February 2018 Bar Bulletin
By Felix Luna and James S. Rogers
If you’re fortunate enough to spend the afternoon with David Beninger, here are a few things he’ll never mention.
First, while he might say that he and his talented team at The Luvera Law Firm have seen courtroom success for their clients, he would not add that — in his 28-year career as a personal-injury attorney — he has earned more than 100 verdicts and settlements exceeding $1 million, which include the state’s largest wrongful death claim; largest nursing-home injury award; largest bicycle-injury verdict; three of the top five largest insurance bad-faith results, and the largest loss-of-consortium case.
Second, he might allude to his work in helping set precedent, but he would not cite the fact that his work has been instrumental in the evolution of Washington’s discovery and insurance bad-faith laws. In fact, one of his earliest cases drove a sea change in the discovery rules, establishing a level playing field for individuals standing up to large companies.
Third, while Beninger is quick to share his success deservingly with his partners, no one can argue with the recognition he has received from his peers. Most recently, he received the 2017 Tom Chambers Trial Lawyer of the Year Award from the Washington State Association for Justice (WSAJ). Add that to his membership in the invitation-only Damage Attorneys Round Table (DART), and many other distinctions.
Luckily for those of us who call Beninger a colleague and friend, he would much rather spend the afternoon applying his innate intellectual curiosity to develop legal strategy in complex cases than blowing his own horn.
“He’s collaborative — he’s funny, he’s friendly, he’ll give you the shirt off his back,” said Tomas Gahan, a colleague in the local plaintiffs’ bar. “We have a case we’re working on right now, so we sent David hundreds of pages of briefings and he spent an afternoon talking strategy with us. He cares about our clients and getting the best outcomes for them because he believes it’s the right thing. And he wants us to do a good job.”
As an outstanding trial lawyer, legal scholar and creative mind, Beninger is a triple threat. He is singularly focused on advocating for those who otherwise would not have a voice. He stands up to bullies; something he’s done most of his life.
Beninger’s commitment to the underdog began as a child in Arizona, where his father, Dave, a two-time Golden Gloves boxer, taught him to fight at an early age. His mother, Barbara, was a school teacher who taught him to balance brain with brawn, to be compassionately competitive.
“There were certain rules that came with that responsibility,” he said. “You used those skills to protect people, to fight for things bigger than you, but you were never the bully. That carries over to the same sort of intellectual fights that we get into on behalf of our clients today.”
He added that experience has also taught him to think on his feet. “There is a great quote by former heavyweight champ Mike Tyson, ‘Everyone has a plan ’til they get punched in the mouth.’ That is as true in the courtroom as it is in the ring — you have to think and adjust to succeed.”
After graduating Phi Beta Kappa in economics from the University of Washington, Beninger worked as a tour director in Asia, giving him a larger world view at an early age. But the rigors of travel and finding lost luggage for jet-lagged tourists left him wanting something more.
He was torn between getting a law or a business degree, and finally decided on law. Beninger garnered his share of puzzled looks when his advisor saw that he added several Chinese courses along with his law school classes, hedging his bets with a career in international business. He graduated from UW School of Law in 1989.
“I didn’t like sitting in the classroom that much, so I took Rule IX and basically spent my last year in law school trying cases for the prosecutor’s office in Snohomish County, and doing some public defender work in King County,” Beninger said. “I fell in love with the courtroom, and went the civil route because it allowed for more opportunity to use cases to right larger wrongs through things like full disclosures, policy or product changes as part of any sort of settlement.”
Beninger went into practice with Paul Luvera, widely recognized as one of the most skilled and successful trial lawyers in the nation. He credits much of his success to being blessed with exceptional mentors in Paul and Lita Luvera, and partners Ralph Brindley and Joel Cunningham.
“Every fighter needs good trainers in their corner, and I was lucky enough to learn from the best,” Beninger said.
According to Luvera, Beninger is “a mental sponge” who is open to learning new things, testing them in practice, and nearly always improving on them. “It isn’t just that he’s clever. David also has extremely good insight — if he were a chess player, he’d be playing third-level chess. He is one of these rare people who can foresee all the alternatives and then choose the right one — and actually be right. You learn after a while to simply say, ‘I’ll just trust what David wants to do.’”
One of the Luvera Law Firm’s hallmarks is its refusal to sign confidentiality agreements as part of its settlements, allowing plaintiffs the freedom to seek out changes, speak about their experiences, and shed light on problems. Bringing the truth to light is at the core of Beninger’s practice.
“Lawyers who face him have learned you’d better produce the information — not evade or conceal or hide — because he’ll find it,” Luvera said. “David has a remarkable determination and persistence in representing his clients. He’s an extraordinary lawyer.”
Ironically, Beninger’s early professional years were marked by criticism for not being aggressive enough. One of his first cases was the legendary Washington State Physicians Insurance Exchange v. Fisons Corp, in which Beninger represented the family of a two-year-old girl who suffered permanent brain damage after her doctor administered the drug theophylline. The case’s three-year discovery process was systematically undermined when the defendant, a multinational pharmaceutical company, failed to produce the “smoking gun” documents in response to direct questions, including a “dear doctor” warning letter it sent to only certain key physicians.
After Beninger received a copy of the letter from an anonymous source, he and the physician’s attorney moved for discovery sanctions against Fisons, which were denied or dismissed several times by a special master and then Snohomish County Superior Court judges.
“As the requesting party, I was criticized for not moving to compel, not moving to strike objections, not chasing defendants through their ducking and dodging on answers,” Beninger recalled. “We ended up losing those first few rounds, where I was blamed for not being aggressive enough.”
In a landmark decision, the Washington Supreme Court later vindicated him, rejecting those arguments and instead placing new burdens on responding counsel to broadly and fully answer and produce responsive documents at the risk of sanctions.
“I was fresh out of law school, and I went through my first couple of years being criticized for not being aggressive enough, to naturally being tenacious on discovery and other obligations,” Beninger said.
It works. In a recent case following another million-dollar verdict, Beninger won a new trial on punitive damages and more than $250,000 in sanctions due to a medical company’s discovery failure to produce key documents until late in trial.
That tenacity and passion sometimes ruffle feathers, but Beninger is comfortable with his approach — because he knows whom he’s fighting for. Rather than trying to win popularity contests, he’s focused on winning cases for his clients. Not that earning respect from opposing counsel and strong advocacy for clients are mutually exclusive.
In another hard-fought and high-
profile case, Beninger and Luvera represented the families of two boys killed in the Olympic Pipe Line explosion in Bellingham in 1999. Larry Finegold, the criminal and civil defense attorney for the pipeline executives, remembers Beninger as “a skilled lawyer and advocate, but also a very decent human being.”
In supporting Beninger’s nomination for Trial Lawyer of the Year, Finegold recounted, “As the criminal and civil cases ran concurrently, numerous issues … overlapped, and those of us who defended our clients in both investigations were involved in numerous pretrial skirmishes … as the plaintiffs pursued discovery and attempted to depose our clients during the ongoing criminal investigation. What impressed me most about David was that his zealous representation of his clients was tempered by his understanding that the potential defendants in the negligence-based criminal case had legitimate concerns.”
After the civil case settled for $75 million, Finegold asked Beninger to arrange a meeting with his client and the parents of one of the boys.
“My client and the parents of the deceased were able to meet and grieve together,” Finegold wrote. “That meeting was one of the most memorable of my career.… David’s assistance and recognition of the pain suffered by the family and the need for closure … was remarkable.”
Beninger’s humanity and empathy run deep as a collaborative, funny and generous friend and a dedicated family man. Fighter. Bulldog. Winner. Friend. Advocate. A lawyer’s lawyer. No matter how we describe David Beninger, one thing is clear: His advocacy for clients and his commitment to setting things right are unwavering and unmatched. He fights the good fight.
Felix Gavi Luna is a partner at Peterson Wampold Rosato Feldman Luna. His practice focuses on plaintiff’s personal injury, products liability, civil rights, and consumer and commercial disputes.
James S. Rogers is the senior attorney at The Law Offices of James S. Rogers. His practice emphasizes plaintiff’s product liability, vehicle crashworthiness, highway design and personal injury.