Oregon Personal Injury Lawyer Blog

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.

In Oregon, if the employer pays for workers' compensation insurance, then the worker may not sue the employer when he or she is hurt on the job. This "exclusive remedy" provision does not apply if either (a) the employer does not have workers' compensation coverage or (b) someone else -- or something else -- was at fault.

For example, we sued a printing press manufacturer for making a dangerous machine when a worker suffered a severe arm injury. The manufacturer was not the employer, so it was not immune from suit under Oregon law. A more typical example is someone hurt in a car or truck accident while on the job. The worker can sue the other driver that caused the wreck.

But there are special issues to be aware of involving who may sue and who gets the money.

If the workers' compensation insurer pays benefits, then it has a right to get paid back out of any lawsuit proceeds. In fact, the insurance company can force you to decide whether to file a lawsuit. If you do not sue, then the insurance company can sue in your name.

There's a big difference to Oregon workers depending on whether the worker sues or the insurance company files the lawsuit.

If the insurance company sues in your name, then it controls the litigation. It decides when to settle. If the insurance company sues and settles the case, then it gets paid before the worker. The formula is that the insurer gets paid in full before the worker gets even one penny.

If the injured worker sues, then the formula for distributing the money is very different. First, the costs of the lawsuit are paid, including the attorney fees. Next, the worker receives 1/3 of the balance. Only then does the insurance company get paid back. So, if the worker sues, he or she jumps ahead of the insurance company. If there is still money left after paying back the insurer, the balance goes to the worker. The key Oregon law is ORS 656.576 to 656.596.

Another consideration is this. If the insurance company sues, will it really care whether the worker receives any money? Will it settle too cheaply, making sure it gets repaid and not worry about winning monetary compensation for your disability?

So the lesson? If you are seriously injured at work because of someone other than a coworker or something like a dangerous machine, then it is in your interest to sue and not let the insurance company file a lawsuit in your name.

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.

An Oregon woman has been diagnosed with Bisphosphonate-associated osteonecrosis of the jaw (BONJ) following intravenous administration of Reclast ®. Osteonecrosis of the jaw is also called "dead jaw disease." BONJ is a terrible and painful disease in which the jawbone dies and the teeth must be pulled. Many people have already sued drug companies for BONJ. To date, only one jury has ruled, and it found that Novartis owed the woman $3.2 million.

As women age, their bone density decreases. Bisphosphonates are a class of drugs sold to increase bone density. Women are told that their risk of bone fractures will decrease if they take the drugs. Doctors also prescribe bisphosphonates for cancer treatment and other conditions. Unfortunately, too often, women are not told about the risk of osteonecrosis of the jaw or who might be more susceptible to getting it.

One type of bisphosphonate is Zoledronic Acid, manufactured by Novartis and sold under the names of Zometa ® and Reclast ®. Many people have sued Novartis alleging that Zometa ® caused their jaw to die and that Novartis should have either better understood the risks of their drug or better communicated the risks to doctors and patients.

Novartis first sold Zoledronic Acid for cancer patients under the name Zometa ®. So, the first associations between the drug and osteonecrosis involved cancer patients. (Migliorati CA, Lancet Oncol. 2006 Jun;7(6):508-14). Later, Novartis sold it under the name of Reclast ® for helping to boost bone density.

Zoledronic Acid is the most potent of bisphosphonates. Intravenous administration (IV) -- compared to taking a pill -- increases the amount of the drug available to the body and increases the risk for osteonecrosis of the jaw. Prior use of bisphosphonates likely increases the risk of dead jaw disease when a woman later has the IV. In the case of the Oregon woman, she had taken Fosamax ® for a short time many years before receiving Reclast ® intravenously.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Drawstrings for hoods kill and injure children when they get caught on playground equipment, bus doors, or cribs. When the United States Consumer Product Safety Commission tracked the problem between 1985 through 1999, it found 22 deaths plus dozens of nonfatal incidents. Since 1996, the CPSC has warned against the risk of strangulation from hood drawstrings.

Obviously this is not a new problem. Several years ago, I went with an undercover cameraman from a local television news station to thrift shops around Portland, and we found many items that had been recalled by the CPSC, including sweatshirts, jackets and other clothes with drawstrings.

Today, the problem is not clothing made before 1996. Instead, the current problem arises from international commerce. The sweatshops in Egypt, Pakistan, Korea, China, and elsewhere "never got the memo" from the U.S. Consumer Product Safety Commission. Year after year, month after month, the CPSC notifies us of recalls. Less than two weeks ago, on December 17, 2009, CPSC notified the world of a voluntary recall of zip up hooded sweatshirt with the dangerous strings sold at Burlington Coat Factory.

The good news is that if Grandpa bought your child a rain poncho, sweatshirt, or other item with drawstrings, the fix is easy: cut and remove the string.

If, on the other hand, your child was a sad victim of this continuous flow of dangerous products into Oregon

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.

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