Oregon Personal Injury Lawyer Blog

Jurors awarded $677 million against a nursing home because it understaffed its skilled nursing facilities. In Oregon, I have seen the same thing, time and again. These companies make big promises of excellent care and abundant services for assisted living facilities. Yet, they consistently run understaffed. Also, I've seen Oregon facilities underpay their staff and then get rid of the most caring staff members who actually complain about the problems.

We often think about these cases in terms of malpractice or abuse. However, I now see it as fraud: the corporations that operate the homes promise services that they simply cannot deliver with the staff they are willing to hire and pay.

Oregon law protects both the residents of homes and nurses and staff who blow the whistle. I love to represent victims and whistleblower employees because I think, hope and pray that once the companies factor in the costs of lawsuits, they will decide it is cheaper to hire more workers and provide good care.

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

Montana State University agreed to pay Mike Kramer $240,000 to settle the lawsuit he filed arising out of his termination in 2007. The court threw out some of his claims, including breach of contract. What remained for trial was whether MSU libeled, slandered or defamed Mike Kramer when it remarked on the termination.

Montana State terminated Kramer after police arrested players for trafficking cocaine and after the school lost scholarships for not meeting NCAA academic requirements. Kramer believed that comments referring to this as a "crises in leadership," for which he was responsible, hurt his ability to land another coaching job.

In Oregon, defamation claims require proof of the following:

1. A false statement.
2. The statement is communicated to a third person.
3. The statement tends to diminish the person's reputation, and
4. Either damage or a statement that is hurtful "per se.

" Typically, a person must prove harm or money loss before a court will get involved. The exceptions are for statements that we consider "defamatory per se." Examples include statements that a person has a "loathsome disease," are unfit for their employment duties, committed a crime involving "moral turpitude," or other statements that prejudice someone in their profession.

Although I did not see the paperwork in Coach Kramer's case, it appears that the trial would have proceeded on the claim that he was defamed by statements imputing an inability to lead a football program.

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.

It was "not about the money," said one of the nurses who sent an anonymous letter alerting officials to the questionable practices of a doctor. The doctor went to his sheriff friend to investigate who sent the letter, and county charged the nurses with felony misuse of information. The whistleblowing nurses sued the county for the vindictive prosecution. Today, the county approved a settlement.

The Oregon nurses I've represented have been among the most caring and ethical professionals I've known. Nurses seem to learn fast that they will never have the biggest ego in the hospital, but rarely do nurses take second place when it comes to caring for patients.

And it is not just in hospitals. Nurses and staff in assisted living facilities work their tails off because, typically, the facilities do not employ enough staff to meet all of the promises made by the nursing homes. Too often, when staff becomes a "squeaky wheel" or report to officials, they find themselves in trouble, written up, and fired. Fortunately, Oregon law protects whistleblowers in assisted living facilities, nursing homes and other places.

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

Last week, the Oregon Supreme Court ruled in favor of a Klamath County schoolteacher who quit under threat of termination. Robert McDowell and his attorneys fought 3½ years for this result and for his unemployment compensation. Finally, common sense prevailed.

Here are the facts. Robert McDowell was a probationary teacher of language arts and drama in Klamath County. He showed his class a 10-minute film clip from "Glengarry Glen Ross," which contained some profanity for the ears of the senior class of the high school. That was against policy, because the teacher did not obtain advance approval. But here's the thing: no one ever told him he needed to get approval. So, someone said, "gotcha," which seems ridiculously unfair.

The employer needed no reason at all to fire a probationary employee. So, when the personnel director advised Robert of his decision to recommend termination to the School Board, Robert took it seriously. The union's attorney told Robert that the School Board always goes along with the recommendations. Consequently, on the day the School Board met, Robert resigned to protect his ability to ever get another teaching job.

Somehow, it took the Oregon Supreme Court to see that a reasonable person would have quit under the circumstances, which is one of the legal standards to qualify for unemployment compensation.

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

Yesterday, I met with people who were harassed on the job in Bend, Oregon. The bad boss, in Bend, was an idiot in an unprofessional organization. Sometimes, we think that people and companies who violate the laws against sexual or racial harassment must be unsophisticated. The news about Mark Hurd resigning as Chief Executive Officer of Hewlett-Packard because of sexual harassment shows that women and others are not safe even in the most sophisticated workplaces in the world.

HP's press release does what it must. It acknowledges that Mr. Hurd was caught, and HP reinforced the allegedly high corporate standards that are observed in their breaking. It goes on to assure shareholders that all's well in the corporation. Ironically, HP still has posted the statement from Mark Hurd in 2006, also commenting on the company's standards of ethics being broken under the reign of Senate Candidate Carly Fiorina.

Sexual harassment at work continues to be a problem. Sexual harassment is not just men wanting sex from women. It also includes mistreatment of women even when no sex is at issue. For example, I settled a case arising out of a Portland, Oregon warehouse, where the men verbally abused the only woman worker. Giving women the crummy jobs is another form of harassment. So be alert: harassment is just another form of discrimination based upon gender - sometimes sex or requests for sex or dates has nothing to do with it.

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

Oregon employees or others who blow the whistle and report violations of securities law to the SEC are now eligible for a bounty of 10% to 30% of money collected by the Securities and Exchange Commission (SEC), so long as the total money collected exceeds $1 million. Section 922 of the Dodd-Frank Law allows the whistleblower to remain anonymous by using an attorney to pass along the information. Also, if the employer knows the identity of the whistleblower, the employer may not discharge or discriminate against the employee because of an honest report.

The SEC may pay a monetary reward if the whistleblower's information is "original information." Original means that the whistleblower came up with the analysis or facts independently, and the SEC does not already have the information from any other source.

The whistleblower must make the claim within 3 years of the date of the time the employee knew or should have known of facts supporting the allegation of wrongdoing.

The whisteblower reward may not be claimed by people convicted of participating or by people whose job it is to uncover problems, such as employees of regulatory agencies, the Department of Justice, or someone who performs audits required by the SEC.

In some ways, the new Federal Law is duplicates Oregon's Whistleblower Protection Law, which protects employees from discharge or discrimination for reporting violations of any law. What's new is the chance to earn a bounty under the Dodd-Frank Law.

The above does not constitute legal advice and does not establish an attorney-client relationship. However, feel free to call me if you are an Oregon whistleblower and feel like you need legal counsel.

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

Attorney Gloria Allred announced a lawsuit alleging sexual harassment in employment against David Boreanaz, of the TV show Bones. She also announced that she represents another woman, but did not file a lawsuit on her behalf. Instead, she sent the matter to a state agency to investigate. Here's my take on what that means, having used Oregon's State Agency at times and having filed sexual harassment cases in Oregon's courts.

First, we lawyers screen cases based upon whether we believe our clients. I assume that Ms. Allred believes that both of her clients felt victimized.

Next, we look at what evidence is in hand and consider what evidence is likely to be found later. When I file a lawsuit, it is because I believe there is enough evidence in hand to get the case to a jury. I assume that Ms. Allred believes she has enough evidence on Kristina Hagan's case to reach a jury. During the "discovery process" (definition here), she hopes to develop more evidence to win the case.

On the other hand, if an attorney feels like a client was legitimately harmed, but wants more evidence before risking a lawsuit, it makes sense to refer the case to the state agency. The state agency will then conduct an investigation. The agency could turn up more evidence, giving the attorney more confidence before filing a case.

We attorneys want to make sure we win the case, because no client wants to go through the expense and trauma of litigation unless the odds of winning are very good.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

EEOC press releases show that terrible sexual harassment occurs frequently against immigrants in Oregon, Washington, and the rest of the nation. For example, the EEOC sued Allstar Fitness, which operates in Washington and Oregon, because one of its supervisors forced an employee to choose between sex with him and her job. (Supervisor Forzó Sexo en una Empleada Latina.) The company did not train employees on the laws against discrimination. It produced no written harassment policies and no complaint procedure.

In another case from a Mollala, Oregon nursery (Willamette Tree Wholesale, Inc.), the EEOC charged that Latina workers were sexually harassed, raped, and threatened.

EEOC charged a Washington state apple grower (Evans Fruit) with sexual harassment because supervisors assigned women to isolated jobs so that they could make sexual advances. The court issued an order stopping the company from retaliating against or attempting to influence any potential witnesses or victims during the time the case proceeds.

Other examples include a $260,000 settlement to an employee of Wilcox Farms, in Aurora, Oregon. Schiemer Farms, also of Oregon, fired two workers on their first day of work after they reported sexual harassment, and it cost Schiemer $14,500.

Latinas are not the only vulnerable immigrants who have been victimized. Sexual harassment in the Korean Community in Los Angeles is leading to settlements and educational efforts toward small businesses, to prevent harassment before it happens. The EEOC is hiring investigators who speak different languages in its effort to address discrimination against immigrant women in the workplace.

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.

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

Monday in Portland, Oregon was typical. The weather changed from nice to rainy, I had my plan to work for four different clients. My plans always get a bit side-tracked by people who call seeking help from an attorney. Today, I reviewed records and spoke with a Salem man who wants to sue his spine surgeon for medical malpractice, a Portland woman who asked me about sexual harassment, and a Portland man who discovered unhealthful mold in his rental condominium. I will not represent any of them.

So, together, I probably gave away 1-½ hours of my time today. I don't mind; it's part of my job. Usually, I'm happy to help. However, sometimes people think that I should give more than my initial screening and initial thoughts. Some get quite indignant, as if I'm wrong to want to be paid for my 30 years of legal study and practice. When I ask them if they would be willing to donate their time to help me with my issues, like yard work or cleaning the garage, often, they get my point.

Pro bono is a term that refers to free help from attorneys for needy people or causes. Typically, attorneys recognized for pro bono work are big firm lawyers who do not bill for a particular job, yet never miss a paycheck. They carefully track their hours (perhaps the firm gets a tax break). Then, they can say they donated 30 hours for a particular cause. That's good, and they deserve recognition.

For lawyers who help people -- "plaintiff's lawyers" as we are known -- we give out free help to people just about every day. In a year, I probably give over 200 hours of time, and other plaintiff's lawyers probably do the same. I help a lot of people: both those who think they have a claim plus those who do not get sued because I explained the law to someone who wanted to sue them.

Here's my best potential client (PC) question:

PC: My boss at work was harassing me and then he fired me. I'm probably the best worker on site. I think I have a case.

Me: Why do you suppose he did that?

PC: I slept with his wife, but they were separated at the time. . . .

Sorry dude, sleeping with the boss's wife is not protected activity.

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

This week in Portland, Oregon, Deanna B. testified against her former employer, Brookdale Senior Living, Inc. (NYSE: BKD). Ms. Bettencourt used to provide care for residents of Wynwood Mt. Hood, an assisted living facility. Like other such facilities and nursing homes in Oregon, Wynwood Mt. Hood has been cited for abuse and neglect because it employed too few employees to care for residents.

During Deanna's tenure, the assisted living facility served 82 residents. Brookdale promised those 82 residents services that would take a full page to list, including meals, laundry, help getting to appointments, help getting to the toilet (or cleaning up when help came too late), help with pets, medication, etc. Last year, the State of Oregon cited Brookdale when resident needs were not being met because it employed only two people on night shift for all residents. Obviously, when both employees were needed to help someone get to the bathroom, no one was available to assist any of the other 81 people.

The stingy ways of the Executive Director included altering the time cards of employees without their knowledge. Deanna complained about it. She challenged the integrity of her boss, repeatedly. Her boss then changed her working situation, wrote her up for things, and fired her. We sued, alleging that the company retaliated against Deanna for making her wage claims and accusing the company of stealing from her.

During the litigation, we have discovered other practices that we believe are improper. For example, those three employees on night shift must remain on call, even during their meal periods. They cannot take lunch or dinner in their cars. Employees remain on call to assist residents. Yet, despite being on call, Brookdale Senior Living does not pay them for their on-call time. We believe that violates wage statutes and is more evidence of how the company does whatever it can to reduce costs, whether or not proper. See, OAR 839-020-0004(20) & 839-020-0041.

I've sued assisted living facilities / nursing homes before, and I've learned too much to remain naive. I've told my wife that if I ever need to be in one long term, please leave a gun under my pillow. I'd rather kill myself than live in some of these places, in which the facility does not keep all of the bright promises made to prospective residents and their loved ones.

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.

A continuing education class on the use of CPT® codes got an Oregon woman wondering whether her employer used the wrong code, intentionally, to make sure insurance paid for procedures. This Oregon business performed CT scans, mammography and other radiological procedures. CPT® codes (Current Procedural Terminology) are reference numbers for medical procedures established by the American Medical Association. Insurance companies, Medicare and other payers rely on CPT® codes when deciding whether to pay for a procedure and, if so, how much.

After some more research, my client decided that she might be participating in civil fraud and criminal activity if she continued working. If caught, at a minimum, she might lose her professional licenses. At worst, she'd go to jail and be sued. So she quit, and wisely so.

In Oregon, it is against the law to present false bills for health care services or supplies. Participation in it is a felony. Oregon law also defines "racketeering activity" to include false medical billing.

The federal false claims act also makes illegal any false claims submitted for payment to the federal government, including medical bills paid by Medicare. The federal law has a "Qui Tam" provision. That means the whistleblower can earn a reward or bounty for money recovered by or for the government. The whistleblower earns a percentage (15% to 30%), the amount of which depends on whether the government prosecutes the claim or whether the whistleblower and her attorney prosecute the claim. Under the federal false claims act, anyone with knowledge can pursue the claim, not just employees.

Oregon and federal laws protect current employees who blow the whistle on cheating employers. That is, if an employee reports false CPT® coding - or other medical fraud -- to the authorities, the employer may not fire her or otherwise change her working conditions.

My client decided against pursuing a whistleblower claim under the federal false claims act. She believed that the best we could do is win a worthless judgment against a corporation that was about to go out of business. But for those of you working for big enterprises - such as national assisted living facilities or big hospitals -- that are cheating Medicare, keep in mind that you can provide a great service to all of us taxpayers if you decide to become a whistle blowing, Qui Tam, bounty hunter.

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.

Yesterday, the Oregon Supreme Court held that employers may fire employees who use medical marijuana despite the employee's claim that disability discrimination laws required the employer to at least try to accommodate the disability for which he used marijuana.

Emerald Steel Fabricators of Eugene, Oregon "has been doing structural and mechanical fabrication, machining, sandblasting and painting since 1975." The employee had worked there fewer than 90 days and needed to pass a drug test to continue work. That's when he confessed his drug use to management. For over a decade, he had experienced anxiety, panic attacks, nausea, vomiting and stomach cramps. A physician declared it a "debilitating medical condition," and opined that marijuana might help. That was enough to get a medical marijuana card.

The employer fired the employee, and the employee filed a claim. An administrative law judge found in favor of the employee. He held that Oregon law requires employers to engage in a "meaningful interactive process" to consider whether it was possible to accommodate the employee's disability.

The employer appealed all the way up to the Oregon Supreme Court. It argued the law protecting disabled workers does not apply to workers who use illegal drugs, and medical marijuana is an "illegal drug" even though its possession and use is not prosecuted under Oregon law.

The Court agreed. It noted that ORS 659A.122 defines "illegal use of drugs" to include drugs that are illegal under state law OR the federal Controlled Substances Act. The Court held that because medical marijuana is considered illegal drug use for this purpose -- even if it is not illegal under other statutes - the employer is "excused from whatever obligation it would have had under ORS 659A.112 to engage in a 'meaningful interactive process' or otherwise accommodate employee's use of medical marijuana."

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 the U. S. District Court for Oregon, the Honorable Judge Anna J. Brown issued an opinion on whether the Federal Arbitration Act (FAA) prevents Oregon's Legislative Assembly from regulating certain arbitration agreements. Judge Brown opined, in essence, that ORS 36.620(5) was stillborn. This note points out the following:

• ORS 36.620(5) was not at issue, making the opinion dicta.
• Judge Brown, herself, deemed the motion moot.
• The circumstances prevented Judge Brown from being fully informed before rendering her opinion.

Facts of the Case.

Alterra Healthcare Corporation hired Deanna Bettencourt on November 9, 2006 as a resident assistant grossing $8.50 per hour. In February 2007, the employer asked Deanna to sign the purported arbitration agreement. Her signature did not coincide with any raise or promotion.

Ms. Bettencourt complained about changes her boss made in her time records that had the effect of taking money from her. Afterwards, the company, now known as Brookdale Senior Living Communities, Inc., fired Deanna. Ms Bettencourt alleges that the termination was in retaliation for asserting her rights under Oregon's wage laws.

Circumstances deprived Judge Brown of full Briefing.

We filed the lawsuit in the Oregon Circuit Court for Multnomah County. Defendants removed, and moved to abate the case pending arbitration. Defendant's supporting memorandum was rather perfunctory, consisting of roughly 2 pages of facts and 4 pages of argument. In her 20-page response, plaintiff raised many issues that were not raised in the motion, and we requested oral argument. Judge Brown ruled without the benefit of oral argument - or any argument from Plaintiff - on the issue of whether the FAA preempts ORS 36.620(5).

ORS 36.620(5) was not at issue

ORS 36.620(5) became effective in 2008. Because Ms. Bettencourt signed the purported agreement in 2007, ORS 36.620(5) was not at issue. Consequently, Judge Brown's opinion on the matter was pure dicta - for information to the bar on how she views the matter based upon the incomplete record before her.

Plaintiff never argued that ORS 30.620(5) prevented the enforcement of the purported agreement. Instead, we argued that, under Oregon's Common Law, the purported arbitration agreement was void as against public policy. To bolster our common law argument, we stated:

"Since the time Plaintiff signed Exhibit 1, Oregon's statutory law has confirmed the common law analysis: Arbitration agreements shoved in front of existing employees are not enforceable. ORS 36.620(5)(2007)."

Because ORS 36.620(5) was not before the court, any interpretation of it -- or purported invalidation of it -- is dicta.

Judge Brown Never Ruled on The Defense Motion to Compel Arbitration.

After brushing aside Plaintiff's legal arguments, Judge Brown held that there was a triable question of fact as to whether an agreement existed. Judge Brown directed the parties submit a plan to resolve the issue. As it turned out, the parties mooted the issue.

In a minute order dated February 9, 2010, Judge Brown deemed the Motion to Compel Arbitration moot.

Conclusion

If defense counsel start waiving around Judge Brown's opinion, plaintiff's counsel must explain that the ruling was (1) not based on full information, (2) pure dicta, and (3) deemed moot.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
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.