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

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

A bodyguard threw a woman to the ground, on which she cut her chin, alleged a lawsuit against the cast of the MTV show "Jersey Shore" and Viacom, the parent company of MTV. The lawsuit illustrates how Oregonians may sue for assault and battery in civil court and how Oregonians can sue the employer of people who cause harm.

First, if a person is hurt by criminal activity, then, typically he or she may sue in civil court. We see this with child sexual abuse cases quite often (for example, the priest AND the church). Also, we all remember how Ron Goldman's family proved in civil court that O.J. Simpson caused Ron's death. So, victims of assault and battery may sue in civil court.

Next, Oregonians may sue the "master" of the person who causes harm. The old term is "respondeat superior." We see this most often in truck accidents, when people sue the driver and the trucking company. We see it in medical and legal malpractice cases, when people sue the doctor or lawyer and the hospital or law firm.

In Oregon here are the key concepts:

A corporation can only act through the people it employs. So, the acts of the person are considered the act of the corporation if the act is within the "scope and course of employment." For example, a trucking company is responsible for the truck accident. However, if the trucker is off duty at home and runs into someone with his car, that is not an act within the scope and course of employment.

Sometimes, people are not actual "employees" but serve as the agent of someone else. An agent is someone who the principal or "boss" authorizes to act on his or her behalf plus the boss may control how the agent does the work. Again, if the agent acts within the scope and course of the job, then the principal or boss may be sued along with the agent.

You can find other definitions of legal terms here.

I guess we'll see how the Jersey Shore lawsuit turns out.

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.

Tim Tebow's eye black versus Mississippi State was "Eph. 4:32," referring to "Be kind and compassionate . . ., forgiving each other, just as in Christ God forgave you." Jeremiah Masoli's black eye in State of Oregon v. Masoli was "ORS 164.215," which refers to Second Degree Burglary. The NCAA's black eye is how it stacks the deck against student athletes.

Most student athletes do not make the pages of Sports Illustrated. Instead, they are like a former client of mine, who simply love a sport and want to earn a college degree. The scholarships are one-year contracts. If a student is injured in a game or practice, then coaches often do not grant the scholarship the next season. The student is treated like damaged goods, like a flat tire that can't be repaired.

Every time I see a young man or young woman carried off of a field of play, I have two feelings. First, I feel guilty that I encourage with my cheers the type of hard (brutal) play that often leads to injury. Second, I worry about the kid. Will he be disabled for life? Will she be able to afford to continue her schooling when the coach yanks the scholarship?

I read where the NCAA has not yet ruled, officially, that Mr. Masoli may play for Ole Miss. Why not? The young man graduated from the University of Oregon. The U. of O. cut him. Why should he not be free to play wherever a coach wants him to play if he is otherwise eligible? Is it fair that NCAA schools, as a group, can make multi-year claims and demands upon students, yet only promise one-year scholarships that may be revoked?

A bigger black eye than that arising from Mr. Masoli's youthful errors is that huge ugly thing all over the face of the NCAA Schools, which conspire to tie up wide-eyed teenagers in one-sided contracts. If you ruin a knee for a school? It's, "Sorry, son, it was a one-year deal; pay for your own tuition next year." You inspire the entire State of Oregon with your play, graduate early and want to play some more? It's, "Not so fast, buster."

Jeff Merrick, Oregon Trial Attorney
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

Credibility is everything when an Oregonian decides to sue, whether it is for car accident personal injuries, sexual harassment, or legal malpractice, or anything. I just withdrew from a case arising in Oregon City before I even filed the lawsuit because I did not trust my client. This post discusses the concept of credibility and why it is so important for an attorney to work with his or her client to make sure the client is 100% credible.

Why is credibility everything?

The most important factor in whether you win your case is whether the jury (or defense attorney or claims examiner) believes you and likes you. Oregon judges instruct jurors that, "If you find that any person has intentionally given false testimony in some part, you may distrust the rest of the person's testimony." But beyond that, jurors are people. People do not empathize with or want to help people who they do not believe or like or relate to. I'd rather represent Mother Theresa with an iffy case than Adolf Hitler with what seems like a slam dunk case. Jurors will find a way to help Mother Theresa and find a way to give Hitler what he deserves.

Credibility is truth PLUS accuracy.

Credibility is not merely avoiding a lie. Just because you do not intend to deceive does not make you credible. Here's why.

At some point, defendant will want your deposition. You will swear to tell the truth, and a court reporter will record every word. If you guess wrong, then, later, the other attorney will call you on it. Even if your misstatement was small and not intentional, people will wonder what else you got wrong.

What you and your attorney should do to improve your credibility.

From the first day forward, there are many steps you can take to make sure your testimony is true, accurate and complete. Here are a few of them:

• Your attorney should tell you what information is important to keep track of.


• Keep track of important information in a systematic way; your attorney should help you with this.


• Before your deposition, you or your attorney should talk with other witnesses who have relevant information, so that you are fully informed. Sometimes, loved ones notice things about the injured person that the injured person does not notice about herself.


• Prepare and study for your deposition like you are taking the most important exam in your life. Your attorney should tell you about the process, the traps, and how the other attorney might behave. You need to know all of the pertinent dates, issues and facts so that you can give accurate testimony.

I am shocked when I hear that some attorneys will "prepare" a client for his or her deposition immediately before the deposition begins. I think you should expect more from your own attorney.

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

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

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.

Oregon's Statute of Limitations for filing a car accident injury lawsuit is two years, generally. There are exceptions. Last week, Oregon's Court of Appeals confirmed another exception that allowed an injured woman to continue a lawsuit she filed over three years after the motor vehicle accident.

This exception arises when the insurance company pays for some or all damage to the car or truck. There's a law that is supposed to encourage payment. It says that if the insurance company pays, it is not admitting liability. In other words, the insurance company can still fight you on who actually caused the car accident. On the other hand, if the injured person gets a check for damage to the car, she might think that the insurance company is NOT going to fight the personal injury claim for medical bills and other monetary damages, too.

The exception to the two-year statute of limitations deals with this risk of confusion. ORS 12.155 says the insurance company must tell the injured person when the statute of limitations expires within 30 days of the time it pays for property damage. If it does not, then the 2-year statute of limitations is placed on hold, or "tolled." The two-year clock starts running again when the insurance company sends the letter stating when is the deadline for filing the lawsuit.

This exception applies to the owners of the car, not necessarily to a passenger.

Take home points:

• There are exceptions to the two-year statute of limitations for personal injury lawsuits in Oregon.
• One of the exceptions applies to owners of the motor vehicle when the insurance company pays for property damage but does not disclose when is the deadline for filing the lawsuit.

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.

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

When defending Oregon lawsuits for whiplash following car accidents, insurance companies often hire "experts" to pooh-pooh the claims. Their reports all look the same: "no objective evidence" to support claims. That's like saying you can't see pain, which is true, but misses the point.

But do the insurance companies ever pay to look for objective evidence of the symptoms of chronic whiplash? Studies show that car accident whiplash patients suffer the following at a much higher rate than the general population: headache, migraines, tiredness, neck pain, upper back pain, sleep problems, thinking problems, low back pain, and many other issues. Insurance companies do not pay for tests to validate claims. Insurance companies pay for "doctors" to dismiss the claims and bad-mouth people who hurt, calling them liars, cheats, and / or crazy.

Scientists have found physical changes more prevalent among those suffering chronic whiplash-associated disorder than with the general population. I will discuss two of them.

The European Journal Of Pain reported a study of regional cerebral blood flow. Researchers C. Linnman and others used some super high-tech equipment to compare people, and, sure enough, they found changes in cerebral blood flow that matched up with their neck disabilities. So to those insurance company "doctors" I ask, "How do you fake cerebral blood flow?"

Other researchers have used Magnetic Resonance Imaging (MRI) to study obscure details in certain flexor muscles in the neck. The journal Spine reports the study by Elliott and other researchers of "fatty infiltrate" in muscles and the cross-sectional area (CSA) of key muscles. Sure enough, the study showed more fatty infiltrate and larger muscle CSA in car accident patients than in the general population.

Elliott's most recent study of flexor muscles is consistent with his earlier study of women suffering from whiplash, which showed higher fatty infiltration their neck extensor muscles.

These objective measures can only be used for comparison purposes. It would not make sense to use them in an individual case. What the studies show is that, despite all of the slurs that whiplash victims must endure from insurance company doctors, the bodies of car accident victims suffer physical changes that you cannot see with the naked eye.

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