The Life

March 19, 2012 8:00 PM

State of Hawaii Agrees to Pay $15.4 Million to Settle Suit Over Gibson Dunn Partner's 2006 Hiking Death

Posted by Brian Baxter

Elizabeth Warke Brem, a former partner in Gibson, Dunn & Crutcher's Orange County office in Irvine, California, died more than five years ago in a hiking accident on the Hawaiian island of Kauai. Brem's cousin Paula Ramirez was killed in the same tragic mishap during their vacation to the island paradise in December 2006.

With the state of Hawaii having already been found liable for the women's deaths—and with a civil trial on damages set to start this week—Hawaiian officials agreed Friday to pay the victims' families $15.4 million in what one lawyer connected to the case says is the largest personal injury settlement in state history.

Mark Davis, a name partner at Honolulu's Davis Levin Livingston, and a team of lawyers from his firm are representing the Warke and Brem families, who sued the Hawaiian government following the deaths of Brem, 35, of Encinitas, California, and Ramirez, 29, of Bogota, Colombia.

Elizabeth Brem

The women died while hiking a trail to picturesque ‘Opaeka’a Falls in Kauai's Waialua River State Park in the week before Christmas. Encountering a fork in the trail—and seeing a sign to the left warning hikers to keep out—Brem (pictured right) and Ramirez took an unmarked path to the right that lead them to a steep cliff covered in heavy vegetation. The two plummeted 300 feet to their deaths.

In its defense, the state argued that the sign the women saw, which read, "Danger—Keep Out—Hazardous Conditions," was intended as a general warning to keep people from hiking too close to the waterfall, and specifically to halt them from making the risky climb down to the pool at the base of the cliff.

But Davis, assisted by associates Erin Davis and Loretta Sheehan, and Hawaiian solo practitioner Teresa Tico, who is representing Ramirez's family, claimed the state's signage was inadequate and the absence of a corresponding warning sign or fence on the right side of the trail essentially steered the cousins to their death.

A circuit court judge in Lihue, Kauai ruled almost a year ago this month that the Hawaiian government was indeed liable for the deaths of Brem and Ramirez. (Click here for the 44-page ruling by Judge Kathleen Watanabe.)

Davis says that many sightseers and nature lovers visit Waialua River State Park every year, and that the falls have long been a popular destination for back country hikers. Prior to the accident involving Brem and Ramirez, whose sudden deaths made headlines across state and suburban San Diego, Davis says there were several incidents involving other hikers, including one in which a person who fell from the same cliff only survived because he landed in the canopy of a tree about 200 feet below.

Brem's death, Davis says, was a senseless end to an inspiring life.

"Elizabeth was a highly accomplished lawyer," Davis says. "She grew up in the Bronx as the daughter of a Colombian immigrant, attended the Bronx High School of Science, graduated at the top of her class at Barnard, where she was valedictorian, and went on to Yale Law School."

While in law school, Brem served as senior editor of the Yale Law Review before becoming a securities litigator in 1996 at Gibson Dunn. Almost a decade later, in September 2005, the firm made her a full equity partner—a promotion that qualified her as the first female Hispanic lawyer to make partner at Gibson Dunn in Irvine.

Davis says the firm was instrumental in providing financial documents necessary to prove Brem's future earning capacity had she survived and continued to provide for her family and two sons. Davis, who was gearing up to provide his opening arguments in the damages phase of the civil case on Monday, provided The Am Law Daily with an outline of his prepared remarks.

"[T]he career trajectory of someone like Ms. Brem working at a huge firm such as Gibson Dunn is entirely different and the career path of successful equity partners is clear and thoughtfully designed by the management of the firm," Davis wrote in that ultimately undelivered opening argument. "The firm pays its partners very well. The firm has a retirement system that really only pays off if the partner stays, over the long term after a career with the firm. Partners are compensated more each year of their partnership by the issuance of additional partnership shares. The entire compensation system is designed to have partners stay at the firm for their entire career and there are financial penalties for leaving early."

In addition to sons Aidan and Ryan—who were 5 years and 9 months old, respectively, at the time of their mother's death—Brem was survived by her husband, Monte Brem. A former Gibson Dunn lawyer himself, Monte Brem—who proposed to his future wife while on a trip to Hawaii seven years before her death—is the founding CEO of private equity firm the StepStone Group, having moved his family from Southern California to Beijing in 2010, according to the Asian Venture Capital Journal.

Gibson Dunn declined to comment on the civil litigation initiated by Brem's family, but did note that the firm provided a $100,000 gift in its former partner's memory to help establish a scholarship fund at Yale Law School for Hispanic women students with financial needs.

"Liz's life and career were tragically cut short in a terrible accident," Gibson Dunn managing partner Kenneth Doran said in a statement provided to The Am Law Daily. "The scholarship continues to honor Liz's memory by providing assistance to students who are following in her footsteps."

Davis says Hawaii's state legislature must still approve the settlement, noting that the body's judiciary committee is expected to take up the matter sometime in the next few days. About $15 million of the settlement value is to go to Brem's estate, Davis says, while $425,000 is earmarked for Ramirez's family. If lawmakers fail to approve the agreement, he adds, the damages phase of the trial will be rescheduled.

Hawaiian lawyer James Kawashima represented the state government in the litigation, according to the Hawaii Reporter, which notes that the state's liability insurance carrier will pick up a significant portion of the final settlement, though it recently stopped covering Kawashima's fees. The state attorney general's office has since rehired Kawashima.

As for ‘Opaeka’a Falls, the trail that claimed the lives of Brem and Ramirez has since been fenced off, although an overlook exists that provides a safe viewing area for visitors.

Photo: Elizabeth Warke Brem, courtesy of Gibson, Dunn & Crutcher

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It was indeed a very sad day when the hikers' fell. Two things: there has always been an overlook at Opaeka'a Falls. And, I believe the state should mandate that all incoming ships and planes require, along with own safety video, all passengers to see and hear a warning about the hazards of hiking and swimming without proper information and preparations. This isn't Disneyland.

the use of "the hawaiian government" is unpc. the correct use is hawaii government. it's so not to confuse with the term native hawaiian.

also to comment on the women hikers, its so wrong to blame hawaii for any deaths due to vacation. as tourists they should automatically know to not wander to go places they are not familiar with. hawaii does need more signs and people need more common sense.

I agree with Walter - this is a ridiculous example of rich lawyers getting far richer at the expense of regular people (taxpayers). So what the families succeeded in doing is taking from the many what the few "deserve". Just think about what $15 and a half mil would do for the disadvantaged in the state! Sorry - what it CANNOT do now that an already rich family has taken it away...

Once more a generous settlement for the ignorance and stupidity of people who go into places of danger. Somebody made the comment, "this isn't Disneyland". How true. People fall off regularly on the trails at Yosemite National Park and then put the blame on the national park service for failure to protect them. They climb Half Done and drop off, sometimes as much as 2000 feet. Stupidity pays off, doesn't it? These women were in rugged country. When in doubt, they should have and could have turned back. The People should not pay for their foolish acts of judgment.

Tax payers of Hawai'i now have to pay $15 million even though there was a "danger keep out hazardous conditions" sign. Auwe! How can the sign, as the judge said, '"created the impression" that the trail to the right was the safe path.' In the wilderness, where is "right" and where is "left!?" What kind of logic is that?

It is unfortunate that Hawaii does not have a damages cap based on sovereign immunity. For the taxpayers to be saddled with such a large settlement is inequitable.

To the idiot commenter Patricia: when you walk down a trail and there is a fork in it you must choose to go left or go right. Here, there was a sign warning of dangerous conditions to the left so the hikers chose to go right. Obviously the state of Hawaii thought they had a risk of losing the civil suit or they never would have settled here. Any 1L law student can tell you that a party doesn't have to be 100% at fault to still be negligent when there are multiple parties who have some degree of fault. I hope everyone who denigrates this person because her estate chose to seek a legal recovery in a murky situation thinks long and hard about what terrible people they are. Everyone loves to criticize lawsuits, until something terrible happens to them or their family and they need a lawyer. Best wishes to the family and friends of Elizabeth Brem she sounds like an amazing person.

I would not be so quick to fault adventurous tourists who suffered a tragic death on unfamiliar terrain. May they rest in peace. That said, the occurrence of a tragic accident on naturally dangerous terrain should not entitle surviving relatives to riches at the expense of taxpayers (or private landowners for that matter) even if a warning sign was poorly placed or if there was no warning sign at all. The state should seek to protect its citizens and visitors but, absent misconduct, should not be required by our legal system to shower survivors or the injured with riches because the state could have done a better job in preventing an accident on land made available for the public to enter and enjoy. The law should provide for just compensation for wrongdoing and recklessness, but should protect taxpayers, property owners and everyone that pays insurance premiums from opportunistic lawsuits like this one. IMO, this kind of result undermines confidence in our legal system and skews societal notions of fairness and responsibility. Kudos to Gibson Dunn for honoring the memory of one of their own with a scholarship that will make it a little easier for others to follow in her footsteps.

Tron, calling Patricia an idiot here only shows what poor judgement you have.

Yet another unreasonable lawsuit to benefit the rich few & hurt the many. Anyone with common sense knows that if you're hiking along & see a sign saying don't go left, it's dangerous, then going right might be dangerous as common sense totality, it's a dangerous environment to be in. Now the taxpayers get to pay for not one but two or more signs at every fork in the path (one for each option), every beach & rocky outcropping, every area with loose debris or so much beauty you might be forced to not look where you are going...until that sign is vandalized, unreadable, missing, & someone is hurt there. Common sense matters.

Good thing they couldn't prove that she played the lottery so much that she was surely destined to win $100 million someday. Taxpayers dodged a bullet there.

And was $ payed out to a Colombian visitor's family? If so, then if I am hurt or killed in Colombia because of a missing sign my wife can sue for $15 million & win...right?

I hike lots of risky places & it's MY responsibility to look where my next step is going.

Am I the only one who thought it was a little insensitive of the plaintiff's lawyer to refer to the "career trajectory" of a client who plummeted off a cliff?

I can't believe the xenophobic and envious comments posted here. This was a tragic accident which could have been prevented. I have seen Hawaii as a rainbow society. I know longer see it this way.

Hey, if the state hadn't labeled either path as dangerous, the women probably would have been more careful about trying either one of them! The sign was inexcusable.

And I see no reason why, if damage caused by their negligence happens to hurt someone a lot instead of a little, their compensation for it should be reduced. Yes, it's a big award. But the award would have been only zero if the women hadn't fallen for the State's sign - and nobody says it should be increased because their negligence was the same either way. The right way to compensate someone is to measure their loss.

If Hawaii had left it alone, they'd have been less liable than what they did, leaving things so it was quite forseeable someone would infer the other way was safe.
As for the size of the award, read the article. She was a partner in a big law firm. That was a fair estimate of how much she'd have earned; the other hiker got an awful lot less.

Commenters complaining about the size of the award: Liz Brem was an equity partner at a high-paying law firm. The damages reflect an estimate of her provable future earnings. Consider that Liz, a 35-year-old at the time of her death, might have made as much as 2-4 million dollars a year for the 30 or so years until her retirement. Such profits are entirely possible with a firm of that caliber. With that in mind, 15 million doesn't seem like so much. But it is a fair settlement and likely represents much less than the family would have received at trial.

As for the points made about whether Hawaii taxpayers could put that money to better use: Hawaii is not exempt from the same standard that applies to the rest of this country - it is responsible for its negligence and must suffer the consequences of its failure to exercise proper care here. In the long run, decisions like this only serve to help everyone. Hawaii taxpayers will not fail to notice the 15 million hole in the state budget and will likely clamor for increased safety measures at spots like this. In turn, tourists will be safer and lives will be saved. It's fortunate in a way that Liz Brem was a high net worth individual whose death brought such attention to this issue. Given that others fell in the same spot and no measures were taken, it appears that the state of Hawaii needed a wake-up call in order to take the action necessary to prevent things like this in the future.

This is not a case of litigiousness and money-grubbing. This is a case of negligence and compensatory damages. Period.

Sounds like the state of Hawaii needs to shore up their safety measures. A state that is so reliant on tourism cannot expect to blame the tourists for succumbing to dangers known only to locals and the government.

I only read some of these comments because they were so upsetting to me. As a personal friend of Liz's, I can assure all of you that she was one of the most cautious and thoughtful people I know, and would not have taken a path that did not appear to be marked as safe. People posting should be aware that those who died had loved ones who still miss them, and who read these posts.

I'm sorry... I do feel sincerely for the loss of this family, but I also think the loss vs compensation, on the whole, are dramatically flawed, and no responsibility was assigned to the adventurers themselves. I resent that some defenders see any argument for the personal responsibility of Ms. Brem, as an assault on her own character.

I have been to Kauai'i, and it friggin rocks. I've hung on cliffs, hiked into the Blue Hole (which is a big fail for most) and all the rest. I regularly hike and climb in the Central Sierra. I am a little safer than most because I have had more experience. While I am certain Ms. Brem was a well-educated, conscientious person, there is no doubt in my mind that hers was a dumb-ass decision. No friend or family member should get too ruffled over that statement though - smart people make dumb-ass decisions ALL THE TIME in the wild. Any one that has been to the top of Opaeka's knows it looks gnarly. If you're at the top of the ridge line trying to decide whether to head down the edge to climb down ... or proceed upward to cross the falls, in either case it is a daunting task ... I mean, the roadside cliff is just that, and there is not a perceivable path suggesting any safe route down. Just how educated intelligent persons decided it was a good idea to proceed is a mystery.

When I was last in Kauai'i in 2009, we elected to go to the base of Wailua and avoid Opaeka'a, as locals were being arrested and cited for using the actual Opaeka'a path (a kinda modern-day kapu). The idea that kama'aina can't go in there is total BS, but it happened because of this accident and resulting legal events. My buddy guides hikes in the area, and, generally, it will now it will be even worse as per an increasing lack of common sense.

The other thing that really galls me is the friedn's/family's lack of understanding regarding who typically benefits from lawsuits. In this case - a well positioned family to mount an assault on the State of Hawai'i. In the case of a less positioned family - who would only be marginally compensated (if that), they would get nothing. There remain numerous cliffs, shorelines, and other falls offing ample opportunities for stupidity; typically there deaths that occur (and there have been many) have happened a little more off the beaten path, by folks who understood the risks.

Two years past three young twenty somethings decided to go behind the fencing of Vernal Falls/Nevada falls in Yosemite; I think Rangers ultimately found a shoe. There clearly were fences and signs, but hey, "we got this". Alas, they weren't new partners in a law firm and so those kids were lacking an echelon of attorneys.

Sorry - horrible loss, but those who scoff at the monetary dispersion have it right: go to neighborhood areas like Hanapepe and you'll see how stressed the true locals really have it. The money is desperately needed in those areas. When we climb there is a saying "climb only for yourself"... because if you die doing something stupid... nobodies going to be very impressed.

I'm sure Ms. Brem was a wonderful person. I'm convinced she was a wonderful person who made a very stupid decision, and it cost her - her life. It is important to get this fact correct, because the person who believes this tragedy is the majority fault of the State of Hawai'i fails to understand the importance of personal responsibility and the need to exact temperance when traveling in unknown areas.

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