Oregon Injury Lawyer Blog

March 31, 2013

Mayor, Headlines Turn Spotlight on DUII

A New York Times report this weekend about a terrible multi-vehicle crash in Nevada is a reminder of the importance of issues Portland’s own mayor has spent the last few weeks spotlighting.

A Reuters news agency dispatch, republished by the Times, cites local law enforcement, reporting that “five members of a California family were killed in Nevada when their van was struck from behind by a teenage driver who was arrested on suspicion of driving under the influence.” The 18-year-old driver suffered minor injuries in the crash which reportedly happened when he rear-ended the van. In addition to the five people who died two other members of the same family were also riding in the van and were treated in area hospitals following the DUII accident. The crash took place on Interstate-15 about 80 miles north of Las Vegas.

The accident comes as Portland mayor Charlie Hales has worked to spotlight an increase in DUII incidents in our city. As a recent report in The Oregonian noted, “five of the 11 people killed in Portland traffic crashes since Jan. 1 involved people driving under the influence.” Hales has sought to use the media to publicize a situation he views with “alarm” and to remind Oregonians: “Drive sober to save lives. Doing otherwise is illegal and reckless,” the paper notes, adding that the current pace of DUII-related fatalities in Portland is well ahead of last year’s.

March 27, 2013

Bill Aims to Make Insurance Fairer for Ordinary Oregonians

by Matthew D. Kaplan

A bill currently pending before Oregon’s legislature seeks to give consumers new protections and close a significant legal loophole. As reported recently by the Salem Statesman-Journal, both houses of the Oregon legislature are considering legislation that would end the insurance industry’s exemption from Oregon’s Unlawful Trade Practices Act. This important legislation promises important new protections for Oregon consumers by holding insurance companies accountable for the damage they do when they delay, or refuse, payment on legitimate claims.

As detailed by The Lund Report, a health policy blog, the legislation (HB 3160 and SB 686) will “allow consumers to recover economic and non-economic damages in court when insurers commit unlawful insurance practices.” Put another way, it will allow ordinary Oregonians to level the playing field against companies that refuse to play by the rules.

As the Statesman-Journal reports under existing law, insurance companies are not covered by the Unlawful Trade Practices Act. That exemption, in practice, allows them to mistreat customers by denying them the coverage they have paid for. The Lund Report quotes one of the bills’ sponsors, Sen. Chip Shields (D) of Portland, noting that “insurance is the only business that is exempt from this law.” That exemption makes it much easier or insurance companies to put their own financial interests ahead of the health and welfare of ordinary Oregonians.

March 21, 2013

Oregon Supreme Court ruling Leaves justice Undone for Beaverton Woman

by Matthew D. Kaplan

A ruling last week by the Oregon Supreme Court, as reported by The Oregonian, leaves justice unfulfilled for one Beaverton woman, though a chance remains that a federal court will view the case differently.

According to the newspaper, the state’s highest court ruled 4-3 that because of a legal technicality the city of Beaverton does not have to pay the victim of one of its police officers’ negligence the $507,500 ordered by a trial court. A jury ordered the money paid to a woman who was left disabled after she was hit by a Beaverton police car while crossing at an unmarked crosswalk in 2007.

The half-million dollar figure for damages in the Oregon car and pedestrian accident case is, itself, a significant reduction of the original verdict. According to the newspaper the jury originally decided on more than $1 million in damages but also found that the victim “and the former Beaverton police officer who had been driving the car… were equally at fault” which led to the cash being cut by half. The city appealed to have its share further reduced to $200,000 citing a state law that caps the liability of municipalities. The federal court hearing the appeal asked the Oregon Supreme Court, the paper reports, to rule on two questions: first, whether the state constitution protects the victim’s “right to a remedy and, if so, whether” $200,000 would be enough. “The court answered yes to both questions” despite the fact that the victim’s documented “medical bills totaled at least $500,000” as reported by The Oregonian.

March 14, 2013

Bill Allowing Small Children to Operate Motorcycles Passes Oregon Senate

by Matthew D. Kaplan

On Tuesday the Oregon Senate passed by a wide margin a bill that would allow children of any age to ride motorcycles, dirt bikes and other off-road ATVs. Let me be frank, it is hard to see how any responsible parent would allow a child that young to ride a motorized vehicle, but we all know that some will. Though presented during debate as a matter of personal freedom, this is truly a case in which society’s interest in protecting children has to be balanced against a conception of ‘freedom’ so individualistic that it comes to pose a threat to everyone else.

As reported in The Oregonian, Senate Bill 238 passed the Oregon Senate 22-7 with support from 12 Republicans and 10 Democrats. All but one of the seven ‘no’ votes came from Democrats. Supporters tout the measure “as a way to improve safety for young and off-road riders because it requires anyone under 16 to meet minimum size requirements, known as a “rider fit” test” before they can be certified to operate ATVs and other off-road vehicles. The paper notes, however, that another provision of the bill repeals the existing prohibition on children under age seven riding such vehicles. In other words, SB 238 would allow children at the ages of six, five or even four – children who might not yet have the balance to ride a bicycle – to sit atop a powerful quad-ATV and ride not only on their family’s property but also on public lands throughout the state.

It seems contradictory to toughen basic safety requirements for children in general while removing a common sense ban designed to protect small children – children whose cognitive ability, motor skills and general perception of danger are not sufficiently developed to operate a motor vehicle, even under parental supervision. Ironically, this bill passed the senate even as Oregon and the rest of the country are marking national brain injury awareness month, a time designed to focus attention on the dangers traumatic brain injuries pose to kids here and elsewhere.

March 8, 2013

Jury Awards $8.3 million in Hip Implant Case

by Matthew D. Kaplan

Following up a story I wrote about earlier this week, today’s New York Times reports that a Los Angeles jury has “ordered Johnson & Johnson to pay more than $8.3 million in damages… in the first of more than 10,000 lawsuits pending against the medical products maker” and its subsidiary, DePuy Orthopedics.

The lawsuits stem from allegations that DePuy knew of problems with its all-metal Articular Surface Replacement (ASR) hip implant long before the product was formally recalled in 2010, yet failed to act.

Of key interest for unsafe medical product victims here in Oregon or elsewhere are some of the legal technicalities of the jury verdict. According to the Times the jury award, which was announced Friday, does not include punitive damages because the jury found that DePuy “did not act with fraud or malice.” As the paper goes on to explain, however, it is not immediately clear how this will impact the thousands of other ASR-related legal actions. Though the article does not say so, this is partly because today’s case was decided by a state court in California. Different courts in other cities or states may view the matter differently, and state laws on medical product liability also vary from place to place. Another ASR-focused trial is scheduled to begin next week in Illinois. All that said, it is important for anyone suffering from what they believe to be an ASR-related injury to understand the details of the California jury’s award. According to the Times the jury ordered Johnson & Johnson to pay the plaintiff, a former prison guard from Montana, “$338,000 to cover his medical expenses. It also ordered him to be paid $8 million to cover his pain and emotional suffering.”

March 6, 2013

Medical Device Product Liability

by Matthew D. Kaplan

An editorial published last month by the New York Times raises important questions about the legal and moral responsibility medical device manufacturers have, or ought to have, concerning their products.

The newspaper focused on all-metal hip implants in general and the actions of DePuy Orthopaedics in particular. DePuy is a division of pharmaceutical and medical supply giant Johnson and Johnson. The paper writes that “about 93,000 patients around the world” received DePuy’s all-metal Articular Surface Replacement (ASR) model hip implant until it was recalled in 2010. However, the paper notes, “documents show that as early as 2008 DePuy executives were told by a number of surgeons, including its own consultants, that the device appeared flawed.” The article goes on to note: “That was never disclosed to doctors who were putting the device into patients, nor were other unfavorable internal studies.”

In response DePuy’s president wrote to the Times this week to take issue with the editorial, noting that the ASR had been approved by federal regulatory authorities and that when data indicated that numerous patients were requiring early replacement of their implants the company “recalled the product and immediately supported patients with a reimbursement program for their medical costs.”

February 28, 2013

Distracted Driving Highlighted by Teen Driving Study

by Matthew D. Kaplan

See the link below for an interesting story from yesterday’s Oregonian on a new study focusing on teen driving fatalities nationwide. The good news: Oregon and Washington “are among the nation’s safest states for 16- and 17-year-old drivers, according to a new report by the Governors Highway Safety Association (GHSA).” The bad news: nationwide, teen driving deaths rose significantly during the first half of 2012.

In an effort to tackle popular misconceptions, the newspaper notes that: “Among road users, aging drivers are often thought to be the biggest hazard. But teen motorists are less experienced and (are) on the road more frequently, experts say.”

Oregon recorded just one teen driving fatality during the first six months of 2012 (the period covered by the study), compared with none during the comparable period in 2011. In Washington the year-to-year difference was dramatic: no fatalities among 16 and 17-year-olds from January through June of 2012 compared to 16 in 2011. Nationally, 240 16- and 17-year-olds died in crashes during the first half of 2012, compared with 202 the year before, a 19 percent increase.

February 26, 2013

Federal Investigation Targets Potential Ford Safety Problems

by Matthew D. Kaplan

An Associated Press story published yesterday on The Oregonian’s website should grab the attention of many Oregon motorists concerned about both Oregon traffic safety and Oregon defective products issues. According to the news agency, the federal government’s National Highway Traffic Safety Administration “says it will investigate problems with stalling or surging engines in nearly 725,000 Ford cars and SUVs.”

According to the article the investigation covers 2009, 2010 and 2011 models and applies to the following vehicles:

➢ Ford Escape SUV

February 22, 2013

Oregon Product Liability Issues Raised in Tainted Peanut Case

by Matthew D. Kaplan

The Oregonian noted this afternoon that the FBI is asking people across the United States to contact it regarding illnesses traceable to tainted peanuts.

The case began in 2009 with an investigation by the Food and Drug Administration which found a Georgia plant run by Peanut Corporation of America (PCA) to be “filthy, with dead rodents and droppings, and that the company sold tainted products and sometimes had them retested after a positive salmonella test,” the newspaper reports. The FBI statement comes one day after four top executives from Peanut Corporation of America were indicted on federal conspiracy, wire fraud and obstruction of justice charges, a legal move that goes far beyond what is normal in federal cases of this type.

The FBI statement (see link below) asks victims of the tainted food to fill out a confidential form so that they can be kept notified of developments in the case. The newspaper notes that in a highly unusual move, “the ad does not limit itself to patients, either. It asks anyone affected by the outbreak – which could include the hundreds of companies that recalled products – to respond.” According to the newspaper’s report, 700 people, including 15 here in Oregon, became ill after eating tainted products traced to the factory. Among those sickened, nine deaths were also reported.

February 19, 2013

National Program Presses for More Bike Lanes

by Matthew D. Kaplan

A recent article at Atlantic Cities, a subsection of The Atlantic magazine’s website, looks at efforts to make American cities more bike-friendly. Its focus is the Green Lane Project (GLP), which is organized by the national advocacy group Bikes Belong.

As the magazine explains, the GLP’s goal is to help cities “adopt high-quality bicycle infrastructure – bike lanes where people can ride with at least some protection from car traffic in the form of bollards, parked cars, raised pavement or other separation.” The project is focusing its efforts on Austin, San Francisco, Chicago, Memphis, Washington D.C. … and Portland. “The GLP hopes to educate municipal planners and engineers, increase the visibility of such lanes, and make them part of a mainstream approach to designing urban streets.”

As we know here in Portland – and as a photo from San Francisco’s Market Street accompanying the article illustrates – green-painted bike lanes are not always separated from motorized traffic. The broader point of the project, however, is to rethink city streets in ways that make it less intimidating for casual cyclists to share the road with cars and trucks. Activists hope that, in turn, will make urban biking more mainstream and less about “messengers and Lycra-clad road riders.”