Oregon Personal Injury Lawyer Blog

The Consumer Product Safety Commission (CPSC) announced a recall of the "meetoo" Clip-on Chair. The problem is that children in the chairs have fallen. Not only did some get injured from the falls, others suffered severe finger injuries, including amputation, when the fingers were pinched between the bar and the clamping mechanism. Details on which chairs were recalled and which chairs were not can be found here.

The chairs fell because the clamp pads were missing or worn. CPSC also said that the instructions were inadequate.

When a defectively designed or labeled product causes an injury, Oregon product liability law provides a right to recover your losses from the manufacturer and the seller of the product. The sellers included Target, Toys R Us and Buy Buy Baby. Sometimes, the defense will argue that the products were misused, but even the CPSC said that the inadequate instructions could cause misuse, which could negate that defense.

If you are an Oregon citizen or purchased a defective product in Oregon and have suffered injury because of a product, please feel free to contact me.

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, Oregon's Court of Appeals enforced an arbitration clause in a case where a homebuilder sued the married couple who hired him. We've seen a number of cases and laws involving arbitration recently. In Gemstone Builders, Inc. v. Jeff & Jennifer Stutz, the court emphasized that it will enforce arbitration clauses in contracts, even when the agreement is brief and ambiguous. Although, as discussed below, the outcome may have differed if the lawyers had pursued a different approach in the trial court.

The home-building contract told the parties to submit disputes over "repair or replacement" to arbitration "prior to" a lawsuit. Another part of the contract said "if there is cause for suit, dispute or action" to "enforce any provision" then the parties must arbitrate. Yet another sentence declared that the arbitration decision will be binding. The parties disagreed over (a) whether the contract required some or all claims to be arbitrated and (b) whether the arbitration was binding or just a first step before filing a lawsuit, if one side did not like the outcome.

The builder sued without arbitrating first. He argued that the contract was too indefinite as to the process. However, the court brushed aside that argument, noting the Oregon's Uniform Arbitration Act fills in any gaps. Consequently, the bigger issues were whether the contract covered all claims and was final.

Here's where the lawyering at the trial court level might have made a difference. When a contract is ambiguous, then the court may consider evidence outside of what is written in the contract. However, all the court of appeals had to work with was the language of the contract itself. The parties did not offer any evidence of (1) who wrote the contract or (2) what the parties intended or meant by the words in the contract. For example, if there were evidence that the homebuilder had written the contract, then the ambiguities might have been construed against him. In baseball, a tie goes to the runner. In contract law, an ambiguity is construed against the drafter.

Without any factual evidence to place the contract words in context, the court must decide based upon an established checklist, or rules of construction. Using those rules, the court held the contract required arbitration that was binding on the parties - no second chance in court.

The lesson for people: you are bound by contracts, even if they are not written well. The lesson for attorneys: present evidence and create a record in the trial court.

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 attorneys are generally very helpful to other lawyers. Both sides of the civil bar have listservs, where attorneys post questions, comments, etc. It's very helpful. It's like having hundreds of co-workers down the hallway to whom we may ask questions and share concerns. Sometimes the best answer we can provide a colleague is to refer the case to a lawyer who has more experience.

Case in point: An attorney said he was providing "pro bono" (or free) representation to a client with a "slip and fall" case. He asked about the role of medical testimony in the case and how to prove causation (that the fall caused the injury). I was not the only attorney to think, "Uh oh!" Two colleagues wrote that he needed to refer the case to some other attorney. Here are the "red flags" from that posting.

First, attorneys who represent injured people call these "premises liability" cases, not "slip and fall'' cases. "Premises liability" focuses on the legal obligations of the landowners toward customers or visitors; the other term focuses attention on the injured person.

Second, premises liability cases are not easy. Attorneys who are not familiar with personal injury cases might think they are easy, but they are not. There are many issues including: (1) What is the legal duty of the property owner? (2) How obvious was the problem with the area? (3) Was there any fault on the part of the injured person? (4) How does one develop the medical evidence and limit the potential damage from defense medical examinations?

Third, medical evidence is critical in every injury case. For cases seeking less than $50,000, medical reports might suffice to get through nonbinding arbitration. However, if the case is worth more or if one side requests a court trial, then one needs doctors to testify under oath. This is pretty basic stuff, which made many of us on the listserv cringe at the posting.

What happens if an injured client goes forward with a lawsuit? There are out-of-pocket costs, for which the client remains responsible. If there is a zero verdict, then the client must pay. Also, when the defendant wins, then it has a claim for some of its costs, too. If an attorney gets you into a lawsuit that does not make sense, then you might come out owing money.

So, the moral of the story is that, sometimes, free help is worth even less than the $0 you pay for it. It can cost you.

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, Oregon's Court of Appeals allowed a family to subpoena records through the probate court to help pursue a wrongful death case. Why is that significant? Because the nursing home thought it could get away from the courts entirely with the arbitration agreement that it buried in the admission papers. I've tried this tactic in the past, but this is the first I've seen the technique written about by an Oregon court.

In Assisted Living Concepts, Inc. v. Fellows, the family alleged wrongful death against Assisted Living Concepts (ALC). They claimed that ALC killed Dorothy Drury because of lack of adequate monitoring and fall-prevention measures. The heirs opened a probate case and then filed a regular lawsuit. Assisted Living Concepts, (ALC) moved to compel arbitration. I've written about arbitration before. I think it's dangerous when "repeat players" go against "one-time players," because arbitrators know if they want to continue to get work from ALC and its lawyers, then they better not award too much money.

As it turned out, the trial court decided to keep the case. But ALC appealed that order, which effectively would freeze fact-finding for another couple of years. Only then did the Estate of Drury use a probate court subpoena to attempt to get records. It is critical to get the records and identify witnesses as soon as possible. Especially in places like nursing homes, where many of the low-paid workers come and go. ALC then challenged the technique of using the probate court to subpoena information. The Court of Appeals threw out the appeal on procedural grounds.

So, the probate court route to obtain and preserve evidence remains viable. I've used it in the past, BEFORE ever filing a lawsuit. The job of the probate court is to identify, gather and disburse or manage assets. I think it is very appropriate for lawyers to use the probate court for exactly that purpose: identify whether there is a lawsuit worth pursuing. This technique is appropriate not only for wrongful death cases, but also for living people whose affairs are in probate, such as a minor, or someone with traumatic brain injury, or someone with dementia.

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.