Ben Siminou has served as lead counsel in numerous appeals in the California Supreme Court, California Court of Appeal, and the Ninth Circuit Court of Appeals. The following are some of Ben’s recent appellate victories:
Omidi v. Wal-Mart Stores, Inc., 742 F. App'x 260 (9th Cir. 2018)
Ben represented consumers who claimed they were defrauded into purchasing eye examinations from supposedly "independent" optometrists who, the consumers alleged, were actually subject to extensive control by Walmart as part of a scheme by Walmart to sell more prescription eyewear. After a federal court dismissed the lawsuit, Ben appealed the decision to the United States Court of Appeal for the Ninth Circuit. Ben wrote the winning briefs that ultimately persuaded the Ninth Circuit to reverse the district court's decision and reinstate the lawsuit.
After losing to Ben in the California Court of Appeal in T.H. v. Novartis Pharmaceuticals Corp., 245 Cal.App.4th 589 (2016), a brand-name drug manufacturer — and members of its powerful lobby, including the U.S. Chamber of Commerce — successfully petitioned the California Supreme Court to review the Court of Appeal’s decision. Ben, joined by Leslie Brueckner of Public Justice, persuaded the California Supreme Court to affirm the Court of Appeal’s decision. The resulting majority opinion broke with over 90 decisions from state and federal courts in other jurisdictions to find in favor of the plaintiffs in such cases, and is the first standing state supreme court decision in the United States to assign liability to brand-name manufacturers where the plaintiff was injured by a generic drug.
T.H. v. Novartis Pharmaceuticals Corp., 245 Cal. App. 4th 589 (2016)
Ben represented two minor children who were seriously injured from in utero exposure to a generic drug prescribed to their mother for prevention of preterm labor. The minor children sued the former brand-name manufacturer of the same drug product, alleging that the manufacturer unreasonably failed to add warnings to the label that the drug was neither safe nor effective for treating preterm labor. The trial court dismissed the children’s claims, but Ben persuaded the California Court of Appeal to reverse, resulting in just one of two published appellate decisions in the United States to permit such claims. The children's cause also prevailed on subsequent appeal by the manufacturer to the California Supreme Court in T.H. v. Novartis Pharmaceuticals Corp., 4 Cal.5th 145 (2017).
| Read the Brief |
Rashidi v. Moser, 60 Cal. 4th 718 (2014)
Ben wrote a winning amicus curiae brief in an appeal before the California Supreme Court involving a novel question of how to apportion settlement proceeds under MICRA, California's statutory limitation on recoveries in medical-malpractice cases. Ben devised the winning theory that because MICRA's limitation was framed as a cap on "damages," money that a plaintiff recovers in settlement from one medical-malpractice defendant does not count the $250,000 cap on noneconomic damages a plaintiff can recover from a non-settling medical-malpractice defendant.
People v. McDowell, No. D060310, 2011 WL 6373005 (Cal. Ct. App. 2011)
Ben succeeded in reversing the conviction of a suspect whose personal belongings were searched in violation of his Fourth Amendment rights. The trial court had refused to suppress the fruits of the illegal search, but, in a matter of first impression in California, Ben persuaded the California Court of Appeal that the search was unconstitutional under the U.S. Supreme Court’s decision in Herring v. United States, 555 U.S. 135 (2009).
Clevenstine v. Professional Security Consultants, No. D056205, 2011 WL 773478 (Cal. Ct. App. 2011)
Ben represented the victim of a stabbing at a local shopping mall against the mall and its security contractor. After the trial court granted summary judgment in favor of the defendants, Ben succeeded in reversing the summary judgment. The mall ultimately settled with Ben’s client.