Oregon Injury Attorney Blog

I found this NPR story interesting because it deals with suing the government, and explores the legal contours of when the government can be held legally responsible for wrongdoing.

Historically, a person could not sue the government because the government enjoys "sovereign immunity." However, the federal government and the states, including Oregon have enacted statutes allowing it's citizens to bring the government to court, but only under certain circumstances. I am more familiar with the Oregon Tort Claims Act, and it allows a person to sue the State government for the negligence or wrongdoing of its officers and employees. If a state employee causes a wreck, then there is a claim. However, if someone is harmed because a discretionary policy decision, then the government agency is immune from suit. For example, a city government in Oregon may only have so many police officers on staff at one given time. If a crime occurs in a high crime area, a victim would not be able to make a claim against the police for not having enough cops on patrol in that particular neighborhood. The theory is that these suits should not serve to second guess a public official making decisions based on limited resources. This is called "discretionary immunity," and my explanation is simplistic, and rough. There is a whole bunch of case law out there on the subject.

In Oregon, you must first give the state agency notice of your intent to sue, and must spell out the details of the facts giving rise to the suit. This is called a tort claims notice, and the time limit depends on the type of claim you intend to bring, whether it be a personal injury, property damage, or wrongful death claim. The theory behind the notice requirement is that the notification allows the government agency to investigate the claim, and settle the claim if necessary. If you do not first file the notice, you have no right to file the lawsuit later on if the case does not resolve.

Federal Tort claims are a lot different. You must file your notice of claim within two years for a personal injury claim with specific money amounts claimed in the notice. You can do nothing for at least six months while the federal agency decides how to respond to the claim. In the Oregon tort claim system, you can file a case in court any time within the time limit for the notice of tort claim, or, you can file any time after you provide the notice, so long as you are in the statute of limitations (this is the time you have to file a case in court).

There are other issues swirling around federal and state tort claims, including monetary limits, which the Oregon Legislature addressed recently.

The bottom line on tort claims is to make sure you know the rules. Unlike an injury claim against another individual, there are additional time limits, monetary limits, and notice requirements.

The recent story of the death of Mike Tyson's daughter has brought heightened awareness of the hidden dangers in American households. he recent story of the death of Mike Tyson's daughter. Some dangers are obvious, but others are not. Here are some things to look out for:

Exercise equipment: One organization reports that more than 25,000 children a year are injured by exercise equipment.

Falls from windows: placing furniture near windows allows a child the opportunity to explore. Screens are not enough. Window guards sell for about $30.00 and will keep a child protected.

Window treatment cords: keep cords high and away from children

Heavy furniture: If against a wall, and unsecured, large furniture and can tip onto a child. 15,000 kids were injured by capsized furniture according to one study. This includes flat screen TVs, which are a lot less stable then their predecessors.

Helpful Links:

Home Safety Tips

Children's Safety Network

Safe Kids USA Tips

On occasion, people, including clients, tell me there are too many lawsuits, and that it is costing us all more money. I can't blame them much of the time, because insurance companies spend millions each year to pound that message home. A summary from the American Association of Justice, of which I am a member, reveals the truth. An excerpt of a fact sheet shows the following:

1. Skyrocketing Lawsuits

According to the Justice Department under President George W. Bush, the number of federal tort (personal injury) cases resolved in U.S. District Courts fell by 79 percent between 1985 and 2003. In 1985, 3,600 tort trials were decided by a judge or jury in U.S. District Courts. By 2003, that number had dropped to less than 800.1

Additionally, the most recent statistics from the Administration’s Bureau of Justice Statistics show the number of tort trials at the state level has decreased. These statistics were compiled as part of the Bureau’s survey of state civil justice systems in the nation’s largest 75 counties. Among these counties, the number of tort trials decreased 31.8 percent between 1992 and 2001.

2. Rising Health Care Costs and Medical Negligence

Health care costs are rising; however, medical malpractice litigation has nothing to do with it. According to the Congressional Budget Office, medical malpractice amounted to less than percent of overall health care spending. The Government Accountability Office also found that malpractice cases have not widely affected access to health care.

According to the American Medical Association, the overall number of physicians is up more than 40 percent since 19905, while over the same time, the U.S. population increased by only 18 percent . The number of emergency physicians, neurosurgeons, and OB/GYNs has also increased significantly over the same time period.

3. The need for "Reform."

Multiple surveys have shown that lawsuits are not a concern for small business owners. A survey from the National Association of Manufacturers suggests that “lawsuit abuse” ranks at the bottom of concerns for manufacturers. A 2008 survey from National Federation of Independent Business had similar results, with “costs and frequency of lawsuits / threatened suits” ranking 65th on a list of small business owners’ worries.

In reality, only big corporations and their front groups want to destroy the legal system so they can’t be held accountable for negligence and misconduct. Drug, oil, and insurance companies have tried to hide behind small business owners to accomplish this; however, these surveys reveal their true intentions.

4. Trial attorneys are trying to drive corporations out of business.

Absolutely not. Corporations, large and small, are all entitled to have profitable businesses. Most do so without being negligent or engaging in misconduct.

A strong civil justice system allows deserving individuals to get justice and hold wrongdoers accountable. Civil justice attorneys work to make sure all people have a fair chance through the legal system – even when it means taking on the most powerful corporations.

5. Lawsuits are out of control. Someone even sued because they spilled hot coffee on their lap!

Those looking to destroy the civil justice have continually mocked Stella Liebeck and the McDonald’s coffee case. Unfortunately, the actual facts of this case make it no laughing matter.

Ms. Liebeck’s injuries include third degree burns—the most severe—to her groin, inner thighs, and buttocks. She was hospitalized for eight days, during which time she underwent skin grafting and debridement treatments (the surgical removal of tissue).

Ms. Liebeck sought to settle her claim with McDonald’s for $20,000, but they refused. McDonald’s eventually produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1993, some involving third degree burns similar to Ms. Liebeck. This history documented McDonald’s knowledge about the extent and nature of this hazard. McDonald’s own quality assurance manager testified that a burn hazard exists with any food served above 140 degrees; their coffee was kept warm at 185 degrees.

A jury awarded Ms. Liebeck $200,000 in compensatory damages, but reduced it to $160,000 because they found her 20 percent at fault for the spill. The jury also awarded her $2.7 million in punitive damages, equal to two days of McDonald’s coffee sales. This was eventually reduced to $480,000, even though the judge called McDonald’s conduct reckless, callous, and willful. Jurors expressed similar sentiments in interviews after the trial. Ms. Liebeck and McDonald’s eventually entered a post-verdict settlement.

6. Trial attorneys are charging outrageous hourly fees and leave victims with nothing if they win.

Civil justice attorneys do not charge by the hour like most other attorneys. Instead, their clients pay on what is called a “contingency fee basis.”

For over 200 years the contingency fee system has provided Americans who must go to court with a degree of access to justice that is unheard of in most other countries. Our system allows people who cannot afford to pay legal fees to obtain representation on a contingency fee basis. In personal injury and death cases, and in certain other types of litigation, the fee is based on a percentage of any money damages that are recovered.

7. My insurance rates are skyrocketing because of lawsuits.

Your insurance premiums may be going up, but it has nothing to do with lawsuits. Look no further than the insurance industry’s annual profit reporting. In 2007, insurance companies reported a near-record profit of $61.9 billion. In comparison, the insurance industry’s 2004 profit was $38.7 billion, which broke all previous records. Their profits continue to rise, and unfortunately, your premiums are following suit.

The insurance industry has also made the argument that awards and damages should be limited; however, have later admitted that caps will not lower premiums. For example, American Insurance Association spokesman Dennis Kelly told the Chicago Tribune in 2005 that, “We have not promised price reductions with tort reform.”

8. Lawsuits cost taxpayers X hundreds of dollars each year.

Several so-called “independent” think tanks or organizations have devised the notion that American families pay a yearly “tort tax,” or that the cost of litigation is passed on to taxpayers. These organizations, funded by oil, drug, tobacco, and insurance companies, produce studies that are a prime example of junk science. There is no methodology or academic basis for their results. Trying to pass off these organizations and their studies as legitimate is yet another scheme by corporations to avoid accountability in the courtroom and stack the deck against every day Americans.

Towers Perrin’s “tort cost” study has also been widely rejected.

9. Schools are cancelling recess because they are afraid of litigation.

Wrong. School districts across the country are almost universal in blaming the elimination of recess on the need to meet requirements for teaching and testing hours.9

10. People aren’t volunteering to help with Little League, Boy / Girl Scouts, etc., because they are afraid of lawsuits.

Similar to the previous myth, these lies are peddled by groups interested in destroying the civil justice system.

The Volunteer Protection Act of 1997 was passed to provide immunity for volunteers of nonprofits in the course of their charity work.

Informative Links:

The Civil Justice Foundation

Oregon Jury Project

Oregon Veteran's recently testified before the Oregon Legislature to urge passage of a bill that would allow a one time payment of $20,000.00 to Iraq vets exposed to the toxic chemical hexavalent chromium. The troops were guarding contractors working on a water treatment plant when they were exposed to the chemical. One soldier is dead from complications from leukemia, and several others suffer respiratory problems, immune disorders, and chronic coughs. The company, KBR, was a subsidiary of Halliburton, and its own employess, along with other Guard members, have sued the war contractor, claiming it disregarded obvious warning signs that the chemical was dangerous.

There are studies that show it only takes 40 micrograms of hexavalent chromium per cubic meter, which equal to a grain of salt cubic yard, to significantly increase the risk of lung cancer, leukemia, stomach, brain, renal, bladder and bone cancers.

Other Helpful Links:

VA Watchdog dot org

Viet Nam Veterans of America

Gulf Vet Study: One in Four Vets Exposed to Toxics

NPR recently reported on a bill currently in Congress that would allow patients who are victims of defective medical devices to seek compensation for their injuries in state courts. This is an effort to overturn a US Supreme Court ruling from last year that ruled that so long as the FDA approves the device, such approval preempts any right to seek compensation in state court.

The story focuses on victims of the defective Medtronic heart devices, which cause electric shocks because it would "fire" electrical current without warning. The device fired off 31 times before it could be stopped.

Of course, the medical device industry does not want this legislation to go through. It's the same old argument. Medical experts at the FDA are more able to determine whether a device is safe, not a trial lawyer or a state court.

This is just a nice way of saying that jurors are not smart enough to decide these cases. I guess this argument would work for me if the FDA did not approve these heart leads, or defective shoulder pain pumps, or defective hip replacement implants, or pain medications that cause heart attacks, or defective diet medications, or dangerous hormone medications, or . . . . well, I think I made the point.

The other argument, which is nearly as tired, is that the threat of lawsuits will dissuade innovation. In other words, these companies should be allowed to introduce dangerous products into the market place, because only once in awhile they goof it, and in the end, more people benefit, therefore, we should put profits over people.

If there is one thing we have learned, it is that deregulation has gone too far. Taking a jury's ability to decide a case is just another form of deregulation, and should be avoided.

The Oregonian recently reported on a pedestrian versus truck accident in Portland. The report indicates that the pedestrian "ran" out into traffic, and was seriously injured.

In my town, there are too many pedestrian accidents. Astoria, like a lot of small towns in Oregon, has its downtown core, where people often get from here to there on foot. If it's not a pedestrian injury, it is some one getting hit from behind when they stop to let someone cross the street. Do pedestrian's really have the right of way?

Well, there are two statutes at play. One, ORS 811.028 requires a driver to stop and remained stopped for a pedestrian while the pedestrian is in a crosswalk, even if it is in the lane next to the driver. Another statute, ORS 814.040 states that a pedestrian fails to yield to a car when he or she suddenly leaves a curb or other place of safety and moves into the path of a vehicle that is so close as to constitute an immediate hazard.

How do you reconcile these statutes? Well, I guess that depends on what "immediate hazard" really means. If a car has enough time to see a pedestrian, react, and stop safely, then there is no immediate hazard. On the other hand, if someone darts in front of a car, and the driver has no way of safely stopping, or seeing the pedestrian ahead of time, then there is a failure to yield.

Any of us who have driven, or who have walked through the downtown have seen both sides of this situation. However, I can say that after seeing what a car can do to a person, I am much more alert when driving through the downtown area where I live.