Oregon Injury Attorney Blog

The Consumer Products Safety Commission (CPSC) announced recalls of millions of window blinds and shades after three child deaths involving the cords that help move the shades up and down. The companies involved in the recall include IKEA and Pottery Barn. Some of the products were sold as long ago as 1992.

A one year old child died in 2007 when he was strangled by a lift cord loop of a shade manufactured by Lewis Hyman. In another case, a child was found with his head caught between shade cords and the cloth on the shade's back side.

This is considered a hidden hazard, and the CPSC is encouraging parents to inspect shades to obtain either a free repair, or refund.

Other Helpful Links:

Baby Home Safety Tips

The Home Safety Council

Consumer Products Safety Products Toy Recalls

The Othello Outlook recently reported that the Oregon Department of Consumer and Business Services, Occupational Health and Safety Division (OSHA) fined ConAgra Foods and NW Metal Fabricators $25,000.00 for violation of health and safety regulations arising from a fatal explosion at potato processing plant in Boardman, Oregon.

Generally, even in a tragedy such as this, the injured worker or his or her survivor's are limited to Oregon Workers Compensation benefits. This is because Oregon law provides that even where an employer is negligent, even reckless, the only remedy that an injured worker in Oregon has against the employer is workers' compensation benefits. This is often referred to as the "exclusive remedy" provision.

There are exceptions. One is Oregon's Employer Liability Law. This law was proposed by initiative in 1910, and provides a higher standard of care for employers engaged in work that involves "risk or danger." Where there is an "indirect" employer, like a contractor or owner, and that person is directing the project, the injured worker or his family may have a claim against the person or entity directing the project. This is why there is more to OHSA's actions than a fine. If OSHA's violations hold true, it's strong evidence that the company directing this work failed to make the workplace safe.

Other Helpful Links:

OHSA Considers Raising Fines

Oregon OSHA Trench Cave In Training Video

I could not resist posting on this recent NPR story featuring an interview with Senator Grassley of Iowa. I do not know this Senator. I am sure he is a good man, and comes from a state that has been confused with Heaven. But in this case, he had his "talking points" handed right back to him.

Grassley is concerned about Supreme Court Nominee Judge Sotomayor, and the fact that she may consider empathy, or her background, in deciding a case. Now Justice Alito said just about the same thing, but perhaps because a fellow Republican nominated Alito, there was no cause for concern.

Supreme Court nominations are no small matter, but just because a conservative President nominates a judge to the Supreme Court, there is no guarantee that the nominee will follow the President on every issue. The best example is Chief Justice Warren, an Eisenhower nominee. I am no Supreme Court scholar, but The Warren Court changed the legal landscape, and is considered one of the most liberal Supreme Courts in U.S. history.

Then there is Justice Harry Blackmun. A Nixon appointee, Blackmun did vote conservatively during his early years on the Court, but as his tenure progressed, voted more with the liberal side of the Court.

Other Links:

Oyez, A Web Site Dedicated to Supreme Court History

Supreme Court Blog

This recent story from NPR is probably the most glaring example of the need for mandatory arbitration reform.

A young Halliburton employee goes to Iraq. She meets some firefighters, who allegedly give her a date rape drug, and brutally rape her. She reports the rape to her employer, and there is an investigation. Halliburton denies responsibility, and allows the alleged attackers to continue her work. The victims wants to sue the company, but she cannot. When this young woman signed up with Halliburton, she agreed that any disputes would be settled by arbitration, and not in court.

What is arbitration? I tell clients that is is a private trial. Both sides agree to submit their dispute to a decision maker, who acts as a judge and a jury. Some arbitrations are non-binding, which means you can appeal the result to court. Others are "binding," which means you live with the result.

This is an issue that affects all of us. If you have a credit card, a cell phone, or rent a car, you probably signed an agreement that any disputes would be handled through arbitration. Sometimes, arbitration is a great tool. It allows the parties to avoid lagging court dockets, the expense of the formal rules of evidence, and the results may be more predictable. However, for consumers, the record is not so good. Arbitrations are rarely reported. I recall once wanting to record a doctor's testimony at an arbitration, and the defense lawyer fought it tooth and nail.
Another problem is bias. This NPR story discusses credit card arbitrations, and how one arbitrator was dismissed after finding for the credit card holder.

The Arbitration Fairness Act is now before Congress, and this statute would ban provisions in any agreement that make arbitration mandatory. Instead, arbitration would be an option. Opponents say this would kill arbitration all together, and clog up the courts. There is no credible data to back this up. Most credit card holders sued in our small claims courts are not represented, and if the amount at issue is less than $50,000.00, it goes to a mandatory arbitration anyway. But in this case, both parties have a say on the arbitrator, and both can appeal their result. If anything, this bill, if passed, will even the playing field.

Learn More:

Consumer Union Statement on Arbitration Reform

Congresswoman Sanchez discusses Nursing Home Arbitration Reform

Public Citizen Reports on Mandatory Arbitration

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

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 Oregnonian reports that the Oregon Senate approved an amendment to the Oregon Tort Claims Act which will significantly raise the damages caps for state and local government liability. This amendment is the legislature's reaction to a recent Oregon Supreme Court case that ruled the statute was constitutionally inadequate.

Without getting too technical, a "cap" is a monetary limit placed on how much money a person can recover for damages caused by another. In this case, we are dealing with the State of Oregon and its local governments. Under the current Oregon Tort Claims Act, a person who is harmed as a result of the government's negligence may make a claim for damages. However, regardless of that claimant's real damages, there are limits, or "caps" on the amount of money a person can recover. Under the current system, an injured person is limited to $100,000.00 for their economic losses, and another $100,000.00 for their "non-economic" losses.

Why the "economic" and "non-economic" distinction? "Economic" losses, in the State of Oregon, include things like medical expenses, lost wages, and other out of pocket expenses. "Non-economic" losses are described as subjective, non-monetary losses. Some people refer to this as "pain and suffering." This is one aspect of non-economic damages, but not a complete description. I remember an older lawyer once telling a client that the law gives you the right to be a whole person, but if someone takes that away from you, then you are entitled to be compensated for that loss. I tell clients that non-economic damages is compensation for the loss of their health.

The Senate addressed this issue because of a court case addressing the constitutionality of these liability caps. In 2007, the Supreme Court of Oregon decided a case called Clarke v. OHSU. In this case, Jordan Clarke's parents alleged that OHSU was negligent in treating their son, and as a result, Jordan suffered permanent and severe brain damage. The expenses for total life and health care were calculated out to $11,073,506, and the loss of Jordan's future earning capacity was figured at $1,200,000. The Clarke's also made a claim for non-economic damages $5,000,000. OHSU did something unusual, and asked for a judgment against itself, but not for these damages. Instead, OHSU, which is a part of Oregon's government, asked the trial court to apply the Oregon Tort Claim Act caps, limiting the judgment to $200,000.00. Quite a difference.

The Oregon Supreme Court found that the statute, with these limits, was unconstitutional because Oregon's Constitution guarantees a remedy to citizens harmed by another. The Clarkes were not getting a remedy with a figure representing a small fraction of their actual losses.

This new statute does a few things. First, the new limits are not separated into the "non-economic" and "economic" limits. It's just one figure. Also, the actual limit will increase each year. Then, after 15 years, the caps are indexed for inflation.

Some legislators who voted for the bill claim a need for caps on all cases, not just against the public agencies in Oregon. The usual argument is that the cost of malpractice litigation drives up health care costs. This is a matter of debate, to say the least, and so far, I have not seen any hard evidence supporting this statement. I suspect that it may be one of those arguments that, if made enough, will be accepted. There are smarter people than me who agree.

I have been watching this peanut butter mess for some time now, and have gone back and forth several times to post on the story, but it keeps morphing into something bigger. Five hundred people are sick, and eight people are dead. And these are only the reported cases that we know about.

It turns out that Peanut Corporation of America knew it was sending contaminated product to companies making cookies and other snacks, some of which went to schools. This happened at least 12 times over the past two years. With a weakened FDA unable to enforce the regulations in place, thousands upon thousands of Americans are at risk of illness from contaminated food entering the market place. Remember tainted spinach, lettuce, beef, and pet food?

Congressman John Dingall recently introduced a new statute, the Food and Drug Administration Globalization Act. This law adds regulatory teeth to the FDA's enforcement powers, giving the agency the power to better regulate the food industry. But it also allows victims of food contamination to have their day in court, making food producers accountable for the food they sell and profit from.

You hear a lot about too many lawsuits, but sometimes I wonder if there are not enough. Obviously, the only thing some of these companies understand is the bottom line, and knowing that they can be taken to task will go a long way toward dissuading a company from sending tainted food to school children.

Other Helpful Links:

Consumer Union Statement Supporting FDA Globalization Act

American Association for Justice Press Release

The Washington State Bar Association (WSBA) issued a press release in an effort to reach out to Washington residents affected by December's storms. Fifteen Washington Counties were declared federal disaster areas because of this winter's storms. The WSBA has activated a hotline for low-income residents needing legal help to recover from the disaster. This program is established in accordance with the Disaster Legal Services Program established by FEMA and the ABA Young Lawyers Division.

Storm victims who need help but who cannot afford an attorney can call the hotline at 866-519-7099 and leave a message.

Other Helpful Links:

Washington State Insurance Commissioner web page "Information for Winter Storm Victims"

Red Cross Winter Storm Tips

Short and sweet on this one. I have been working on a post discussing all of the problems consumers face these days, ranging from home mortgages to credit cards and baby formula. Frankly, it's hard to keep up with all the recalls and consumer scams. Now it's peanut butter.

The FDA recently posted a searchable database to check which products may contain tainted peanut butter. The list is growing, so check it out.

Other Helpful Links:

Recalls.gov provides access to several federal agencies that issue recalls.

SafeKids.org is a non-profit group advocating for child safety, and provides recall information.

Consumer Reports Safety Blog provides updates on product recalls.

An AP News Release covering the problems with agency oversight in general, including defense spending, the Social Security Disability hearings backlog, and FDA oversight.

"I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law."

Martin Luther King, Jr.

"Injustice anywhere is a threat to justice everywhere."

Martin Luther King Jr., Letter from Birmingham Jail, April 16, 1963
Martin Luther King Jr.

"You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free."

Clarence Darrow

"The one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box. As you grow older, you'll see white men cheat black men every day of your life, but let me tell you something and don't you forget it - whenever a white man does that to a black man, no matter who he is, how rich he is, or how fine a family he comes from, that white man is trash."

Harper Lee, To Kill a Mockingbird, Chapter 23, spoken by the character Atticus

MSNBC reports that United Health Group recently agreed to pay a $50 million settlement in the State of New York after an investigation of overcharging patients for their health care. Apparently, United Health used a research firm called Ingenix to set reimbursement rates. United Health owns Ingenix. How convenient. Several other health insurers use this same company to set medical bill reimbursement rates, and New York's Attorney general promises to investigate those companies as well.

Does this impact Oregonians and Washingtonians? Maybe. Many of the companies cited in the report provide health coverage in the Northwest, and the article mentions that this using this "creative research" to set reimbursement rates may be a nationwide problem. A lot of health plans are not really "insurance" in the strict sense. They are federally regulated by a statute called ERISA, although States may have some say in how the companies conduct business. A State Attorney General decides which companies to investigate, and how to pursue any fraud complaints. Oregon's Attorney General provides a web page for consumer complaints. For insurance issues, Oregon's Department of Consumer and Business Services Insurance Division accepts complaints on line.

I always encourage folks with a legitimate claim to file a complaint. If anything, it creates a record, and the state agency should see a red flag with several complaints against the same company.

Other Helpful Links:

Consumer Protection Directory

National Association of Consumer Advocates

This is not the sexiest story in the news, but it impacts a lot of people, and for that reason is noteworthy. The Mail Tribune recently reported that many non-profit legal aid groups in Oregon face significant budget cuts due to a drop in contributions coming from the Oregon State Bar's Oregon Law Foundation.

The Oregon State Bar requires all lawyers to carry a client trust account. This is like an escrow account for lawyers. When we resolve a claim for a client, the settlement check is made out to the law firm and to the client. Each party signs the check, and it goes into the client trust account. Some or all of that money many have to sit in the account while everyone figures out disbursement of funds. Sometimes a client pays a lawyer a retainer, which must sit in the client trust account until the fee is "earned." The interest that accrues on these accounts goes to the Oregon Law Foundation, which uses the money to fund free legal clinics.

With the economy in its current state, interest rates are down, and the Oregon State Bar is predicting a 66% reduction in revenue aimed to help out non-profit legal aid groups. The State Bar has made access to justice a front burner issue, and despite the less than stellar reputation, many attorneys have volunteered, and provide many hours of "pro bono" representation each year. Keeping these important programs available when people are going to need them more than ever presents a challenge.

Helpful Links:

Legal Aid Services of Oregon Home Page

Oregon Courts Legal Aid Services Directory

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Long ago I read an article in a professional journal about insurance contracts, and how they are written. The basic point was that insurance companies will intentionally make the policy language ambiguous. When I say "ambiguous," I am not trying to sound like a fancy pants. In the legal world, something is "ambiguous" when it can be read two different ways, and both ways are reasonable. Why make something unclear?

It's pretty simple. Insurance is traditionally regulated by the states. Each state has its own insurance code, and an agency that enforces the insurance laws. If an insurance company is in one state arguing what a term in its own policy says, it can make a completely opposite argument in another state. Keeping things unclear makes that a lot easier.

Some states are better than others about regulating insurance. I would pick Washington over Oregon because in Washington, a policy holder can seek a remedy against the insurance company if it acts in bad faith. Oregon allows the consumer to report a violation to the state, but court remedies are more limited.

The Houston Chronicle recently reported on a case involving a fatal office building fire that killed three people. Great American, one of the insurance carriers, is arguing that the victims were killed by smoke, which is "pollution," and since liability for pollution is excluded in the policy, then there is no coverage.

As a recently elected official stated, this is a "teachable moment." First, if you are in the market for insurance, consider the fact that building owner, who had the insurance with Great American, disagrees with this position. Second, if you do buy insurance, take the time to wade through the exclusions. Third, it's a darned good thing to have the right to take an insurance company to court to enforce it's own policy if it is going to get this "creative."

The Associated Press reported recently that the United State Supreme Court has denied an appeal from contractors who worked at the Hanford Reservation, possibly opening up claims on behalf of Eastern Washington and Oregon residents exposed to radiation decades ago.

According to the article, several companies served as government contractors during the Cold War and the Manhattan Project. The contractors released radiation during the 1940's, but no public disclosure was made until 1986. Since then, "downwinders" have been fighting in the courts for compensation related to thyroid cancer and other health problems from the radiation.

The government contractors argued that because they were working on a government project, they are "immune" from any liability, but the arguments were rejected. There are several cases pending in Spokane, and some of the lawyers involved hope that the federal government may step in to offer compensation with a new administration coming into Washington D.C.

Government "immunity" is not a new argument. State and Federal governments have long enjoyed "sovereign immunity," which prohibits suits against the government. However, the federal government, through legislation, has given citizens limited permission to file suit against the government. There are exceptions, and limitations, but suits are possible.

Sometimes, a government contractor will argue that because it was performing some sort of governmental function, it should be treated like the government, and enjoy the same protections. This is an interesting area of the law for some lawyers because governments, both state and federal, are contracting out a lot of their jobs.

Expect some developments on this case in the next year or so.

Some of my most serious cases over the years involve brain injuries and amputation injuries. Even after a long road of rehabilitation, everything changes. I recently read an article reporting on a recent study in Oregon offers hope to the brain injured and amputees. Researchers studied a man who had lost his hand for several years, and then underwent a hand transplant. Months after the transplant, brain scans showed that the newly transplanted hand was reclaiming the area of the brain responsible for controlling the hand. The consensus until now is that nerve injuries seldom forgive, and never forget. This recent discovery challenges that notion, and hopefully offer new strategies for treating serious brain injuries and limb transplant recipients.

The Washington Post recently reported on recent arguments in front of the United States Supreme Court involving a large verdict against Phillip Morris. About ten years ago or so, a widow of cigarette smoker filed a law suit against the tobacco company, claiming that Philip Morris mislead her husband about the hazards of cigarattes, and contributed to his death. The jury agreed, and as part of its verdict, awarded the widow $80 million in punitive damages.

Punitive damages are unique. Unlike compensatory damages, which are designed to make up for or compensate for harms a negligent party causes, punitive damages aim to punish a person or company for bad behavior, like fraud, or criminal activity. In this case, the bad behavior was the tobacco company's misleading smokers about the health risks involved in using cigarettes, among other things.

Punitive damages are not common. Most cases that make a claim for negligence mean are basically saying that the defendant was not careful, or that the defendant was careless. In order to make a case for this kind of claim, a plaintiff needs to prove that the defendant's behavior far exceeded what is socially tolerable. A criminal act, like drunk driving, will get you there, but blowing a stop sign will not.

The fight in this case is whether a verdict ordering someone to pay $80 million dollars as punishment for misleading a person about the health risks of its product is unconstitutional. Twice the Oregon Supreme Court has found the verdict appropriate, and some think that this time, the US Supreme Court may take the matter into its own hands. Stay tuned.

Here is something for Oregon parents to check out this holiday season.

Last year, 45 million toys were recalled in the United States. Congress acted, but the the standards will not take effect until next year. Even after the new standards go into effect, some toys may still potentially harmful chemicals. Some folks have taken matters into their own hands, creating a blog that parents can check to make sure their kids' toys are safe.

If you are concerned about a toy, and whether it is free of dangerous chemicals, be sure to look at this site.