Oregon Personal Injury Lawyer Blog

I represented a Lake Oswego, Oregon family affected by traumatic brain injury to the wife / mother. The impacts on her were devastating. The impacts on the husband and daughter were life changing, also.

The current issue of journal Brain Injury reports a study of the quality of life and emotional distress of primary relatives of those who suffered brain injuries and were treated at Copenhagen University Hospital. The study confirmed what professionals who work with families already knew: the closest relatives of brain-injured patients suffered a severe impairment in their quality of life. The relatives suffered significantly more symptoms of depression and anxiety. (Anne Norup, Emotional distress and quality of life in relatives of patients with severe brain injury: The first month after injury.)

Under Oregon law, spouses of brain-injured people may sue for "loss of consortium." Oregon juries are told that they may award monetary compensation to the spouse for the loss of "spousal services, society and companionship." Only husbands and wives have a claim for loss of consortium in Oregon, not children or parents.

It is important to remember the impacts on the family of those who acquire brain injuries. They need help, too, as they cope with new circumstances they could never have anticipated. Family members might find helpful Mayo Clinic's Guide to Brain Injury for Family Members. Oregonians can also look for support groups in their area by checking the listings in the newsletter published by the Brain Injury Association of Oregon, the latest issue of which is posted on their website.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Old Oregon contract law still applies to new forms of commerce. Someone offers a chair for sale on Craigslist.org. You E-mail that you want to buy it. The seller E-mails you, "it's yours if you pick it up today." Then, you are about to go out the door and you get a text, "Sorry, I changed my mind."

Well, sorry to the seller. It was a done deal.

In Oregon, some contracts must be in writing and signed. Most don't. For the most part, the key elements of a legal contract are an offer, acceptance and "consideration."

Consideration means that there is a promise to exchange something of value. If I say to you, "I'm going to give you my car," and then I change my mind, you can't go to court to get my car. You've offered me nothing of value. Lack of consideration is rarely an issue. That's because most people want money in exchange for goods and services.

A Craigslist.org ad is an invitation to negotiate. It is not a firm offer, because there would be a problem if five people responded with an E-mail that said, "I accept your offer to sell your chair for $75."

The legal "offer" would come when you respond to the ad and say, "I agree to pay what you're asking." Then, the "acceptance" would be, "Okay, it's yours."

When the communications are in doubt, then a judge or jury must decide if there was an enforceable contract. Whether there is a contract depends on whether a reasonable person would think that both sides showed the intent to be bound to specific terms. So, just because something is by E-mail and not on a signed piece of paper does not matter. What matters is the content of the E-mails.

The big exception is an Oregon law requires some contracts to be in writing and signed. That's called the Statute of Frauds. The most common agreements it covers are (a) commitments to lend or pay back money (b) real estate contracts, (c) agreements that will take one year or more to perform, and (d) leases for longer than one year. You can look to see if your contract needs to be in writing by reading ORS 41.580.

But otherwise, Oregonians can reach binding agreements by spoken words or E-mail; even gestures can demonstrate intent to enter into a legal obligation.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In Oregon, if the employer pays for workers' compensation insurance, then the worker may not sue the employer when he or she is hurt on the job. This "exclusive remedy" provision does not apply if either (a) the employer does not have workers' compensation coverage or (b) someone else -- or something else -- was at fault.

For example, we sued a printing press manufacturer for making a dangerous machine when a worker suffered a severe arm injury. The manufacturer was not the employer, so it was not immune from suit under Oregon law. A more typical example is someone hurt in a car or truck accident while on the job. The worker can sue the other driver that caused the wreck.

But there are special issues to be aware of involving who may sue and who gets the money.

If the workers' compensation insurer pays benefits, then it has a right to get paid back out of any lawsuit proceeds. In fact, the insurance company can force you to decide whether to file a lawsuit. If you do not sue, then the insurance company can sue in your name.

There's a big difference to Oregon workers depending on whether the worker sues or the insurance company files the lawsuit.

If the insurance company sues in your name, then it controls the litigation. It decides when to settle. If the insurance company sues and settles the case, then it gets paid before the worker. The formula is that the insurer gets paid in full before the worker gets even one penny.

If the injured worker sues, then the formula for distributing the money is very different. First, the costs of the lawsuit are paid, including the attorney fees. Next, the worker receives 1/3 of the balance. Only then does the insurance company get paid back. So, if the worker sues, he or she jumps ahead of the insurance company. If there is still money left after paying back the insurer, the balance goes to the worker. The key Oregon law is ORS 656.576 to 656.596.

Another consideration is this. If the insurance company sues, will it really care whether the worker receives any money? Will it settle too cheaply, making sure it gets repaid and not worry about winning monetary compensation for your disability?

So the lesson? If you are seriously injured at work because of someone other than a coworker or something like a dangerous machine, then it is in your interest to sue and not let the insurance company file a lawsuit in your name.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, I provided a check to a Portland, Oregon woman after we settled her legal malpractice claim. The amount and the name of the attorney are confidential.

The circumstances are not uncommon. The lawyer lost the case because he did not file and serve the summons and complaint on time. He blew the Oregon Statute of Limitations. So, fault, or liability, was clear. The real question was how much money should be paid.

We call it the "case within the case." Here, the case he screwed up on was a car accident case. My client was rear ended and suffered a whiplash injury. So, it was my job to evaluate that case within the case to see what a fair settlement value would be.

As an attorney who also represents victims of car accidents, I was able to review the case by myself. I did not need to hire an expert lawyer, as I must do when the legal malpractice occurs on a criminal law case. I came up with my value and asked my client if she would agree to settle in that range. She agreed.

Then, I contacted the other lawyer and the Professional Liability Fund, which is the legal malpractice insurer for all Oregon State Bar members. Fortunately, they evaluated the case the same way I did, and we were able to reach agreement promptly, without even spending money on a filing fee or court reporter fees.

So the message is this. Proving that the attorney committed malpractice is just the first step. Understanding the value of the "case within the case" is the most important determinate of the monetary value of a legal malpractice case.

Jeff Merrick, Oregon Trial Lawyer
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

A North Bend, Oregon man asked about suing his noisy neighbors who he believed were often drunk, and certainly loud. He'd called the police, but "what else can I do?" he asked.

Oregon law of nuisance covers an invasion of another person's interest in the private use and enjoyment of land. Whether you hold the land as an owner or tenant with a lease does not matter. If it is your property, then you have a right to reasonable peace and quiet.

Here's what you need to win the lawsuit.

First, your neighbors must be doing something that is hurting your use and enjoyment of land. The legal standard is that it must be the kind of harm that a normal person in your community would not put up with. A slight inconvenience or annoyance is not enough. If your neighbors party once per year, then you'd have no claim. If they fight every night and you can't relax in your home, then you could prove "significant harm." If your neighbor's conduct is somewhere in between, then a jury will need to decide if the extent of the harm adds up to a nuisance.

Second, your neighbor's conduct must be intentional. If you are suffering in silence, then you might not be able to show that your neighbor's conduct is "intentional." Make sure your neighbors know that you can hear their fights and it is ruining the use and enjoyment of your home. A certified letter would do. If they do not sign for it, slip one under the door and keep track of when you did it.

Jeff Merrick, Lake Oswego, Oregon
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

A Portland, Oregon woman recently learned that her ex-boyfriend secretly videotaped them having sex. She was very upset, and she wanted to know her rights.

A few years ago, the owner of an Oregon tanning salon videotaped naked women in his store. He recorded some women trying on swimsuits in dressing rooms and in the "private" tanning rooms. We represented a woman, sued, and recovered money for her. But more importantly, I went to the legislature, and we got a law passed.

ORS 163.700 makes it a crime to secretly photograph or videotape another person who is nude if the person reasonably expected privacy in the place and under the circumstances.

ORS 30.865 strengthened the right to sue in civil court for nude pictures or video. It expanded the existing right to sue for invasion of privacy by creating a claim for attorney fees on top of compensatory money damages. The law covers all of the following: (1) the photographing or recording (2) peeping toms who do not record (3) taking pics or videos of intimate areas, which would include "upskirt" shots, and (4) uploading or otherwise disseminating the pictures or videos.

I suggested to the woman that she give her ex-boyfriend 48 hours to deliver the videos and otherwise satisfy her that her privacy would be restored before bringing the law down on him.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Car accidents continue to kill more children than any other cause, according to a study published this week. The most recent data from Oregon are consistent with the new study results.

In this week's report, researchers studied deaths of children up to age 17 between 2000 and 2006 in San Diego County. Traffic accidents caused over 40% of the deaths, way more than the number two cause, asphyxia (22.7%). Penetrating trauma was the third leading cause of death at nearly 18%. (Fraga, et. al., Children at Danger, Injury Fatalities among Children in San Diego County, Eur J Epidemiol. 2010 Jan 19. [Epub ahead of print])

Oregon children also die, most often, because of traffic accidents. The good news from the Oregon data from 2000 - 2006 is rate of death from car accidents declined. We attribute that to better use of child safety seats, booster seats, and seat belts. We on the Safe Kids Legislative Committee spearheaded bill to update the law on booster seat usage in 2007, knowing that the data showed it would save lives AND reduces the severity of injury. Thanks to the leadership of Lake Oswego's Senator Devlin and Representative MacPherson, the bill got hearings and passed.

Oregon children can also thank committed safety professionals and volunteers who hold car seat clinics, educating parents on how to use safety seats and booster seats PROPERLY. In particular, Portland's Legacy Emanuel Children's Hospital,Tammy Franks and the Alliance for Community Traffic Safety have done a great job leading that effort. If you love a child, make sure the parents bring themselves and their seat to one of the clinics. Here's the schedule of upcoming clinics.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Oregon can be a winter playground. Mt. Hood & Mt. Bachelor trails are great for cross country skiing and snowmobiling. But for one Oregon woman, her family outing turned into a life-changing event.

The other guy was test running his family's snowmobiles. On his third run, he sped about 60 miles per hour on a snow covered forest road outside of a popular snow park. When he zipped around a blind corner, he narrowly missed the husband, but came face-to-face with a teenage girl, who had mom on the back of her snowmobile.

It ended up being a dangerous game of "chicken." Both drivers turned the same way, they collided, and my client "flew like superman" off the snowmobile. Despite wearing a helmet, my client acquired a mild brain injury. Twenty years earlier, she suffered a traumatic brain injury, from which she recovered. But the prior TBI made her much more vulnerable to brain injury from her snowmobile collision.

She and her husband tried to settle by themselves. The other driver's insurance company pooh-poohed her injury and said that it was the daughter's fault, at least 50% worth. So they had to hire me.

Most important for any client is to get proper medical care, and I referred my client to an excellent place for diagnosing and coping with head injuries. We sued the other driver and fought hard. After depositions, we asked the court for permission to seek punitive damages, because we believed the other driver was reckless in flying around a blind corner at 60 mph (or more?). The court granted the motion.

Initially, the lawyer for the insurance company thought the case should settle for $30,000. By the time we worked up the case for trial, they paid the full policy limit of $300,000.

The moral of the story? 1. Be careful of dangerous snowmobile drivers even enjoying the weekend. 2. Be careful of insurance companies who do not want to pay what they should.

If you or your child has suffered a head injury, you ought to consider the signs and symptoms of brain injury. Here's a short list of brain injury symptoms from the CDC and a much more comprehensive resource on traumatic brain injury from the State of Washington.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Oregon law specifies when final or severance paychecks are due. Here are the rules as of January 2010.

Termination, firing, or discharge. If you are fired, the employer must pay you the next business day.

Lay offs. If you are (honestly) laid off, then you get paid on the next regular payday. But what is a "lay off" under Oregon law? For purposes of the final paycheck rules, if there is no recall date or the layoff will last more than 35 days, then the termination rules apply, and you must be paid on the next business day.

Resignation or quit. The answer depends on the situation. If you give two-weeks resignation notice, and the employer fires you on the spot, then the termination rules apply. If you give at least 48 hours notice, then an Oregon employer must pay you on your last day. If the employee quits with less than 48 hours notice, then an Oregon employer must give you the severance paycheck on the sooner of (a) the next regular payday or (b) five business days.

Exceptions. As with most laws, there are exceptions to every rule, which is why you should never rely on the stuff you read on the Internet. The biggest exception is for union workers, who are paid according to final paycheck rules in the collective bargaining agreement.

A good general resource for both Oregon employees and employers is the Oregon Bureau of Labor and Industries.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer

Portland, Oregon's Downtown Greek Cusina closed after being busted for fire code violations. Mr. Papas, the owner, is angry with the enforcer, Commissioner Randy Leonard and wants to sue. On this one, I side with City of Portland, because of what could happen if Portland did not enforce its fire code.

Let's say it is just another bachelor or bachelorette party at the bar / restaurant. Twenty-something women and men are partying the night away when a fire starts. Because of fire code violations, people die and are injured. So, instead of Mr. Papas trying to sue the city, grieving parents or injured people would file significant lawsuits for wrongful death or personal injury.

In Oregon, suing public bodies, such as cities, the state, or school districts, involves special rules and defenses. The first thing is that the injured or aggrieved person must do is send written notice of the intent to sue within a certain time. This is called the Tort Claims Notice. For injuries, it is 180 days. For wrongful death lawsuits, it's one year.

For many types of lawsuits, public agencies can defend by saying their decision, action, or inaction was a "discretionary function." That is, you can't sue a city for making a choice you would not make. But there's no choice when it comes to enforcing known fire code violations: the city has no discretion. If someone is injured or dies because the city fire inspector let things slide, then the city would be subject to a lawsuit for a lot of money.

So, thank you, Commissioner Leonard, for protecting people from injury and protecting taxpayers from lawsuit liability.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

An Oregon woman has been diagnosed with Bisphosphonate-associated osteonecrosis of the jaw (BONJ) following intravenous administration of Reclast ®. Osteonecrosis of the jaw is also called "dead jaw disease." BONJ is a terrible and painful disease in which the jawbone dies and the teeth must be pulled. Many people have already sued drug companies for BONJ. To date, only one jury has ruled, and it found that Novartis owed the woman $3.2 million.

As women age, their bone density decreases. Bisphosphonates are a class of drugs sold to increase bone density. Women are told that their risk of bone fractures will decrease if they take the drugs. Doctors also prescribe bisphosphonates for cancer treatment and other conditions. Unfortunately, too often, women are not told about the risk of osteonecrosis of the jaw or who might be more susceptible to getting it.

One type of bisphosphonate is Zoledronic Acid, manufactured by Novartis and sold under the names of Zometa ® and Reclast ®. Many people have sued Novartis alleging that Zometa ® caused their jaw to die and that Novartis should have either better understood the risks of their drug or better communicated the risks to doctors and patients.

Novartis first sold Zoledronic Acid for cancer patients under the name Zometa ®. So, the first associations between the drug and osteonecrosis involved cancer patients. (Migliorati CA, Lancet Oncol. 2006 Jun;7(6):508-14). Later, Novartis sold it under the name of Reclast ® for helping to boost bone density.

Zoledronic Acid is the most potent of bisphosphonates. Intravenous administration (IV) -- compared to taking a pill -- increases the amount of the drug available to the body and increases the risk for osteonecrosis of the jaw. Prior use of bisphosphonates likely increases the risk of dead jaw disease when a woman later has the IV. In the case of the Oregon woman, she had taken Fosamax ® for a short time many years before receiving Reclast ® intravenously.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Oregon employees enjoy new rights and protections as of January 1, 2010. Three of the new laws provide: (1) more protection for whistleblowers, (2) employment protection for victims of domestic violence, sexual assault or stalking, and (3) leave for spouses of military service members.

Whistleblower Protection.

Oregon employers may not fire or discriminate against employees in retaliation for certain protected activities, including certain things done for the public good. Those things are listed in various laws (and court cases). The new whistleblower law is more general. HB 3162 prohibits employers from retaliating against an employee for reporting information that the employee honestly believes is evidence of a violation of a federal or state regulation or law.

In wrongful termination cases, one of the battles has been legal. The judge must decide the question of -- even if the company fired the employee for reporting a problem -- was the problem a type that the law cares about: was it "protected conduct?" HB 3162 eliminates that legal question in many more cases.

The factual battle for the jury will remain. In all wrongful discharge cases the factual battle is whether the company fired the worker for legitimate reasons or because he or she engaged in protected conduct.

Victim protection.

Oregon now provides employment protection to victims of domestic violence, sexual assault, and stalking. SB 928 prohibits discrimination against victims in hiring, promotion and other terms of employment. The new Oregon law also requires employers to make "reasonable safety accommodations" to victims.

Employers are familiar with the accommodation procedure from the requirement to accommodate employees with disabilities. The process is expected to be similar, calling for a back and forth discussion to figure out a reasonable way to protect the victim and also get the employer's work done.

Employment Leave for Military Spouses.

Oregon businesses with 25 or more employees must allow military spouses to take up to 14 days leave per deployment during periods of military conflict. The time is to spend with the service member before deployment, after deployment or during leave. HB 2744 requires the spouse to provide timely notice, and it prohibits discrimination against the spouse for using the leave.

A good resource for Oregon laws controlling employment is the Oregon Bureau of Labor and Industries.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Whiplash injuries refer to the process of the neck being flicked like a whip during a rear-end car or truck accident. Oregonians with severe whiplash injuries know that whiplash injuries are not laughing matters, despite comedies that dress actors in soft neck collars and suggest that everything is a fake. While it is true that an NFL receiver might be able to deal with a whiplash injury, most of us do not have their muscle mass, young spine, and loose ligaments. Today, I write about another aspect of whiplash injuries: what happens when the injured person has a previous neck fusion surgery?

The spine is an amazing creation. We have the bones (vertebrae) with a variety of holes to let the nerves get from the brain all the way to our fingers and toes. We have the disks in between the bones to give us flexibility.

The amount of injury anyone suffers from a rear-end collision depends on basically three factors: what physical condition are you in before the collision, what is the force that your body is subjected to, and what did your body actually go through during the collision (biomechanics). The force that actually impacts the body depends on many things including the speed of the trailing car or truck, its mass, and how much force is absorbed in the bumper and crush zones of the vehicles. Force, typically, is discussed in terms of "G" or multiples of gravity. That's the same measurement we use when we talk about astronauts blasting off into outer space.

Some victims of car or truck accidents are injured so severely that they have to repair their necks surgically. Occasionally, they have cervical fusions. When the surgeon fuses two vertebrae into one big one, the patient loses that flexibility between the vertebrae. Sometimes, the surgeon must fuse three disks together, reducing flexibility even further.

Then what happens with the next whiplash injury?

Well, when flexibility is reduced, then the force is even greater on the disk spaces that still move and perform their flexibility function - the ones above and below the fused bones and spaces. A medical study confirmed this. Researchers calculated the peak physical strain on the anterior longitudinal ligament, which goes along the cervical spine. They calculated what is likely to happen based on an 8G force collision.

The results: The average increase in strain in the part of the spine that still could move increased 15.5% when two vertebrae were fused. The strain was increased a whopping 40.8% with a two-level (three vertebrae) fusion. (A.B. Dang, Spine, 2008 Mar 15;33(6):607-11).

Despite what comedy writers tell you, whiplash injuries are no joke.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Oregon citizens diagnosed with Mild Traumatic Brain Injury (MTBI) know that the effect on them is not mild. When Oregonians suffer head injuries, too often, it takes time to properly diagnose their brain injury. Then, they have to fight for insurance benefits for the treatment, services, and money they need. Too often insurance claims examiners - and even general doctors - do not understand the problems or believe the injured person. Fortunately, yet another peer-reviewed study supports the truth of what these Oregonians experience.

People with brain injuries suffer from mental fatigue. Even on good days, those with brain injuries often hit a wall. Then, words and concepts begin to wash over them. Things just do not sink in. The brain runs out of gas.

Also, even brain injuries categorized as "mild" result in slower information processing. Think of dial up Internet before high-speed cable.

You can't see this on an x-ray or MRI. Science has not developed the tools to see this process, so the actual mechanism is not 100% understood, even though people with head injuries, their loved ones, and all professionals who help those with brain injuries know the phenomena are real. Although we cannot see it, sophisticated testing is helping us understand what people with traumatic brain injury must endure and cope with.

The December 2009 issue of Brain Injury reports the results of tests to compare those with mild traumatic brain injury, traumatic brain injury, and those without brain injury. The article, Mental fatigue and impaired information processing after mild and moderate traumatic brain injury, reports the testing people for mental fatigue, information processing speed, working memory and attention issues. The results: (1) Those with MTBI or TBI reported statistically significantly more deficits from mental fatigue and related symptoms than those without any BI. (2) People with MTBI or TBI had measurably and significantly decreased information processing speed compared to those without any BI. (3) There was a difference in divided attention, but less so. (4) This study found no difference on working memory.

Study authors: Birgitta Johansson; Peter Berglund; Lars Rnnbck. Journal: Brain Injury, Vol. 23, Issue 13 & 14, 12/2009, pp.1027 - 1040.

Our hope is that as the more and more studies publish, (1) primary care physicians will be quicker to diagnose MTBI, and (2) insurance companies will be more willing to pay for the necessary care. I'm more hopeful about (1) than (2).

Jeff Merrick, Oregon Trial Attorney
503-665-4234