Oregon Personal Injury Lawyer Blog

We love buying toys for children. Unfortunately, nearly 150,000 children per year go to the hospital because of toy-related incidents. As an Oregon attorney who practices Pediatric Law, I've come up with my top 6 things to consider when buying toys for that favorite child.

1. Age of the child - follow the label.

Don't buy your two-year-old niece a toy labeled, "Not recommended for children under three." Even though she may be the smartest two year old on the planet, that's not the point. Instead, the government-required labels exist because people have studied why all these kids get injured and occasionally die. For example, researchers know that children under age 3 put things in their mouths. Anything with a diameter of 1.75 inches or less can block their little airways when tots explore their new world with their mouths. Avoid toys with parts this small to minimize the risk of choking.

2. Age of other Children in the house.

What are the odds that a six-year-old boy old will leave his toys accessible to his two-year-old sister? Think about that when buying toys.

3. Avoid sharp toys and brittle toys that might become sharp.

Sharp toys are a problem, especially with children ages 3 through 5. Avoid buying them. When little Johnny opens his toys, inspect them for any unintentionally sharp edges from cheap manufacturing.

4. Loud Noises.

Some toys are loud enough to cause hearing loss. Watch out for items such as cap guns. Look for warning labels such as "Do not use indoors" or "Do not fire closer than one foot from the ear," and teach your children.

5. Propelled Objects & Flying Toys.

Flying toys, guns or other toys that shoot projectiles can become weapons by accident or intentionally. The eye you save might be your own, not just your child's. For toys intended to shoot, make sure the rubber or cork tips are securely fastened, and check them now and then. Avoid guns from which a child can substitute pencils or other items for the rubber-tipped darts, for instance.

6. Cords & Strings.

Long cords and strings are strangulation hazards for children. Not just toys, but also jackets and sweatshirts with strings. Cut off any draw strings longer than 3 inches. Never hang toys with long strings, ribbons or loops in cribs or playpens where children can get at them.

Follow these guidelines to preserve the joy of giving and avoid the tragedy of injury.

Jeff Merrick

Jeff Merrick is an Oregon Attorney who helps children injured by dangerous products and other causes. You may contact him at 503-665-4234.

Last week, the Oregon Supreme Court ruled that a client could possibly sue his attorney nearly six years after the attorney allegedly screwed up, despite Oregon's two-year statute of limitations on legal malpractice lawsuits. The case of Darell Kaseberg v. Davis Wright Tremaine, LLP, includes an important discussion of the "discovery rule," which applies to many statutes of limitations, not just the one for legal malpractice claims. The Supreme Court ruled that the trial judge should not have thrown out the lawsuit because, on the evidence before it, a jury could have determined that a "reasonable person" would not have discovered that he had a legal malpractice claim until years after the attorney allegedly made a mistake.

The facts are these. Mr. Kaseberg's attorney, Iain Levie, settled a dispute during trial. They parties informed the judge that they had come to terms and stated the terms on the record in open court. An important term for Mr. Kaseberg that the other party (the Wheelers) release a property lien within two weeks. That critical deadline was not stated on the record and not put into the final paperwork. When the Wheelers did not release the lien on time, it allegedly cost Mr. Kaseberg over $250,000. At the time, Attorney Levie told Kaseberg he had a "great case" for breach of contract against the Wheelers. Years later, when Kaseberg hired a lawyer for the breach of contract claim, the new attorney discussed the possibility of a legal malpractice lawsuit.

The trial court held that Kaseberg should have known within about two weeks of the settlement that his attorney should have done more to make sure the Wheelers removed the lien within two weeks.

Oregon's Supreme Court said, in effect, "Not so fast, my friend." The statute of limitations begins when a reasonable person should have known three things: (1) that he suffered a loss, (2) what conduct caused the loss, and (3) that the conduct is something that can be sued over ("tortious conduct"). Although the Mr. Kaseberg knew that the Wheelers did not remove their lien within two weeks, Kaseberg believed the problem was with the Wheelers, not with his own attorney. In fact, attorney Levie, himself, reinforced that belief when he said Kaseberg had a "great case" against the other party. So, the Oregon Supreme Court held that a jury - not the trial judge -- needs to decide whether a reasonable person should have discovered the claim sooner.

But that was not the end of the story. The court gaveth, and the court, tooketh away. The court hinted that Kaseberg might still lose his legal malpractice lawsuit. On the timing issue, the court noted that more evidence could be submitted regarding what a reasonable person should have known. On the merits, the court indicated that even though Attorney Levie did not specify a deadline for the Wheeler's lifting the lien, the deadline was probably implied by the other facts. In other words, the court was suggesting that even though Kaseberg might be able to get past the statute of limitations, it is not so clear that he has a winning claim against attorney Levie.

For people who think their attorney messed up, the bigger point is to ask questions and get answers as soon as you can. Don't put off potential claims for years. The risks are not worth it. If you think your Oregon attorney committed legal malpractice, feel free to call 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.

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.

Oregonians enjoy great winter recreation areas. Forest roads and paths become snowmobile and cross-country ski trails when the snow flies. As with car crashes, snowmobile accidents can lead to serious injuries. Last week's news from Washington, DC, identified a risk of crash because of defective snowmobiles manufactured by Arctic Cat.

Arctic Cat recalled several models 2010 snowmobiles because suspension arms cracked, according to reports. When that happens, it can mean the driver loses control, posing a risk of injury or death.

So, what to do if you have one of those models?

If you have not been involved in a crash, then stop using it, report it to the dealer, and have them fix it.

If you were involved in a crash and you are considering a lawsuit, then DO NOT have the dealership fix it. The most important evidence in a product liability lawsuit is the product itself. An expert must examine the machine to determine whether the snowmobile had the defect. An attorney should be involved to negotiate the terms of the inspection. So, if you think you were hurt because of a defective snowmobile, carefully preserve the snowmobile, preferably in a garage, until you hire an attorney to help you evaluate the pros and cons of a lawsuit and to counsel you on what to do with the critical evidence.

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 Oregon, buyers of real estate may sue real estate agents when the home they bought has unexpected problems, under certain circumstances. The buyer has several rights to sue, this post discusses only one of them: claims under Oregon's Unlawful Trade Practices Act (UTPA).

The recent case of Scott Fowler v. Cheri Cooley from Oregon's Court of Appeals illustrates the UTPA claim. When Mr. Fowler inspected the house, he saw two men repairing the walls near the sump pump. The workers said they did "not know anything," so Mr. Fowler asked the real estate agent, Ms. Cooley. When asked if there had been any water leaks, Ms. Cooley said the sump pump was just precautionary. Yet, she sold the house previously, and the seller took it back after the previous buyer had problems with water leaks.

One of my clients has a similar situation. In our case when the realtor signed up the listing, she saw that the carpets had been pulled up and fans were blowing. Consequently, her claim to being dumb to the problem of previous flooding did not fool the arbitrator, and we won the case.

Under the UTPA, a consumer may sue people in a business or trade, such as Realtors®. The UTPA does not apply to claims against the average seller, because it is not their business to sell real estate. (However other laws apply to sue the seller.) The UTPA allows suits when a defendant (1) misrepresents real estate, goods or services, (2) fails to disclose material defects, and (3) many other situations. To read up on the other situations, see ORS 646.605 through 646.652.

Oregon's Unlawful Trade Practices Act provides advantages compared to claims for negligence. Most important is that the UTPA provides for attorney fees when consumers win.

The moral of the story: signing those papers at closing might not be the end, if the buyers were induced to buy because of misconduct by the real estate agent (or the seller).

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.

Like other Oregonians, you've resolved to get fitter in 2011. Maybe you bought a new treadmill. With persistence, you'll achieve your goals, unless a defective treadmill causes injury and disables you. According to the Consumer Product Safety Commission (CPSC) treadmills have been recalled for decades.

A recurring problem has been uncontrolled speeding or rapid acceleration. For example, a component in the control panel caused rapid acceleration leading to reports of people falling from a Horizon Fitness treadmill. A 2008 recall involved sudden acceleration because of the lower control board in a Cybex International treadmill. In 2005 after 110 reports of unexpected acceleration, the CPSC announced a recall of 12,000 Tredex treadmills.

For the most part, the CPSC relies on manufacturers and sellers to report problems, but sometimes the reports are slow in coming. In 2001, Icon Health & Fitness, Inc. agreed to pay a $500,000 civil penalty for failing to report safety hazards and injuries, from its "glider" machines. Some of the injuries resulted in spinal injuries and disabilities. Some incidents occurred right in the Wal-Mart stores.

Oregon's product liability law allows consumers to sue both the seller of the product and the manufacturer. This is important, especially when the manufacturer is from China or Taiwan. If you are injured from treadmills - or any defective product - it is important to keep the product, because it is the single most important piece of evidence in a product liability lawsuit.

So, good luck with your resolution. If you notice an issue with your new machine, don't assume that it is user error. Stop using it until you confirm that the product is safe for use.

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.

'Tis the season to treat children to gifts. The last thing you want do is provide gifts that injure children. Here's a buying guide of 6 safety tips.

1. Consider the age of ALL children in the household.

A toy that is great for an 8 year old might be deadly to her 2-year-old brother. Read the labels and obey. For example, when it says, "Not recommended for children under three," that's not a comment on intelligence. Two year olds put things in their mouths.

Marbles, game parts, or pieces less than 1.75 inches in diameter are choking hazards. If the item fits though a toilet paper roll, then it is too small for children under age 3. Avoid toys with buttons or eyes or pom poms that a child (or the dog) can twist and pull apart.

Safe Kids published a pocket guide to age-appropriate gifts.

2. Loud Noise Makers.

Some toys and electronics are loud enough to damage tender young ears. Look for the warning labels, and instruct kids appropriately.

3. Extra Caution for Crib Toys.

Soft toys present a suffocation hazard. Keep them out of the crib. Keep mobiles out of reach of children.

4. Sharp Edges; Sharp Toys.

Obviously, bows & arrows can be an issue. But what about sharp brittle plastic on other toys? Imagine whether the toy will withstand a good pounding or break into sharp parts.

5. Helmets and Safety Gear.

Don't give the bike or snowboard without a helmet. Elbow and knee pads should go with the skateboard. Coordinate with other givers.

6. Propelled Objects and Toy Guns

Okay, you relented and gave Jimmy a paint ball gun, which Jimmy will keep away from baby sister. But what about other toys that have projectiles? Any flying toys or missiles become weapons with creative play.

If you buy a toy gun, make sure it is brightly colored so it will never be confused for a real gun. Paint it yourself, if you need to. Again, make sure all kids in the house are mature enough and well trained to avoid dangerous conduct.

Dan Aykroyd selling a "bag of glass" is funny. Sometimes, however, the dangerousness of gifts for children is not so obvious. Following these tips may keep the joy of giving from becoming the tragedy of child injury.

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

Corded window shades and blinds create the risk of strangulation and other injury to children. This is nothing new. I wrote about the international initiative to reduce these child injuries last June.

Yesterday, Lowe's Stores agreed to recall 6 million Roman shades and 5 million roll-up blinds. They are not just cheap items. The prices ranged from $10 to $1,800.

Of course, the goal is prevention. We do not want child injuries. However, when products cause injury, then product liability lawsuits may be appropriate and necessary to pay for the injured child's medical care.

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.

Today, the Safe Kids Committee on which I serve held a community forum on understanding and preventing window falls among children. Hosted by Legacy Emanuel Children's Hospital and emceed by KOIN TV's Kasey Montoya, the conference gathered numerous stakeholders from Oregon and around the United States who want to reduce the epidemic number of children injured by falling out of windows.

Presentations included the following:

• Considering "human factors" in identifying solutions.
• The tragic stories from two moms, one who lost a child, and the other whose child survived with a severe brain injury.
• Data on window falls from Oregon, Chicago and around the United States.
• As an attorney, I spoke about my clients whose lives were changed by window falls. I also spoke about my efforts trying to pass an Oregon law to provide for window guards in rental properties. (See the Bill and legislative history.)
• Safety products were described. In addition to bars, window protection devices include steel screens, curtain-like mesh, and a variety of window stops.
• Existing efforts at education rules and codes, including Oregon's Building Code that requires window fall protection.

Continue reading "Oregon Window Fall Forum Was a Great Success!" »

Oregon's Attorney General announced settlement of legal action against Smoking Everywhere, Inc. arising out of its electronic cigarettes. The company admitted that it violated Oregon's Unlawful Trade Practices Act, which prohibits false claims about products. The company marketed its e-cigarettes as a safe alternative to traditional tobacco products but had no proof that they were safer. In fact, the United States Food and Drug Administration (FDA) found that the products contain cancer-causing chemicals.

Nicotine is the drug. For over a century, cigarettes have served as the number one nicotine delivery device. The e-cigarettes offered the hope for nicotine delivery in a somewhat cool way with fewer health issues. Certainly, children would think puffing on a cigarette-look-alike more cool than using nicotine gum or a patch. And let's face it; it is only after someone is addicted that they think about the drug instead of about looking cool to peers.

Oregon law (ORS 646.605 - 646.652) authorizes consumers to sue sellers of goods, services, and real estate who misrepresent their products or services. If you've been cheated, then you can sue. The law permits recovery of actual losses or $200, whichever is more, plus attorney fees. In effect, it authorizes all of us to be "private attorneys general" to stop shady practices.

If you were fooled by the e-cigarette sellers or by others who misrepresented their products, feel free to call me. We cannot rely on the Attorney General to stop every fraud; we citizens need to be vigilant, too.

Jeff Merrick, Oregon Trial Attorney
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

In a lawsuit against the maker of Ryobi saws, a jury awarded Carlos Osorio a verdict of $1.5 million. In the product liability case, the jury determined that the old saw designs are defective because they do not incorporate the new technology invented in Oregon. In fact, it was a Portland lawyer who invented a way to stop power saws upon contact with flesh.

When I moved to Oregon in the 1980s, the sight of men missing fingers was not uncommon. Back then, Oregon was known more for logging and mills than Nike or Intel. Stephen Gass, a Portland patent lawyer, came up with his own invention and offered it to the big saw manufacturers in 2000. The big companies decided that customer safety was not primary, and rejected the technology. Mr. Gass and others started their own company, Sawstop, which manufactures and sells the safer saws.

Product liability cases, typically, are no fault cases. By contrast, in negligence cases, defendants argue that the injured person was at fault for his own injury. However, in product liability cases, when the user's momentary inadvertence is what makes the product dangerous, the law does not give manufacturers an out. The law says that the inadvertence of the user is precisely the reason for providing a guard, dead man's switch, or in this case, a flesh-detecting instant brake.

So, if any Oregonians out there lost their fingers in the past two years, the door is now wide open to seek monetary compensation from the manufacturers who ignored the superior safety design. A jury has found that the old designs are "defective."

By the way, even if your injury occurred on the job, you may still file a lawsuit because you would be suing the manufacturer, not your employer.

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.

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

Oregon law provides a remedy for damages caused by the sticky Toyota accelerator problem. By the way, this was not the first problem with Toyota accelerators. Last November, NHTSA announced a problem with the mats allegedly trapping the accelerators.

Oregon Revised Statutes 30.900 confirms a right to sue Toyota and the local dealership for property damage, personal injury or wrongful death caused by defects. The law is broad. It covers the following:

• Problems with manufacturing, inspection, testing, design or other defect; and
• Toyota's failure to warn of the problem of the sticky accelerator.

If you purchased your Toyota in Oregon, this law applies to you.

News reports indicate that Toyota was slow to act, despite horrific crashes allegedly due to sticky accelerators. Yesterday's New York Times article, notes the how Toyota initially discounted the problem and then blamed loose mats. Some think that even the sticky accelerator might not be the only problem. Instead, some blame the electronic system.

So, it seems that Toyota and local dealers sold defective products. The next question is whether it is worth the time and money to sue Toyota in Oregon. If uncontrollable acceleration (from whatever cause) did not cause a crash, then, it is doubtful that you should spend your time and effort with a lawsuit. On the other hand, if the uncontrollable acceleration caused you to suffer significant property damage, or if it caused personal injury to you or someone else, then you should consult with a lawyer, whether it is me or someone else.

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.