Oregon Personal Injury Lawyer Blog

Yesterday, the news broke the that Boy Scouts of America settled six sex abuse cases. The pressure to settle came from Oregon litigation: both a trial in April and another scheduled for trial in October. The April jury verdict included an award for punitive damages. Although the settlements with Boy Scout abuse victims are confidential, The Oregonian reported that the State of Oregon was paid $2.25 million for punitive damages.

We can only hope that the lawsuits will encourage all organizations responsible for children to take that responsibility seriously. As Oregon Attorney Kelly Clark opined about why the Catholic Church is safer these days, "It's not primarily because the bishops got the Holy Spirit, that's because the bishops got sued."

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

Oregonians and others hurt by dogs sue dog owners & homeowners. Naturally, the insurance companies have taken notice. The Insurance Information Institute reports that the numbers of claims and the costs to pay the claims have both increased.

In Oregon, those injured by dogs may sue under negligence: that the owner failed to act reasonably to protect others from the dog bite. Some municipalities also have dog ordinances, and the violation of those ordinances can give rise to liability, also. Furthermore, most homeowner insurance policies have a no-fault provision to pay for medical bills for people hurt on the property, but that is capped.

Of the 4.5 million dog bites per year, about 885,000 require medical attention, over 30,000 require reconstructive surgery, and others die. These are serious numbers, so dog owners should sit up, take notice, and protect themselves.

First, consider the breed of dog. Although dog lovers say the problem is the owner, and not the dog, the most dangerous dog breeds will cost you. Some insurance companies will jack up the rates or not cover them at all. One study revealed that Pitt bull-types, Rottweilers and German shepherds killed the most. Another study revealed that the following five dogs accounted for ¾ of all hospitalizations for dog bites: Pitt bull terrier, Rottweiler, German shepherd, Husky, Alaskan malamute.

Second, make sure you do have plenty of insurance.

Third, work with your dog. Socialize it. Spay or neuter it.

Fourth, be aware of risky situations. The worst bite injuries are to children. So, keep kids out of dangerous situations. Don't let children surprise or disturb the dogs. Personally, I was stupid enough as a 5 year old to pick up our little dog while it was eating, and it tore off half of my lip.

Fifth, play nice. If you teach the dog to attack, play aggressive tug games, etc., it will be aggressive. If you provide obedience training, play fetch games and train it not to jump on people, the odds are, it will not jump on or attack people.

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

It is sad, tragic and depressing. A Medford, Oregon mom decided to drive her son and, we believe, 7 other young people. Four of the nine occupants did not wear seat belts. According to one witness, the car in front was driving slowly. When it turned off Upper Applegate Road, the mom hit the gas, up to 70 mph in a 45 mph zone. Because the people in the back were not belted, she goofed off by swerving to jostle them around. She lost control; the SUV left the road, and crashed.

Two people died: her son and Faith Vock, an 18 year old girl enjoying her summer with her uncle. Two others were hospitalized with serious injuries. The rest of the young people avoided major physical injuries but are traumatized for life.

Goofing off while driving often leads to irreversible and irreparable tragedy. We see it with teenage drivers, young drivers, and drivers impaired by alcohol or drugs. The Medford, Oregon tragedy shows that even middle-aged women can lose control when driving is used for amusement. How many times must it be said: "safety first."

The tragedy also points out how important seat belts are. The two young people that we lost were not belted. In the past, I have argued to the State Legislature that there ought to be a law requiring that drivers not transport people unless each one is in a seatbelt (HB 2536 - 2007). Safety advocates lost that argument to those who bemoan "the Nanny State." Maybe we should consider reviving that bill.

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

The National Football League is posting concussion information in locker rooms this season. It's about time that everyone acknowledges that getting "your bell rung" is a big deal because brain injuries occur even without loss of consciousness. Oregon is one of three states with laws on concussions in high school sports. ORS 336.485 requires coaches to receive training every year on the symptoms of concussion and proper treatment. It also prohibits coaches from playing students with concussion symptoms.

Hopefully, the NFL poster will bolster Oregon's law by making it even easier for coaches and parents to do the right thing. The poster lists the stark facts that concussions are traumatic brain injuries that change your brain function, can change your personality, and can forever change the lives of you and your family.

The NFL poster notes that a concussion is not the type of injury a player should "play though," because the grave consequences of repeated brain injuries before the first one is resolved. Symptoms of brain injury are many and can be found here.

So, for parents, coaches and others, the NFL poster is a great opportunity to teach young people what to look for and what to do when it comes to head injuries. This is important not only for football players, but also soccer players, hockey players, and snowboarders and every other person who plays a rough sport.

Jeff Merrick, Oregon Trial Attorney
www.pediatriclaw.com
503-665-4234

Is it time to file a civil suit over the disappearance of Kyron Horman? This post discusses the possibilities.

We all remember that O.J. Simpson was acquitted in criminal court but held responsible in a civil case. The reason, of course, is a lower burden of proof. For criminal cases, the state must prove its allegations beyond a reasonable doubt; in civil court the "preponderance of the evidence" is enough.

Typically, I advise crime victims hold off on any civil lawsuit until the criminal prosecution concludes. However, in this situation, the issue is not monetary compensation; it is discovering the truth.

Who could sue for what?

If we assume that Kyron is alive, then a conservator or guardian ad litem (definitions here) must be appointed to assert any claims for Kyron. The conservator or guardian for litigation does not need to be the father, Kaine, and, probably should not be the father. Kyron could assert claim for negligence against his stepmother if there is evidence to show that she failed to act as a reasonable parent on the day Kyron disappeared, and her actions caused him to disappear.

If, more likely that not, Kyron has died, then the court could appoint a personal representative of his "estate," who could file a lawsuit against Terri Moulton Horman for wrongful death under Oregon law. Once again, the question is whether there is enough evidence to believe, in good faith, that Terri was responsible for Kyron's death. Police and the District Attorney's office would need to cooperate with the lawyer for Kyron's estate to determine whether sufficient evidence exists to file the lawsuit.

Benefits of a civil lawsuit?

In a civil lawsuit, the lawyer for the plaintiff (the person suing) could require Terri Moulton Horman to appear for a deposition, which is questioning under oath. Terri would have to show up. The court could order her to answer any non-incriminating questions. Terri could assert her 5th Amendment Right and refuse to answer any question that she reasonably believed could subject her to criminal prosecution.

Then what?

The judge could order Terri to answer incriminating questions or lose rights in the civil lawsuit up to and including losing the entire lawsuit and owing a lot of money. In Lefkowitz v Cunningham, the Supreme Court noted that if a State compels testimony by threatening to inflict "potent" penalties, then that violates her constitutional rights. Some courts have held that requiring a person to decide between losing a civil case and answering incriminating questions violates the 5th Amendment.

If the judge ordered Terri to answer incriminating questions under the penalty of losing by default, then a very interesting question arises: If Terri testified that she killed Kyron, would she then be immune from prosecution? At a minimum, it is likely that the prosecution could not use Terri's deposition testimony against her if it was compelled in violation of the 5th Amendment.

So, is it time for a civil suit? The answer depends on following:

Q. Will the DA share enough evidence to support a good faith belief that Terri either (a) was negligent in the way she dropped off Kyron or (b) was legally responsible for Kyron's death.

Q. Are there non-incriminating answers that could be extracted from Terri at a deposition that would advance the investigation?

If so, then a civil lawsuit might make sense. However, it unlikely that Terri will answer any useful questions at a deposition.

Jeff Merrick, Oregon Trial Attorney
PediatricLaw.com
503-665-4234

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

The Portland, Oregon jury awarded $1.4 million dollars in the Boy Scouts child molestation case. But the trial is not over. Next, the jury considers punitive damages. This post discusses what happens to the money if the jury awards punitive damages, which is a timely topic, in light of the looming April 15 tax deadline.

First, what did the victim need to prove to win punitive damages? In Oregon, the person must prove, by clear and convincing evidence, that defendant "has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others." From news reports, the jury made that determination.

Next, the lawyers will present evidence and argue about how much money the jury should award. For purposes of this post, let's say the jury awards $1 million in punitive damages. Who gets the money?

The State of Oregon takes 60% off the top. $600,000 would go into a fund managed by Oregon's Department of Justice for the benefit of crime victims. Basically, it is a tax that is earmarked for crime victims. The money cannot be used for schools, jails, police, or anything else. It is for crime victims.

Next, 20% goes to the attorney. So, the attorney would gross $200,000. Of that, the federal government would likely take 35% ($70,000), and the State of Oregon could take 11% in income tax, which is $22,000.

The final 20% goes to the victim, who will probably suffer the same tax consequences.

So, for the final tally if the jury awards $1 million in punitive damages:

• State of Oregon: $644,000.

• U.S. Government: $70,000

• Victim's Attorney: $108,000

• Victim: $108,000 or 10.8% of the award.

In law school, we were told that purpose for punitive damages is to punish bad behavior and deter others from behaving similarly. However, when a person does the math, punitive damages also serves to raise revenue for the state and federal governments. Now you know why the Oregon Flag flies over this post.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

While the Boy Scout sex abuse jury deliberates in Portland, Oregon, I think about the extraordinary commitment of the victim's attorney. Regardless of the verdict, attorney Kelly Clark deserves praise for bringing evidence into the open that has been kept under wraps for decades. He has earned the gratitude of his client and all people who need the threat of a lawsuit to accomplish justice. Unless we lawyers actually try cases, insurance companies, pharmaceutical companies, and other defendants will just shrug their shoulders when an ordinary citizen deserves justice but cannot afford to hire a lawyer.

I know from my own experience that a case like the one Mr. Clark tried caused him to spend, probably, over $100,000 out of his pocket. That's only costs and does NOT count his time, which likely totals hundreds of hours. If he loses, certainly, the attorney will not be paid for his time. Most often, our clients cannot afford to pay back out-of-pocket costs, either. It's a big gamble. If the victim wins big, then the defendants will likely appeal, and it could be several years until the victim and his attorney ever gets paid.

So why do we do it? Why do plaintiff's lawyers risk so much for their clients?

We do it out of a sense of responsibility to our clients, to our profession, and to the system of civil justice. The best lawyers have a passion for justice, and we can't sleep if we think the "bad guys" might get away with something. The true believers will fight their best fight for justice.

We can never know how a trial will conclude. There are so many variables. Will all of our evidence be admitted? Will these 12 jurors see things as we see things? Will they get confused or make decisions based upon something other than the law and facts as presented? Did O.J. Simpson kill Nicole?

We do not know what the jury's verdict will be in Portland, Oregon. However, we do know that Kelly Clark believed in his client and his cause and gave all. By doing so, he upholds the highest ideals of the legal profession.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Window Safety Week highlights the fact that, like clockwork, children fall from windows every year when the weather warms. Oregon's trauma registry records about 50 window falls per year. Other children are luckier; they fall and do not suffer significant trauma. Nationally, the number of children suffering traumatic injury from window falls is in the thousands per year. The most vulnerable are children under age seven, who suffer brain injury and death from window falls.

These tragedies are as preventable as they are predictable.

Window guards, screens & mesh save lives.

For decades certain jurisdictions have required window guards. The laws work, saving lives and tragedies. As of February, 2010, Oregon's building code addresses some aspects of window falls, but safety professionals know that it is not enough. (Previously, I wrote about the new Oregon regulation.)

With the spread of these laws, manufacturers are competing to produce safety devices that look better than the old bars. The latest product, the window guard mesh, looks more like a decorative curtain.

Even inexpensive window stops can save lives, so long as parents do not open the window wider than their child's head.

Conclusion.

Window Safety Week raises the awareness of this safety issue. We know that the tragedy of brain-injured and dead children is as predictable as it is preventable. Please help spread the word to help families in Oregon and Washington.

Today, the Consumer Product Safety Commission announced that one of the three 2009 suffocation deaths from sling baby carriers was a Salem, Oregon newborn.

Last week, I wrote about the ten-year history of baby carrier recalls. That post details some of the risks and provides practical guidance on how to shop for and test baby carriers.

This is a photo of one of the products recalled today:

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 Consumer Product Safety Commission warned of infant suffocation deaths from sling baby carriers. This is just the latest alert. Moms in Oregon and everywhere should know that defectively designed baby carriers have hurt or killed children for years. I've been following this Pediatric Law topic for a decade, and this post covers the various defects that CPSC has identified.

Suffocation Risk.

Three deaths in 2009 from sling baby carriers prompted CPSC's latest warning. Of 14 total deaths identified over many years, 12 of the babies were 4 months of age or less. CPSC identified two suffocation risks. First, covering a baby's mouth and nose with cloth can suffocate a baby within two minutes. Second, when an infant's head bends forward and her chin presses toward her chest, the airway becomes constricted, causing suffocation.

Baby Falls Through Openings.

Babies fell through leg openings of a baby carrier that was recalled in Y2K. These were backpack carriers. Babies, as they sometimes do, did not sit still. When they moved around, they fell through the holes. Some serious brain injuries were reported. So, whatever baby carrier you use, test it with your own baby in a safe spot to make sure that there is no hole big enough for him or her to fall through.

Baby Falls Because of Attachment Failure.

CPSC recalls highlight at least three modes of attachment failure.

Bad Buckles

To make sure baby does not fall out, we synch up the buckles. But what if the buckle loses tension? That problem caused the 2008 recall of a front-side baby carrier (pictured above). The shoulder buckles loosened fast without warning. I suppose one way to check the security of the carrier is to play around with a bag of potatoes.

CPSC warned of a buckle detachment problem with a different front-side baby carrier recalled in 2004.

Parts bend or break.

A rather elegant-looking sling carrier (top picture) was recalled because the aluminum ring that held it together bent and broke. The fabric gave way, and the baby could fall out.

Other failures

Yet another recall from 2008 involved a front-side carrier. CPSC described the failure as the chest strap coming loose from the shoulder strap. Once again, the baby could fall out.

Conclusion

It's great that moms and dads can keep their babies with them when they enjoy Portland's Farmers' Market or hike in the Columbia Gorge. After following the issue for a decade, here's what I'd recommend:

• Look for a tried & true product that has been on the market for years.
• Experiment with it before using. Make sure YOUR baby will not fall through. Jostle it around with a bag of potatoes from every position you can imagine.
• NO SLING CARRIERS.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The authors of a new study of brain-injured children found that doctors most often used the term "concussion" and not "traumatic brain injury." The authors theorize that the doctors use the "concussion" label to minimize the worry of parents. However, the lead author, Carol A De Matteo, believes that the concussion label misleads parents and coaches, which could cause inferior follow up precautions and care. Oregonians should know that a concussion IS a traumatic brain injury and should act accordingly.

The Canadian study noted that there is no universal agreement on how to grade concussions. There are 6 different categories of concussions plus 8 different grading scales. Doctors use "concussion" to describe brain injuries ranging from (1) a brain injury where the child or teenager returns to preexisting levels of functioning to (2) severe, permanent brain damage or even death. So, Oregonians should know that the "concussion" label does not mean your child is necessarily going to be okay.

The authors fear that a diagnosis of concussion may affect a parent's decision on how soon to return the child to school, or even sports. When the child has some symptoms associated with brain injury, the symptoms might be ignored or pooh-poohed, because everyone thinks the person is "over" the concussion. Consequently, the child might not receive the help he needs in school. In Oregon a proper diagnosis and classification of symptoms might be critical determining whether the school must work on an Individualized Educational Program (IEP).

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.

In a fascinating ruling that discusses Oregon law back to 1857, the Oregon Court of Appeals held that former TV personality Ken Ackerman may keep his $1.4 million dollar medical malpractice judgment. However, the court changed the trial court's ruling on who must pay it.

Mr. Ackerman had back surgery by a doctor employed by Oregon Health & Science University (OHSU) and OHSU Medical Group. The doctor punctured Mr. Ackerman's spinal cord, leaving him in constant pain, and with a loss of fine motor skills in his right hand. Also, he lost most sensitivity to hot and cold on his left side.

Because OHSU is considered a governmental entity, special laws apply that purport to limit its liability $200,000. Whether those laws work to limit liability depends on whether Mr. Ackerman could have brought the lawsuit before our 1857 constitution guaranteed to all of us a "remedy by due course of law." If a law made after 1857 tries to take away our rights, then it is unconstitutional.

Oregon's Court of Appeals said that because Mr. Ackerman could not have sued the State before 1857, and because OHSU is considered like the state, then the limit as against OHSU is okay.

The Court then looked at whether the OHSU Medical Group is like OHSU, and gets the benefit of the limitation. On the record before it, the court found that OHSU Medical Group was, again, an "instrumentality of the state," which could be limited. (One wonders if a different record based upon the activity at issue could lead to a different result.)

The back surgeon, however, was not considered protected under the State's umbrella. The laws that purported to protect him from additional liability were held to be unconstitutional.

Consequently, the Court of Appeals said Mr. Ackerman could collect $200,000 from OHSU, $200,000 from OHSU Medical Group, and $1 million from the back surgeon.

There are many more issues involved in this important case, and defendants will seek review by the Oregon Supreme Court. So, as they say in television, "stay tuned."

Jeff Merrick, Oregon Trial Attorney
503-665-4234

For years, Oregon children have been killed and have suffered Traumatic Brain Injury because they fell from windows. Second story windows are high enough, as I sadly learned while suing a landlord and Portland property management company. In the Portland area, alone, more than a dozen children go to hospitals for window fall injuries each year. Oregon Trauma Registry data indicate a total of close to 50 child window fall injuries per year.

The legal cases I had involving children falling from windows caused me to lead a legislative effort to pass a law requiring landlords to offer window guards to tenants with small children. That law did not pass, but a new Oregon building code is a step in the right direction.

The new regulation became effective February 1, 2010. It is Oregon Residential Specialty Code § R613.2. It applies to windows more than 72 inches above the ground below and offers two protections:

• First, windowsills must at least 24 inches above the floor.
• Second, the windows may not open more 4 inches unless the windows a provided with window guards that meet a certain national standard, called ASTM F 2090-08.

This is an important first step for a couple of reasons. First it acknowledges the serious and continuing problem of children falling from windows. Every year, when the weather gets hot, kids start dropping out of windows. You can count on it.

Second, the window guard requirement might cause stores to stock window guards. Right now, guards are very hard to find. You can see how window guards work at the Legacy Children's Hospital Safety Store, which is borrowing my own window guard displays. The knowledgeable and kind women who staff the store can help you order window guards and other safety devices.

I trust the word will get out to residential homebuilders: Make places safer to prevent tragedy!

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.

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