale v. McDaniel (1887) 72 Cal. 334 [13 P. 871]; Snow v. A. H. Robins Co. (1985) 165 Cal. App. 3d 120, 127 [211 Cal. Rptr. 271]; Baker v. Hughes Aircraft Corp. (1974) 39 Cal. App. 3d 315, 321 [114 Cal. Rptr. 171, 91 A.L.R.3d 981].) However, she asserts that the rule does not apply to the facts of her case.
Plaintiff contends that prior to Sindell, supra, 26 Cal. 3d 588, the defective "product" was defined as the specific DES pills her mother ingested. Consequently, plaintiff could not establish a causal link between any particular manufacturer and her injury. She argues that Sindell redefined the defective "product" as generic DES, making all manufacturers of DES contributors to her injury. Thus, now she is able to establish a causal link between the harm suffered and defendants.
Defendants reply that this was not the intended effect of Sindell. They argue that Sindell merely shifted from plaintiff to defendants the burden of proving which manufacturer's drug caused plaintiff's injury.
At the same time, we did not create an entirely new tort, nor identify a new "product." Sindell merely bridged the causal gap between DES manufacturers as a group and plaintiff's injury. Where the actual manufacturer of the ingested DES is unknown, causation by joined manufacturers of a substantial share of the DES that a plaintiff's mother might have taken would be presumed, subject, of course, to each drug manufacturer's ability to rebut the presumption by proving that the actual pills in question were not its product.
From the foregoing, it is clear that Sindell did not provide plaintiff with the critical "fact" that started the limitations period. Nor did it create a new tort with an independent starting date for purposes of the statute of limitations. Rather, Sindell demonstrated the legal significance of facts already known to plaintiff. The statute had started to run for plaintiff well before Sindell was decided.
At a less legalistic but more fundamental level, plaintiff argues, with some persuasive force, that prior to Sindell she could not have prevailed on her [44 Cal. 3d 1116] suit. She notes that during the time that defendants argue her action would have been timely, McCreery v. Eli Lilly & Co., supra, 87 Cal. App. 3d 77 (overruled by Sindell, supra, 26 Cal.3d 588), effectively barred her claim. In McCreery, the Court of Appeal held that a plaintiff who could not identify the precise manufacturer of the pills ingested by her mother did not allege a cause of action. Plaintiff undoubtedly fell into this group. [6a] , [5b] The response to plaintiff's contention is that a change in the law, either by statute or by case law, does not revive claims otherwise barred by the statute of limitations.
The seminal case on point is Monroe v. Trustees of the California State Colleges (1971) 6 Cal. 3d 399 [99 Cal. Rptr. 129, 491 P.2d 1105]. Professor Monroe was fired from the California State College system for failing to take a loyalty oath. The statute requiring the oath was held constitutional in Pockman v. Leonard (1952) 39 Cal. 2d 676 [249 P.2d 267]. In view of that case, Professor Monroe did not seek judicial review of the state's action within the statutory period. We overruled Pockman in Vogel v. County of Los Angeles (1967) 68 Cal. 2d 18 [64 Cal. Rptr. 409, 434 P.2d 961], and declared the statute unconstitutional.
Shortly thereafter, Professor Monroe brought suit in part for back wages. We held that this portion of Professor Monroe's suit was untimely because a change in the law applied only to timely filed claims; the change could not revive claims already barred by the statute of limitations. (Monroe, supra, 6 Cal.3d at pp. 406-407.) Although prior to Vogel Professor Monroe was effectively precluded from bringing his claim, it was not "impossible" for him to do so. We held that "no legal obstacle barred a judicial challenge to [his] initial discharge" and that the "mere existence of a contrary precedent has never been considered sufficient to toll the statute of limitations." (Id. at p. 408, fn. 5.) (Accord, Estate of Horman (1971) 5 Cal. 3d 62 [95 Cal. Rptr. 433, 485 P.2d 785] [ability of Soviet residents to inherit a portion of a Californian's estate]; Bartman v. Estate of Bartman (1978) 83 Cal. App. 3d 780 [148 Cal. Rptr. 207] [guest statute]; Bellah v. Greenson (1978) 81 Cal. App. 3d 614 [146 Cal. Rptr. 535, 17 A.L.R.4th 1118] [duty of psychiatrist after Tarasoff v. Board of Regents (1976) 17 Cal. 3d 425 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]]; Priola v. Paulino (1977) 72 Cal. App. 3d 380 [140 Cal. Rptr. 186] [loss of consortium]; Shelton v. Superior Court (1976) 56 Cal. App. 3d 66 [128 Cal. Rptr. 454] [loss of consortium]; Bartalo v. Superior Court (1975) 51 Cal. App. 3d 526 [124 Cal. Rptr. 370] [spousal suit statute]; Lopa v. Superior Court (1975) 46 Cal. App. 3d 382 [120 Cal. Rptr. 445] [guest statute].) Precedent is in unanimous accord with this rule.
[6b] In all of the above-cited cases, the court recognized that the rule may work a harsh result. Nonetheless, it is justified in three ways. First, the [44 Cal. 3d 1117] rule encourages people to bring suit to change a rule of law with which they disagree, fostering growth and preventing legal stagnation. Second, the statute of limitations is not solely a punishment for slow plaintiffs. It serves the important function of repose by allowing defendants to be free from stale litigation, especially in cases where evidence might be hard to gather due to the passage of time. Third, to hold otherwise would allow virtually unlimited litigation every time precedent changed. For example, in Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], this court held that contributory negligence was not a total bar to recovery. There were undoubtedly thousands of potential plaintiffs through the years who had been reasonably advised to the contrary by competent counsel and so failed to bring suit. Nevertheless, allowing them all to sue within a year after the Li decision would have been untenable. Courts simply are not equipped to handle cases dating back many years, eventually brought because the law has changed. This prohibition against revival of claims can obviously create a hardship on such unfortunate plaintiffs (and a windfall to fortunate defendants). However, the hardship is no greater than that incurred by plaintiffs who received an adverse final judgment based on the "old" law and are barred from relitigating their case by res judicata.
Plaintiff seeks to avoid application of the rule that contrary precedent does not toll the statute of limitations by noting that prior to each of the aforementioned cases there had been a decided policy that barred plaintiffs from the courts. Here, in contrast, no legislative or judicial policy was expressed to preclude DES victims who could not identify the manufacturer of the ingested drug from bringing suit. Plaintiff's distinction is accurate, but irrelevant. Such a policy has never been articulated as a reason to enforce statutes of limitation following changes in the law, nor does this difference justify creating retroactivity reaching back to claims barred by res judicata or the statute of limitations.
Moreover, in early 1978, plaintiff's legal situation was not as dismal as it initially appears. First, she was in no worse a position than Judith Sindell, who ultimately prevailed in changing the law. Second, there were other, more traditional theories available on which plaintiff could base her lawsuit, such as civil conspiracy or joint liability under Summers v. Tice, supra, 33 Cal. 2d 80. While it is true that these theories were not clearly meritorious (indeed they were ultimately rejected by us in Sindell, supra, 26 Cal.3d 588), they did provide plaintiff with a nonfrivolous cause of action. Although in the latter part of 1978, McCreery, supra, 87 Cal. App. 3d 77, appeared to foreclose such a suit, that case was an intermediate appellate court decision. In this regard, the last word on the subject had not been spoken, and other Courts of Appeal were free to disregard that case. Therefore, plaintiff was [44 Cal. 3d 1118] not entirely forestalled, even as a practical matter, from bringing a timely suit.
Finally, even without using any of the above theories, plaintiff could have filed a timely complaint under section 474, which allows suit to be filed against a Doe party. From the time such a complaint is filed, the plaintiff has three years to identify and serve the defendant. (See Altman v. Morris Plan Co. (1976) 58 Cal. App. 3d 951, 962-963 [130 Cal. Rptr. 397]; Staples v. Zoph (1935) 9 Cal. App. 2d 369, 370 [49 P.2d 1131].) Hence, in the instant case, plaintiff could have brought a timely Doe action, effectively enlarging the statute of limitations period for three years. Had she done so, her complaint would have been pending when Sindell, supra, 26 Cal. 3d 588, was decided.
[5c] In sum, plaintiff's argument that Sindell created or revived her cause of action must fail.
[7a] Relying on American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 [38 L. Ed. 2d 713, 94 S. Ct. 756] and its progeny, plaintiff argues that the filing of the class action in Sindell, supra, 26 Cal. 3d 588, fn. 16 tolled the statute of limitations with respect to individual members of the putative class until the class was denied certification in 1982. Defendants respond that the issue is not properly before us, as it was not raised below (Cal. Rules of Court, rule 29), a contention we reject in light of the issue's great public importance. (See, e.g., Tyre v. Aetna Life Ins. Co. (1960) 54 Cal. 2d 399, 405 [6 Cal. Rptr. 13, 353 P.2d 725].) Alternatively, defendants argue that the tolling principle set forth in American Pipe, supra, 414 U.S. 538, and followed by the Court of Appeal in Bangert v. Narmco Materials, Inc. (1984) 163 Cal. App. 3d 207 [209 Cal. Rptr. 438], has no application to the present case. We agree that American Pipe is inapplicable here.
We have repeatedly directed that in the absence of controlling state authority, California courts should utilize the procedures of rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.) to ensure fairness in the resolution of class action suits. (Richmond v. Dart Industries, Inc. (1981) 29 Cal. 3d 462, 469, fn. 7 [174 Cal. Rptr. 515, 629 P.2d 23]; La Sala v. American Sav. & Loan Assn. (1971) 5 Cal. 3d 864, 872 [97 Cal. Rptr. 849, 489 P.2d 1113]; Vasquez v. Superior Court (1971) 4 Cal. 3d 800, 821 [94 Cal.Rptr. [44 Cal. 3d 1119] 796, 484 P.2d 964, 53 A.L.R.3d 513].) Under rule 23, the filing of a timely class action commences the action for all members of the class as subsequently determined. (American Pipe, supra, 414 U.S. 538, 550 [38 L. Ed. 2d 713, 725].) In American Pipe, the United States Supreme Court held that, under limited circumstances, if class certification is denied, the statute of limitations is tolled from the time of commencement of the suit to the time of denial of certification for all purported members of the class who either make timely motions to intervene in the surviving individual action (id. at pp. 552-553), or who timely file their individual actions (Crown, Cork & Seal Co. v. Parker (1983) 462 U.S. 345, 350 [76 L. Ed. 2d 628, 633-634, 103 S.Ct. 2392]). Although we are not bound by the United States Supreme Court decisions (see Cartt v. Superior Court (1975) 50 Cal. App. 3d 960, 969, fn. 15 [124 Cal. Rptr. 376]; Hypolite v. Carleson (1975) 52 Cal. App. 3d 566, 582 [125 Cal.Rptr. 221]), we nevertheless consider the applicability of American Pipe (supra, 414 U.S. 538) here.
In American Pipe the State of Utah commenced a civil action, claiming that defendants conspired to rig steel and concrete pipe prices in violation of the Sherman Act. The suit purported to be a class action, brought on behalf of Utah's public agencies and others who were end users of the pipe. On defendant's motion, the district court denied class action status for failure to satisfy the numerosity requirement of rule 23(a)(1) of the Federal Rules of Civil Procedure. The public agencies who were alleged as class members then filed motions to intervene. The court denied the motions on statute of limitations grounds. The Ninth Circuit reversed.
In Bangert v. Narmco Materials, Inc., supra, 163 Cal. App. 3d 207, the Court of Appeal extended American Pipe to apply to a class action suit against a plastics research plant seeking injunctive and monetary relief for property damage, economic loss and physical injuries. The asserted class consisted of persons living within a half-mile radius of the plant. The trial court denied class certification on grounds of insufficient community of [44 Cal. 3d 1120] interest. Thereafter the court denied as untimely plaintiffs' motion for leave to amend the complaint nunc pro tunc to add as plaintiffs 92 members of the class designated in the original complaint.
Plaintiff urges us to follow the Bangert court's extension of American Pipe so as to find that the filing of the Sindell class action tolled the statute of limitations applicable to her individual suit. To resolve this issue, we need to consider both the nature of the Sindell action and the rationale underlying American Pipe.
Judith Sindell filed suit in 1976. She purported to be suing on her own behalf and, "with respect to certain relief," on behalf of a class of women allegedly similarly situated. For herself, individually, Sindell claimed damages for specific personal injury suffered as a result of her mother's ingestion of DES during pregnancy. In her cause of action relating to the class claims, Sindell described the class as female residents of California "who have been exposed to DES before birth and who may or may not know that fact or danger, and as a result of which, have or may have contracted or in the future may contract adenocarcinoma or vaginal or cervical adenosis or precancerous tumors of the breast or cancer of the bladder." For the class, Sindell sought only declaratory relief and an order directing defendants to publicize the dangers of DES and the necessity of medical evaluations and to fund the establishment and maintenance of clinics to provide free examinations to the DES daughters.
Six years later, in 1982, the trial court denied certification. As reason, the court cited, in relevant part, the lack of commonality among class members on issues of proximate cause, extent of injury, and appropriate medical examination or treatment. fn. 17 "As a general rule," the court observed, "so-called [44 Cal. 3d 1121] 'mass accidents' or 'common disasters' are considered not appropriate for class litigation. This inappropriateness is based upon the overwhelming uniqueness of the issues stemming from the necessity for the trier to hear and determine individually each victim's injuries, his suffering, financial loss, etc. Thus even though a common question may be involved (e.g., the defendant's tort) the matter is not suitable for a class action."
The question to be asked, then, is whether the Sindell, supra, 26 Cal. 3d 588, mass-tort class action fits the rationale of American Pipe, supra, 414 U.S. 538. We believe the answer is no.
 This court has held that the ultimate determination of whether a class action is appropriate turns on the existence and extent of common questions of law and fact. (City of San Jose v. Superior Court (1974) 12 Cal. 3d 447, 460 [115 Cal. Rptr. 797, 525 P.2d 701, 76 A.L.R.3d 1223].) As the trial court in the present case correctly observed, mass-tort actions for personal injury most often are not appropriate for class action certification. (See Fed. Rules Civ. Proc., rule 23, supplemental note of Advisory Com., reported 28 U.S.C.A. rule 23, pp. 54-55.) The major elements in tort actions for personal injury -- liability, causation, and damages -- may vary widely from claim to claim, creating a wide disparity in claimants' damages and issues of defendant liability, proximate cause, liability of skilled intermediaries, comparative fault, informed consent, assumption of the risk and periods of limitation. (D'Amico v. Sitmar Cruises, Inc. (1980) 109 Cal. App. 3d 323 [167 Cal. Rptr. 254]; Rose v. Medtronics, Inc. (1980) 107 Cal. App. 3d 150 [166 Cal. Rptr. 16]; In re Northern Dist. of Cal., Dalkon Shield, etc. (9th Cir. 1982) 693 F.2d 847, cert. den. A.H. Robins Co., Inc. v. Abed (1983) 459 U.S. 1171 [74 L. Ed. 2d 1015, 103 S. Ct. 817]; In re Tetracycline Cases (W.D. Mo. 1985) 107 F.R.D. 719; Mertens v. Abbott Laboratories (D. N.H. 1983) 99 F.R.D. 38.) Thus, for example, in DES litigation, use of the class action device has consistently been rejected. (Mertens v. Abbott Laboratories, supra; McElhaney v. Eli Lilly & Co. (D. S.D. 1982) 93 F.R.D. 875; Ryan v. Eli Lilly & Co. (D. S.C. 1979) 84 F.R.D. 230; Mink v. University of Chicago (N.D. Ill. 1978) 460 F. Supp. 713.) California DES litigation has not departed from this trend; no reported California cases have approved DES litigation in class action form.
Our position in the present case ensures that the abuse warned of by Justice Blackmun will not occur. By refusing to extend American Pipe's [44 Cal. 3d 1125] tolling doctrine to allow the instant suit, we heed Justice Blackmun's admonishment to district judges to exercise discretion in applying the American Pipe rule in order to "prevent the type of abuse mentioned above and [to] preserve a defendant whole against prejudice arising from claims for which he has received no prior notice." (414 U.S. at p. 562 [38 L.Ed.2d at p. 731].) Because the Sindell complaint never put defendants on notice that personal injury damages were being sought on a class basis, it would be unfair to defendants to toll the statute of limitations on such personal injury actions. (American Pipe, supra, 414 U.S. 538, 553 [38 L. Ed. 2d 713, 726].) And because the Sindell complaint did not seek personal injury damages on behalf of the class, even those absent class members who were aware of that action could not reasonably have relied on the complaint as a basis for postponing their own personal injury actions. Thus, our ruling today does not result in duplicative litigation of the sort feared by the court in American Pipe, nor does it deprive rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.) of its purpose to further the efficiency and economy of litigation (American Pipe, supra, 414 U.S. 538, 553).
The judgment of the Court of Appeal is reversed. The cause is remanded with instructions to affirm the judgment of the trial court in favor of defendants.
FN 1. The doctor died prior to 1978. The record does not set forth the exact date or year of his death.
FN 2. All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FN 3. The court stated: "We decline to interpret Sindell, as plaintiff proposes, as creating a new cause of action by defining generic DES as the causation element."
FN 6. We recognize that some jurisdictions have adopted rules similar to that set out in Kensinger. (See, e.g., Anthony v. Abbott Laboratories (R.I. 1985) 490 A.2d 43 (relied on in Kensinger); Dawson v. Eli Lilly & Co. (D.D.C. 1982) 543 F. Supp. 1330; Lopez v. Swyer (1973) 62 N.J. 267 [300 A.2d 563].) However, as will be shown, the rule in California is otherwise.
FN 7. In this context, "wrong," "wrongdoing," and "wrongful" are used in their lay understanding.
FN 8. To the extent that Kensinger, supra, 171 Cal. App. 3d 376, conflicts with the foregoing, it is disapproved. Of course, nothing stated herein affects the well-established rule that the ignorance of the legal significance of known facts or the identity of the wrongdoer will not delay the running of the statute.
"Q: Why at that time were you interested in obtaining more information [about the DES ingested by plaintiff's mother]?
"A: To see if I had any type of recourse.
"Q: You mean in terms of making a claim or recovering from someone for your injury?
"Q: In 1978 did you feel that you should have some kind of recourse?
"Q: You felt that someone had done something wrong to you?
"Q: And that you should be compensated for it?
"Q: You believed at that time, in 1978, that DES was a defective drug, is that right?
FN 10. See, e.g., The Cancer That Doctors Caused, San Francisco Examiner (Sept. 12, 1979); DES -- A Chemical Menace to the Unborn, San Francisco Chronicle (Dec. 18, 1978); Millions of Women to Be Notified of DES Cancer Risk, Los Angeles Times (Oct. 5, 1978); Effects of DES; Legal Battles and Human Suffering, Oakland Tribune (April 28, 1977); Major U.S. Companies Sued for Damage in Class Action, Wall Street Journal (Sept. 18, 1974); Questions and Answers about DES Exposure Before Birth (DESAD Project), Department of Health, Education, and Welfare Publication No. 76-1118 (1976); Information for Physicians, DES Exposure In Utero, Department of Health, Education, and Welfare Publication No. 76-1119 (1976); Gray v. United States (S.D. Tex. 1978) 445 F. Supp. 337; Lyons v. Premo Pharmaceutical Labs., Inc. (1979) 170 N.J. Super. 183 [406 A.2d 185]; Abel v. Eli Lilly & Co. (1979) 94 Mich.App. 59 [289 N.W.2d 20]; McCreery v. Eli Lilly & Co. (1978) 87 Cal. App. 3d 77 [150 Cal. Rptr. 730]. Indeed, plaintiff admitted in her deposition that prior to 1978 she was aware of at least one pending DES lawsuit. Further, she argues that it was McCreery v. Eli Lilly & Co., supra, 87 Cal. App. 3d 77, discussed post, that effectively precluded her from filing a timely action.
"Q: As of the time you first called Mr. Schulz's firm in 1980, had you learned anything new about your mother's use of DES of which you were not aware in 1978?
"A: Not that I remember.
"Q: Had you learned anything about the drug DES, that is its use or the manufacture, testing of the drug, the effect of the drug, during that period of time between March '78 and the time you contacted the attorney in 1980?
"Q: During that same period of time had you learned any information as to what company made the drug?
"Q: Is it correct then that the only thing that you learned new or differently pertaining to DES or your injury between March of 1978 and the time you called the attorneys in 1980 was that the Court ruled you could file a lawsuit even if you couldn't identify the manufacturer?
FN 13. Plaintiff's failure to file suit despite her suspicion of wrongdoing is not surprising in the context of this case. By her own admission, her real reason for delaying action was that she did not know whom to sue, not that she did not know whether to sue. See discussion, post, this page.
FN 14. In Summers, we held that an innocent plaintiff who could not identify which of two negligent hunters shot him, but was sure that one of them was the culprit, could bring suit by joining both. The burden then shifted to each defendant to show that he did not cause the injury.
FN 15. Such a result surely would be beneficial to plaintiffs. For example, some drug companies are judgment proof or beyond the court's jurisdiction. Under plaintiff's interpretation of Sindell carried to its logical extreme, that would not prevent a plaintiff from recovering from other DES manufacturers even if she knew that they did not produce the ingested DES. However, such a result is foreclosed.
FN 16. We take judicial notice (Evid. Code, § 452, subd. (d)) of the pleadings, files, and orders filed in Sindell (L.A. County Super. Ct., No. C169127) and in Rogers v. Rexall Drug Co., et al. (Ventura County Super. Ct., No. 61220), consolidated with Sindell on appeal (see Sindell, supra, 26 Cal.3d at p. 597).
FN 18. Although in Rogers v. Abbott Laboratories, consolidated with Sindell, supra, 26 Cal. 3d 588, on appeal (see id. at p. 597), plaintiff Maureen Rogers evidently asked for the same legal relief on behalf of the class as for herself (see id. at p. 596), this is not clear from the complaint, nor does plaintiff rely on Rogers as having tolled the statute of limitations. However, even if the Rogers allegations were sufficient to include the class in claims for personal injury, for the reasons hereinafter stated relating to the inappropriateness of the class action device in litigating personal injury claims, such would not alter the result in this case. We observe, moreover, that plaintiff's complaint was filed considerably more than one year after class certification in Rogers was denied, thus precluding her reliance on Rogers in any event.
FN 20. Insofar as Bangert v. Narmco Materials, Inc., supra, 163 Cal. App. 3d 207, is inconsistent with our holding, that case is disapproved.