Oregon Personal Injury Lawyer Blog

Saturday evening, at Andina Restaurant in Portland, Oregon, I enjoyed dinner with Senator Ron Wyden. The experience reminded me how lucky we are to have smart, public-spirited people willing to devote their lives to the rest of us. Senator Wyden is running for re-election, and he needs our support in this time of anti-incumbent fever.

Senator Wyden has earned our support. From the beginning of his career, not for moneyed, behemoth corporations. People who view my website do so because they need help through litigation. Without the likes of Ron Wyden, your right to sue would be a lot less meaningful or useful. He has fought to preserve your legal rights against the constant assault by insurance companies. Insurance companies do not what you to obtain full compensation when you are hurt. Senator Wyden values and protects the rights of insurance-buying consumers.

Senator Wyden has achieved respect within the United States Congress because he is a serious man who works on solutions, unlike others who try to ride clever slogans into office. Only through years and years of hard work can a Senator build the reputation and develop the know-how to get things done for Oregonians. It would be just plain stupid to elect his opponent.

Please support him through his campaign website.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

Effective July 1, 2010, Oregon law prohibits most employment discrimination based upon credit history. Covered employers may not reject applicants with bad credit histories. Those employers may not demote, suspend or otherwise discriminate against an applicant or employee with respect to terms of employment.

Exceptions that allow for the use of credit histories follow:

• Federally insured banks & credit unions
• Employers that are required by law to check credit histories
• Public agencies with respect to law enforcement officers.
• When the credit history is "substantially job-related. "

Oregon's Bureau of Labor and Industries (BOLI) promulgated rules on the new law. The rules state that a credit history is "substantially job-related" if the job requires "access to financial information not customarily provided in a retail transaction that is not a loan or extension of credit." Also, if the employer must check the credit history to obtain insurance or bonding, then it may obtain and discriminate based upon "credit history."

Oregon employers who obtain credit history under the "substantially job-related" exception must advise the person, in writing, that it is obtaining his or her credit history and why.

BOLI rules define "credit history" as communication by a credit reporting agency. Oregon law does not address bankruptcy, because it does not need to. United States Bankruptcy Law prohibits discrimination based filing bankruptcy.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

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

Last week, the United States Consumer Product Safety Commission, along with its counterparts in Canada and Europe, announced their initiative to establish international safety standards for window coverings. The problem is that various designs create pinch-points that injure and strangle children. Despite recalling tens of millions of corded Roman shades and roll-up blinds in the U.S. (in just the past 18 months) manufacturers continue to create and sell dangerous products with defective designs. Oregon law provides for product liability lawsuits for people injured by such dangerous products.

We all know that looped cords are a danger, and the simple solution is to clip the loop. Some products, however, cannot function if the cords are cut. Roller blinds are one such design.

For other window coverings, some Roman shades, for example, parents don't see the cord on the back that create risks of strangulation. To see what I mean, look at the photos found here.

For decades, this risk of child injury from window coverings has been known. However, manufacturers and stores continue to make and sell these defectively dangerous products. Although government efforts might help reduces the supply of these products in the future, it is up to parents to check what is covering windows now. Parents need to check their homes, day care, grandparents' homes and other places where your child lives and plays.

Jeff Merrick, Oregon Trial Attorney
Representing injured children & their families
503-665-4234

Two Oregonians who were in car accidents called me this week with the same story: within 48 hours, representatives from the other guy's insurance company were knocking on their door. The insurance company vultures wanted these hurting victims to sign authorizations to get medical records. Also, the insurance company was gathering information on the injured person, their home, their family, whether they moved easily or with a limp. Certainly, they hoped to get statements that could be used against the personal injury victim.

These practices are unfair and should not be tolerated. So long as they happen, here's what you need to know:

1. Don't talk to the insurance company for the driver who hit you. You have no duty to cooperate with them. "Anything you say can and will be used against you." If you think you can settle the claim for the property damage only - to your car or truck - then have someone else (spouse, parent, child) do the talking for you and instruct them not to discuss your medical condition.

2. Don't provide any medical releases to the insurance company for the driver who caused the car accident. Odds are, it will use the releases to get information on you that goes well beyond this collision. Will the insurance company look for other medical conditions? Will they look for other potential sources for emotional distress? How many years back will they request records? DON'T DO IT.

3. If they knock on your door, do not open the door. Send them away. Do this regardless of how well they have practiced sounding empathetic. They have done this dozens (or hundreds) of times. They are trying to hurt your claim!

4. Be careful with your own insurance company. Your own insurance company is paying under the Persona Injury Protection (PIP) provision of policy. You must cooperate with your own company. However, be alert to signs that it is looking to cut you off. DO NOT GO TO AN "INDEPENDENT MEDICAL EXAMINATION." If your own insurance company wants to send you to its own doctor, the purpose is to cut off your benefits. Better to get cut off for failure to cooperate than to have a phony doctor come up with a phony analysis that can be used against you later. You need a lawyer at that point to, perhaps, negotiate a solution: perhaps another month of treatment without an insurance medical exam.

Bottom line: Get a lawyer to counsel you and protect your interests. Hire one right away.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

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

Oregon's Supreme Court held, once again, that experts may not provide opinions on whether another witness is truthful. Although State of Oregon v. Lupoli involved allegations of child abuse, its ruling on the law of evidence will help personal injury and car accident victims fight against bogus defense arguments. This post summarizes the key points.

For decades, Oregon Law has prohibited one witness from testifying on whether he believes another witness is telling the truth. (E.g., State v. Middleton). Yet, insurance companies continue to hire experts to call injured people liars. The basic scenario is this. Defendant hires a neurologist to testify that she does not find any "objective evidence" of pain, suggesting the problem is psychological. Next, the defense psychologist testifies that the person is malingering or scored high on something called the "fake bad scale."

Funny, no one tries to offer polygraph test evidence, yet defendants continue to offer voodoo lie detector tests as evidence. Unfortunately, some plaintiff's lawyers and judges let them get away with it.

The problem with a diagnosis of malingering is that it is an opinion that the injured person is lying. According to the DSM IV, "The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as . . . obtaining financial compensation." Under Oregon law, no such opinion is admissible.

The "Fake Bad Scale" was created by a defense expert. He (1) selected a relative small number of questions out of the well-regarded pencil-and-paper test (MMPI), (2) created his own scoring system, and (3) said that if you hit a certain score, you must be faking you injury. Somehow, insurance company defense attorneys claim that this is more reliable than a polygraph test and should be offered to a jury. Fortunately, some judges look at the questions selected by the expert, look at Oregon Law, and say, "Baloney, not in my court."

The take home message: civil trial lawyers must use criminal law precedents when protecting their personal injury clients from bogus defense tactics.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
http://www.jeffmerrick.com 503-665-4234

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

Most Oregon attorneys are ethical. A sexual harassment case out of Georgia, however, illustrates why being unethical is dumb and can be costly. After the employer presented a forged witness statement, the court struck all defenses, and let the case proceed on the question of how much money to pay the woman.

Terrible conduct started this case. The Chief Executive Officer of the financial company ran amok with sexual comments and groping of employees. The last straw for the woman, Evangelina Forsberg, was when James Penfanis (allegedly) reached around, grabbed her genitals, and proclaimed, in the presence of others, that she has a tiny vagina.

One of the coworkers / witnesses was David Popke. The company submitted a statement from Mr. Popke that he did not remember the conduct. However, when Ms. Forsberg's attorney tracked him down in another state, Mr. Popke said that he very much remembered what happened. Also, he remembered that the company asked him to sign the false statement, implying that his continued employment depended on it, but he refused to perjure himself. The court determined that the company perpetrated a fraud upon it, and struck defendant's answer and affirmative defenses, setting the case for trial. (61 FRD 694 (ND Ga. 2009))

Because of the physical contact, Ms. Forsberg sued for assault and battery against the Penfanis and the employer. The jury awarded $1 million on that claim plus $1 million in punitive damages. She sued the company for negligence in retaining Penfanis in his position of authority, and she won $100,000 plus $3 million in punitive damages for that claim. She also won awards for the sexual harassment and retaliation totaling another $550,000 plus $3 million in punitive damages.

The employer engaged in other questionable conduct in its attempt to avoid accountability, such as trying to shift assets. Fortunately, Ms. Forsberg and her attorney fought on, knowing that this guy and the corporation that enabled him should be taught a lesson.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234