Oregon Personal Injury Lawyer Blog

Yet another Oregon motorist called me who was rear-ended while stopped. The suspected reason: the other woman was using her cell phone, probably reading it or texting. She is responsible for the car damage and the personal injury to my new client, but an interesting legal question came to mind. Does the law against cell phone use apply if someone is just reading or watching video on it?

First, the driver must pay for monetary damages because of negligence whether or not she should be ticketed under the driving statutes. The negligence standard is a reasonable person standard. A reasonable person does not read or watch video while operating a car or truck. If that causes a collision, then the person is must pay for the losses she caused.

But is just reading or viewing something a traffic offense covered by the statute prohibiting cell phone use?

ORS 811.507 prohibits driving "while using a mobile communication device," unless the person is 18 or older and uses a hands-free accessory. The law defines a "mobile communication device" as a device designed to "receive or transmit voice or text communication." But many devices now provide text, voice, PLUS Internet. What if someone is surfing for sports scores or the latest news? Does ORS 811.507 prohibit that?

The answer is we do not know until a test case makes it to the courts. On one side of the argument, the law prohibits "using" the "device" with your fingers or hands. If the driver uses the device for something other than voice or text, he is still "using the device," and that seems to be prohibited. On the other hand, the statute, as a whole, refers to communication between the driver and others. One could argue that the simple receipt of information is not, strictly, prohibited.

As a practical matter, just pay attention to driving when you drive. Whether or not you violate ORS 811.507, if you hurt someone because you are texting or Internet surfing while driving, the victim has a valid claim against you.

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 attorneys are generally very helpful to other lawyers. Both sides of the civil bar have listservs, where attorneys post questions, comments, etc. It's very helpful. It's like having hundreds of co-workers down the hallway to whom we may ask questions and share concerns. Sometimes the best answer we can provide a colleague is to refer the case to a lawyer who has more experience.

Case in point: An attorney said he was providing "pro bono" (or free) representation to a client with a "slip and fall" case. He asked about the role of medical testimony in the case and how to prove causation (that the fall caused the injury). I was not the only attorney to think, "Uh oh!" Two colleagues wrote that he needed to refer the case to some other attorney. Here are the "red flags" from that posting.

First, attorneys who represent injured people call these "premises liability" cases, not "slip and fall'' cases. "Premises liability" focuses on the legal obligations of the landowners toward customers or visitors; the other term focuses attention on the injured person.

Second, premises liability cases are not easy. Attorneys who are not familiar with personal injury cases might think they are easy, but they are not. There are many issues including: (1) What is the legal duty of the property owner? (2) How obvious was the problem with the area? (3) Was there any fault on the part of the injured person? (4) How does one develop the medical evidence and limit the potential damage from defense medical examinations?

Third, medical evidence is critical in every injury case. For cases seeking less than $50,000, medical reports might suffice to get through nonbinding arbitration. However, if the case is worth more or if one side requests a court trial, then one needs doctors to testify under oath. This is pretty basic stuff, which made many of us on the listserv cringe at the posting.

What happens if an injured client goes forward with a lawsuit? There are out-of-pocket costs, for which the client remains responsible. If there is a zero verdict, then the client must pay. Also, when the defendant wins, then it has a claim for some of its costs, too. If an attorney gets you into a lawsuit that does not make sense, then you might come out owing money.

So, the moral of the story is that, sometimes, free help is worth even less than the $0 you pay for it. It can cost you.

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, Oregon's Court of Appeals affirmed a $362,000 judgment for a grocery shopper hurt by product that fell from a defective shelf. The case is interesting for a couple of reasons, including the way it distinguishes a slip and fall situation from a defective shelf and falling merchandise.

In Jacqueline Hammer v. Fred Meyer Stores, Inc., Ms. Hammer suffered personal injury and significant medical expenses when half-gallon lemonade cartons fell from a tipsy shelf. Fred Meyer controlled the set up the shelves, how to secure the shelves, and how to stock the cartons on the shelves. When Ms. Hammer got her product, the shelf tipped forward and dumped other cartons out onto her. When a bystander tried to help, the shelf failed on him, too.

The attorney for the store argued that this situation should be treated like a slip-and-fall case when there is stuff on the floor. In those cases, the attorney for the shopper must prove that either (1) the store was responsible for placing the foreign substance on the floor, or (2) the store should have known it was there and should have warned about it or cleaned it up before a customer fell.

The trial court and Oregon Court of Appeals disagreed with the defense attorney. Here, the store controlled the shelf and the stocking of the shelf. That differs from a produce section, where many people are in the area and any of them could have dropped some slippery grapes just moments before a fall. In the Fred Myer case, there was no evidence that any third person did anything to the shelving or products that caused the boxes to fall onto its customer-shopper.

In this case, the courts held responsible the corporation that was, in fact, responsible for the injury to the shopper.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

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.

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!" »

Today, the Oregon Court of Appeals ruled that a worker injured in a car accident while on the job may obtain underinsured motorist insurance benefits without having to pay back the workers' compensation insurer.

In Longstreet v. Liberty Northwest Insurance, Dean Longstreet was injured as a passenger in a car while working. Workers' compensation paid medical bills and other benefits. The general rule is that when a worker sues a "third party" (someone other than the employer), then the worker must spend some of the money to pay back the workers' compensation insurer.

Previously, I explained why a worker may and should obtain workers' compensation AND sue third parties, if you want more information.

Here's the new twist with the Longstreet case. First, Mr. Longstreet obtained workers' compensation. Second, he recovered money from the at-fault driver, who had only $50,000 of insurance. Longstreet shared the recovery with the "comp" insurer, as he must. Next, he sought underinsured motorist ("UIM") coverage from the insurer of the car he was in, but he did not want to share that with that settlement with comp insurer.

The court agreed with Mr. Longstreet. A specific statute (ORS 742.504(4)(c)) says the injured worker keeps UIM benefits. This specific statute trumps the general statute that requires paying back the workers' compensation insurer.

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 car accident or other personal injury claims, insurance companies use the person's prior injuries or medical conditions against them. The adjuster blames the medical bills on what happened before the motor vehicle accident. The injured person, however, should be aware that prior injuries or conditions do not reduce or defeat claims. To the contrary, yesterday's decision in Crismon v. Parks emphasizes that previous conditions can help explain why a person does not recover promptly from automobile collisions.

Helen Crismon had a genetic spinal condition. The defect caused her to have spondylolisthesis, which is a slight displacement of the vertebrae. Before the collision, Ms. Crismon had no symptoms. Afterwards, she suffered problems.

Ms. Crismon's attorney asked for Oregon's jury instruction on "previous infirm condition." The instruction explains to the jury that if someone has a bodily condition that makes her more susceptible to injury, then defendant must pay for the full extent of the injury, even if someone else would not have been so hurt, or hurt at all. Another label for this legal principle is the "eggshell skull." If you hit someone with an eggshell skull in the head and kill him, you are responsible even if anyone else would have been okay.

The trial judge refused to give the instruction, but the Oregon Court of Appeals reversed.

Among the arguments was that the judge was willing to give a different instruction, on "aggravation" of previous injury or disability, but Ms. Crismon's attorney did not want it. The aggravation instruction is correct only if someone has previous symptoms from an injury or disability. When that happens, then the defendant is responsible for the difference between the problems before and the problems after the accident. Ms. Crismon's attorney insisted that because Ms. Crismon suffered NO problems before the car crash, the defendant is responsible for 100% of the medical bills and problems. Oregon's Court of Appeals agreed that the aggravation instruction did not apply to the case.

Winning the appeal only means that Ms. Crismon gets to try her case again. It means that she must bring back to court her doctors and experts. It means additional stress and expense. But she was lucky to have a good lawyer, Mike Bloom, who knew the law and fought for her.

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.

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

The Oregon Court of Appeals clarified when a patient may sue a clinic or hospital alleging medical malpractice of a physician. In Eads v. Borman and Willamette Spine Center, Mr. Eads became partially paralyzed after a series of back surgeries by Dr. Timothy Borman. Mr. Eads sued Dr. Borman and also sued Salem's Willamette Spine Center, LLC, because he believed Dr. Borman was acting on behalf of the clinic. Oregon's Court of Appeals held that Mr. Eads's "subjective belief" was not enough without facts of certain conduct or control by Willamette Spine Center. It ruled that Willamette Spine Center was not responsible for the conduct of Dr. Borman. The court did not say whether Dr. Borman's medical practice was excellent or poor or had anything to do with Mr. Eads's injury.

Generally, when someone is acting on behalf of another and subject to his control, then you can sue both (1) the "agent" or employee and (2) the "principal." The Court held that there was no evidence that Willamette Spine Center controlled the work of Dr. Borman. It merely owned the building, leased the space, provided signage and a logo. In fact, Dr. Borman did not even pay rent to Willamette Spine Center. He paid one of the tenants in an office-sharing arrangement.

Although one of the owners of Willamette Spine Center referred Mr. Eads to Dr. Borman, the court found that the referral of a patient between doctors had nothing to do with the corporate landlord. It could be different if Dr. Borman were REQUIRED to accept any referrals from the clinic or from, say, a government agency. But Dr. Borman was free to accept or reject the patient.

The Oregon court also rejected the claim that Willamette Spine Center, in effect, tricked Mr. Eads into thinking Dr. Borman was acting on behalf of the clinic. "Apparent agency" exists only when the apparent principal acts to "hold out" the person as its agent and the injured party relies on that act when hiring the agent. Adding Dr. Borman's name to the building directory was not enough, held the court. Although the Willamette Spine Center name and logo appeared on Dr. Borman's business card, the court noted that was an act of Dr. Borman, not an act of Willamette Spine Center. Dr. Borman's use of the building's name and logo did not make Willamette Spine Center responsible for Dr. Borman's work.

According to this case, a clinic or hospital or other entity is responsible for physician malpractice when: (1) it employs the doctor, (2) it requires the doctor to accept patients, (3) it has the right to control the work of the doctor, or (4) it acts to make patients think that the doctor is the employee or agent of the clinic.

Jeff Merrick, Oregon Trial Attorney
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, 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.

Whiplash injuries refer to the process of the neck being flicked like a whip during a rear-end car or truck accident. Oregonians with severe whiplash injuries know that whiplash injuries are not laughing matters, despite comedies that dress actors in soft neck collars and suggest that everything is a fake. While it is true that an NFL receiver might be able to deal with a whiplash injury, most of us do not have their muscle mass, young spine, and loose ligaments. Today, I write about another aspect of whiplash injuries: what happens when the injured person has a previous neck fusion surgery?

The spine is an amazing creation. We have the bones (vertebrae) with a variety of holes to let the nerves get from the brain all the way to our fingers and toes. We have the disks in between the bones to give us flexibility.

The amount of injury anyone suffers from a rear-end collision depends on basically three factors: what physical condition are you in before the collision, what is the force that your body is subjected to, and what did your body actually go through during the collision (biomechanics). The force that actually impacts the body depends on many things including the speed of the trailing car or truck, its mass, and how much force is absorbed in the bumper and crush zones of the vehicles. Force, typically, is discussed in terms of "G" or multiples of gravity. That's the same measurement we use when we talk about astronauts blasting off into outer space.

Some victims of car or truck accidents are injured so severely that they have to repair their necks surgically. Occasionally, they have cervical fusions. When the surgeon fuses two vertebrae into one big one, the patient loses that flexibility between the vertebrae. Sometimes, the surgeon must fuse three disks together, reducing flexibility even further.

Then what happens with the next whiplash injury?

Well, when flexibility is reduced, then the force is even greater on the disk spaces that still move and perform their flexibility function - the ones above and below the fused bones and spaces. A medical study confirmed this. Researchers calculated the peak physical strain on the anterior longitudinal ligament, which goes along the cervical spine. They calculated what is likely to happen based on an 8G force collision.

The results: The average increase in strain in the part of the spine that still could move increased 15.5% when two vertebrae were fused. The strain was increased a whopping 40.8% with a two-level (three vertebrae) fusion. (A.B. Dang, Spine, 2008 Mar 15;33(6):607-11).

Despite what comedy writers tell you, whiplash injuries are no joke.

Jeff Merrick, Oregon Trial Attorney
503-665-4234