Oregon Personal Injury Lawyer Blog

Will $677 Million Nursing Home Verdict Lead to Better Care?

Thu, 02 Sep 2010 06:33:17 -0800

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

Boy Scouts & Mormons Settle Some Oregon Sex Abuse Cases

Thu, 02 Sep 2010 06:06:36 -0800

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

Woman Sues Jersey Shore Cast and Company for Assault.

Mon, 30 Aug 2010 09:29:57 -0800

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.

Eye Black and Black Eyes in College Football

Fri, 20 Aug 2010 23:54:46 -0800

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

Dog Bite Lawsuits Increase in Numbers & Dollars.

Wed, 18 Aug 2010 14:46:48 -0800

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

Oregon Legal Malpractice Claims: Statistics From the Insurer.

Mon, 16 Aug 2010 13:48:53 -0800

Oregon attorneys must have malpractice insurance through the (PLF). PLF statistics provide an interesting look into claims made against Oregon attorneys.

Areas of Law

What are people suing lawyers about? Between 2000 and 2009, clients made claims against Personal Injury lawyers most often, accounting for 17% of claims. A close second was Divorce & Family Law attorneys at 16%. The remainder follow:

Bankruptcy Attorneys: 12%
Real Estate Attorneys: 11%
Business & Commercial Law: 10%
Estate Planning and Estate Tax 10%
Criminal lawyers: 7%
Others: 5%

Number of Claims & How Resolved.

Numbers of claims go up and down over the years ranging from a low of 780 in 2006 to 973 in 2009. Only about 4% of all claims go to trial. 39% of the claims are denied or abandoned. 19% of the time, the PLF hires lawyers to fix the problems created by the negligent attorney. 26% settle before litigation and 12% settle or are dismissed during litigation. Of those 4% that actually go to judgment, the PLF wins 3 out of 4 times. That's good; an insurance company should settle when the attorney malpracticed and defend a lawyer who did no wrong.

Conclusion

People rely on lawyers for help, and when attorneys commit legal malpractice, the clients should not hesitate to contact another lawyer for to determine whether it makes sense to file a claim with the Oregon's Professional Liability Fund.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Disney's Donald Duck, not Oregon Duck, Accused of Groping Woman

Fri, 13 Aug 2010 08:36:58 -0800

A woman sued Disney claiming that Donald Duck sexually assaulted her. The 27-year old woman's lawsuit alleges that Donald Duck grabbed at her breasts and then made a gesture as if he'd done something bad. It's not my case, so I can't add to the news article. However, as a loyal Oregon Duck fan (and disloyal Stanford Alum) I wanted to make sure the world knows that the accused was a Disney Duck, not the Oregon Duck.

Oregon's Duck is not pure as Snow White. Admitedly, Puddles has been seen on a Harley, and performs in rap videos. However, I refuse to stereotype Harley riders or rap artists.

Oregon's Duck was accused of assaulting a cougar (a mascot, not an older woman), but that was not alleged to be a sexual assault. (Some claim that the video was a total fabrication.) But, like the much maligned Massoli, Puddles pleaded guilty and accepted the punishment.

No, Oregon's Duck is a hardworking member of the University of Oregon community. Regardless of the merits of the lawsuit against the Disney Duck, my hope is that the negative publicity will not spread to Puddles.

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

Fired Football Coach Mike Kramer Settles with MSU for $240,000

Thu, 12 Aug 2010 08:49:36 -0800

Montana State University agreed to pay Mike Kramer $240,000 to settle the lawsuit he filed arising out of his termination in 2007. The court threw out some of his claims, including breach of contract. What remained for trial was whether MSU libeled, slandered or defamed Mike Kramer when it remarked on the termination.

Montana State terminated Kramer after police arrested players for trafficking cocaine and after the school lost scholarships for not meeting NCAA academic requirements. Kramer believed that comments referring to this as a "crises in leadership," for which he was responsible, hurt his ability to land another coaching job.

In Oregon, defamation claims require proof of the following:

A false statement.
The statement is communicated to a third person.
The statement tends to diminish the person's reputation, and
Either damage or a statement that is hurtful "per se.

" Typically, a person must prove harm or money loss before a court will get involved. The exceptions are for statements that we consider "defamatory per se." Examples include statements that a person has a "loathsome disease," are unfit for their employment duties, committed a crime involving "moral turpitude," or other statements that prejudice someone in their profession.

Although I did not see the paperwork in Coach Kramer's case, it appears that the trial would have proceeded on the claim that he was defamed by statements imputing an inability to lead a football program.

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.

Whistleblower Nurses Settle Claims for $750,000

Wed, 11 Aug 2010 21:30:37 -0800

It was "not about the money," said one of the nurses who sent an anonymous letter alerting officials to the questionable practices of a doctor. The doctor went to his sheriff friend to investigate who sent the letter, and county charged the nurses with felony misuse of information. The whistleblowing nurses sued the county for the vindictive prosecution. Today, the county approved a settlement.

The Oregon nurses I've represented have been among the most caring and ethical professionals I've known. Nurses seem to learn fast that they will never have the biggest ego in the hospital, but rarely do nurses take second place when it comes to caring for patients.

And it is not just in hospitals. Nurses and staff in assisted living facilities work their tails off because, typically, the facilities do not employ enough staff to meet all of the promises made by the nursing homes. Too often, when staff becomes a "squeaky wheel" or report to officials, they find themselves in trouble, written up, and fired. Fortunately, Oregon law protects whistleblowers in assisted living facilities, nursing homes and other places.

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

Intelius Settles Claimed Violations of Consumer Protection Act.

Tue, 10 Aug 2010 23:28:57 -0800

Washington State's Attorney General announced settlement of claims of unfair and deceptive practices by Intelius, an online seller of personal information. Intelius agreed to pay $1.3 million to resolve claims that it, basically, tricked people into signing up for a $20 per month service after consumers purchased the information they intended to buy but before they could complete the online checkout.

Attorney General Robert McKenna described the process as an "online labyrinth" designed to confuse and trap people. Although it took seconds sign up for the program, the company made cancelling a maddening process of long telephone waits and ignoring requests..

The 40-page legal complaint details the scheme and the sections of Washington law upon which the Attorney General proceeded. Oregon has similar consumer protection laws.

Too often, companies get away with tricking people out of $40 dollars here and $80 dollars there because people figure it is not worth their time to fight. When companies do this to thousands and thousands of people, then they can make millions of dollars. Here, Intelius got $62 million dollars from the program. In these situations where a little money is obtained from thousands of people, it takes Attorneys General and private lawyers to enforce the civil law.

Yes, we "trial lawyers" are the targets of Republican Politicians and comedians. But without us, there would be very few "cops" protecting consumers from alleged crooks.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Electronic Cigarettes Violate Oregon's Unlawful Trade Practices Act

Tue, 10 Aug 2010 14:46:37 -0800

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

Oregon Court Holds Teacher Quit With Good Cause

Mon, 09 Aug 2010 19:02:13 -0800

Last week, the Oregon Supreme Court ruled in favor of a Klamath County schoolteacher who quit under threat of termination. Robert McDowell and his attorneys fought 3½ years for this result and for his unemployment compensation. Finally, common sense prevailed.

Here are the facts. Robert McDowell was a probationary teacher of language arts and drama in Klamath County. He showed his class a 10-minute film clip from "Glengarry Glen Ross," which contained some profanity for the ears of the senior class of the high school. That was against policy, because the teacher did not obtain advance approval. But here's the thing: no one ever told him he needed to get approval. So, someone said, "gotcha," which seems ridiculously unfair.

The employer needed no reason at all to fire a probationary employee. So, when the personnel director advised Robert of his decision to recommend termination to the School Board, Robert took it seriously. The union's attorney told Robert that the School Board always goes along with the recommendations. Consequently, on the day the School Board met, Robert resigned to protect his ability to ever get another teaching job.

Somehow, it took the Oregon Supreme Court to see that a reasonable person would have quit under the circumstances, which is one of the legal standards to qualify for unemployment compensation.

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

Lessons from HP CEO Mark Hurd's Sexual Harassment

Sat, 07 Aug 2010 09:37:02 -0800

Yesterday, I met with people who were harassed on the job in Bend, Oregon. The bad boss, in Bend, was an idiot in an unprofessional organization. Sometimes, we think that people and companies who violate the laws against sexual or racial harassment must be unsophisticated. The news about Mark Hurd resigning as Chief Executive Officer of Hewlett-Packard because of sexual harassment shows that women and others are not safe even in the most sophisticated workplaces in the world.

HP's press release does what it must. It acknowledges that Mr. Hurd was caught, and HP reinforced the allegedly high corporate standards that are observed in their breaking. It goes on to assure shareholders that all's well in the corporation. Ironically, HP still has posted the statement from Mark Hurd in 2006, also commenting on the company's standards of ethics being broken under the reign of Senate Candidate Carly Fiorina.

Sexual harassment at work continues to be a problem. Sexual harassment is not just men wanting sex from women. It also includes mistreatment of women even when no sex is at issue. For example, I settled a case arising out of a Portland, Oregon warehouse, where the men verbally abused the only woman worker. Giving women the crummy jobs is another form of harassment. So be alert: harassment is just another form of discrimination based upon gender - sometimes sex or requests for sex or dates has nothing to do with it.

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

Proposition 8 is Unconstitutional, Rules the Trial Court.

Thu, 05 Aug 2010 02:18:52 -0800

United States District Court for the Northern District of California ruled that Proposition 8 is unconstitutional. The court's opinion is meticulous. The opinion reveals that the lawyers were extremely careful to create a record to support every contention asserted and to undercut the myths of the Prop 8 proponents.

Because the court and the lawyers grounded findings in the trial court record, the Ninth Circuit should uphold it.

The Supreme Court? Unfortunately, these days, the only rule that seems to control the U.S. Supreme Court is the "Rule of Five." By that, I mean that the Supremes seem unbound by any legal standards and perform legal gymnastics to reach the results that five of them want. The Rehnquist Court was the most activist in our nation's history, and the Roberts Court seems to be following its lead. Nevertheless, the care and seriousness with which the parties and the court addressed Proposition 8 might require the Five Supremes to bend and twist like Cirque du Soliel to circumvent the trial court record.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Medford Rollover Crash Shows That Cars & Trucks Are Not Toys

Tue, 03 Aug 2010 16:32:47 -0800

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